Michael J. Meaney Writer's Direct Dial Number
(216) 363-4436
January 9, 1998
Securities & Exchange Commission
450 Fifth Street, NW
Washington, DC 20549
Re: Maxus Income Fund, File Nos. 2-94197 and 811-04144
Maxus Equity Fund, File Nos. 033-30003 and 811-5865
Maxus Laureate Fund, File Nos. 033-58514 and 811-07516
Gentlemen:
Enclosed is a Schedule 14A with attached proxy materials for each of the above
Funds. The three filings are identical, since we are using a single combined
proxy statement for the three Funds.
The primary purpose of the proposals is to adopt a structure providing for two
classes of shares.
MaxFund Trust, another entity in the Maxus complex, recently filed a Form N-1A
Registration Statement (Nos. 333-41555 and 811-8499) for two new Funds which
will have this same dual class structure. Brion Thompson is the examiner.
The effect of the enclosed proposals is that all of the Funds in the Maxus
complex will have the same dual class structure.
Very truly yours,
Michael J. Meaney
Enclosures
<PAGE>
SCHEDULE 14A
(RULE 14a)
INFORMATION REQUIRED IN PROXY STATEMENT
SCHEDULE 14A INFORMATION
PROXY STATEMENT PURSUANT TO SECTION 14(a) OF
THE SECURITIES EXCHANGE ACT OF 1934
(AMENDMENT NO. )
Filed by the Registrant [X]
Filed by a Party other than Registrant [ ]
Check the appropriate box:
[X] Preliminary Proxy Statement [ ] CONFIDENTIAL, FOR USE OF THE
COMMISSION ONLY (AS
[ ] Definitive Proxy Statement PERMITTED BY RULE 14a-6(e)(2))
[ ] Definitive Additional Materials
[ ] Soliciting Material Pursuant to Sec. 240.14a-11(c) or Sec. 240.14a-12
MAXUS LAUREATE FUND
(NAME OF REGISTRANT AS SPECIFIED IN ITS CHARTER)
XXXXXXXXXX
(NAME OF PERSON(S) FILING PROXY STATEMENT, IF OTHER THAN THE REGISTRANT)
Payment of Filing Fee (Check the appropriate box):
[X] No fee required.
[ ] Fee computed on table below per Exchange Act Rules 14a-6(i)(4) and 0-11.
(1) Title of each class of securities to which transaction
applies:
(2) Aggregate number of securities to which transaction applies:
(3) Per unit price or other underlying value of transaction
computed pursuant to Exchange Act Rule 0-11 (Set forth the
amount on which the filing fee is calculated and state how it
was determined:
(4) Proposed maximum aggregate value of transaction:
(5) Total fee paid:
[ ] Fee paid previously with preliminary materials.
[ ] Check box if any part of the fee is offset as provided by Exchange
Act Rule 011-(a)(2) and identify the filing for which the offsetting
fee was paid previously. Identify the previous filing by registration
statement number, or the Form or Schedule and the date of its filing.
(1) Amount Previously Paid:
(2) Form, Schedule or Registration Statement No.:
(3) Filing Party:
(4) Date Filed:
<PAGE>
MAXUS INCOME FUND
MAXUS EQUITY FUND
MAXUS LAUREATE FUND
NOTICE OF SPECIAL MEETING OF SHAREHOLDERS
To Be Held February ___, 1998
A Special Meeting of Shareholders of each Fund listed above will be
held at _________ ___________________________________________, Ohio, at ________
p.m., local time, on ________________, February ___, 1998 for the following
purposes:
1. To elect five Trustees for each Fund.
2. To consider and act upon a proposal to adopt an Amended and Restated
Declaration of Trust for each Fund.
3. To consider and act upon a proposal to adopt a Distribution and
Shareholder Servicing Plan for each Fund.
4. To transact such other business as may properly come before the
meeting or any adjournment thereof.
Shareholders of record as of the close of business on December 31, 1997
are entitled to vote at the meeting or any adjournment thereof.
Robert W. Curtin,
Secretary
Cleveland, Ohio
January ___, 1998
WHETHER OR NOT YOU EXPECT TO BE PRESENT AT THE MEETING, PLEASE COMPLETE AND
RETURN THE ENCLOSED PROXY CARD (OR CARDS IF YOU OWN SHARES IN MORE THAN ONE
FUND). YOU MAY STILL VOTE IN PERSON IF YOU ATTEND THE MEETING.
<PAGE>
PROXY STATEMENT
The accompanying proxy (or proxies if you own shares in more than one
fund) is solicited by the Trustees of Maxus Income Fund, Maxus Equity Fund and
Maxus Laureate Fund (each a "Fund" and collectively the "Funds") for use at a
Special Meeting of Shareholders of the Funds, to be held jointly at
__________________________________________________, Ohio at _____ p.m., local
time, on February ____, 1998.
Shareholders may vote only on matters which concern the Fund or Funds
in which they hold shares. Shareholders of record as of the close of business on
the record date, December 31, 1997, are entitled to vote at the Special Meeting
or any adjournment thereof. As of that date, there were issued and outstanding
shares of beneficial interest of each Fund in the following amounts, each of
which is entitled to one vote at the Special Meeting: Maxus Income Fund,
3,413,896; Maxus Equity Fund, 3,051,358; and Maxus Laureate Fund, 327,019.
This proxy statement and the accompanying proxy card(s) are being
mailed to shareholders on or about January ___, 1998.
The Funds will furnish, without charge, a copy of their Annual Report
to any shareholder who requests it by contacting Justine Marquit, Maxus
Investment Group, The Tower at Erieview, 36th Floor, 1301 East Ninth Street,
Cleveland, Ohio 44114 (Call toll-free 1-800-44- MAXUS).
SUMMARY OF PROPOSALS
The following table summarizes the proposals described in this Proxy
Statement and indicates whether or not a Fund's shareholders are solicited with
respect to each proposal:
Maxus Maxus Maxus
Proposals Income Fund Equity Fund Laureate Fund
- ------------------------------- ----------- ----------- -------------
1. Elect Trustees Yes Yes Yes
2. Adopt Amended and Restated Yes Yes Yes
Declaration of Trust
3. Adopt Distribution and Yes Yes Yes
Shareholder Services Plan
Shareholders of each Fund will vote separately with respect to each
proposal upon which such shareholders are eligible to vote.
<PAGE>
PROPOSAL 1. ELECTION OF TRUSTEES
It is the intention of the persons named in the accompanying proxy card
(or cards) to vote at the Special Meeting for the election of the nominees named
below as Trustees of each Fund. If Proposal 2 is adopted at the Special Meeting,
such nominees will, if elected, serve for an indefinite term. If Proposal 2 is
not adopted at the Special Meeting, such nominees will, if elected, serve until
the next Annual Meeting and until their successors are elected and qualified.
Each such nominee has consented to being named herein and to serve if elected.
If any such nominee should be unable to serve, an event not now anticipated, the
persons named as proxies may vote for other persons in their discretion. A
shareholder may instruct the persons named as proxies not to vote the shares
represented by his proxy for any or all of the nominees for election. The
affirmative vote of holders of a majority of shares represented at the meeting
is required for election of such nominees.
Information Concerning Nominees
The information concerning the nominees set forth in the following
table is based in part on information received from the respective nominees and
in part on the records of the Funds:
<TABLE>
<S> <C> <C>
Name and Position Principal Occupation During Past Number and Percentage of Shares
with the Funds (1) Five Years and Age Beneficially Owned (1); Trustee Since
- -------------------------- --------------------------------------- -------------------------------------------
Richard A. Barone* President of Maxus Securities Corp Income: 75,109 (2.2%); 1985
Chairman (broker-dealer), Maxus Asset Equity: 70,180 (2.3%); 1989
Management Inc. (investment adviser) Laureate: 10,090 (3.1%); 1993
and Resource Management Inc.,
DBA Maxus Investment Group
(financial services); Age 56.
Denis J. Amato* Chief Investment Officer, Gelfand.Maxus Income: 937 (2); 1998
Asset Management, Inc. (investment Equity: 0; 1998
adviser) since 1997; previously, Laureate: 0; 1998
Managing Director, Gelfand Partners
Asset Management (investment
adviser).
Burton D. Morgan Chairman, Morgan Bank (Hudson, Income: 10,144 (2); 1987
Trustee Ohio); President, Basic Search Inc. Equity: 0; 1991
(venture capital); Chairman, Laureate: 1 (2); 1993
Multi-Color Corporation (printing);
Chairman, Morgan Funshares, Inc.
(mutual fund); Age 81.
Murlan J. Murphy, Jr. Independent Investor; Age 51. Income: 0; 1997
Trustee Equity: 91 (2); 1997
Laureate: 0; 1997
Michael A. Rossi Certified Public Accountant; Age 43. Income: 0; 1989
Trustee Equity: 693 (2); 1990
Laureate: 0; 1993
</TABLE>
* Mr. Barone and Mr. Amato are "interested persons" as defined by the
Investment Company Act of 1940 (the "Act") of each Fund by reason of their
relationship with Maxus Asset Management Inc.
<PAGE>
(1) Shares beneficially owned as of December 31, 1997.
(2) Constitutes less than 1% of outstanding shares.
As of January 12, 1998, all seven officers and Trustees as a group
beneficially owned the following numbers of shares (and percentages of
outstanding shares) of each Fund: Maxus Income Fund, 86,431 (2.5%); Maxus Equity
Fund, 72,764 (2.4%) and Maxus Laureate Fund, 10,091 (3.1%).
Four meetings of the Board of Trustees of each Fund were held during
1997. Each incumbent Trustee attended at least 75% of the meetings of the Board
of Trustees during the year except Michael A. Rossi.
None of the Funds has a standing audit committee or nominating
committee of the Board of Trustees.
Executive Officers
In addition to the Chairman of the Board (Mr. Barone), each Fund has
the following executive officers:
Principal Occupation During
Name and Position with the Funds (1) Past Five Years and Age
- ------------------------------------ -----------------------------------------
Robert J. Conrad, Vice President Vice President, Resource Management Inc.;
formerly Vice President, American Income
Plus; Age 34.
Robert W. Curtin, Secretary Senior Vice President and Secretary,Maxus
Securities Corp.; formerly Executive Vice
President, Roulston & Company, Inc.;
Age 53.
(1) Mr. Conrad has served since 1998 and Mr. Curtin has served since 1994.
Compensation of Trustees
During 1997, each Fund paid a fee of $100 for each Board or
shareholders meeting attended by each Trustee who is not an interested person of
Maxus Asset Management Inc. ("MAM"). Such fees, which were the only compensation
or benefits paid to incumbent Trustees, are summarized in the following table:
<PAGE>
COMPENSATION TABLE
- --------------------------------------------------------------------------------
Aggregate Compensation Total Compensation from
Name of Trustee* from Each Fund All Funds Paid to Trustees
- --------------------------------------------------------------------------------
Richard A. Barone $ 0 $ 0
Burton D. Morgan $400 $1,200
Murlan J. Murphy $200 $ 600
Michael A. Rossi $200 $ 600
- --------------------------------------------------------------------------------
*Denis J. Amato was not a Trustee during 1997.
As of January 1, 1998, each Trustee who is not an interested person of
MAM will receive from each Fund the following fees for each Board or shareholder
meeting attended: $100 per meeting if the net assets of such Fund are under
$10,000,000; $200 per meeting if the net assets of such Fund are between
$10,000,000 and $50,000,000; or $300 per meeting if the net assets of such Fund
are over $50,000,000.
Investment Advisory and Administration Agreement
The investments of each Fund are managed by MAM pursuant to an
Investment Advisory and Administration Agreement (the "Agreement"). The
Agreement provides that as compensation for its services to each Fund, MAM is
entitled to receive from the Fund an annual fee of 1% of the first $150,000,000
of such Fund's average daily net asset value and 0.75% of average daily net
asset value in excess of $150,000,000, payable monthly. For 1997, MAM received
management fees from each Fund in the following amounts: Maxus Income Fund,
$358,680; Maxus Equity Fund, $471,080; and Maxus Laureate Fund, $13,924.
MAM is a wholly-owned subsidiary of Resource Management Inc. ("RMI").
Richard A. Barone, Chairman of each Fund, is the president and controlling
shareholder of RMI. Mr. Barone is the principal executive officer (president)
and a Director of MAM.
Transfer Agency, Portfolio Pricing and Related Services
Each Fund has entered into an Administration Agreement with Maxus
Information Systems, Inc. ("MIS"), The Tower at Erieview, 36th Floor, 1301 East
Ninth Street, Cleveland, Ohio 44114, pursuant to which MIS has agreed to act as
each Fund's Transfer, Redemption and Dividend Disbursing Agent and as
Administrator of Plans of the Fund. In addition, each Fund has entered into an
Accounting Services Agreement with MIS, pursuant to which MIS has agreed to
provide portfolio pricing and related services. MIS is a subsidiary of RMI, the
parent company of MAM. For 1997, the Funds paid MIS the following amounts under
the Administration Agreement and the Accounting Services Agreement: Maxus Income
Fund, $42,363; Maxus Equity Fund, $44,569; and Maxus Laureate Fund, $21,533.
<PAGE>
PROPOSAL 2. ADOPTION OF AMENDED AND RESTATED DECLARATION OF
TRUST
The Trustees recommend that the shareholders of each Fund approve the
adoption of a Second Amended and Restated Declaration of Trust for Maxus Income
Fund (attached to this Proxy Statement as Exhibit A) and an Amended and Restated
Declaration of Trust (in form identical to Exhibit A except for the Fund name)
for each of Maxus Equity Fund and Maxus Laureate Fund. These instruments are
referred to collectively as the "Amended Declaration."
The principal reasons for adoption of the Amended Declaration are to
create a series and multi-class structure for the shares of each Fund and to
eliminate the requirement for holding annual meetings of shareholders.
Series Structure
At present, each Fund is authorized to issue shares of only a single
portfolio. The Amended Declaration would allow the issuance of multiple series
of shares so that each Fund can offer investment portfolios other than the
current Funds. This structure allows one business trust to offer several mutual
funds, each identified as a separate series of shares. By the Amended
Declaration, the Trustees would have the authority, without further shareholder
approval, to create series of shares which each represent distinct portfolios of
investments with their own separate investment objectives and policies.
Assets and liabilities of a series of shares are distinct and separate
from other series, although certain expenses of the business trust not
identifiable to a series are allocated among the series pro rata. Each series of
shares has its own net asset value. Shareholders of each series vote on matters
specifically applicable to the series, including such matters as approval of
management agreements and distribution plans. On matters affecting the business
trust as a whole, such as approval of auditors and election of Trustees, all
series would vote as a group.
At the present time, the Trustees have not authorized the creation of
additional series of shares and have no current intention to do so.
Multi-Class Structure
A multi-class structure involves the issuance of two or more classes of
shares within each series of shares. Each class has a different arrangement for
shareholder services or the distribution of shares or both, and pays all of the
expenses of that arrangement. The purpose of the multi-class structure is to (i)
facilitate distribution of each Fund's shares; (ii) help maintain the
competitive position of each Fund in relation to other funds that have
implemented or are seeking to implement similar distribution arrangements; (iii)
enable investors to choose the option best suited to their individual
situations, thereby attracting new investors and assets to the Funds to the
benefit of the Funds and their shareholders; and (iv) permit possible economies
of scale through increased size of the Funds.
<PAGE>
By the Amended Declaration, the Trustees would have the authority,
without further shareholder approval, to create classes of shares with such
preferences, rights and privileges as the Trustees determine, subject to the
requirements of the Investment Company Act of 1940 (the "1940 Act"). Specific
classes of shares may or may not be available to any particular group or type of
investors.
Subject to shareholder approval of the Amended Declaration, the Board
has approved a proposal to begin offering shares in the multi-class structure
upon effectiveness of a registration statement filed with the Securities and
Exchange Commission. Two "classes" of shares of each Fund would be authorized
and designated "Investor Shares" and "Institutional Shares". Presently
outstanding shares would be reclassified as Investor Shares, which would have
the same fee structure as the current shares of each Fund and would continue to
be offered to all investors with a minimum initial investment of $1,000.
Institutional Shares would be offered without a distribution or "12b-1" fee and
would be offered solely to certain financial institutions meeting certain
requirements established by the Fund, with a minimum initial investment of
$1,000,000. The Trustees have determined that this structure should enable the
Funds to attract additional investments by institutional investors, to the
benefit of the Funds and all of their shareholders
IMPLEMENTATION OF THE MULTI-CLASS STRUCTURE WOULD NOT ALTER THE RIGHTS
AND PRIVILEGES OF THE CURRENT SHAREHOLDERS OF ANY OF THE FUNDS, NOR WILL IT
AFFECT THE NET ASSET VALUE OF A CURRENT SHAREHOLDER'S INVESTMENT IN ANY OF THE
FUNDS.
Annual Shareholder Meetings
The existing declaration of trust of each Fund requires each Fund to
hold an annual meeting of shareholders for the purpose of electing Trustees. The
holding of an annual meeting is not required by law and involves legal, printing
and other expenses which are borne by the Fund and its shareholders. The
Trustees have determined that it would be in the best interests of each Fund and
its shareholders to eliminate the annual meeting requirement and thereby avoid
those expenses.
Under the Amended Declaration, the annual meeting requirement would be
eliminated and Trustees would serve for an indefinite term. However,
shareholders of each Fund would continue to have the right to vote at special
meetings of shareholders required to be called by such Fund with respect to
certain matters specified by the 1940 Act and the Amended Declaration.
The affirmative vote of a majority of the outstanding shares of each
Fund is required to approve this proposal.
THE TRUSTEES OF EACH FUND UNANIMOUSLY RECOMMEND THAT SHAREHOLDERS VOTE
FOR APPROVAL OF THE AMENDED DECLARATION.
<PAGE>
PROPOSAL 3. ADOPTION OF NEW DISTRIBUTION AND SHAREHOLDER
SERVICING PLAN
Each Fund has a Plan of Distribution pursuant to Rule 12b-1 (the
"Existing Plan"), pursuant to which each Fund may bear the expenses of certain
activities primarily intended to result in the sale of Fund shares to the
public. Under the Existing Plan, each Fund may expend as much as .50% of its
average net assets annually.
Pursuant to the Existing Plan, each Fund is a party to a Distribution
Agreement with Maxus Securities Corp ("MSC"). MSC is a wholly-owned subsidiary
of RMI, a corporation controlled by Richard A. Barone, Chairman of each Fund.
The Distribution Agreement (i) provides for the payment by the Fund to MSC of a
distribution fee of .25% of average net assets (payable without regard to the
amount of expenses incurred by MSC) and (ii) authorizes MSC to make payments for
activities and expenses permitted by the Plan and provides that the Fund shall
reimburse MSC for such expenditures, in addition to payment of the distribution
fee. In 1997, Maxus Income Fund, Maxus Equity Fund and Maxus Laureate Fund paid
distribution fees and reimbursements to MSC in the amounts of $179,342, $235,541
and $18,091, respectively, constituting .50% of the average net assets of each
Fund.
In light of the proposals to implement the multi-class structure as
discussed above under Proposal 2, the Trustees approved, subject to shareholder
approval, a new Distribution and Shareholder Servicing Plan (the "New Plan"),
which would supersede the Existing Plan. The principal purpose of the New Plan
is to conform to the multi-class structure by providing that the services
thereunder be provided only to holders of Investor Shares and that only the
Investor Shares would bear distribution expenses. Distribution expenses under
the New Plan would continue to be limited to .50% of average net assets of the
Investor Shares of each Fund. A copy of the New Plan of Maxus Income Fund is
attached hereto as Exhibit B; the New Plans of Maxus Equity Fund and Maxus
Laureate Fund are identical except for the name of the Fund. The New Plan of
each Fund would become effective concurrently with the Amended Declaration of
each Fund.
The Trustees also have approved a new Distribution Agreement between
each Fund and MSC, subject to approval by shareholders of the New Plan. Under
the new Distribution Agreement, pursuant to the New Plan the Fund would pay MSC
a distribution and shareholder servicing fee of .50% of average net assets of
the Investor Shares, payable without regard to the amount of expenses incurred
by MSC.
THE NEW PLAN WILL NOT INCREASE THE AMOUNT OF EXPENSES BORNE BY EXISTING
SHAREHOLDERS OF ANY OF THE FUNDS.
The affirmative vote of at least 67% of the shares of each Fund
represented at the meeting (if more than 50% of the outstanding shares of such
Fund entitled to vote are represented at the meeting) or a majority of the
outstanding shares of such Fund, whichever is less, is required to approve this
proposal.
<PAGE>
THE TRUSTEES OF EACH FUND UNANIMOUSLY RECOMMEND THAT SHAREHOLDERS VOTE
FOR APPROVAL OF THE NEW PLAN.
BENEFICIAL OWNERSHIP
As of December 31, 1997, the only person known by Maxus Income Fund to
be the beneficial owner of more than 5% of the outstanding shares of such Fund
was Select Restaurant Acquisitions Corp., 30050 Chagrin Boulevard, Pepper Pike,
Ohio 44124, which owned 197,455 shares (5.8% of the outstanding shares) as of
that date.
As of December 31, 1997, no person was known by Maxus Equity Fund or
Maxus Laureate Fund to be the beneficial owner of more than 5% of the
outstanding shares of such Fund.
OTHER MATTERS
The Trustees know of no business to be brought before the meeting
except as set forth above. If, however, any other matters properly come before
the meeting, the persons named in the enclosed proxy card(s) intend to vote on
such matters in accordance with their best judgment.
REVOCATION OF PROXIES
Any person giving a proxy has power to revoke it at any time prior to
its exercise by executing a superseding proxy by submitting a notice of
revocation to the Secretary of the Funds. In addition, a shareholder present at
the meeting may withdraw his proxy and vote in person. All properly executed and
unrevoked proxies received in time for the meeting will be voted in accordance
with the instructions contained therein. If no specification is made on a proxy,
it will be voted for the election of Trustees and for each of the Proposals
described in this Proxy Statement.
SOLICITATION OF PROXIES
Proxies will be solicited by mail and may also be solicited in person
or by telephone by officers or Trustees of the Funds. The cost of preparing and
mailing this statement and the accompanying proxy card(s) will be borne by the
Funds.
Although neither Ohio law nor the Declaration of Trust or By-laws of
the Funds specifically provide for such matters, the policy and practice of each
Fund is that (i) properly executed proxies that are marked "abstain" or are held
in "street name" by brokers that are not voted on one or more proposals (if
otherwise voted on at least one proposal) will be counted for purposes of
determining whether a quorum has been achieved at the Special Meeting, and (ii)
abstentions and broker non-votes will not be treated as either a vote for or a
vote against any of the proposals to which such abstention or broker non-vote
applies.
<PAGE>
PROPOSALS OF SECURITY HOLDERS
If Proposal 2 is adopted at the Special Meeting, the Funds will not be
required to hold an annual meeting of shareholders, but the Funds will be
required to call a special meeting of shareholders under certain circumstances.
See "Proposal 2. Adoption of Amended and Restated Declaration of Trust -- Annual
Shareholder Meetings".
Any shareholder wishing to submit a proposal to be considered at the
next meeting of shareholders of the Funds must submit such proposal a reasonable
time before the solicitation of proxies in respect of such meeting is made. The
mere submission of a proposal will not guarantee that such proposal will be
presented at the meeting because, in order to be so presented, a proposal must
meet certain requirements of the federal securities laws.
The mailing address of the Funds is The Tower at Erieview, 36th Floor,
1301 East Ninth Street, Cleveland, Ohio 44114.
By order of the Trustees
Robert W. Curtin,
Secretary
January ___, 1998
<PAGE>
Exhibit "A"
SECOND AMENDED AND RESTATED
DECLARATION OF TRUST
OF
MAXUS INCOME FUND
THIS SECOND AMENDED AND RESTATED DECLARATION OF TRUST is made this 12th
day of January, 1998 by the Trustees hereunder (hereinafter with any additional
and successor trustees referred to as the "Trustees") and by the holders of
shares of beneficial interest to be issued hereunder as hereinafter provided.
W I T N E S S E T H:
WHEREAS, this instrument amends and restates the First Amended and
Restated Declaration of Trust of Maxus Income Fund dated January 23, 1985, as
amended, which is amended and restated in its entirety to read as hereinafter
provided; and
WHEREAS, this instrument shall be effective upon the approval hereof by
a majority of the outstanding shares of the Trust and upon the filing of this
instrument with the Secretary of State of Ohio; and
WHEREAS, the Trustees have formed an unincorporated association in the
form of a business trust under the laws of the State of Ohio for the investment
and reinvestment of funds contributed thereto; and
WHEREAS, the Trustees have agreed to manage all property coming into
their hands as trustees of an Ohio business trust in accordance with the
provisions hereinafter set forth.
NOW, THEREFORE, the Trustees hereby declare that they will hold all
cash, securities and other assets, which they may from time to time acquire in
any manner as Trustees hereunder IN TRUST to manage and dispose of the same upon
the following terms and conditions for the pro rata benefit of the holders from
time to time of Shares, whether or not certificated, in this Trust as
hereinafter set forth.
ARTICLE I
Name and Definitions
Section 1. Name. This Trust shall be known as "Maxus Income
Fund".
Section 2. Definitions. Whenever used herein, unless otherwise
required by the context or specifically provided:
(a) The term "Commission" shall have the meaning provided
in the 1940 Act;
<PAGE>
(b) The "Trust" refers to the Ohio business trust
established by this Declaration of Trust, as amended
from time to time;
(c) "Shareholder" means a record owner of Shares of the
Trust;
(d) "Shares" means the equal proportionate transferable
units of interest into which the beneficial interest
in the Trust shall be divided from time to time or,
if more than one series or class of Shares is
authorized by the Trustees, the equally proportionate
transferable units into which each series or class of
Shares shall be divided from time to time, and
includes a fraction of a Share as well as a whole
Share;
(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) The term "Manager" is defined in Article IV, Section
5;
(g) The term "Person" shall mean an individual or any
corporation, partnership, joint venture, trust or
other enterprise;
(h) "Declaration of Trust" shall mean this Second Amended
and Restated Declaration of Trust as amended or
restated from time to time;
(i) "Bylaws" shall mean the Bylaws of the Trust as
amended from time to time;
(j) The term "series" or "series of Shares" refers to the
one or more separate investment portfolios of the
Trust into which the assets and liabilities of the
Trust may be divided and the Shares of the Trust
representing the beneficial interest of Shareholders
in such respective portfolios; and
(k) The term "class" or "class of Shares" refers to the
division of Shares representing any series into two
or more classes as provided in Article III, Section 1
hereof.
ARTICLE II
Purposes of Trust
This Trust is formed for the following purpose or purposes:
(a) to conduct, operate and carry on the business of an
investment company;
(b) to subscribe for, invest in, reinvest in, purchase or
otherwise acquire, hold, pledge, sell, assign,
transfer, lend, write options on, exchange,
distribute or otherwise dispose of and deal in and
with securities of every nature, kind, character,
type and form, including, without limitation of the
generality of the foregoing, all types of stocks,
shares, futures contracts, bonds, debentures, notes,
bills and other negotiable or non-negotiable
<PAGE>
instruments, obligations, evidences of interest,
certificates of interest, certificates of
participation, certificates, interests, evidences of
ownership, guarantees, warrants, options or evidences
of indebtedness issued or created by or guaranteed as
to principal and interest by any state or local
government or any agency or instrumentality thereof
by the United States Government or any agency,
instrumentality, territory, district or possession
thereof, by any foreign government or any agency,
instrumentality, territory, district or possession
thereof, by any corporation organized under the laws
of any state, the United States or any territory or
possession thereof or under the laws of any foreign
country, bank certificates of deposit, bank time
deposits, bankers' acceptances and commercial paper;
to pay for the same in cash or by the issue of stock,
including treasury stock, bonds or notes of the Trust
or otherwise; and to exercise any and all rights,
powers and privileges of ownership or interest in
respect of any and all such investments of every kind
and description, including, without limitation, the
right to consent and otherwise act with respect
thereto, with power to designate one or more persons,
firms, associations or corporations to exercise any
of said rights, powers and privileges in respect of
any said instruments;
(c) to borrow money or otherwise obtain credit and to
secure the same by mortgaging, pledging or otherwise
subjecting as security the assets of the Trust;
(d) to issue, sell, repurchase, redeem, retire, cancel,
acquire, hold, resell, reissue, dispose of, transfer,
and otherwise deal in, Shares including Shares in
fractional denominations, and to apply to any such
repurchase, redemption, retirement, cancellation or
acquisition of Shares any funds or other assets of
the appropriate series or class of Shares, whether
capital or surplus or otherwise, to the full extent
now or hereafter permitted by the laws of the State
of Ohio;
(e) to conduct its business, promote its purposes, and
carry on its operations in any and all of its
branches and maintain offices both within and without
the State of Ohio, in any and all States of the
United States of America, in the District of
Columbia, and in any other parts of the world; and
(f) to do all and everything necessary, suitable,
convenient, or proper for the conduct, promotion, and
attainment of any of the businesses and purposes
herein specified or which at any time may be
incidental thereto or may appear conducive to or
expedient for the accomplishment of any of such
businesses and purposes and which might be engaged in
or carried on by a business trust organized under
Ohio Revised Code Chapter 1746, and to have and
exercise all of the powers conferred by the laws of
the State of Ohio upon an Ohio business trust.
The foregoing provisions of this Article II shall be construed both as
purposes and powers and each as an independent purpose and power.
<PAGE>
ARTICLE III
Beneficial Interest
Section 1. Shares of Beneficial Interest. The Shares of the Trust shall
be issued in one or more series as the Trustees may, without Shareholder
approval, authorize. Each series shall be preferred over all other series in
respect of the assets allocated to that series and shall represent a separate
investment portfolio of the Trust. The beneficial interest in each series at all
times shall be divided into Shares, with or without par value as the Trustees
may from time to time determine, each of which shall except as provided in the
following sentence, represent an equal proportionate interest in the series with
each other Share of the same series, none having priority or preference over
another. The Trustees may, without Shareholder approval, divide Shares of any
series into two or more classes, Shares of each such class having such
preferences and special or relative rights and privileges (including conversion
rights, if any) as the Trustees may determine. The number of Shares authorized
shall be unlimited, and the Shares so authorized may be represented in part by
fractional shares. From time to time, the Trustees may divide or combine the
Shares of any series or class into a greater or lesser number without thereby
changing the proportionate beneficial interests in the series or class.
Section 2. Ownership of Shares. The ownership of Shares will be
recorded in the books of the Trust or a transfer agent. The record books of the
Trust or any transfer agent, as the case may be, shall be conclusive as to who
are the holders of Shares of each series and class and as to the number of
Shares of each series and class held from time to time by each. No certificates
certifying the ownership of Shares need be issued except as the Trustees may
otherwise determine from time to time.
Section 3. Issuance of Shares. The Trustees are authorized, from time
to time, to issue or authorize the issuance of Shares at not less than the par
value thereof, if any, and to fix the price or the minimum price or the
consideration (in cash and/or such other property, real or personal, tangible or
intangible, as from time to time they may determine) or minimum consideration
for such Shares. Anything herein to the contrary notwithstanding, the Trustees
may issue Shares pro rata to the Shareholders of a series at any time as a stock
dividend, except to the extent otherwise required or permitted by the
preferences and special or relative rights and privileges of any classes of
Shares of that series, and any stock dividend to the Shareholders of a
particular class of Shares shall be made to such Shareholders pro rata in
proportion to the number of Shares of such class held by each of them.
All consideration received by the Trust for the issue or sale of Shares
of each series, together with all income, earnings, profits, and proceeds
thereof, including any proceeds derived from the sale, exchange or liquidation
thereof, and any funds or payments derived from any reinvestment of such
proceeds in whatever form the same may be, shall belong irrevocably to the
series of Shares with respect to which the same were received by the Trust for
all purposes, subject only to the rights of creditors, and shall be so handled
upon the books of account of the Trust and are herein referred to as "assets of"
such series.
<PAGE>
Shares may be issued in fractional denominations to the same extent as
whole Shares, and Shares in fractional denominations shall be Shares having
proportionately to the respective fractions represented thereby all the rights
of whole Shares, including, without limitation, the right to vote, the right to
receive dividends and distributions, and the right to participate upon
liquidation of the Trust or of a particular series of Shares.
Section 4. No Preemptive Rights; Derivative Suits. Shareholders shall
have no preemptive or other right to subscribe for any additional Shares or
other securities issued by the Trust. No action may be brought by a Shareholder
on behalf of the Trust or a series unless a prior demand regarding such matter
has been made on the Trustees and the Shareholders of the Trust or such series.
Section 5. Status of Shares and Limitation of Personal Liability.
Shares shall be deemed to be personal property giving only the rights provided
in this instrument. Every Shareholder by virtue of having become a Shareholder
shall be held to have expressly assented and agreed to the terms hereof and to
have become a party hereto. The death of a Shareholder during the continuance of
the Trust shall not operate to terminate the same nor entitle the representative
of any deceased Shareholder to an accounting or to take any action in court or
elsewhere against the Trust or the Trustees, but only to the rights of said
decedent under this Trust. Ownership of Shares shall not entitle the Shareholder
to any title in or to the whole or any part of the Trust property or right to
call for a partition or division of the same or for an accounting, nor shall the
ownership of Shares constitute the Shareholders partners. Neither the Trust nor
the Trustees, nor any officer, employee or agent of the Trust shall have any
power to bind any Shareholder or Trustee personally or to call upon any
Shareholder for the payment of any sum of money or assessment whatsoever other
than such as the Shareholder at any time personally may agree to pay by way of
subscription for any Shares or otherwise. Every note, bond, contract or other
undertaking issued by or on behalf of the Trust shall include a recitation
limiting the obligation represented thereby to the Trust and its assets or the
assets of a particular series (but the omission of such a recitation shall not
operate to bind any Shareholder or Trustee personally).
ARTICLE IV
Trustees
Section 1. Election. A Trustee may be elected either by the Trustees or
the Shareholders. The number of Trustees shall be fixed from time to time by the
Trustees and, at or after the commencement of the business of the Trust, shall
be not less than three. Each Trustee, whether serving as Trustee on the date
hereof or hereafter becoming a Trustee, shall serve as a Trustee during the
lifetime of this Trust, until such Trustee dies, resigns, retires, or is
removed, or, if sooner, until the next meeting of Shareholders called for the
purpose of electing Trustees and the election and qualification of his
successor. Subject to Section 16(a) of the 1940 Act, the Trustees may elect
their own successors and, pursuant to this Section, may appoint Trustees to fill
vacancies (including vacancies occurring by reason of an increase in the number
of Trustees).
<PAGE>
Section 2. Powers. The Trustees shall have all powers necessary or
desirable to carry out the purposes of the Trust, including, without limitation,
the powers referred to in Article II hereof. Without limiting the generality of
the foregoing, the Trustees may adopt By-Laws not inconsistent with this
Declaration of Trust providing for the conduct of the business of the Trust and
may amend and repeal them to the extent that they do not reserve that right to
the Shareholders; they may fill vacancies in their number, including vacancies
resulting from increases in their own number, and may elect and remove such
officers and employ, appoint and terminate such employees or agents as they
consider appropriate; they may appoint from their own number and terminate any
one or more committees; they may employ one or more custodians of the assets of
the Trust and may authorize such custodians to employ subcustodians and to
deposit all or any part of such assets in a system or systems for the central
handling of securities, retain a transfer agent and a Shareholder servicing
agent, or both, provide for the distribution of Shares through a principal
underwriter or otherwise, set record dates, and in general delegate such
authority as they consider desirable (including, without limitation, the
authority to purchase and sell securities and to invest funds, to determine the
net income of the Trust for any period, the value of the total assets of the
Trust and the net asset value of each Share, and to execute such deeds,
agreements or other instruments either in the name of the Trust or the names of
the Trustees or as their attorney or attorneys or otherwise as the Trustees from
time to time may deem expedient) to any officer of the Trust, committee of the
Trustees, any such employee, agent, custodian or underwriter or to any Manager.
Without limiting the generality of the foregoing, the Trustees shall
have full power and authority:
(a) To invest and reinvest cash and to hold cash
uninvested;
(b) To vote or give assent, or exercise any rights of
ownership, with respect to stock or other securities
or property; and to execute and deliver 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 or property as the Trustees shall deem
proper;
(c) To hold any security or property in a form not
indicating any trust whether in bearer, unregistered
or other negotiable form or in the name of the Trust
or a custodian, subcustodian or other depository or a
nominee or nominees or otherwise;
(d) To consent to or participate in any plan for the
reorganization, consolidation or merger of any
corporation or concern, any security of which is held
in the Trust; to consent to any contract, lease,
mortgage, purchase or sale of property by such
corporation or concern, and to pay calls or
subscriptions with respect to any security held in
the Trust;
(e) To join with other security holders in acting through
a committee, depositary, voting trustee or otherwise,
and in that connection to deposit any security with,
or transfer any security to, any such committee,
depositary or trustee, and to delegate to them such
power and authority with relation to any security
(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, depositary or trustee as the
Trustees shall deem proper;
(f) To compromise, arbitrate, or otherwise adjust claims
in favor of or against the Trust or any matter in
controversy, including, but not limited to, claims
for taxes;
<PAGE>
(g) Subject to the provisions of Article III, Section 3,
to allocate assets, liabilities, income and expenses
of the Trust to a particular series of Shares or to
apportion the same among two or more series, provided
that any liabilities or expenses incurred by a
particular series of Shares shall be payable solely
out of the assets of that series; and to the extent
necessary or appropriate to give effect to the
preferences and special or relative rights and
privileges of any classes of Shares, to allocate
assets, liabilities, income and expenses of a series
to a particular class of Shares of that series or to
apportion the same among two or more classes of
Shares of that series;
(h) To enter into joint ventures, general or limited
partnerships and any other combinations or
associations;
(i) To purchase and pay for entirely out of Trust
property such insurance as they may deem necessary or
appropriate for the conduct of the business,
including, without limitation, insurance policies
insuring the assets of the Trust and payment of
distributions and principal on its portfolio
investments, and insurance policies insuring the
Shareholders, Trustees, officers, employees, agents,
investment advisers or Managers, principal
underwriters, or independent contractors of the Trust
individually against all claims and liabilities of
every nature arising by reason of holding, being or
having held any such office or position, or by reason
of any action alleged to have been taken or omitted
by any such person as Shareholder, Trustee, officer,
employee, agent, investment adviser or Manager,
principal underwriter, or independent contractor,
including any action taken or omitted that may be
determined to constitute negligence, whether or not
the Trust would have the power to indemnify such
person against such liability; and
(j) To pay pensions for faithful service, as deemed
appropriate by the Trustees, and to adopt, establish
and carry out pension, profit-sharing, share bonus,
share purchase, savings, thrift and other retirement,
incentive and benefit plans, trusts and provisions,
including the purchasing of life insurance and
annuity contracts as a means of providing such
retirement and other benefits, for any or all of the
Trustees, officers, employees and agents of the
Trust.
Further, without limiting the generality of the foregoing, the Trustees
shall have full power and authority to incur and pay out of the principal or
income of the Trust such expenses and liabilities as may be deemed by the
Trustees to be necessary or proper for the purposes of the Trust; provided,
however, that all expenses and liabilities incurred by or arising in connection
with a particular series of Shares, as determined by the Trustees, shall be
payable solely out of the assets of that series.
<PAGE>
Any determination made in good faith and, so far as accounting matters
are involved, in accordance with generally accepted accounting principles by or
pursuant to the authority granted by the Trustees, as to the amount of the
assets, debts, obligations or liabilities of the Trust or a particular series or
class of Shares; the amount of any reserves or charges set up and the propriety
thereof; the time of or purpose for creating such reserves or charges; the use,
alteration or cancellation of any reserves or charges (whether or not any debt,
obligation or liability for which such reserves or charges shall have been
created shall have been paid or discharged or shall be then or thereafter
required to be paid or discharged); the price or closing bid or asked price of
an investment owned or held by the Trust or a particular series; the market
value of any investment or fair value of any other asset of the Trust or a
particular series; the number of Shares outstanding; the estimated expense to
the Trust or a particular series in connection with purchases of its Shares; the
ability to liquidate investments in an orderly fashion; and the extent to which
it is practicable to deliver a cross-section of the portfolio of the Trust or a
particular series in payment for any such Shares, or as to any other matters
relating to the issue, sale, purchase and/or other acquisition or disposition of
investments or Shares of the Trust or a particular series, shall be final and
conclusive, and shall be binding upon the Trust or such series and its
Shareholders, past, present and future, and Shares are issued and sold on the
condition and understanding that any and all such determinations shall be
binding as aforesaid.
Section 3. Meetings. 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.
When a quorum is present at any meeting, a majority of the Trustees
present may take an action, except when a larger vote is required by this
Declaration of Trust, the By-Laws or the 1940 Act.
Any action required or permitted to be taken at any meeting of the
Trustees or of any committee thereof may be taken without a meeting, if a
written consent to such action is signed by a majority of the Trustees or
members of any such committee then in office, as the case may be, and such
written consent is filed with the minutes of proceedings of the Trustees or any
such committee.
The Trustees or any committee designated by the Trustee may participate
in a meeting of the Trustees or such committee by means of a conference
telephone or similar communications equipment by means of which all persons
participating in the meeting can hear each other at the same time. Participation
by such means shall constitute presence in person at a meeting.
Section 4. Ownership of Assets of the Trust. Title to all of the assets
of each series of Shares of the Trust at all times shall be considered as vested
in the Trustees.
Section 5. Investment Advice and Management Services. The Trustees
shall not in any way be bound or limited by any present or future law or custom
in regard to investments by trustees. The Trustees from time to time may enter
into a written contract or contracts with any person or persons (herein called
the "Manager"), including any firm, corporation, trust or association in which
any Trustee or Shareholder may be interested, to act as investment advisers
and/or managers of the Trust and to provide such investment advice and/or
management as the Trustees from time to time may consider necessary for the
proper management of the assets of the Trust, including, without limitation,
authority to determine from time to time what investments shall be purchased,
held, sold or exchanged and what portion, if any, of the assets of the Trust
shall be held uninvested and to make changes in the Trust's Investments. Any
such contract shall be subject to the requirements of the 1940 Act with respect
to its continuance in effect, its termination and the method of authorization
and approval of such contract, or any amendment thereto or renewal thereof.
<PAGE>
Any Trustee or any organization with which any Trustee may be
associated also may act as broker for the Trust in making purchases and sales of
securities for or to the Trust for its investment portfolio, and may charge and
receive from the Trust the usual and customary commission for such service. Any
organization with which a Trustee may be associated in acting as broker for the
Trust shall be responsible only for the proper execution of transactions in
accordance with the instructions of the Trust and shall be subject to no further
liability of any sort whatever.
The Manager, or any affiliate thereof, also may be a distributor for
the sale of Shares by separate contract or may be a person controlled by or
affiliated with any Trustee or any distributor or a person in which any Trustee
or any distributor is interested financially, subject only to applicable
provisions of law. Nothing herein contained shall operate to prevent any
Manager, who also acts as such a distributor, from also receiving compensation
for services rendered as such distributor.
Section 6. Removal and Resignation of Trustees. The Shareholders (by
vote of a majority of the outstanding Shares entitled to vote thereon) may
remove at any time any Trustee with or without cause, and any Trustee may resign
at any time as Trustee, without penalty by written notice to the Trust; provided
that sixty days' advance written notice shall be given in the event that there
are only three or fewer Trustees at the time a notice of resignation is
submitted.
ARTICLE V
Shareholders' Voting Powers and Meetings
Section 1. Voting Powers. The Shareholders shall have power to vote
only (i) for the election of Trustees as provided in Article IV, Section 1, of
this Declaration of Trust; provided, however, that no meeting of Shareholders is
required to be called for the purpose of electing Trustees unless and until such
time as less than a majority of the Trustees have been elected by the
Shareholders, (ii) for the removal of Trustees as provided in Article IV,
Section 6, (iii) with respect to any Manager as provided in Article IV, Section
5, (iv) with respect to any amendment of this Declaration of Trust as provided
in Article IX, Section 8, (v) with respect to the termination of the Trust or a
series of Shares as provided in Article IX, Section 5, and (vi) with respect to
such additional matters relating to the Trust as may be required by law, by this
Declaration of Trust, or the By-Laws of the Trust or any registration of the
Trust with the Commission or any state, or as the Trustees may consider
desirable. Each whole Share shall be entitled to one vote as to any matter on
which it is entitled to vote (except that in the election of Trustees said vote
may be cast for as many persons as there are Trustees to be elected), and each
fractional Share shall be entitled to a proportionate fractional vote.
Notwithstanding any other provision of this Declaration of Trust, on any matter
submitted to a vote of Shareholders, all Shares of the Trust then entitled to
vote shall be voted in the aggregate as a single class without regard to series
or classes of Shares, except (i) when required by the 1940 Act or when the
Trustees shall have determined that the matter affects one or more series or
classes differently Shares shall be voted by individual series or class and (ii)
when the Trustees have determined that the matter affects only the interests of
one or more series or classes then only Shareholders of such series or classes
shall be entitled to vote thereon. There shall be no cumulative voting in the
election of Trustees. Shares may be voted in person or by proxy. A proxy with
respect to Shares held in the name of two or more persons shall be valid if
executed by any one of them, unless at or prior to exercise of the proxy the
Trust receives a specific written notice to the contrary from any one of them. A
proxy purporting to be executed by or on behalf of a Shareholder shall be deemed
valid unless challenged at or prior to its exercise and the burden of proving
invalidity shall rest on the challenger. Whenever no Shares of any series or
class are issued and outstanding, the Trustees may exercise with respect to such
series or class all rights of Shareholders and may take any action required by
law, this Declaration of Trust or any By-Laws of the Trust to be taken by
Shareholders.
<PAGE>
Section 2. Meetings. Meetings of the Shareholders may be called by the
Trustees or such other person or persons as may be specified in the By-Laws and
shall be called by the Trustees upon the written request of Shareholders owning
at least 10% of the outstanding Shares entitled to vote. Shareholders shall be
entitled to at least ten days' prior notice of any meeting.
Section 3. Quorum and Required Vote. Thirty percent (30%) of the
outstanding Shares shall be a quorum for the transaction of business at a
Shareholders' meeting, except that where any provision of law or of this
Declaration of Trust permits or requires that holders of any series or class
shall vote as a series or class, then thirty percent (30%) of the aggregate
number of Shares of that series or class entitled to vote shall be necessary to
constitute a quorum for the transaction of business by that series or class. Any
lesser number, however, shall be sufficient for adjournment and any adjourned
session or sessions may be held within 90 days after the date set for the
original meeting without the necessity of further notice. Except when a larger
vote is required by any provision of this Declaration of Trust or the ByLaws of
the Trust and subject to any applicable requirements of law, a majority of the
Shares voted shall decide any question and a plurality shall elect a Trustee,
provided that where any provision of law or of this Declaration of Trust permits
or requires that the holders of any series or class shall vote as a series or
class, then a majority of the Shares of that series or class voted on the matter
(or a plurality with respect to the election of a Trustee) shall decide that
matter insofar as that series or class is concerned.
Section 4. Action by Written Consent. Any action required or permitted
to be taken at any meeting may be taken without a meeting if a consent in
writing, setting forth such action, is signed by a majority of Shareholders
entitled to vote on the subject matter thereof (or such larger proportion
thereof as shall be required by any express provision of this Declaration of
Trust) and such consent is filed with the records of the Trust.
Section 5. Additional Provisions. The By-Laws may include further
provisions for Shareholders, votes and meetings and related matters.
<PAGE>
ARTICLE VI
Distributions and Redemptions
Section 1. Distributions. The Trustees shall distribute periodically to
the Shareholders of each series of Shares an amount approximately equal to the
net income of that series, determined by the Trustees or as they may authorize
and as herein provided. Distributions of income may be made in one or more
payments, which shall be in Shares, cash or otherwise, and on a date or dates
and as of a record date or dates determined by the Trustees. At any time and
from time to time in their discretion, the Trustees also may cause to be
distributed to the Shareholders of any one or more series as of a record date or
dates determined by the Trustees, in Shares, cash or otherwise, all or part of
any gains realized on the sale or disposition of the assets of the series or all
or part of any other principal of the Trust attributable to the series. Each
distribution pursuant to this Section 1 shall be made ratably according to the
number of Shares of the series held by the several Shareholders on the record
date for such distribution, except to the extent otherwise required or permitted
by the preferences and special or relative rights and privileges of any classes
of Shares of that series, and any distribution to the Shareholders of a
particular class of Shares shall be made to such Shareholders pro rata in
proportion to the number of Shares of such class held by each of them. No
distribution need be made on Shares purchased pursuant to orders received, or
for which payment is made, after such time or times as the Trustees may
determine.
Section 2. Determination of Net Income. In determining the net income
of each series or class of Shares for any period, there shall be deducted from
income for that period (a) such portion of all charges, taxes, expenses and
liabilities due or accrued as the Trustees shall consider properly chargeable
and fairly applicable to income for that period or any earlier period and (b)
whatever reasonable reserves the Trustees shall consider advisable for possible
future charges, taxes, expenses and liabilities which the Trustees shall
consider properly chargeable and fairly applicable to income for that period or
an earlier period. The net income of each series or class for any period may be
adjusted for amounts included on account of net income in the net asset value of
Shares issued or redeemed or repurchased during that period. In determining the
net income of a series or class for a period ending on a date other than the end
of its fiscal year, income may be estimated as the Trustees shall deem fair.
Gains on the sale or disposition of assets shall not be treated as income, and
losses shall not be charged against income unless appropriate under applicable
accounting principles, except in the exercise of the discretionary powers of the
Trustees. Any amount contributed to the Trust which is received as income
pursuant to a decree of any court of competent jurisdiction shall be applied as
required by the said decree.
Section 3. Redemptions. Any Shareholder shall be entitled to require
the Trust to redeem and the Trust shall be obligated to redeem at the option of
such Shareholder all or any part of the Shares owned by said Shareholder, at the
redemption price, pursuant to the method, upon the terms and subject to the
conditions hereinafter set forth:
(a) Certificates for Shares, if issued, shall be presented for
redemption in proper form for transfer to the Trust or the agent of the
Trust appointed for such purpose, and these shall be presented with a
written request that the Trust redeem all or any part of the Shares
represented thereby.
(b) The redemption price per Share shall be the net asset
value per Share when next determined by the Trust at such time or times
as the Trustees shall designate, following the time of presentation of
certificates for Shares, if issued, and an appropriate request for
redemption, or such other time as the Trustees may designate in
accordance with any provision of the 1940 Act, or any rule or
regulation made or adopted by any securities association registered
under the Securities Exchange Act of 1934, as determined by the
Trustees, less any applicable charge or fee imposed from time to time
as determined by the Trustees.
<PAGE>
(c) Net asset value of each series or class of Shares (for the
purpose of issuance of Shares as well as redemptions thereof) shall be
determined by dividing:
(i) the total value of the assets of such series or
class determined as provided in paragraph (d) below less to
the extent determined by or pursuant to the direction of the
Trustees in accordance with generally accepted accounting
principles, all debts, obligations and liabilities of such
series or class (which debts, obligations and liabilities
shall include, without limitation of the generality of the
foregoing, any and all debts, obligations, liabilities, or
claims, of any and every kind and nature, fixed, accrued and
otherwise, including the estimated accrued expenses of
management and supervision, administration and distribution
and any reserves or charges for any or all of the foregoing,
whether for taxes, expenses, or otherwise, and the price of
Shares redeemed but not paid for) but excluding the Trust's
liability upon its Shares and its surplus, by
(ii) the total number of Shares of such series or class
outstanding.
The Trustees are empowered, in their absolute discretion, to
establish other methods for determining such net asset value whenever
such other methods are deemed by them to be necessary to enable the
Trust to comply with applicable law, or are deemed by them to be
desirable, provided they are not inconsistent with any provision of the
1940 Act.
(d) In determining for the purposes of this Declaration of
Trust the total value of the assets of each series or class of Shares
at any time, investments and any other assets of such series or class
shall be valued in such manner as may be determined from time to time
by or pursuant to the order of the Trustees.
(e) Payment of the redemption price by the Trust may be made
either in cash or in securities or other assets at the time owned by
the Trust or partly in cash and partly in securities or other assets at
the time owned by the Trust. The value of any part of such payment to
be made in securities or other assets of the Trust shall be the value
employed in determining the redemption price. Payment of the redemption
price shall be made on or before the seventh day following the day on
which the Shares are improperly presented for redemption hereunder,
except that delivery of any securities included in any such payment
shall be made as promptly as any necessary transfers on the books of
the issuers whose securities are to be delivered may be made and,
except as postponement of the date of payment may be permissible under
the 1940 Act.
Pursuant to resolution of the Trustees, the Trust may deduct
from the payment made for any Shares redeemed a liquidating charge not
in excess of an amount determined by the Trustees from time to time.
(f) The right of any holder of Shares redeemed by the Trust as
provided in this Article VI to receive dividends or distributions
thereon and all other rights of such Shareholder with respect to such
Shares shall terminate at the time as of which the redemption price of
such Shares is determined, except the right of such Shareholder to
receive (i) the redemption price of such Shares from the Trust in
accordance with the provisions hereof, and (ii) any dividend or
distribution to which such Shareholder previously had become entitled
as the record holder of such Shares on the record date for such
dividend or distribution.
<PAGE>
(g) Redemption of Shares by the Trust is conditional upon the
Trust having funds or other assets legally available therefor.
(h) The Trust, either directly or through an agent, may
repurchase its Shares, out of funds legally available therefor, upon
such terms and conditions and for such consideration as the Trustees
shall deem advisable, by agreement with the owner at a price not
exceeding the net asset value per Share as determined by or pursuant to
the order of the Trustees at such time or times as the Trustees shall
designate, less any applicable charge, if and as fixed by the Trustees
from time to time, and to take all other steps deemed necessary or
advisable in connection therewith.
(i) Shares purchased or redeemed by the Trust shall be
cancelled or held by the Trust for reissue, as the Trustees from time
to time may determine.
(j) The obligations set forth in this Article VI may be
suspended or postponed, (1) for any period (i) during which the New
York Stock Exchange is closed other than for customary weekend and
holiday closings or (ii) during which trading on the New York Stock
Exchange is restricted, (2) for any period during which an emergency
exists as a result of which (i) the disposal by the Trust of
investments owned by it is not reasonably practicable, or (ii) it is
not reasonably practicable for the Trust fairly to determine the value
of its net assets, or (3) for such other periods as the Commission or
any successor governmental authority by order may permit.
Notwithstanding any other provision of this Section 3 of Article VI, if
certificates representing such Shares have been issued, the redemption or
repurchase price need not be paid by the Trust until such certificates are
presented in proper form for transfer to the Trust or the agent of the Trust
appointed for such purpose; however, the redemption or repurchase shall be
effective, in accordance with the resolution of the Trustees, regardless of
whether or not such presentation has been made.
Section 4. Redemptions at the Option of the Trust. The Trust shall have
the right at its option and at any time to redeem Share of any Shareholder at
the net asset value thereof as determined in accordance with Section 3 of
Article VI of this Declaration of Trust: (i) if at such time such Shareholder
owns fewer Shares than, or Shares having an aggregate net asset value of less
than, an amount determined from time to time by the Trustees, or (ii) to the
extent that such Shareholder owns Shares of a particular series or class of
Shares equal to or in excess of a percentage of the outstanding Shares of that
series or class determined from time to time by the Trustees, or (iii) to the
extent that such Shareholder owns Shares of the Trust representing a percentage
equal to or in excess of such percentage of the aggregate number of outstanding
Shares of the Trust or the aggregate net asset value of the Trust determined
from time to time by the Trustees.
Section 5. Dividends, Distributions, Redemptions and Repurchases. No
dividend or distribution including, without limitation, any distribution paid
upon termination of the Trust or of any series) with respect to, nor any
redemption or repurchase of, the Shares of any series shall be effected by the
Trust other than from the assets of such series.
<PAGE>
ARTICLE VII
Compensation and Limitation of
Liability of Trustees
Section 1. Compensation. The Trustees shall be entitled to reasonable
compensation from the Trust and may fix the amount of their compensation.
Section 2. Limitation of Liability. The Trustees shall not be
responsible or liable in any event for any neglect or wrongdoing of any officer,
agent, employee or Manager of the Trust, nor shall any Trustee be responsible
for the act or omission of any other Trustee, but nothing herein contained shall
protect any Trustee against any liability to which he would otherwise be subject
by reason of willful misfeasance, bad faith, gross negligence or reckless
disregard of the duties involved in the conduct of his office.
Every note, bond, contract, instrument, certificate, share, or
undertaking and every other act or thing whatsoever executed or done by or on
behalf of the Trust or the Trustees or any of them in connection with the Trust,
shall be deemed conclusively to have been executed or done only in their or his
capacity as Trustees or Trustee, and such Trustees or Trustee shall not be
personally liable thereon.
<PAGE>
ARTICLE VIII
Indemnification
Section 1. Indemnification of Trustees, Officers, Employees and Agents.
Each person who is or was a Trustee, officer, employee or agent of the Trust or
who serves or has served at the Trust's request as a director, officer or
trustee of another entity in which the Trust has or had any interest as a
shareholder, creditor or otherwise shall be entitled to indemnification out of
the assets of the Trust to the extent provided in, and subject to the provisions
of, the By-Laws, provided that no indemnification shall be granted by the Trust
in contravention of the 1940 Act.
Section 2. Merged Corporations. For the purposes of this Article VIII
references to "the Trust" include any constituent corporation (including any
constituent of a constituent) absorbed in a consolidation or merger which, if
its separate existence had continued, would have had power and authority to
indemnify its directors, officers, employees or agents as well as the resulting
or surviving entity; so that any person who is or was a director, officer,
employee or agent of such a constituent corporation or is or was serving at the
request of such a constituent corporation as a trustee, director, officer,
employee or agent of another corporation, partnership, joint venture, trust or
other enterprise shall stand in the same position under the provisions of this
Article VIII with respect to the resulting or surviving entity as he would have
with respect to such a constituent corporation if its separate existence had
continued.
Section 3. Shareholders. In case any Shareholder or former Shareholder
shall be held to be personally liable solely by reason of his being or having
been a Shareholder and not because of his acts or omissions or for some other
reason, 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 particular series of Share of which he is or was a Shareholder
to be held harmless from and indemnified against all losses and expenses arising
from such liability. Upon request, the Trust shall cause its counsel to assume
the defense of any claim which, if successful, would result in an obligation of
the Trust to indemnify the Shareholder as aforesaid.
ARTICLE IX
Status of the Trust and Other General Provisions
Section 1. Trust Not a Partnership. It is hereby expressly declared
that a trust and not a partnership is created hereby. Neither the Trust nor the
Trustees, nor any officer, employee or agent of the Trust shall have any power
to bind personally either the Trust's Trustees or officers or any Shareholders.
All persons extending credit to, contracting with or having any claim against
the Trust or a particular series of Shares shall look only to the assets of the
Trust or the assets of that particular series for payment under such credit,
contract or claim; and neither the Shareholders nor the Trustees, nor any of the
Trust's officers, employees or agents, whether past, present or future, shall be
personally liable therefore. Nothing in this Declaration of Trust shall protect
any Trustee against any liability to which such Trustee otherwise would 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 hereunder.
<PAGE>
Section 2. Trustee's Good Faith Action, Expert Advice, No Bond or
Surety. The exercise by the Trustees of their powers and discretion hereunder
under the circumstances then prevailing, shall be binding upon every one
interested. A Trustee shall be liable for his or her own willful misfeasance,
bad faith, gross negligence or reckless disregard of the duties involved in the
conduct of the office of Trustee, and for nothing else, and shall not be liable
for errors of judgment or mistakes of fact or law. The Trustees may take advice
of counsel or other experts with respect to the meaning and operation of this
Declaration of Trust, and subject to the provisions of Section 1 of this Article
IX shall be under no liability for any act or omission in accordance with such
advice or for failing to follow such advice. The Trustees shall not be required
to give any bond as such, nor any surety if a bond is required.
Section 3. 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 pursuant hereto
or to see to the application of any payments made or property transferred to the
Trust or upon its order.
Section 4. Trustees, Shareholders, etc. Not Personally Liable; Notice.
All persons extending credit to, contracting with or having any claim against
the Trust or a particular series of Shares shall look only to the assets of the
Trust or the assets of that particular series of Shares for payment under such
credit, contract or claim; and neither the Shareholders nor the Trustees, nor
any of the Trust's officers, employees or agents, whether past, present or
future, shall be personally liable therefor.
Section 5. Termination of Trust. Unless terminated as provided herein,
the Trust shall continue without limitation of time. The Trust may be terminated
at any time by vote of Shareholders holding at least a majority of the Shares of
each series entitled to vote or by the Trustees by written notice to the
Shareholders. Any series of Shares may be terminated at any time by vote of
Shareholders holding at least a majority of the Shares of such series entitled
to vote or by the Trustees by written notice to the Shareholders of such series.
Upon termination of the Trust or of any one or more series of Shares,
after paying or otherwise providing for all charges, taxes, expenses and
liabilities, whether due or accrued or anticipated as may be determined by the
Trustees, the Trust shall reduce, in accordance with such procedures as the
Trustees consider appropriate, the remaining assets to distributable form in
cash or shares or other securities, or any combination thereof, and distribute
the proceeds to the Shareholders of the series involved, ratably according to
the number of Shares of such series held by the several Shareholders of such
series on the date of termination, except to the extent otherwise required or
permitted by the preferences and special or relative rights and privileges of
any classes of Shares of that series, provided that any distribution to the
Shareholders of a particular class of Shares shall be made to such Shareholders
pro rata in proportion to the number of Shares of such class held by each of
them.
<PAGE>
Section 6. Filing of Copies, References, Headings. The original or a
copy of this instrument and of each amendment hereto and of each Declaration of
Trust supplemental hereto shall be kept at the office of the Trust where it may
be inspected by any Shareholder. A copy of this instrument and of each such
amendment shall be filed by the Trust with the Secretary of State of the State
of Ohio, as well as any other governmental office where such filing may from
time to time be required. Anyone dealing with the Trust may rely on a
certificate by an officer of the Trust as to whether or not any such amendments
have been made and as to matters in connection with the Trust hereunder; and,
with the same effect as if it were the original, may rely on a copy certified by
an officer of the Trust to be a copy of this instrument or of any such
amendment. In this instrument or in any such amendment, references to this
instrument, and all expressions like "herein," "hereof," and "hereunder," shall
be deemed to refer to this instrument as amended or affected by any such
amendment. Headings are placed herein for convenience of reference only and in
case of any conflict, the text of this instrument, rather than the headings,
shall control. This instrument may be executed in any number of counterparts
each of which shall be deemed an original.
Section 7. Applicable Law. The Trust set forth in this instrument is
made in the State of Ohio and it is created under and is to be governed by and
construed and administered according to the laws of said state, including,
without limitation, Ohio Revised Code Chapter 1746. The Trust shall be of the
type commonly called an Ohio business trust, and without limiting the provisions
hereof, the Trust may exercise all powers which are ordinarily exercised by such
a trust.
Section 8. Amendments. This Declaration of Trust may be amended at any
time by an instrument in writing signed by a majority of the then Trustees when
authorized so to do by a vote of Shareholders holding a majority of the Shares
outstanding and entitled to vote, except that an amendment which shall affect
the holders of one or more series or class of Shares but not the holders of all
outstanding series or classes of Shares shall be authorized by vote of the
Shareholders holding a majority of the Shares entitled to vote of the series or
classes affected and no vote of Shareholders of a series or class not affected
shall be required. Amendments having the purpose of changing the name of the
Trust or of supplying any omission, curing any ambiguity or curing, correcting
or supplementing any defective or inconsistent provision contained herein shall
not require authorization by Shareholder vote.
Section 9. Counterparts. This Declaration of Trust may be
simultaneously executed in several counterparts, each of which shall be deemed
to be an original, and such counterparts, together, shall constitute one and the
same instrument, which shall be sufficiently evidenced by any such original
counterpart.
<PAGE>
IN WITNESS WHEREOF, the undersigned Trustees have hereunto set their
hands as of the day and year first above written.
/s/ Denis J. Amato /s/ Richard A. Barone
Denis J. Amato Richard A. Barone
/s/ Burton D. Morgan /s/ Murlan J. Murphy, Jr.
Burton D. Morgan Murlan J. Murphy, Jr.
/s/ Michael A. Rossi
Michael A. Rossi, C.P.A.
<PAGE>
Proxy MAXUS INCOME FUND Proxy
SPECIAL MEETING OF SHAREHOLDERS -- FEBRUARY ___, 1998
THIS PROXY IS SOLICITED ON BEHALF OF THE TRUSTEES
The undersigned hereby appoints Richard A. Barone and Robert J. Conrad,
and each of them, the proxies of the undersigned with power of substitution to
each of them to vote all shares of Maxus Income Fund which the undersigned is
entitled to vote at the Special Meeting of Shareholders to be held at
______________________________________________________, Ohio on February ___,
1998, at _____ p.m. local time, and any adjournments thereof.
(1) Election of Trustees: (Instruction: To withhold authority to vote for
any individual nominee, strike a line through the nominee's name in the
list below.)
RICHARD A. BARONE, DENIS J. AMATO, BURTON D. MORGAN,
MURLAN J. MURPHY, JR., MICHAEL A. ROSSI
(2) Proposal to adopt a Second Amended and Restated Declaration of Trust.
(3) Proposal to adopt a Distribution and Shareholder Servicing Plan.
(4) In their discretion, the Proxies are authorized to vote upon such other
business as may properly come before the meeting including the election
of any person as a Trustee if any of the nominees named above is unable
to serve or for good cause unwilling to serve and matters incident to
the conduct of the Special Meeting.
THIS PROXY WHEN PROPERLY EXECUTED WILL BE
VOTED IN THE MANNER DIRECTED HEREIN BY THE
UNDERSIGNED SHAREHOLDER.
IF NO DIRECTION IS MADE, THIS PROXY WILL BE VOTED FOR
PROPOSALS 1, 2 AND 3. PLEASE VOTE PROMPTLY.
(CONTINUED AND TO BE SIGNED ON OTHER SIDE)
<PAGE>
MAXUS INCOME FUND (CONTINUED FROM THE OTHER SIDE)
(1) ELECTION OF TRUSTEES (2) TO ADOPT THE SECOND (3) TO ADOPT THE
(Vote for all nominees AMENDED AND RESTATED DISTRIBUTION AND
except as indicated DECLARATION OF TRUST SHAREHOLDER
on reverse side.) SERVICING PLAN
WITHHOLD
FOR AUTHORITY FOR AGAINST ABSTAIN FOR AGAINST ABSTAIN
[ ] [ ] [ ] [ ] [ ] [ ] [ ] [ ]
DO YOU PLAN TO ATTEND THE
MEETING?
[ ] YES [ ] NO
DATED: 1998
=============================
=============================
(Signature of Shareholder(s))
Please sign exactly as name
appears in the box on the
left. When signing as
attorney, executor,
administrator, trustee or
guardian, please give your
title as such. If a
corporation, please sign in
full corporate name by
president or other authorized
officer. If a partnership,
please sign partnership name
by authorized person. If a
joint account, please provide
both signatures.
<PAGE>
Proxy MAXUS EQUITY FUND Proxy
SPECIAL MEETING OF SHAREHOLDERS -- FEBRUARY ___, 1998
THIS PROXY IS SOLICITED ON BEHALF OF THE TRUSTEES
The undersigned hereby appoints Richard A. Barone and Robert J. Conrad,
and each of them, the proxies of the undersigned with power of substitution to
each of them to vote all shares of Maxus Equity Fund which the undersigned is
entitled to vote at the Special Meeting of Shareholders to be held at
______________________________________________________, Ohio on February ___,
1998, at _____ p.m. local time, and any adjournments thereof.
(1) Election of Trustees: (Instruction: To withhold authority to vote for
any individual nominee, strike a line through the nominee's name in the
list below.)
RICHARD A. BARONE, DENIS J. AMATO, BURTON D. MORGAN,
MURLAN J. MURPHY, JR., MICHAEL A. ROSSI
(2) Proposal to adopt an Amended and Restated Declaration of Trust.
(3) Proposal to adopt a Distribution and Shareholder Servicing Plan.
(4) In their discretion, the Proxies are authorized to vote upon such other
business as may properly come before the meeting including the election
of any person as a Trustee if any of the nominees named above is unable
to serve or for good cause unwilling to serve and matters incident to
the conduct of the Special Meeting.
THIS PROXY WHEN PROPERLY EXECUTED WILL BE
VOTED IN THE MANNER DIRECTED HEREIN BY THE
UNDERSIGNED SHAREHOLDER.
IF NO DIRECTION IS MADE, THIS PROXY WILL BE VOTED FOR
PROPOSALS 1, 2 AND 3. PLEASE VOTE PROMPTLY.
(CONTINUED AND TO BE SIGNED ON OTHER SIDE)
<PAGE>
MAXUS EQUITY FUND (CONTINUED FROM THE OTHER SIDE)
(1) ELECTION OF TRUSTEES (2) TO ADOPT THE SECOND (3) TO ADOPT THE
(Vote for all nominees AMENDED AND RESTATED DISTRIBUTION AND
except as indicated DECLARATION OF TRUST SHAREHOLDER
on reverse side.) SERVICING PLAN
WITHHOLD
FOR AUTHORITY FOR AGAINST ABSTAIN FOR AGAINST ABSTAIN
[ ] [ ] [ ] [ ] [ ] [ ] [ ] [ ]
DO YOU PLAN TO ATTEND THE
MEETING?
[ ] YES [ ] NO
DATED: 1998
=============================
=============================
(Signature of Shareholder(s))
Please sign exactly as name
appears in the box on the
left. When signing as
attorney, executor,
administrator, trustee or
guardian, please give your
title as such. If a
corporation, please sign in
full corporate name by
president or other authorized
officer. If a partnership,
please sign partnership name
by authorized person. If a
joint account, please provide
both signatures.
<PAGE>
Proxy MAXUS LAUREATE FUND Proxy
SPECIAL MEETING OF SHAREHOLDERS -- FEBRUARY ___, 1998
THIS PROXY IS SOLICITED ON BEHALF OF THE TRUSTEES
The undersigned hereby appoints Richard A. Barone and Robert J. Conrad,
and each of them, the proxies of the undersigned with power of substitution to
each of them to vote all shares of Maxus Laureate Fund which the undersigned is
entitled to vote at the Special Meeting of Shareholders to be held at
______________________________________________________, Ohio on February ___,
1998, at _____ p.m. local time, and any adjournments thereof.
(1) Election of Trustees: (Instruction: To withhold authority to vote for
any individual nominee, strike a line through the nominee's name in the
list below.)
RICHARD A. BARONE, DENIS J. AMATO, BURTON D. MORGAN,
MURLAN J. MURPHY, JR., MICHAEL A. ROSSI
(2) Proposal to adopt an Amended and Restated Declaration of Trust.
(3) Proposal to adopt a Distribution and Shareholder Servicing Plan.
(4) In their discretion, the Proxies are authorized to vote upon such other
business as may properly come before the meeting including the election
of any person as a Trustee if any of the nominees named above is unable
to serve or for good cause unwilling to serve and matters incident to
the conduct of the Special Meeting.
THIS PROXY WHEN PROPERLY EXECUTED WILL BE
VOTED IN THE MANNER DIRECTED HEREIN BY THE
UNDERSIGNED SHAREHOLDER.
IF NO DIRECTION IS MADE, THIS PROXY WILL BE VOTED FOR
PROPOSALS 1, 2 AND 3. PLEASE VOTE PROMPTLY.
(CONTINUED AND TO BE SIGNED ON OTHER SIDE)
<PAGE>
MAXUS LAUREATE FUND (CONTINUED FROM THE OTHER SIDE)
(1) ELECTION OF TRUSTEES (2) TO ADOPT THE SECOND (3) TO ADOPT THE
(Vote for all nominees AMENDED AND RESTATED DISTRIBUTION AND
except as indicated DECLARATION OF TRUST SHAREHOLDER
on reverse side.) SERVICING PLAN
WITHHOLD
FOR AUTHORITY FOR AGAINST ABSTAIN FOR AGAINST ABSTAIN
[ ] [ ] [ ] [ ] [ ] [ ] [ ] [ ]
DO YOU PLAN TO ATTEND THE
MEETING?
[ ] YES [ ] NO
DATED: 1998
=============================
=============================
(Signature of Shareholder(s))
Please sign exactly as name
appears in the box on the
left. When signing as
attorney, executor,
administrator, trustee or
guardian, please give your
title as such. If a
corporation, please sign in
full corporate name by
president or other authorized
officer. If a partnership,
please sign partnership name
by authorized person. If a
joint account, please provide
both signatures.
<PAGE>
