Exhibit 99.(a)(6)
RESTATED
AGREEMENT AND DECLARATION OF TRUST
of
XXXXXXXX 20/20 FOCUS FUND
a Delaware Statutory Trust
Principal Place of Business:
Gateway Center Three
000 Xxxxxxxx Xxxxxx
Xxxxxx, Xxx Xxxxxx 00000-0000
TABLE OF CONTENTS
RESTATED AGREEMENT AND DECLARATION OF TRUST
PAGE
ARTICLE I Name and Definitions 2
Section 1. Name 2
Section 2. Definitions 2
ARTICLE II Purpose of Trust 5
ARTICLE III Shares 5
Section 1. Division of Beneficial Interest 5
Section 2. Ownership of Shares 7
Section 3. Transfer of Shares 7
Section 4. Investments in the Trust 7
Section 5. Status of Shares and Limitation of Personal Liability 8
Section 6. Establishment of Series 8
Section 7. Indemnification of Shareholders 12
ARTICLE IV The Board of Trustees 12
Section 1. Number, Election and Tenure 12
Section 2. Effect of Death, Resignation, etc. of a Trustee 13
Section 3. Powers 14
Section 4. Payment of Expenses by the Trust 20
Section 5. Payment of Expenses by Shareholders 20
Section 6. Ownership of Assets of the Trust 20
Section 7. Service Contracts. 21
Section 8. Trustees and Officers as Shareholders 23
ARTICLE V Shareholders' Voting Powers and Meetings 24
Section 1. Voting Powers, Meetings, Notice and Record Dates 24
Section 2. Quorum and Required Vote 25
Section 3. Record Dates 26
Section 4. Additional Provisions 26
ARTICLE VI Net Asset Value, Distributions and Redemptions 26
Section 1. Determination of Net Asset Value, Net Income, and Distributions 26
Section 2. Redemptions and Repurchases. 27
ARTICLE VII Compensation and Limitation of Liability of Trustees 29
Section 1. Compensation 29
Section 2. Indemnification and Limitation of Liability 29
Section 3. Trustee's Good Faith Action, Expert Advice, No Bond or Surety 30
Section 4. Insurance 31
ARTICLE VIII Miscellaneous 31
Section 1. Liability of Third Persons Dealing with Trustees 31
Section 2. Termination of the Trust or Any Series or Class. 31
Section 3. Reorganization and Master/Feeder. 33
Section 4. Amendments 35
Section 5. Filing of Copies, References, Headings 36
Section 6. Applicable Law. 37
Section 7. Provisions in Conflict with Law or Regulations. 38
Section 8. Statutory Trust Only 38
Section 9. Derivative Actions 39
RESTATED
AGREEMENT AND DECLARATION OF TRUST
OF
XXXXXXXX 20/20 FOCUS FUND
THIS
RESTATED AGREEMENT AND DECLARATION OF TRUST is made as of May 25, 2004
for the purpose of continuing a
Delaware statutory trust in accordance with the
provisions hereinafter set forth.
WHEREAS, the Trust was formed under the
Delaware Act under the name
"Prudential 20/20 Fund" upon the filing of the Certificate of Trust in the
Office of the Secretary of State of the State of
Delaware on December 18, 1997
pursuant to the Prior Declaration of Trust;
WHEREAS, the name of the Trust was changed to "Prudential 20/20 Focus Fund"
pursuant to an amendment to the Prior Declaration of Trust on February 19, 1998
and the filing of a certificate of amendment to the Certificate of Trust on
April 16, 1998 and was subsequently changed to "Xxxxxxxx 20/20 Focus Fund"
pursuant to an amendment to the Prior Declaration of Trust on December 12, 2002
and the filing of a certificate of amendment to the Certificate of Trust on July
3, 2003;
WHEREAS, certain amendments (the "April 2003 Amendments") to the Prior
Declaration of Trust were adopted and approved by the Trustees at a meeting of
the Trustees on April 11, 2003 and became effective without the requirement for
any further action upon the approval of such amendments by the Shareholders at a
meeting of the Shareholders on August 21, 2003;
WHEREAS, certain additional amendments (the "May 2003 Amendments" and
collectively with the April 2003 Amendments, the "2003 Amendments") to the Prior
Declaration
of Trust were adopted and approved by the Trustees at a meeting of the Trustees
on May 27, 2003 and became effective without the requirement for any further
action on such date; and
WHEREAS, the Trustees authorized each proper officer of the Trust to
incorporate the 2003 Amendments into an amendment or restatement of the Prior
Declaration of Trust and, pursuant to such authority, one or more proper
officers of the Trust has incorporated the 2003 Amendments to the Prior
Declaration of Trust into this Declaration of Trust.
NOW, THEREFORE, the Trustees do hereby declare that the Trustees will hold
IN TRUST all cash, securities and other assets which the Trust now possesses or
may hereafter acquire from time to time in any manner and manage and dispose of
the same upon the following terms and conditions for the benefit of the
Shareholders of this Trust.
ARTICLE I
Name and Definitions
Section 1. NAME. This Trust shall be known as Xxxxxxxx 20/20 Focus Fund
and the Trustees shall conduct the business of the Trust under that name or any
other name as they may from time to time determine and the Trustees may, without
Shareholder approval, change the name of the Trust or any Series or Class
thereof. In the event of any such change, the Trustees shall cause notice to be
given to the affected Shareholders within a reasonable time after the
implementation of such change.
Section 2. DEFINITIONS. Whenever used herein, unless otherwise required
by the context or specifically provided:
(a) "By-Laws" shall mean the By-Laws of the Trust as amended from
time to time, which By-Laws are expressly herein incorporated by reference as
part of the "governing instrument" within the meaning of the
Delaware Act;
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(b) "Certificate of Trust" means the certificate of trust, as
amended or restated from time to time, filed by the Trustees in the Office of
the Secretary of State of the State of
Delaware in accordance with the
Delaware
Act;
(c) "Class" means a class of Shares of a Series of the Trust
established in accordance with the provisions of Article III hereof;
(d) "Commission" and "Principal Underwriter" shall have the
meanings given them in the 1940 Act;
(e) "Declaration of Trust" means this
Restated Agreement and
Declaration of Trust, as amended or restated from time to time;
(f) "
Delaware Act" means the
Delaware Statutory Trust Act, 12 Del.
C. Sections 3801 ET SEQ., as amended from time to time;
(g) "Interested Person" shall have the meaning given it in Section
2(a) (19) of the 1940 Act;
(h) "Investment Manager" or "Manager" means a party furnishing
services to the Trust pursuant to any contract described in Article IV, Section
7(a) hereof;
(i) "1940 Act" means the Investment Company Act of 1940 and the
Rules and Regulations thereunder and interpretations thereunder, all as amended
from time to time and including any successor legislation, and any order or
orders thereunder which may from time to time be applicable to the Trust;
(j) "Person" means and includes individuals, corporations,
partnerships, trusts, associations, joint ventures, estates and other entities,
whether or not legal entities, and governments and agencies and political
subdivisions thereof, whether domestic or foreign;
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(k) "Prior Declaration of Trust" means the original declaration of
trust of the Trust as in effect from time to time up to the effectiveness of
this Declaration of Trust;
(l) "Registration Statement" means the Trust's registration
statement or statements as filed with the Commission, as from time to time in
effect;
(m) "Series" means each Series of Shares established and
designated under or in accordance with the provisions of Article III;
(n) "Shareholder" means a record owner of outstanding Shares;
(o) "Shares" means the shares of beneficial interest into which
the beneficial interest in the Trust shall be divided from time to time and
includes fractions of Shares as well as whole Shares;
(p) "Trust" means the
Delaware statutory trust established under
the Delaware Act by this Declaration of Trust and the filing of the Certificate
of Trust in the Office of the Secretary of State of the State of Delaware;
(q) "Trust Property" means any and all property, real or personal,
tangible or intangible, which is from time to time owned or held by or for the
account of the Trust; and
(r) "Trustees" means the Persons who have signed this Declaration
of Trust and all other Persons who were or may from time to time be duly elected
or appointed to serve as Trustees in accordance with the provisions hereof or
the provisions of the Prior Declaration of Trust, in each case so long as such
Person shall continue in office in accordance with the terms of this Declaration
of Trust and, to the extent applicable, the terms of the Prior Declaration of
Trust, and reference herein to a Trustee or the Trustees shall refer to such
Person or Persons in his, her or their capacities as trustee or trustees
hereunder. Unless otherwise required by the
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context or specifically provided, any reference herein to the Trustees shall
refer to the Trustee at any time that there is only one Trustee of the Trust.
ARTICLE II
Purpose of Trust
The purpose of the Trust is to conduct, operate and carry on the business
of a management investment company registered under the 1940 Act through one or
more Series investing primarily in securities, and to carry on such other
business as the Trustees may from time to time determine pursuant to their
authority under this Declaration of Trust.
ARTICLE III
Shares
Section 1. DIVISION OF BENEFICIAL INTEREST. The beneficial interest in
the Trust shall be divided into one or more Series. Each Series may have no
Classes, may consist of one Class or may be divided into two or more Classes.
Subject to the further provisions of this Article III and any applicable
requirements of the 1940 Act, the Trustees shall have full power and authority,
in their sole discretion, and without obtaining any authorization or vote of the
Shareholders of any Series or Class thereof, (i) to divide the beneficial
interest in each Series or Class thereof into Shares, with or without par value
as the Trustees shall determine, (ii) to issue Shares without limitation as to
number (including fractional Shares), to such Persons and for such amount and
type of consideration, subject to any restriction set forth in the By-Laws,
including cash or securities, at such time or times and on such terms as the
Trustees may deem appropriate, (iii) to establish and designate and to change in
any manner any Series or Class thereof and to fix such preferences, voting
powers, rights, duties and privileges and business purpose of each Series or
Class thereof as the Trustees may from time to time determine, which
preferences, voting powers, rights, duties and privileges may be senior or
subordinate to (or in
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the case of business purpose, different from) any existing Series or Class
thereof and may be limited to specified property or obligations of the Trust or
profits and losses associated with specified property or obligations of the
Trust, (iv) to divide or combine the Shares of any Series or Class thereof into
a greater or lesser number without thereby materially changing the proportionate
beneficial interest of the Shares of such Series or Class in the assets held
with respect to that Series, (v) to classify or reclassify any issued Shares of
any Series or Class thereof into shares of one or more Series or Classes thereof
and (vi) to take such other action with respect to the Shares as the Trustees
may deem desirable.
Subject to the distinctions permitted among Classes of the same Series as
established by the Trustees consistent with the requirements of the 1940 Act,
each Share of a Series of the Trust shall represent an equal beneficial interest
in the net assets of such Series, and each Shareholder of a Series shall be
entitled to receive such Shareholder's pro rata share of distributions of income
and capital gains, if any, made with respect to such Series. Upon redemption of
the Shares of any Series, the applicable Shareholder shall be paid solely out of
the funds and property of such Series of the Trust.
All references to Shares in this Declaration of Trust shall be deemed to be
Shares of any or all Series or Classes thereof, as the context may require. All
provisions herein relating to the Trust shall apply equally to each Series of
the Trust and each Class thereof, except as the context otherwise requires.
All Shares issued hereunder, including Shares issued in connection with a
dividend in Shares or a split or reverse split of Shares, shall be fully paid
and non-assessable. Except as otherwise provided by the Trustees, Shareholders
shall have no preemptive or other right to subscribe to any additional Shares or
other securities issued by the Trust.
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Section 2. OWNERSHIP OF SHARES. The ownership of Shares shall be recorded
on the books of the Trust or a transfer or similar agent for the Trust, which
books shall be maintained separately for the Shares of each Series (or Class).
No certificates certifying the ownership of Shares shall be issued except as the
Board of 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 transfer of Shares of each Series (or Class) and similar
matters. The record books of the Trust as kept by the Trust or any transfer or
similar agent, as the case may be, shall be conclusive as to the identity of the
Shareholders of each Series (or Class) and as to the number of Shares of each
Series (or Class) held from time to time by each Shareholder.
Section 3. TRANSFER OF SHARES. Except as otherwise provided by the
Trustees, Shares shall be transferable on the books of the Trust only by the
record holder thereof or by his duly authorized agent upon delivery to the
Trustees or the Trust's transfer agent of a duly executed instrument of
transfer, together with a Share certificate if one is outstanding, and such
evidence of the genuineness of each such execution and authorization and of such
other matters as may be required by the Trustees. Upon such delivery, and
subject to any further requirements specified by the Trustees or contained in
the By-Laws, the transfer shall be recorded on the books of the Trust. Until a
transfer is so recorded, the Shareholder of record of Shares shall be deemed to
be the Shareholder with respect to such Shares for all purposes hereunder and
neither the Trustees nor the Trust, nor any transfer agent or registrar or any
officer, employee or agent of the Trust, shall be affected by any notice of a
proposed transfer.
Section 4. INVESTMENTS IN THE TRUST. Investments may be accepted by the
Trust from such Persons, at such times, on such terms, and for such
consideration as the Trustees from time to time may authorize.
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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
Declaration of Trust. Every Shareholder by virtue of having become a Shareholder
shall be held to have expressly assented and agreed to the terms hereof. The
death, incapacity, dissolution, termination or bankruptcy of a Shareholder
during the existence of the Trust shall not operate to terminate the Trust, nor
entitle the representative of any such Shareholder to an accounting or to take
any action in court or elsewhere against the Trust or the Trustees, but entitles
such representative only to the rights of such Shareholder under this Trust.
Ownership of Shares shall not entitle the Shareholder to any title in or to the
whole or any part of the Trust Property or right to call for a partition or
division of the same or for an accounting, nor shall the ownership of Shares
constitute the Shareholders as partners. Neither the Trust nor the Trustees, nor
any officer, employee or agent of the Trust shall have any power to bind
personally any Shareholders, 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.
Section 6. ESTABLISHMENT OF SERIES. The establishment of any Series (or
Class) of Shares shall be effective upon the adoption by a majority of the then
Trustees of a resolution that sets forth the designation of, or otherwise
identifies, such Series (or Class), whether directly in such resolution or by
reference to, or approval of, another document that sets forth the designation
of, or otherwise identifies, such Series (or Class) including any Registration
Statement, or as otherwise provided in such resolution. The relative rights and
preferences of each Series and each Class thereof shall be as set forth herein
and as set forth in any Registration
8
Statement relating thereto, unless otherwise provided in the resolution
establishing such Series or Class.
Shares of each Series (or Class) established pursuant to this Article III,
unless otherwise provided in the resolution establishing such Series (or Class),
shall have the following relative rights and preferences:
(a) ASSETS HELD WITH RESPECT TO A PARTICULAR SERIES. All
consideration received by the Trust for the issue or sale of Shares of a
particular Series, together with all assets in which such consideration is
invested or reinvested, all income, earnings, profits, and proceeds thereof from
whatever source derived, 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 be held with respect to that Series for all purposes, subject only
to the rights of creditors of such Series, and shall be so recorded upon the
books of account of the Trust. Such consideration, assets, income, earnings,
profits and proceeds thereof, from whatever source derived, 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, are herein referred to as "assets held with respect 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
assets held with respect to any particular Series (collectively "General
Assets"), the Trustees shall allocate such General Assets to, between or among
any one or more of the Series in such manner and on such basis as the Trustees,
in their sole discretion, deem fair and equitable, and any General Assets so
allocated to a particular Series shall be held with respect to that Series. Each
such allocation by the Trustees shall be conclusive and binding upon the
Shareholders of all Series for
9
all purposes. Separate and distinct records shall be maintained for each Series
and the assets held with respect to each Series shall be held and accounted for
separately from the assets held with respect to all other Series and the General
Assets of the Trust not allocated to such Series.
(b) LIABILITIES HELD WITH RESPECT TO A PARTICULAR SERIES. The
assets of the Trust held with respect to each particular Series shall be charged
against the liabilities of the Trust held with respect to that Series and all
expenses, costs, charges and reserves attributable to that Series. Any general
liabilities of the Trust which are not readily identifiable as being held with
respect to any particular Series shall be allocated and charged by the Trustees
to and among any one or more of the Series in such manner and on such basis as
the Trustees in their sole discretion deem fair and equitable. All liabilities,
expenses, costs, charges, and reserves so charged to a Series are herein
referred to as "liabilities held with respect to" that 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. All
liabilities held with respect to a particular Series shall be enforceable
against the assets held with respect to such Series only and not against the
assets of the Trust generally or against the assets held with respect to any
other Series and, except as otherwise provided in this Declaration of Trust,
none of the debts, liabilities, obligations and expenses incurred, contracted
for or otherwise existing with respect to the Trust generally or any other
Series thereof shall be enforceable against the assets of such Series. Notice of
this contractual limitation on the liability of each Series shall be set forth
in the Certificate of Trust or in an amendment thereto prior to the issuance of
any Shares of a Series.
(c) DIVIDENDS, DISTRIBUTIONS, REDEMPTIONS, AND REPURCHASES.
Notwithstanding any other provisions of this Declaration of Trust, including
Article VI, no dividend or distribution, including any distribution paid upon
termination of the Trust or of any
10
Series (or Class) with respect to, nor any redemption or repurchase of, the
Shares of any Series (or Class) shall be effected by the Trust other than from
the assets held with respect to such Series, nor shall any Shareholder of any
particular Series otherwise have any right or claim against the assets held with
respect to any other Series except to the extent that such Shareholder has such
a right or claim hereunder as a Shareholder of such other Series. 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.
(d) EQUALITY. All the Shares of each particular Series shall
represent an equal proportionate interest in the assets held with respect to
that Series (subject to the liabilities held with respect to that Series and
such rights and preferences as may have been established and designated with
respect to Classes of Shares within such Series), and each Share of any
particular Series shall be equal to each other Share of that Series.
(e) FRACTIONS. Any fractional Share of a Series shall carry
proportionately all the rights and obligations of a whole Share of that Series,
including rights with respect to voting, receipt of dividends and distributions,
redemption of Shares and termination of the Trust.
(f) EXCHANGE PRIVILEGE. The Trustees shall have the authority to
provide that the Shareholders of any Series shall have the right to exchange
said Shares for Shares of one or more other Series of Shares or for interests in
one or more trusts, corporations or other business entities (or a series of any
of the foregoing) in accordance with such requirements and procedures as may be
established by the Trustees.
(g) COMBINATION OF SERIES. The Trustees shall have the authority,
without the approval of the Shareholders of any Series unless otherwise required
by applicable law, to
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combine the assets and liabilities held with respect to any two or more Series
into assets and liabilities held with respect to a single Series.
(h) ELIMINATION OF SERIES. At any time that there are no Shares
outstanding of any particular Series (or Class) previously established and
designated, the Trustees may by resolution of a majority of the then Trustees
abolish that Series (or Class) and rescind the establishment and designation
thereof.
Section 7. INDEMNIFICATION OF SHAREHOLDERS. If any Shareholder or former
Shareholder shall be exposed to liability by reason of a claim or demand
relating to such Person being or having been a Shareholder, and not because of
such Person's acts or omissions, the Shareholder or former Shareholder (or such
Person's 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 to be held harmless from and indemnified out of the
assets of the Trust against all loss and expense arising from such claim or
demand, but only out of the assets held with respect to the particular Series of
Shares of which such Person is or was a Shareholder and from or in relation to
which such liability arose.
ARTICLE IV
The Board of Trustees
Section 1. NUMBER, ELECTION AND TENURE. The number of Trustees shall be
the number established under or pursuant to the Prior Declaration of Trust or
such number as is determined, from time to time, by the Trustees pursuant to
Section 3 of this Article IV but shall at all times be at least one. Each
Trustee shall serve during the continued lifetime of the Trust until the next
meeting of Shareholders called for the purpose of electing Trustees and until
the election and qualification of his or her successor or, if sooner, until he
or she dies, declines to serve, resigns, retires, is removed or is incapacitated
as herein provided. In the event that less
12
than the majority of the Trustees holding office have been elected by the
Shareholders, to the extent required by the 1940 Act, but only to such extent,
the Trustees then in office shall call a Shareholders' meeting for the election
of Trustees. Any Trustee may resign at any time by instrument signed by him and
delivered to any officer of the Trust or to a meeting of the Trustees. Such
resignation shall be effective upon receipt unless specified to be effective at
some other time. Except to the extent expressly provided in a written agreement
with the Trust, no Trustee resigning and no Trustee removed shall have any right
to any compensation for any period following the effective date of his or her
resignation or removal, or any right to damages on account of such removal. The
Shareholders may elect Trustees at any meeting of Shareholders called by the
Trustees for that purpose. Any Trustee may be removed at any meeting of
Shareholders by a vote of two-thirds of the outstanding Shares of the Trust.
Section 2. EFFECT OF DEATH, RESIGNATION, ETC. OF A TRUSTEE. The death,
declination to serve, resignation, retirement, removal, or incapacity of one or
more Trustees, or all of them, shall not operate to annul the Trust or to revoke
any existing agency created pursuant to the terms of this Declaration of Trust.
Whenever there shall be fewer than the designated number of Trustees, until
additional Trustees are elected or appointed as provided herein to bring the
total number of Trustees equal to the designated number, the Trustees in office,
regardless of their number, shall have all the powers granted to the Trustees
and shall discharge all the duties imposed upon the Trustees by this Declaration
of Trust. As conclusive evidence of such vacancy, an instrument certifying the
existence of such vacancy may be executed by an officer of the Trust or by a
majority of the Trustees. In the event of the death, declination, resignation,
retirement, removal, or incapacity of all the then Trustees within a short
period of time and without the opportunity for at least one Trustee being able
to appoint additional Trustees to
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replace those no longer serving, the Trust's Investment Manager(s) are empowered
to appoint new Trustees subject to the provisions of Section 16(a) of the 1940
Act.
Section 3. POWERS. Subject to the provisions of this Declaration of
Trust, the business of the Trust shall be managed by the Trustees, and the
Trustees shall have all powers necessary or convenient to carry out that
responsibility including the power to engage in securities transactions of all
kinds on behalf of the Trust. Without limiting the foregoing, the Trustees may:
adopt By-Laws not inconsistent with this Declaration of Trust providing for the
regulation and management of the affairs of the Trust and may amend and repeal
them to the extent that such By-Laws do not reserve that right to the
Shareholders; enlarge or reduce their number; remove any Trustee with or without
cause at any time by an instrument signed by at least two-thirds of the number
of Trustees prior to such removal, specifying the date when such removal shall
become effective, and fill vacancies caused by enlargement of their number or by
the death, declination to serve, resignation, retirement, removal or incapacity
of a Trustee; elect and remove, with or without cause, such officers and appoint
and terminate such agents as they consider appropriate; appoint from their own
number and establish and terminate one or more committees consisting of one or
more Trustees which may exercise the powers and authority of the Board of
Trustees to the extent that the Trustees determine; employ one or more
custodians of the assets of the Trust and 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 or with a Federal Reserve Bank;
retain a transfer agent or a shareholder servicing agent, or both; provide for
the issuance and distribution of Shares by the Trust directly or through one or
more Principal Underwriters or otherwise; redeem, repurchase and transfer Shares
pursuant to applicable law; set record dates for the determination of
Shareholders with respect to various matters; declare
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and pay dividends and distributions to Shareholders of each Series from the
assets of such Series; and in general delegate such authority as they consider
desirable to any officer of the Trust, to any committee of the Trustees and to
any agent or employee of the Trust or to any such custodian, transfer or
shareholder servicing agent, Manager or Principal Underwriter, provided that
such delegation of authority by the Trustees shall not cause any Trustee to
cease to be a Trustee of the Trust or cause such officer, agent, employee,
custodian, transfer or shareholder servicing agent, Manager or Principal
Underwriter to whom any authority has been delegated to be a Trustee of the
Trust. Any determination as to what is in the interests of the Trust made by the
Trustees in good faith shall be conclusive. In construing the provisions of this
Declaration of Trust, the presumption shall be in favor of a grant of power to
the Trustees. Unless otherwise specified herein or in the By-Laws or required by
law, any action by the Trustees shall be deemed effective if approved or taken
by a majority of the Trustees present at a meeting of Trustees at which a quorum
(as defined in the By-Laws) of Trustees is present, within or without the State
of Delaware.
Without limiting the foregoing, the Trustees shall have the power and
authority to cause the Trust (or to act on behalf of the Trust):
(a) To invest and reinvest cash, to hold cash uninvested, and to
subscribe for, invest in, reinvest in, purchase or otherwise acquire, own, hold,
pledge, sell, assign, transfer, exchange, distribute, write options on, lend or
otherwise deal in or dispose of contracts for the future acquisition or delivery
of fixed income or other securities, and securities of every nature and kind,
including all types of bonds, debentures, stocks, negotiable or non-negotiable
instruments, obligations, evidences of indebtedness, certificates of deposit or
indebtedness, commercial paper, repurchase agreements, bankers' acceptances, and
other securities of any
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kind, issued, created, guaranteed, or sponsored by any and all Persons,
including states, territories, and possessions of the United States and the
District of Columbia and any political subdivision, agency, or instrumentality
thereof, any foreign government or any political subdivision of the U.S.
Government or any foreign government, or any international instrumentality, or
by any bank or savings institution, or by any corporation or organization
organized under the laws of the United States or of any state, territory, or
possession thereof, or by any corporation or organization organized under any
foreign law, or in "when issued" contracts for any such securities, to change
the investments of the assets of the Trust; 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 the right to consent and
otherwise act with respect thereto, with power to designate one or more Persons
to exercise any of said rights, powers, and privileges in respect of any of said
instruments;
(b) To purchase, sell and hold currencies and enter into contracts
for the future purchase or sale of currencies, including forward foreign
currency exchange contracts;
(c) To sell, exchange, lend, pledge, mortgage, hypothecate, lease,
or write options (including, options on futures contracts) with respect to or
otherwise deal in any property rights relating to any or all of the assets of
the Trust or any Series;
(d) 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;
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(e) To exercise powers and right of subscription or otherwise
which in any manner arise out of ownership of securities;
(f) To hold any security or property in a form not indicating any
trust, whether in bearer, unregistered or other negotiable form, or in its own
name or in the name of a custodian or subcustodian or a nominee or nominees or
otherwise;
(g) To consent to or participate in any plan for the
reorganization, consolidation or merger of any corporation or issuer of any
security which is held in the Trust; to consent to any contract, lease,
mortgage, purchase or sale of property by such corporation or issuer; and to pay
calls or subscriptions with respect to any security held in the Trust;
(h) To join with other security holders in acting through a
committee, depository, voting trustee or otherwise, and in that connection to
deposit any security with, or transfer any security to, any such committee,
depository 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, depository or trustee as the
Trustees shall deem proper;
(i) To compromise, arbitrate or otherwise adjust claims in favor
of or against the Trust or any matter in controversy, including claims for
taxes;
(j) To enter into joint ventures, general or limited partnerships
and any other combinations or associations;
(k) To borrow funds or other property in the name of the Trust
exclusively for Trust purposes and in connection therewith issue notes or other
evidence of indebtedness; and to mortgage and pledge the Trust Property or any
part thereof to secure any or all of such indebtedness;
17
(l) To endorse or guarantee the payment of any notes or other
obligations of any Person; to make contracts of guaranty or suretyship, or
otherwise assume liability for payment thereof; and to mortgage and pledge the
Trust Property or any part thereof to secure any of or all of such obligations;
(m) To purchase and pay for entirely out of Trust Property such
insurance as the Trustees may deem necessary or appropriate for the conduct of
the business, including insurance policies insuring the assets of the Trust or
payment of distributions and principal on its portfolio investments, and
insurance policies insuring the Shareholders, Trustees, officers, employees,
agents, investment advisers, Principal Underwriters, or independent contractors
of the Trust, individually against all claims and liabilities of every nature
arising by reason of holding Shares, 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 Trustee, officer, employee, agent, investment
adviser, 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 liability;
(n) To adopt, establish and carry out pension, profit-sharing,
share bonus, share purchase, savings, thrift and other retirement, incentive and
benefit plans and trusts, 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;
(o) To operate as and carry out the business of an investment
company, and exercise all the powers necessary or appropriate to the conduct of
such operations;
(p) To enter into contracts of any kind and description;
18
(q) To employ one or more banks, trust companies or companies that
are members of a national securities exchange or such other entities as the
Commission may permit as custodians of any assets of the Trust subject to any
conditions set forth in this Declaration or Trust or in the By-Laws;
(r) To interpret the investment policies, practices or limitations
of any Series or Class;
(s) To invest part or all of the Trust Property (or part or all of
the assets of any Series), or to dispose of part or all of the Trust Property
(or part or all of the assets of any Series) and invest the proceeds of such
disposition, in securities issued by one or more other investment companies
registered under the 1940 Act (including investment by means of transfer of part
or all of the Trust Property in exchange for an interest or interests in such
one or more investment companies) all without any requirement of approval by
Shareholders unless required by the 1940 Act. Any such other investment company
may (but need not) be a trust (formed under the laws of the State of Delaware or
of any other state) which is classified as a partnership for federal income tax
purposes;
(t) To provide for separate classes, groups or series of Trustees
with respect to any Series or Class thereof or any Trust Property having such
relative rights, powers and duties as the Trustees may determine; and
(u) Subject to the 1940 Act, to engage in any other lawful act or
activity in which a statutory trust organized under the Delaware Act may engage.
The Trust shall not be limited to investing in obligations maturing before
the possible termination of the Trust or one or more of its Series. The Trust
shall not in any way be bound or limited by any present or future law or custom
in regard to investment by fiduciaries. The Trust
19
shall not be required to obtain any court order to deal with any assets of the
Trust or take any other action hereunder.
Section 4. PAYMENT OF EXPENSES BY THE TRUST. The Trustees are authorized
to pay or cause to be paid out of the principal or income of the Trust, or
partly out of the principal and partly out of income, as they deem fair, all
expenses, fees, charges, taxes and liabilities incurred or arising in connection
with the Trust, or in connection with the management thereof, including the
Trustees' compensation and such expenses and charges for the services of the
Trust's officers, employees, investment adviser or Manager, Principal
Underwriter, auditors, counsel, custodian, transfer agent, shareholder servicing
agent, and such other agents or independent contractors and such other expenses
and charges as the Trustees may deem necessary or proper to incur, which
expenses, fees, charges, taxes and liabilities shall be allocated in accordance
with Article III, Section 6 hereof.
Section 5. PAYMENT OF EXPENSES BY SHAREHOLDERS. The Trustees shall have
the power, as frequently as they may determine, to cause each Shareholder, or
each Shareholder of any particular Series, to pay directly, in advance or
arrears, for charges of the Trust's custodian or transfer, shareholder servicing
or similar agent, an amount fixed from time to time by the Trustees, by setting
off such charges due from such Shareholder from declared but unpaid dividends
owed such Shareholder and/or by reducing the number of Shares in the account of
such Shareholder by that number of full and/or fractional Shares which
represents the outstanding amount of such charges due from such Shareholder.
Section 6. OWNERSHIP OF ASSETS OF THE TRUST. Title to all of the assets
of the Trust shall at all times be considered as vested in the Trust, except
that the Trustees shall have power to cause legal title to any Trust Property to
be held by or in the name of one or more of the
20
Trustees, or in the name of the Trust, or in the name of any other Person as
nominee, on such terms as the Trustees may determine with the same effect as if
such property were held in the name of the Trust. No creditor of any Trustee
shall have any right to obtain possession, or otherwise exercise legal or
equitable remedies with respect to, any Trust Property with respect to any claim
against, or obligation of, such Trustee in its individual capacity and not
related to the Trust or any Series (or Class) of the Trust. The right, title and
interest of the Trustees in the Trust Property shall vest automatically in each
Person who may hereafter become a Trustee. Upon the resignation, retirement,
removal, declination to serve, incapacity, or death of a Trustee, he or she
shall automatically cease to have any right, title or interest in any of the
Trust Property, and the right, title and interest of such Trustee in the Trust
Property shall vest automatically in the remaining Trustees. Such vesting and
cessation of title shall be effective whether or not conveyancing documents have
been executed and delivered.
Section 7. SERVICE CONTRACTS.
(a) Subject to such requirements and restrictions as may be set
forth under federal and/or state law and in the By-Laws, including the
requirements of Section 15 of the 1940 Act, the Trustees may, at any time and
from time to time, contract for exclusive or nonexclusive advisory, management
and/or administrative services for the Trust or for any Series (or Class
thereof) with any corporation, trust, association or other organization; and any
such contract may contain such other terms as the Trustees may determine,
including authority for the Investment Manager or administrator to delegate
certain or all of its duties under such contracts to qualified investment
advisers and administrators and to determine from time to time without prior
consultation with the Trustees 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
21
make changes in the Trust's investments, or such other activities as may
specifically be delegated to such party.
(b) The Trustees may also, at any time and from time to time,
contract with any corporation, trust, association or other organization,
appointing it exclusive or nonexclusive distributor or Principal Underwriter for
the Shares of one or more of the Series (or Classes) or other securities to be
issued by the Trust. Every such contract shall comply with such requirements and
restrictions as may be set forth under federal and/or state law and in the
By-Laws, including the requirements of Section 15 of the 1940 Act; and any such
contract may contain such other terms as the Trustees may determine.
(c) The Trustees are also empowered, at any time and from time to
time, to contract with any corporations, trusts, associations or other
organizations, appointing it or them the custodian, transfer agent and/or
shareholder servicing agent for the Trust or one or more of its Series. Every
such contract shall comply with such requirements and restrictions as may be set
forth under federal and/or state law and in the By-Laws or stipulated by
resolution of the Trustees.
(d) Subject to applicable federal law, including the 1940 Act, the
Trustees are further empowered, at any time and from time to time, to contract
with any entity to provide such other services to the Trust or one or more of
the Series, as the Trustees determine to be in the best interests of the Trust
and the applicable Series.
(e) The fact that:
(i) any of the Shareholders, Trustees, or officers of the
Trust is a shareholder, director, officer, partner, trustee, employee, Manager,
adviser, Principal Underwriter, distributor, or affiliate or agent of or for any
corporation, trust, association, or other
22
organization, or for any parent or affiliate of any organization with which an
advisory, management or administration contract, or Principal Underwriter's or
distributor's contract, or transfer, shareholder servicing or other type of
service contract may have been or may hereafter be made, or that any such
organization, or any parent or affiliate thereof, is a Shareholder or has an
interest in the Trust, or that
(ii) any corporation, trust, association or other organization
with which an advisory, management or administration contract or Principal
Underwriter's or distributor's contract, or transfer, shareholder servicing or
other type of service contract may have been or may hereafter be made also has
an advisory, management or administration contract, or Principal Underwriter's
or distributor's contract, or transfer, shareholder servicing or other service
contract with one or more other corporations, trusts, associations, or other
organizations, or has other business or interests, shall not affect the validity
of any such contract or disqualify any Shareholder, Trustee or officer of the
Trust from voting upon or executing the same, or create any liability or
accountability to the Trust or its Shareholders, provided approval of each such
contract is made pursuant to the requirements of the 1940 Act.
(f) Any Shareholder, Trustee or officer of the Trust may lend
money to, borrow money from, act as a surety, guarantor or endorser for,
guarantee or assume one or more obligations of, provide collateral for, and
transact other business with the Trust and, subject to applicable law, has the
same rights and obligations with respect to any such matter as a Person who is
not a Shareholder, Trustee or officer of the Trust.
Section 8. TRUSTEES AND OFFICERS AS SHAREHOLDERS. Any Trustee, officer or
agent of the Trust may acquire, own and dispose of Shares to the same extent as
if he were not a Trustee, officer or agent; and the Trustees may issue and sell
and cause to be issued and sold Shares to,
23
and redeem such Shares from, any such Person or any firm or company in which
such Person is interested, subject only to the general limitations contained
herein or in the By-Laws relating to the sale and redemption of such Shares.
ARTICLE V
Shareholders' Voting Powers and Meetings
Section 1. VOTING POWERS, MEETINGS, NOTICE AND RECORD DATES. The
Shareholders shall have power to vote only (i) for the election or removal of
Trustees as and to the extent provided in Article IV, Section 1, and (ii) with
respect to such additional matters relating to the Trust as may be required by
the 1940 Act, this Declaration of Trust, the By-Laws or any registration of the
Trust with the Commission (or any successor agency) or any state, or as the
Trustees may consider necessary or desirable. As determined by the Trustees
without the vote or consent of Shareholders (except as required by the 1940
Act), on any matter submitted to a vote of Shareholders, either (i) each whole
Share shall be entitled to one vote as to any matter on which it is entitled to
vote and each fractional Share shall be entitled to a proportionate fractional
vote or (ii) each dollar of Net Asset Value (number of Shares owned times Net
Asset Value per share of such Series or Class, as applicable) shall be entitled
to one vote on any matter on which such Shares are entitled to vote and each
fractional dollar amount shall be entitled to a proportionate fractional vote.
Without limiting the power of the Trustees in any way to designate otherwise in
accordance with the preceding sentence, the Trustees hereby establish that each
whole Share shall be entitled to one vote as to any matter on which it is
entitled to vote and each fractional Share shall be entitled to a proportionate
fractional vote.
Notwithstanding any other provision of this Declaration of Trust, on any
matter submitted to a vote of the Shareholders, all Shares of the Trust then
entitled to vote shall be voted in the aggregate, except (i) when required by
the 1940 Act, Shares shall be voted by
24
individual Series; (ii) when the matter involves any action that the Trustees
have determined will affect only the interests of one or more Series, then only
Shareholders of such Series shall be entitled to vote thereon; and (iii) when
the matter involves any action that the Trustees have determined will affect
only the interests of one or more Classes, then only the Shareholders of such
Class 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 may be given in writing. The By-Laws may provide that proxies may also, or
may instead, be given by any electronic or telecommunications device or in any
other manner. Notwithstanding anything else contained herein or in the By-Laws,
in the event a proposal by anyone other than the officers or Trustees of the
Trust is submitted to a vote of the Shareholders of one or more Series or
Classes thereof or of the Trust, or in the event of any proxy contest or proxy
solicitation or proposal in opposition to any proposal by the officers or
Trustees of the Trust, Shares may be voted only in person or by written proxy at
a meeting. 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 the Shareholders. Meetings of the Shareholders
shall be called and notice thereof and record dates therefor shall be given and
set as provided in the By-Laws.
Section 2. QUORUM AND REQUIRED VOTE. Except when a larger quorum is
required by federal law, including the 1940 Act, by the By-Laws or by this
Declaration of Trust, one-third of the Shares entitled to vote shall constitute
a quorum at a Shareholders' meeting. When any one or more Series (or Classes) is
to vote as a single class separate from any other Shares, one-third of the
Shares of all such Series (or Classes) entitled to vote shall constitute a
quorum at a Shareholders' meeting of such Series (or Classes). Except when a
larger vote is required by any provision of this Declaration of Trust or the
By-Laws or by federal law, including the 1940 Act,
25
when a quorum is present at any meeting, a plurality of the Shares voted shall
elect a Trustee and a majority of the Shares voted shall decide any other
matters, provided that where any provision of federal law, including the 1940
Act, or of this Declaration of Trust requires or permits the Shareholders of any
one or more Series (or Classes) to vote as a single class separate from any
other Shares, then, when a quorum is present with respect to such Series (or
Classes), a majority of the Shares of all such Series (or Classes) voted on the
matter (or a plurality with respect to the election of a Trustee) shall decide
that matter insofar as such Series (or Classes) are concerned.
Section 3. RECORD DATES. For the purpose of determining the Shareholders
of any Series (or Class) who are entitled to receive payment of any dividend or
of any other distribution, the Trustees may from time to time fix a date, which
shall be before the date for the payment of such dividend or such other payment,
as the record date for determining the Shareholders of such Series (or Class)
having the right to receive such dividend or distribution. Without fixing a
record date, the Trustees may for distribution purposes close the register or
transfer books for one or more Series (or Classes) at any time prior to the
payment of a distribution. Nothing in this Section shall be construed as
precluding the Trustees from setting different record dates for different Series
(or Classes).
Section 4. ADDITIONAL PROVISIONS. The By-Laws may include further
provisions for Shareholders' votes and meetings and related matters.
ARTICLE VI
Net Asset Value, Distributions and Redemptions
Section 1. DETERMINATION OF NET ASSET VALUE, NET INCOME, AND
DISTRIBUTIONS. Subject to applicable law and Article III, Section 6 hereof, the
Trustees, in their absolute discretion, may prescribe and shall set forth in a
duly adopted vote of the Trustees such bases and time for determining the per
Share or net asset value of the Shares of any Series (or Class) or net
26
income attributable to the Shares of any Series (or Class), or the declaration
and payment of dividends and distributions on the Shares of any Series (or
Class), as they may deem necessary or desirable.
Section 2. REDEMPTIONS AND REPURCHASES.
(a) The Trust shall purchase such Shares as are offered by any
Shareholder for redemption, upon the presentation of a proper instrument of
transfer together with a request directed to the Trust or a Person designated by
the Trust that the Trust purchase such Shares or in accordance with such other
procedures for redemption as the Trustees may from time to time authorize; and
the Trust will pay therefor the net asset value thereof as determined by the
Trustees (or on their behalf), in accordance with any applicable provisions of
the By-Laws and applicable law, less any fees imposed on such redemption. Unless
extraordinary circumstances exist, payment for said Shares shall be made by the
Trust to the Shareholder within seven (7) days after the date on which the
request is made in proper form. The obligation set forth in this Section 2 is
subject to the provision that in the event that any time the New York Stock
Exchange (the "Exchange") is closed for other than weekends or holidays, or if
permitted by the rules and regulations or an order of the Commission during
periods when trading on the Exchange is restricted or during any emergency which
makes it impracticable for the Trust to dispose of the investments of the
applicable Series or to determine fairly the value of the net assets held with
respect to such Series or during any other period permitted by order of the
Commission for the protection of investors, such obligations may be suspended or
postponed by the Trustees. In the case of a suspension of the right of
redemption as provided herein, a Shareholder may either withdraw the request for
redemption or receive payment based on the net asset value per Share next
determined after the termination of such suspension, less any fees imposed on
such redemption.
27
(b) The redemption price may in any case or cases be paid wholly
or partly in kind if the Trustees determine that such payment is advisable in
the interest of the remaining Shareholders of the Series for which the Shares
are being redeemed. Subject to the foregoing, the fair value, selection and
quantity of securities or other property so paid or delivered as all or part of
the redemption price may be determined by or under authority of the Trustees. In
no case shall the Trust be liable for any delay of any corporation or other
Person in transferring securities selected for delivery as all or part of any
payment in kind.
(c) The Trustees may require any Shareholder or group of
Shareholders (including some or all of the Shareholders of any Series or Class)
to redeem Shares for any reason under terms set by the Trustees, including (i)
the determination of the Trustees that direct or indirect ownership of Shares of
any Series has or may become concentrated in such Shareholder to an extent that
would disqualify any Series as a regulated investment company under the Internal
Revenue Code of 1986, as amended (or any successor statute thereto), (ii) the
failure of a Shareholder to supply a tax identification number if required to do
so, or to have the minimum investment required (which may vary by Series), or
(iii) the failure of a Shareholder to pay when due for the purchase of Shares
issued to him. Any such redemption shall be effected at the redemption price and
in the manner provided in this Article VI.
(d) The Shareholders shall upon demand disclose to the Trustees in
writing such information with respect to direct and indirect ownership of Shares
as the Trustees deem necessary to comply with the provisions of the Internal
Revenue Code of 1986, as amended (or any successor statute thereto), or to
comply with the requirements of any other taxing authority.
28
ARTICLE VII
Compensation and Limitation of
Liability of Trustees
Section 1. COMPENSATION. The Trustees as such shall be entitled to
reasonable compensation from the Trust, and the Trustees may fix the amount of
such compensation. Nothing herein shall in any way prevent the employment of any
Trustee for advisory, management, legal, accounting, investment banking or other
services and payment for the same by the Trust.
Section 2. INDEMNIFICATION AND LIMITATION OF LIABILITY. A Trustee, when
acting in such capacity, shall not be personally liable to any Person, other
than the Trust or a Shareholder to the extent provided in this Article VII, for
any act, omission or obligation of the Trust, of such Trustee or of any other
Trustee. The Trustees shall not be responsible or liable in any event for any
neglect or wrongdoing of any officer, agent, employee, Manager, advisor,
sub-adviser or Principal Underwriter of the Trust. The Trust shall indemnify
each Person who is, or has been, a Trustee, officer, employee or agent of the
Trust and any Person who is serving or has served at the Trust's request as a
director, officer, trustee, employee or agent of another organization in which
the Trust has any interest as a shareholder, creditor or otherwise to the extent
and in the manner provided in the By-Laws.
All Persons extending credit to, contracting with or having any claim
against the Trust or the Trustees shall look only to the assets of the Series
that such Person extended credit to, contracted with or has a claim against, or,
if the Trustees have yet to establish Series, of the Trust for payment under
such credit, contract or claim; and neither the Trustees nor the Shareholders,
nor any of the Trust's officers, employees or agents, whether past, present or
future, shall be personally liable therefor.
29
Every note, bond, contract, instrument, certificate or undertaking and
every other act or thing whatsoever executed or done by or on behalf of the
Trust or the Trustees by any of them in connection with the Trust shall
conclusively be deemed to have been executed or done only in or with respect to
his or their capacity as Trustee or Trustees, and such Trustee or Trustees shall
not be personally liable thereon. At the Trustees' discretion, any note, bond,
contract, instrument, certificate or undertaking made or issued by the Trustees
or by any officer or officers may give notice that the Certificate of Trust is
on file in the Office of the Secretary of State of the State of Delaware and
that a limitation on liability of Series exists and such note, bond, contract,
instrument, certificate or undertaking may, if the Trustees so determine, recite
that the same was executed or made on behalf of the Trust by a Trustee or
Trustees in such capacity and not individually or by an officer or officers in
such capacity 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 on the assets and property of the Trust or a Series thereof, and
may contain such further recital as such Person or Persons may deem appropriate.
The omission of any such notice or recital shall in no way operate to bind any
Trustees, officers or Shareholders individually.
Section 3. 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 to the Trust and to
any Shareholder solely 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 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 shall be
under no liability for any act
30
or omission in accordance with such advice nor 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 4. INSURANCE. The Trustees shall be entitled and empowered to the
fullest extent permitted by law to purchase with Trust assets insurance for
liability and for all expenses reasonably incurred or paid or expected to be
paid by a Trustee, officer, employee or agent of the Trust in connection with
any claim, action, suit or proceeding in which he or she becomes involved by
virtue of his or her capacity or former capacity with the Trust.
ARTICLE VIII
Miscellaneous
Section 1. LIABILITY OF THIRD PERSONS DEALING WITH TRUSTEES. No Person
dealing with the Trustees shall be bound to make any inquiry concerning the
validity of any transaction made or to be made by the Trustees or to see to the
application of any payments made or property transferred to the Trust or upon
its order.
Section 2. TERMINATION OF THE TRUST OR ANY SERIES OR CLASS.
(a) Unless terminated as provided herein, the Trust shall continue
without limitation of time. The Trust may be dissolved at any time by the
Trustees by written notice to the Shareholders. Any Series of Shares may be
dissolved at any time by the Trustees by written notice to the Shareholders of
such Series. Any Class of any Series of Shares may be terminated at any time by
the Trustees by written notice to the Shareholders of such Class. Any action to
dissolve the Trust shall be deemed to also be an action to dissolve each Series
and each Class thereof.
(b) Upon the requisite action by the Trustees to dissolve the
Trust or 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, of the Trust or of the particular Series as may
31
be determined by the Trustees, the Trust shall in accordance with such
procedures as the Trustees consider appropriate reduce the remaining assets of
the Trust or of the affected Series to distributable form in cash or Shares (if
any Series remain) or other securities, or any combination thereof, and
distribute the proceeds to the Shareholders of the Trust or Series involved,
ratably according to the number of Shares of the Trust or such Series held by
the several Shareholders of such Series on the date of distribution. Thereupon,
any affected Series or Class shall terminate and the Trustees and the Trust
shall be discharged of any and all further liabilities and duties relating
thereto or arising therefrom, and the right, title and interest of all parties
with respect to such Series shall be canceled and discharged. Upon the requisite
action by the Trustees to terminate any Class of any Series of Shares, the
Trustees may, to the extent they deem it appropriate, follow the procedures set
forth in this Section 2(b) with respect to such Class that are specified in
connection with the dissolution and winding up of the Trust or any Series of
Shares. Alternatively, in connection with the termination of any Class of any
Series of Shares, the Trustees may treat such termination as a redemption of the
Shareholders of such Class effected pursuant to Section 2(c) of Article VI of
this Declaration of Trust provided that the costs relating to the termination of
such Class shall be included in the determination of the net asset value of the
Shares of such Class for purposes of determining the redemption price to be paid
to the Shareholders of such Class (to the extent not otherwise included in such
determination).
(c) Following completion of winding up of the Trust's business,
the Trustees shall cause a certificate of cancellation of the Trust's
Certificate of Trust to be filed in accordance with the Delaware Act, which
certificate of cancellation may be signed by any one Trustee. Upon termination
of the Trust, the Trustees shall be discharged of any and all further
32
liabilities and duties relating thereto or arising therefrom, and the right,
title and interest of all parties with respect to the Trust shall be canceled
and discharged.
Section 3. REORGANIZATION AND MASTER/FEEDER.
(a) Notwithstanding anything else herein, the Trustees may,
without Shareholder approval unless such approval is required by the 1940 Act,
(i) cause the Trust to convert or merge, reorganize or consolidate with or into
one or more trusts, partnerships, limited liability companies, associations,
corporations or other business entities (or a series of any of the foregoing to
the extent permitted by law) (including trusts, partnerships, limited liability
companies, associations, corporations or other business entities created by the
Trustees to accomplish such conversion, merger, reorganization or consolidation)
so long as the surviving or resulting entity is an open-end management
investment company under the 1940 Act, or is a series thereof, to the extent
permitted by law, and that, in the case of any trust, partnership, limited
liability company, association, corporation or other business entity created by
the Trustees to accomplish such conversion, merger, reorganization or
consolidation, may succeed to or assume the Trust's registration under the 1940
Act and that, in any case, is formed, organized or existing under the laws of
the United States or of a state, commonwealth, possession or colony of the
United States, (ii) cause the Shares to be exchanged under or pursuant to any
state or federal statute to the extent permitted by law, (iii) cause the Trust
to incorporate under the laws of a state, commonwealth, possession or colony of
the United States (iv) sell or convey all or substantially all of the assets of
the Trust or any Series or Class to another Series or Class of the Trust or to
another trust, partnership, limited liability company, association, corporation
or other business entity (or a series of any of the foregoing to the extent
permitted by law) (including a trust, partnership, limited liability company,
association, corporation or other business entity created by the Trustees to
accomplish such sale and conveyance), organized under the laws of
33
the United States or of any state, commonwealth, possession or colony of the
United States so long as such trust, partnership, limited liability company,
association, corporation or other business entity is an open-end management
investment company under the 1940 Act and, in the case of any trust,
partnership, limited liability company, association, corporation or other
business entity created by the Trustees to accomplish such sale and conveyance,
may succeed to or assume the Trust's registration under the 1940 Act, for
adequate consideration as determined by the Trustees which may include the
assumption of all outstanding obligations, taxes and other liabilities, accrued
or contingent of the Trust or any affected Series or Class, and which may
include Shares of such other Series or Class of the Trust or shares of
beneficial interest, stock or other ownership interest of such trust,
partnership, limited liability company, association, corporation or other
business entity (or series thereof) or (v) at any time sell or convert into
money all or any part of the assets of the Trust or any Series or Class thereof.
Any agreement of merger, reorganization, consolidation or conversion or exchange
or certificate of merger, certificate of conversion or other applicable
certificate may be signed by a majority of the Trustees and facsimile signatures
conveyed by electronic or telecommunication means shall be valid.
(b) Pursuant to and in accordance with the provisions of Section
3815(f) of the Delaware Act, and notwithstanding anything to the contrary
contained in this Declaration of Trust, an agreement of merger or consolidation
approved by the Trustees in accordance with this Section 3 may effect any
amendment to this Declaration of Trust or effect the adoption of a new governing
instrument of the Trust if the Trust is the surviving or resulting entity in the
merger or consolidation.
34
(c) Notwithstanding anything else herein, the Trustees may,
without Shareholder approval unless such approval is required by the 1940 Act,
invest all or a portion of the Trust Property of any Series, or dispose of all
or a portion of the Trust Property of any Series, and invest the proceeds of
such disposition in interests issued by one or more other investment companies
registered under the 1940 Act. Any such other investment company may (but need
not) be a trust (formed under the laws of the State of Delaware or any other
state or jurisdiction) (or subtrust thereof) which is classified as a
partnership for federal income tax purposes. Notwithstanding anything else
herein, the Trustees may, without Shareholder approval unless such approval is
required by the 1940 Act, cause a Series that is organized in the master/feeder
fund structure to withdraw or redeem its Trust Property from the master fund and
cause such Series to invest its Trust Property directly in securities and other
financial instruments or in another master fund.
Section 4. AMENDMENTS. Except as specifically provided in this Section 4,
the Trustees may, without Shareholder vote, restate, amend or otherwise
supplement this Declaration of Trust. Shareholders shall have the right to vote
(i) on any amendment that is required to be approved by Shareholders pursuant to
the 1940 Act and (ii) on any amendment submitted to the Shareholders by the
Trustees at their discretion. Any amendment required or permitted to be
submitted to the Shareholders that, as the Trustees determine, shall only affect
the Shareholders of one or more Series or one or more Classes shall be
authorized by a vote of only the Shareholders of each Series or Class affected
and no vote of Shareholders of a Series or Class not affected shall be required.
Notwithstanding anything else herein, no amendment hereof shall limit the rights
to insurance provided by Article VII, Section 4 of this Declaration of Trust
with respect to any acts or omissions of Persons covered thereby prior to such
amendment nor shall
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any such amendment limit the rights to indemnification referenced in Article
VII, Section 2 of this Declaration of Trust or as provided in the By-Laws with
respect to any actions or omissions of Persons covered thereby prior to such
amendment. The Trustees may, without Shareholder vote, restate, amend, or
otherwise supplement the Certificate of Trust as the Trustees deem necessary or
desirable.
Section 5. FILING OF COPIES, REFERENCES, HEADINGS. The original or a copy
of this instrument and of each restatement and/or amendment hereto shall be kept
at the office of the Trust where it may be inspected by any Shareholder. Anyone
dealing with the Trust may rely on a certificate by an officer of the Trust as
to whether or not any such restatements and/or amendments have been made and as
to any 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 restatements and/or
amendments. In this instrument and in any such restatements and/or amendments,
references to this instrument, and all expressions such as "herein", "hereof"
and "hereunder", shall be deemed to refer to this instrument as amended or
affected by any such restatements and/or amendments. 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.
Whenever the singular number is used herein, the same shall include the plural;
and the neuter, masculine and feminine genders shall include each other, as
applicable. This Declaration of Trust and any document, consent or instrument
referenced in or contemplated by this Declaration of Trust or the By-Laws may be
executed in any number of counterparts, each of which shall be deemed an
original but all of which together will constitute one and the same instrument.
To the extent permitted by the 1940 Act, (i) any document, consent, instrument
or notice referenced in or contemplated by this
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Declaration of Trust or the By-Laws that is to be executed by one or more
Trustees may be executed by means of original, facsimile or electronic signature
and (ii) any document, consent, instrument or notice referenced in or
contemplated by this Declaration of Trust or the By-Laws that is to be delivered
by one or more Trustees may be delivered by facsimile or electronic means
(including e-mail), unless, in the case of either clause (i) or (ii), otherwise
expressly provided herein or in the By-Laws or determined by the Trustees. The
terms "include," "includes" and "including" and any comparable terms shall be
deemed to mean "including, without limitation."
Section 6. APPLICABLE LAW.
(a) The Trust is created under, and this Declaration of Trust is
to be governed by, and construed and enforced in accordance with, the laws of
the State of Delaware. The Trust shall be of the type commonly called a
statutory or business trust, and without limiting the provisions hereof, the
Trust specifically reserves the right to exercise any of the powers or
privileges afforded to statutory trusts or actions that may be engaged in by
statutory trusts under the Delaware Act, and the absence of a specific reference
herein to any such power, privilege or action shall not imply that the Trust may
not exercise such power or privilege or take such actions.
(b) Notwithstanding the first sentence of Section 6(a) of this
Article VIII, there shall not be applicable to the Trust, the Trustees or this
Declaration of Trust, the provisions of Section 3540 of Title 12 of the Delaware
Code or any provisions of the laws (statutory or common) of the State of
Delaware (other than the Delaware Act) pertaining to trusts that relate to or
regulate: (i) the filing with any court or governmental body or agency of
trustee accounts or schedules of trustee fees and charges, (ii) affirmative
requirements to post bonds for trustees, officers, agents or employees of a
trust, (iii) the necessity for obtaining a court or other governmental approval
concerning the acquisition, holding or disposition of real or personal
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property, (iv) fees or other sums applicable to trustees, officers, agents or
employees of a trust, (v) the allocation of receipts and expenditures to income
or principal, (vi) restrictions or limitations on the permissible nature, amount
or concentration of trust investments or requirements relating to the titling,
storage or other manner of holding of trust assets, or (vii) the establishment
of fiduciary or other standards or responsibilities or limitations on the acts
or powers of trustees that are inconsistent with the limitations or liabilities
or authorities and powers of the Trustees set forth or referenced in this
Declaration of Trust.
Section 7. PROVISIONS IN CONFLICT WITH LAW OR REGULATIONS.
(a) The provisions of the Declaration of Trust are severable, and
if the Trustees shall determine, with the advice of counsel, that any of such
provision is in conflict with the 1940 Act, the regulated investment company
provisions of the Internal Revenue Code of 1986, as amended (or any successor
statute thereto), and the regulations thereunder, the Delaware Act or with other
applicable laws and regulations, the conflicting provision shall be deemed never
to have constituted a part of the Declaration of Trust; provided, however, that
such determination shall not affect any of the remaining provisions of the
Declaration of Trust or render invalid or improper any action taken or omitted
prior to such determination.
(b) If any provision of the Declaration of Trust shall be held
invalid or unenforceable in any jurisdiction, such invalidity or
unenforceability shall attach only to such provision in such jurisdiction and
shall not in any manner affect such provision in any other jurisdiction or any
other provision of the Declaration of Trust in any jurisdiction.
Section 8. STATUTORY TRUST ONLY. It is the intention of the Trustees to
create a statutory trust pursuant to the Delaware Act. It is not the intention
of the Trustees to create a general partnership, limited partnership, joint
stock association, corporation, bailment, or any form of legal relationship
other than a statutory trust pursuant to the Delaware Act. Nothing in
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this Declaration of Trust shall be construed to make the Shareholders, either by
themselves or with the Trustees, partners or members of a joint stock
association.
Section 9. DERIVATIVE ACTIONS. In addition to the requirements set forth
in Section 3816 of the Delaware Act, a Shareholder may bring a derivative action
on behalf of the Trust only if the following conditions are met:
(a) The Shareholder or Shareholders must make a pre-suit demand
upon the Trustees to bring the subject action unless an effort to cause the
Trustees to bring such an action is not likely to succeed. For purposes of this
Section 9(a), a demand on the Trustees shall only be deemed not likely to
succeed and therefore excused if a majority of the Board of Trustees, or a
majority of any committee established to consider the merits of such action, is
composed of Trustees who are not "independent trustees" (as that term is defined
in the Delaware Act).
(b) Unless a demand is not required under paragraph (a) of this
Section 9, Shareholders eligible to bring such derivative action under the
Delaware Act who collectively hold at least 10% of the outstanding Shares of the
Trust, or who collectively hold at least 10% of the outstanding Shares of the
Series or Class to which such action relates, shall join in the request for the
Trustees to commence such action; and
(c) Unless a demand is not required under paragraph (a) of this
Section 9, the Trustees must be afforded a reasonable amount of time to consider
such Shareholder request and to investigate the basis of such claim. The
Trustees shall be entitled to retain counsel or other advisors in considering
the merits of the request and shall require an undertaking by the Shareholders
making such request to reimburse the Trust for the expense of any such advisors
in the event that the Trustees determine not to bring such action.
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(d) For purposes of this Section 9, the Board of Trustees may
designate a committee of one Trustee to consider a Shareholder demand if
necessary to create a committee with a majority of Trustees who do not have a
personal financial interest in the transaction at issue. The Trustees shall be
entitled to retain counsel or other advisors in considering the merits of the
request and may require an undertaking by the Shareholders making such request
to reimburse the Trust for the expense of any such advisors in the event that
the Trustees determine not to bring such action.
THE PRINCIPAL PLACE OF BUSINESS OF THE TRUST IS:
Gateway Center Three
000 Xxxxxxxx Xxxxxx
Xxxxxx, Xxx Xxxxxx 00000-0000
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