ZIEGLER EXCHANGE TRADED TRUST AMENDED AGREEMENT AND DECLARATION OF TRUST DATED DECEMBER 15, 2006
Exhibit
(A)(2)
XXXXXXX
EXCHANGE TRADED TRUST
DATED
DECEMBER 15, 2006
1
XXXXXXX
EXCHANGE TRADED TRUST
Dated
December 15, 2006
This
AMENDED AGREEMENT AND DECLARATION OF TRUST (hereinafter “Trust Instrument”) is
made December 15, 2006 (together with all other persons from time to time duly
elected, qualified and serving as Trustees in accordance with Article III
hereof, the “Trustees”).
ARTICLE
I
SECTION
1.01.
NAME.
The name of the trust created hereby is “XXXXXXX EXCHANGE TRADED
TRUST.”
SECTION
1.02.
DEFINITIONS. Wherever used herein, unless otherwise required by the context
or
specifically provided:
(a) The
term
“By-Laws” means the Amended By-Laws referred to in Article IV, Section 4.01(e)
hereof, as from time to time amended;
(b) The
term
“Commission” has the meaning given it in the 1940 Act (as defined below). The
terms “Affiliated Person,” “Assignment,” “Interested Person,” and “Principal
Underwriter” shall have the meanings given them in the 1940 Act, as modified by
or interpreted by any applicable order or orders of the Commission or any rules
or regulations adopted by or interpretive releases of the Commission
thereunder;
(c) The
term
“Delaware Act” refers to Chapter 38 of Title 12 of the Delaware Code entitled
“Treatment of Delaware Business Trusts,” as it may be amended from time to
time;
(d) The
term
“Independent Trustee” means a Trustee (as defined below) who is not an
Interested Person of the Trust (as defined below).
(e) The
term
“Net Asset Value” means the net asset value of each Series (as defined below) of
the Trust (as defined below) determined in the manner provided in Article IX,
Section 9.03 hereof;
(f) The
term
“Outstanding Shares” means those Shares (as defined below) shown from time to
time in the books of the Trust or its transfer agent as then issued and
outstanding, but shall not include Shares which have been redeemed or
repurchased by the Trust and which are at the time held in the treasury of
the
Trust;
2
(g) “Person”
means and includes individuals, corporations, partnerships, trusts, foundations,
plans, associations, joint ventures, estates and other entities, whether or
not
legal entities, and governments and agencies and political subdivisions thereof,
whether domestic or foreign;
(h) The
term
“Series” means a series of Shares of the Trust established in accordance with
the provisions of Article II, Section 2.05 hereof;
(i) The
term
“Shareholder” means a record owner of Outstanding Shares of the
Trust;
(j) The
term
“Shares” means the equal proportionate transferable units of beneficial interest
into which the beneficial interest of each Series of the Trust or class thereof
shall be divided and may include fractions of Shares as well as whole
Shares;
(k) The
term
“Trust” refers to the Xxxxxxx Exchange Traded Trust and all Series of the
Xxxxxxx Exchange Traded Trust, and reference to the Trust, when applicable
to
one or more Series of the Trust, shall refer to any such Series;
(l) The
term
“Trustee” or “Trustees” means the person or persons who has or have signed this
Trust Instrument, so long as he, she or they shall continue in office in
accordance with the terms hereof, and all other persons who may from time to
time be duly qualified and serving as Trustees in accordance with the provisions
of Article III hereof and reference herein to a Trustee or to the Trustees
shall
refer to the individual Trustees in their capacity as Trustees
hereunder;
(m) The
term
“Trust Property” means any and all property, real or personal, tangible or
intangible, which is owned or held by or for the account of one or more of
the
Trust or any Series, or the Trustees on behalf of the Trust or any Series;
(n) The
“1940
Act” refers to the Investment Company Act of 1940 and the Rules and Regulations
thereunder, all as amended from time to time. References herein to specific
sections of the 1940 Act shall be deemed to include such Rules and Regulations
as are applicable to such sections as determined by the Trustees or their
designees.
ARTICLE
II
BENEFICIAL
INTEREST
3
4
All
references to Shares in this Trust Instrument 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.
Each
Share of a Series of the Trust shall represent an equal beneficial interest
in
the net assets of such Series. Each holder of Shares of a Series shall be
entitled to receive his pro rata share of distributions of income and capital
gains, if any, made with respect to such Series. Upon redemption of his Shares,
such Shareholder shall be paid solely out of the funds and property of such
Series of the Trust.
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Without
limitation of the foregoing provisions of this Section 2.07, but subject to
the
right of the Trustees in their discretion to allocate general liabilities,
expenses, costs, charges, or reserves as herein provided, the debts,
liabilities, obligations, and expenses incurred, contracted for or otherwise
existing with respect to a particular Series shall be enforceable against the
assets of the Trust generally. Notice of this contractual limitation on
inter-Series liabilities may, in the Trustee’s sole discretion, be set forth in
the certificate of trust of the Trust (whether originally or by amendment)
as
filed or to be filed in the Office of the Secretary of State of the State of
Delaware pursuant to the Delaware Act, and upon the giving of such notice in
the
certificate of trust, the statutory provisions of Section 3804 of Delaware
Act
relating to limitations on liabilities among Series (and the statutory effect
under Section 3804 of setting forth such notice in the certificate of trust)
shall become applicable to the Trust and each Series. Any person extending
credit to, contracting with or having any claim against any Series may look
only
to the assets of that Series to satisfy or enforce any debt, liability,
obligation or expense incurred, contracted for or otherwise existing with
respect to that Series. No Shareholder or former Shareholder of any Series
shall
have a claim on or any right to any assets allocated or belonging to any other
Series.
6
ARTICLE
III
The
enumeration of any specific power in this Trust Instrument shall not be
construed as limiting the aforesaid power. The powers of the Trustees may be
exercised without order of or resort to any court.
Except
for the Trustees named herein or appointed to fill vacancies pursuant to Section
3.04 of this Article III, the Trustees shall be elected by the Shareholders
owning of record a plurality of the Shares voting at a meeting of Shareholders.
Such a meeting shall be held on a date fixed by the Trustees. In the event
that
less than a majority of the Trustees holding office have been elected by
Shareholders, the Trustees then in office will call a Shareholders’ meeting for
the election of Trustees.
7
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 his or her resignation or removal, or any right to damages
or other payment on account of such removal.
An
appointment of a Trustee may be made by the Trustees then in office in
anticipation of a vacancy to occur by reason of retirement, resignation or
increase in number of Trustees effective at a later date, provided that said
appointment shall become effective only at or after the effective date of said
retirement, resignation or increase in number of Trustees. As soon as any
Trustee appointed pursuant to this Section 3.04 shall have accepted this trust,
the trust estate shall vest in the new Trustee or Trustees, together with the
continuing Trustees, without any further act or conveyance, and he or she shall
be deemed a Trustee hereunder. The power to appoint a Trustee pursuant to this
Section 3.04 is subject to the provisions of Section 16(a) of the 1940
Act.
8
ARTICLE
IV
(a) To
invest
and reinvest cash and other property, and to hold cash or other property
uninvested, without in any event being bound or limited by any present or future
law or custom in regard to investments by Trustees, and to sell, exchange,
lend,
pledge, mortgage, hypothecate, write options on and lease any or all the assets
of the Trust;
(b) To
operate as and carry on the business of an investment company, and exercise
all
the powers necessary and appropriate to the conduct of such
operations;
9
(c) To
borrow
money and in this connection issue notes or other evidence of indebtedness;
to
secure borrowings by mortgaging, pledging or otherwise subjecting as security
the Trust Property; to endorse, guarantee, or undertake the performance of
an
obligation or engagement of any other Person and to lend Trust
Property;
(d) To
provide for the distribution of interests of the Trust either through a
principal underwriter in the manner hereinafter provided for or by the Trust
itself, or both, or otherwise pursuant to a plan of distribution of any
kind;
(e) To
adopt
By-Laws not inconsistent with this Trust Instrument providing for the conduct
of
the business of the Trust and to amend and repeal them to the extent that they
do not reserve that right to the Shareholders; such By-Laws shall be deemed
incorporated and included in this Trust Instrument;
(f) To
elect
and remove such officers and appoint and terminate such agents as they consider
appropriate;
(g) 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 Trust Instrument or in the By-laws;
(h) To
retain
one or more transfer agents and shareholder servicing agents, or
both;
(i) To
set
record dates in the manner provided herein or in the By-Laws;
(j) To
delegate such authority as they consider desirable to any officers of the Trust
and to any investment advisor, manager, custodian, underwriter or other agent
or
independent contractor;
(k) To
sell
or exchange any or all of the assets of the Trust, subject to the provisions
of
Article XI, Section 11.04(b) hereof;
(l) 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 powers of attorney
to
such person or persons as the Trustee 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;
(m) To
exercise powers and rights of subscription or otherwise which in any manner
arise out of ownership of securities;
(n) To
hold
any security or property in a form not indicating any trust, whether in bearer,
book entry, unregistered or other negotiable form; or either in the name of
the
Trust or in the name of a custodian or a nominee or nominees, subject in either
case to proper safeguards according to the usual practice of Delaware business
trusts or investment companies;
(o) To
establish separate and distinct Series with separately defined investment
objectives and policies and distinct investment purposes in accordance with
the
provisions of Article II hereof and to establish classes of such Series having
relative rights, powers and duties as they may provide consistent with
applicable law;
10
(p) Subject
to the provisions of Section 3804 of the Delaware Act, to allocate assets,
liabilities and expenses of the Trust to a particular Series or to apportion
the
same between or among two or more Series, provided that any liabilities or
expenses incurred by a particular Series shall be payable solely out of the
assets belonging to that Series as provided for in Article II
hereof;
(q) 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;
(r) To
litigate, 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;
(s) To
make
distributions of income and of capital gains to Shareholders in the manner
hereinafter provided;
(t) To
establish, from time to time, a minimum investment for Shareholders in the
Trust
or in one or more Series or class, and to require the redemption of the Shares
of any Shareholders whose investment is less than such minimum upon giving
notice to such Shareholder;
(u) To
establish one or more committees, to delegate any of the powers of the Trustees
to said committees and to adopt a committee charter providing for such
responsibilities, membership (including Trustees, officers or other agents
of
the Trust therein) and any other characteristics of said committees as the
Trustees may deem proper. Notwithstanding the provisions of this Article IV,
and
in addition to such provisions or any other provision of this Trust Instrument
or of the By-Laws, the Trustees may by resolution appoint a committee consisting
of less than the whole number of Trustees then in office, which committee may
be
empowered to act for and bind the Trustees and the Trust, as if the acts of
such
committee were the acts of all the Trustees then in office, with respect to
the
institution, prosecution, dismissal, settlement, review or investigation of
any
action, suit or proceeding which shall be pending or threatened to be brought
before any court, administrative agency or other adjudicatory body;
(v) To
interpret the investment policies, practices, or limitations of any
Series;
(w) To
establish a registered office and have a registered agent in the state of
Delaware;
(x) In
general to carry on any other business in connection with or incidental to
any
of the foregoing powers, to do everything necessary, suitable, or proper for
the
accomplishment of any purpose or the attainment of any object or the furtherance
of any power hereinbefore set forth, either alone or in association with others,
and to do every other act or thing incidental or appurtenant to or growing
out
of or connected with the aforesaid business or purposes, objects or
powers.
11
The
foregoing clauses shall be construed both as objects and power, and the
foregoing enumeration of specific powers shall not be held to limit or restrict
in any manner the general powers of the Trustees. Any action by one or more
of
the Trustees in their capacity as such hereunder shall be deemed an action
on
behalf of the Trust or the applicable Series, and not an action in an individual
capacity.
The
Trustees shall not be limited to investing in obligations maturing before the
possible termination of the Trust.
No
one
dealing with the Trustees shall be under any obligation to make any inquiry
concerning the authority of the Trustees, or to see to the application of any
payments made or property transferred to the Trustees or upon their
order.
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ARTICLE
V
13
ARTICLE
VI
The
Trustees may authorize, subject to applicable requirements of the 1940 Act,
including those relating to Shareholder approval, the investment advisor to
employ, from time to time, one or more sub-advisors to perform such of the
acts
and services of the investment advisor, and upon such terms and conditions,
as
may be agreed upon between the investment advisor and sub-advisor. Any reference
in this Trust Instrument to the investment advisor shall be deemed to include
such sub-advisors, unless the context otherwise requires.
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15
ARTICLE
VII
On
any
matter submitted to a vote of the Shareholders, all Shares shall be voted
separately by individual Series, except: (i) when required by the 1940 Act,
Shares shall be voted in the aggregate and not by individual Series; and (ii)
when the Trustees have determined that the matter affects the interests of
more
than one Series, then the Shareholders of all such affected Series shall be
entitled to vote thereon. The Trustees also may determine that a matter affects
only the interests of one (1) or more classes of a Series, in which case any
such matter shall be voted on by such class or classes. Each whole share shall
be entitled to one (1) vote as to any matter on which it is entitled to vote,
and each fractional Share shall be entitled to a proportionate fractional vote.
There shall be no cumulative voting in the election of Trustees. Shares may
be
voted in person or by proxy or in any manner provided for in the By-Laws. 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 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 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. Until Shares are issued, the
Trustees may exercise all rights of Shareholders and may take any action
required or permitted by law, this Trust Instrument or any of the By-Laws of
the
Trust to be taken by Shareholders. Meetings of Shareholders shall be called
and
notice thereof and record dates therefor shall be given and set as provided
in
this Trust Instrument and in the By-Laws.
16
ARTICLE
VIII
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(1)
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to
hold the securities and other assets of the Trust and deliver the
same
upon written order or oral order confirmed in
writing;
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(2)
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to
receive and receipt for any moneys due to the Trust and deposit the
same
in its own banking department or elsewhere as the Trustees may direct;
and
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(3)
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to
disburse such funds upon orders or vouchers; and the Trust also may
employ
such custodian as its agent:
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(4)
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to
keep the books and accounts of the Trust or of any Series or class
and
furnish clerical and accounting services;
and
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(5)
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to
compute, if authorized to do so by the Trustees, the Net Asset Value
of
any Series, or class thereof, in accordance with the provisions hereof;
all upon such basis of compensation as may be agreed upon between
the
Trustees and the custodian.
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The
Trustees also may authorize the custodian to employ one or more sub-custodians
from time to time to perform such of the acts and services of the custodian,
and
upon such terms and conditions, as may be agreed upon between the custodian
and
such sub-custodian and approved by the Trustees, provided that in every case
such sub-custodian shall be a bank, a company that is a member of a national
securities exchange, a trust company or any other entity satisfying the
requirements of the 1940 Act.
17
ARTICLE
IX
SECTION
9.01.
DISTRIBUTIONS.
(a) The
Trustees from time to time may declare and pay dividends or other distributions
with respect to any Series. No dividend or distribution, including, without
limitation, any distribution paid upon termination of the Trust or of any 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 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. The amount of such dividends or distributions
and the payment of them and whether they are in cash or any other Trust Property
shall be wholly in the discretion of the Trustees.
(b) Dividends
and other distributions may be paid or made to the Shareholders of record at
the
time of declaring a dividend or other distribution or among the Shareholders
of
record at such other date or time or dates or times as the Trustees shall
determine, which dividends or distributions, at the election of the Trustees,
may be paid pursuant to a standing resolution or resolutions adopted only once
or with such frequency as the Trustees may determine. The Trustees may adopt
and
offer to Shareholders such dividend reinvestment plans, cash dividend payout
plans, or related plans as the Trustees shall deem appropriate.
(c) Anything
in this Trust Instrument to the contrary notwithstanding, the Trustees at any
time may declare and distribute a stock dividend pro rata among the Shareholders
of a particular Series, or class thereof, as of the record date of that Series
fixed as provided in paragraph (b) of this Section 9.01.
18
19
ARTICLE
X
SECTION
10.02.
INDEMNIFICATION.
(a) Subject
to the exceptions and limitations contained in paragraph (b) below:
(i) every
Person who is, or has been, a Trustee or officer of the Trust (hereinafter
referred to as a “Covered Person”) shall be indemnified by the Trust to the
fullest extent permitted by law against liability and against all expenses
reasonably incurred or paid by him in connection with any claim, action, suit,
or proceeding in which he or she becomes involved as a party or otherwise by
virtue of his being or having been a Trustee or officer and against amounts
paid
or incurred by him in the settlement thereof; and
20
(ii) the
words
“claim,” “action,” “suit,” or “proceeding” shall apply to all claims, actions,
suits, or proceedings (civil, criminal, or other, including appeals), actual
or
threatened, while in office or thereafter, and the words “liability” and
“expenses” shall include, without limitation, attorney’s fees, costs, judgments,
amounts paid in settlement, fines, penalties, and other
liabilities.
(b) No
indemnification shall be provided hereunder to a Covered Person:
(i) who
shall
have been adjudicated by a court or body before which the proceeding was brought
(A) to be liable to the Trust or its Shareholders by reason of willful
misfeasance, bad faith, gross negligence, or reckless disregard of the duties
involved in the conduct of his office or (B) not to have acted in good faith
in
the reasonable belief that his action was in the best interest of the Trust;
or
(ii) in
the
event of a settlement, unless there has been a determination that such Trustee
or officer did not engage in willful misfeasance, bad faith, gross negligence,
or reckless disregard of the duties involved in the conduct of his
office:
A. by
the
court or other body approving the settlement;
B. by
at
least a majority of those Trustees who neither are Interested Persons of the
Trust nor are parties to the matter based upon a review of readily-available
facts (as opposed to a full trial-type inquiry); or
C. by
written opinion of independent legal counsel based upon a review of
readily-available facts (as opposed to a full trial-type inquiry); provided,
however, that any Shareholder, by appropriate legal proceedings, may challenge
any such determination by the Trustees or by independent counsel.
(c) The
rights of indemnification herein provided may be insured against by policies
maintained by the Trust, shall be severable, shall not be exclusive of or affect
any other rights to which any Covered Person may now or hereafter be entitled,
shall continue as to a person who has ceased to be a Covered Person and shall
inure to the benefit of the heirs, executors, and administrators of such a
person. Nothing contained herein shall affect any rights to indemnification
to
which Trust personnel, other than Covered Persons, and other persons may be
entitled by contract or otherwise under law.
(d) To
the
maximum extent permitted by applicable law, expenses in connection with the
preparation and presentation of a defense to any claim, action, suit, or
proceeding of the character described in paragraph (a) of this Section 10.02
may
be paid by the Trust or Series from time to time prior to final disposition
thereof upon receipt of any undertaking by or on behalf of such Covered Person
that such amount will be paid over by him to the Trust or Series if it
ultimately is determined that he or she is not entitled to indemnification
under
this Section 10.02; provided, however, that either (a) such Covered Person
shall
have provided appropriate security for such undertaking; (b) the Trust is
insured against losses arising out of any such advance payments; or (c) either
a
majority of the Trustees who are neither Interested Persons of the Trust nor
parties to the matter, or independent legal counsel in a written opinion, shall
have determined, based upon a review of readily-available facts (as opposed
to a
trial-type inquiry or full investigation), that there is a reason to believe
that such Covered Person will be found entitled to indemnification under this
Section 10.02.
21
Every
written obligation, contract, instrument, certificate, Share, other security
of
the Trust or a Series thereof or undertaking made or issued by the Trustees
may
recite that the same is executed or made by them not individually, but as
Trustees under the Declaration, and that the obligations of the Trust or a
Series thereof under any such instrument are not binding upon any of the
Trustees or Shareholders individually, but bind only the Trust Property or
the
Trust Property of the applicable Series, and may contain any further recital
which they may deem appropriate, but the omission of such recital shall not
operate to bind the Trustees individually. The Trustees shall at all times
maintain insurance for the protection of the Trust Property or the Trust
Property of the applicable Series, its Shareholders, Trustees, officers,
employees and agents in such amount as the Trustees shall deem adequate to
cover
possible tort liability, and such other insurance as the Trustees in their
sole
judgment shall deem advisable.
22
ARTICLE
XI
23
SECTION
11.04.
TERMINATION OF TRUST.
(a) This
Trust shall continue without limitation of time but subject to the provisions
of
paragraph (b) of this Section 11.04.
(b) The
Trustees, subject to a majority shareholder vote of each Series affected by
the
matter, or, if applicable, to a majority shareholder vote of the Trust, and
subject to a vote of a majority of the Trustees, may:
(i) sell
and
convey all or substantially all of the assets of the Trust or any affected
Series to another trust, partnership, association, or corporation, or to a
separate series of shares thereof, organized under the laws of any state, which
trust, partnership, association, or corporation is an open-end management
investment company as defined in the 1940 Act, or is a series thereof, for
adequate consideration which may include the assumption of all outstanding
obligations, taxes, and other liabilities, accrued or contingent, of the Trust
or any affected Series, and which may include shares of beneficial interest,
stock, or other ownership interests of such trust, partnership, association,
or
corporation or of a series thereof; or
(ii) at
any
time, sell and convert into money all of the assets of the Trust or any affected
series.
Upon
making reasonable provision, in the determination of the Trustees, for the
payment of all such liabilities in either (i) or (ii) of this Section 11.04(b),
by such assumption or otherwise, the Trustees shall distribute the remaining
proceeds or assets (as the case may be) of each Series (or class) ratably among
the holders of Shares of that Series then outstanding.
(c) The
Trustees may take any of the actions specified in this Section 11.04(b)(i)
and
(ii) above without obtaining the approval of shareholders if a majority of
the
Trustees determines that the continuation of the Trust or Series (or class)
is
not in the best interests of the Trust, such Series (or class), or their
respective Shareholders as a result of factors or events adversely affecting
the
ability of the Trust or such Series (or class) to conduct its business and
operations in an economically viable manner. Such factors and events may include
the inability of the Trust or a Series (or class) to maintain its assets at
an
appropriate size, changes in laws or regulations governing the Trust or the
Series (or class) or affecting assets of the type in which the Trust or Series
(or class) invests, or economic developments or trends having a significant
adverse impact on the business or operations of the Trust or such Series (or
class).
(d) Upon
completion of the distribution of the remaining proceeds or the remaining assets
as provided in paragraph (b) of this Section 11.04, the Trust or any affected
Series shall terminate and the Trustees and the Trust shall be discharged of
any
and all further liabilities and duties hereunder and the right, title, and
interest of all parties with respect to the Trust or Series shall be canceled
and discharged.
Upon
termination of the Trust, 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.
24
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 Trust Instrument,
an agreement of merger or consolidation approved by the Trustees in accordance
with this Section 11.05 may effect any amendment to the Trust Instrument or
effect the adoption of a new trust instrument of the Trust if the Trust is
the
surviving or resulting trust in the merger or consolidation.
25
(a) Shareholders
eligible to bring such derivative action under the Delaware Act who hold at
least 10% of the Outstanding Shares of the Trust, or 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
(b) 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 advisers 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 advisers in the
event
that the Trustees determine not to bring such action.
26
IN
WITNESS WHEREOF, the undersigned, being all of the Trustees of the Trust, have
executed this instrument this 15th
day of
December, 2006.
| /s/ Xxxxxxxx Xxxxx | ||
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Xxxxxxxx
Xxxxx
as
Trustee and not individually
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/s/
Xxxxx X. XxXxxx
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Xxxxx
X. XxXxxx
as
Trustee and not individually
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/s/ Xxxxx X. Xxxxxx
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Xxxxx
X. Xxxxxx
as
Trustee and not individually
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/s/
Xxxx X. Xxxxxxxx
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||
|
Xxxx
X. Xxxxxxxx
as
Trustee and not individually
|
||
|
/s/
Xxxxxx X. Xxxxxxx
|
||
|
Xxxxxx
X. Xxxxxxx
as
Trustee and not individually
|
||
27