AGREEMENT AND DECLARATION OF TRUST
OF
CULLEN FUNDS TRUST
a Delaware Business Trust
Principal Place of Business:
000 Xxxxx Xxxxxx
Xxx Xxxx, XX 00000
TABLE OF CONTENTS
ARTICLE I...........................................................................................................3
NAME AND DEFINITIONS.............................................................................................3
Section 1. NAME............................................................................................3
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Section 2. DEFINITIONS.....................................................................................3
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ARTICLE II..........................................................................................................6
PURPOSE AND NATURE OF TRUST......................................................................................6
Section 1. PURPOSE OF TRUST................................................................................6
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Section 2. NATURE OF TRUST.................................................................................6
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ARTICLE III.........................................................................................................7
SHARES AND SHAREHOLDERS..........................................................................................7
Section 1. DIVISION OF BENEFICIAL INTEREST.................................................................7
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Section 2. ASSETS AND LIABILITIES ASSOCIATED WITH SERIES AND CLASSES.......................................7
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Section 3. ISSUANCE OF AND INVESTMENTS IN SHARES...........................................................9
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Section 4. NONASSESSABILITY OF SHARES.....................................................................10
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Section 5. NO PERSONAL LIABILITY; INDEMNIFICATION FOR PERSONAL LIABILITY..................................10
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Section 6. EQUALITY.......................................................................................11
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Section 7. DIVIDENDS AND OTHER DISTRIBUTIONS..............................................................11
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Section 8. VOTING RIGHTS..................................................................................11
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Section 9. TRANSFERABILITY................................................................................12
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Section 10. NO PREEMPTIVE RIGHTS...........................................................................12
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Section 11. ACTIONS BY SHAREHOLDERS........................................................................12
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Section 12. EXCHANGE PRIVILEGES AND CONVERSION FEATURES....................................................13
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Section 13. NO APPRAISAL RIGHTS............................................................................13
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Section 14. OTHER ATTRIBUTES OF SHARES AND SHARE OWNERSHIP.................................................13
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Section 15. FRACTIONAL SHARES..............................................................................14
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Section 16. TREASURY SHARES................................................................................14
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Section 17. OWNERSHIP AND TRANSFER OF SHARES...............................................................14
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Section 18. COMBINATION OF SHARES..........................................................................15
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Section 19. RIGHTS OF SHAREHOLDERS TO INSPECT RECORDS......................................................15
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Section 20. PURCHASE OF SHARES BY TRUSTEES, OFFICERS, EMPLOYEES AND AGENTS OF TRUST........................16
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ARTICLE IV.........................................................................................................16
DETERMINATION OF NET ASSET VALUE, DIVIDENDS AND DISTRIBUTIONS, AND REDEMPTIONS..................................16
Section 1. DETERMINATION OF NET ASSET VALUE...............................................................16
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Section 2. DIVIDENDS AND OTHER DISTRIBUTIONS..............................................................17
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Section 3. REDEMPTIONS AT THE OPTION OF THE SHAREHOLDER...................................................18
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Section 4. REDEMPTIONS AT THE OPTION OF THE TRUST.........................................................19
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Section 5. DIVIDENDS, DISTRIBUTIONS AND REDEMPTIONS IN-KIND..............................................19
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ARTICLE V..........................................................................................................20
SHAREHOLDERS' VOTING POWERS AND MEETINGS........................................................................20
Section 1. VOTING POWERS..................................................................................20
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Section 2. MEETINGS.......................................................................................21
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Section 3. QUORUM AND REQUIRED VOTE.......................................................................22
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Section 4. ACTION BY WRITTEN CONSENT......................................................................22
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Section 5. RECORD DATES...................................................................................22
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Section 6. ADDITIONAL PROVISIONS..........................................................................23
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ARTICLE VI.........................................................................................................23
THE TRUSTEES....................................................................................................23
Section 1. NUMBER AND QUALIFICATIONS......................................................................23
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Section 2. INITIAL TRUSTEE................................................................................23
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Section 3. ELECTION OF TRUSTEES...........................................................................23
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Section 4. TERM OF OFFICE.................................................................................24
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Section 5. VACANCIES AND APPOINTMENTS.....................................................................24
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Section 6. EFFECT OF DEATH, RESIGNATION, ETC. OF A TRUSTEE................................................25
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Section 7. ACTION BY THE TRUSTEES.........................................................................25
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Section 8. CHAIRMAN OF THE TRUSTEES.......................................................................25
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Section 9. PRINCIPAL TRANSACTIONS.........................................................................26
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Section 10. POWERS.........................................................................................26
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Section 11. PAYMENT OF EXPENSES BY THE TRUST...............................................................30
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Section 12. OWNERSHIP OF ASSETS OF THE TRUST...............................................................31
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Section 13. SERVICE CONTRACTS..............................................................................31
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ARTICLE VII........................................................................................................33
COMPENSATION, LIMITATION OF LIABILITY AND INDEMNIFICATION OF TRUSTEES AND OFFICERS..............................33
Section 1. COMPENSATION...................................................................................33
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Section 2. LIMITATION OF LIABILITY........................................................................33
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Section 3. INDEMNIFICATION................................................................................34
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Section 4. INSURANCE......................................................................................36
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ARTICLE VIII.......................................................................................................36
AMENDMENT.......................................................................................................36
ARTICLE IX.........................................................................................................37
DISSOLUTION OF TRUST OR TERMINATION OF SERIES OR CLASSES; REORGANIZATION........................................37
Section 1. DISSOLUTION OF TRUST OR TERMINATION OF SERIES OR CLASSES.......................................37
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Section 2. REORGANIZATION.................................................................................38
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ARTICLE X..........................................................................................................39
MISCELLANEOUS...................................................................................................39
Section 1. FILING OF COPIES; REFERENCES; HEADINGS; SINGULAR AND PLURAL; COUNTERPARTS......................39
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Section 2. APPLICABLE LAW; CONSTRUCTION...................................................................40
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Section 3. RECORD DATES FOR OTHER PURPOSES................................................................41
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Section 4. PROVISIONS IN CONFLICT WITH LAW OR REGULATIONS.................................................41
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AGREEMENT AND DECLARATION OF TRUST
OF
CULLEN FUNDS TRUST
WHEREAS, THIS AGREEMENT AND DECLARATION OF TRUST is made and entered into as of
the date set forth below by the Initial Trustee for the purpose of creating a
Delaware business trust in accordance with the Act and the provisions
hereinafter set forth;
NOW, THEREFORE, the Initial Trustee hereby directs that a Certificate of Trust
be filed with the Office of the Secretary of State of the State of Delaware and
declare that this Trust shall hold IN TRUST all securities and other property
which it now possesses or may hereafter acquire from time to time in any manner
and that the Trustees shall manage and dispose of the same for the benefit of
the holders of Shares in this Trust upon the following terms and conditions.
ARTICLE I.
NAME AND DEFINITIONS
Section 1. NAME
The name of the trust created hereby (this "Trust") shall be "Cullen
Funds Trust", and the Trustees shall conduct, operate and carry on the business
and affairs of this Trust under that name or any other name or names as they
from time to time may deem appropriate.
Section 2. DEFINITIONS
Whenever used herein, the following terms shall have the following
meanings, unless otherwise required by the context or otherwise expressly
provided herein:
(a) "Act" means Title 12, Chapter 38, Sections 3801 et.
seq. of the Delaware Code, entitled "Treatment of Delaware Business
Trusts," and also referred to as the "Delaware Business Trust Act," as
amended from time to time.
(b) "By-Laws" means the by-laws of the Trust as adopted by the
Trustees under and in accordance with ARTICLE VI, Section 10(b) hereof
and as amended or restated from time to time, which are incorporated
herein by reference.
(c) "Class" means each class of Shares within a Series, which
Class (i) has been authorized by the Trustees under and in accordance
with the provisions of ARTICLE III hereof and (ii) is a class subject
to Rule 18f-3 under the 1940 Act.
(d) "Covered Person" has the meaning given it in ARTICLE
VII, Section 3 hereof.
(e) "Commission" has the meaning given it in Section
2(a)(7) of the 1940 Act.
(f) "Declaration of Trust" means this Agreement and
Declaration of Trust, as amended or restated from time to time.
References in this Declaration of Trust to "hereby," "herein,"
"hereof," "hereto" and "hereunder" shall be deemed to refer to this
Declaration of Trust rather than the article or Section of this
Declaration of Trust in which such words appear.
(g) "Disinterested Trustee" has the meaning given it in
ARTICLE VII, Section 3 hereof.
(h) "Distribution Record Date" has the meaning given it
in ARTICLE IV, Section 2 hereof.
(i) "Initial Trustee" has the meaning given it in ARTICLE
VI, Section 2 hereof.
(j) "Interested Person" has the meaning given it in
Section 2(a)(19) of the 1940 Act.
(k) "Investment Manager" or "Manager" means a party furnishing
services to the Trust or any Series or to another Investment Manager or
Manager pursuant to any contract described in ARTICLE VI, Section 13
hereof.
(l) "Meeting Record Date" has the meaning given it in
ARTICLE V, Section 5 hereof.
(m) "Net Asset Value," when used with respect to a Share of a
particular Series or Class, means the amount determined by dividing the
Net Asset Value of that Series or Class by the number of Shares of that
Series or Class outstanding as of the time of determination of such Net
Asset Value per Share; and "Net Asset Value", when used with respect to
a particular Series or Class, means the net asset value of that Series
or Class determined under and in accordance with ARTICLE IV, Section 1
hereof.
(n) "1940 Act" means the Investment Company Act of 1940, as
amended from time to time, and the rules and regulations thereunder, as
adopted or amended from time to time.
(o) "Person" means and includes (i) natural persons; (ii)
corporations, general partnerships, limited partnerships, joint
ventures, limited liability companies, joint stock associations or
companies, trusts, funds, other entities or any organized group of
Persons, whether incorporated or not; and (iii) governments and
agencies and political subdivisions thereof, whether domestic or
foreign.
(p) "Principal Underwriter" has the meaning given it in
Section 2(a)(29) of the 0000 Xxx.
(q) "Resolution", as of any time, means a written consent or
consents signed, or a resolution approved at a duly constituted meeting
of the Trustees, by a majority of the Trustees in office at such time.
(r) "Series" means each series of Shares that is (i)
authorized by the Trustees under and in accordance with the provisions
of ARTICLE III hereof and (ii) a series, as described in Section
18(f)(2) of the 1940 Act, subject to Rule 18f-2 thereunder.
(s) "Service Provider" means any Person who, as agent,
independent contractor or consultant, provides services of any nature,
including, without limitation, services of the type customarily
provided to investment companies registered as such under the 1940 Act
by investment managers or advisers, administrators, custodians,
depositories, transfer or similar agents, dividend disbursement agents,
shareholder servicing agents, accountants and accounting agents,
counsel, Principal Underwriters and distributors.
(t) "Shareholder," as of any time, means a holder of record as
of such time of outstanding Shares. References herein to a Shareholder
or to Shareholders shall refer to such Shareholder or Shareholders
solely in his or her or their capacity or capacities as such hereunder.
(u) "Shares" mean the shares of beneficial interest into which
the beneficial interest in the Trust shall be divided from time to time
under and in accordance with the terms hereof, and includes fractional
Shares as well as whole Shares; and "outstanding Shares" or "Shares
then outstanding," as of any time, mean those Shares shown as of such
time on the books of the Trust (or of the applicable transfer or
similar agent for such Shares) as then issued and outstanding.
(v) "State" means any state, territory or possession of
the United States and includes the District of Columbia and Puerto
Rico.
(w) "Trust" means this Delaware business trust created by this
Declaration of Trust, as amended from time to time.
(x) "Trustees" mean the Initial Trustee, so long as he shall
continue in office in accordance with the terms hereof, and all other
natural persons who at the time in question have been duly elected or
appointed to serve as Trustees in accordance with the terms hereof, who
have signed this Declaration of Trust and who are then in office in
accordance with the terms hereof, and references herein to a Trustee or
to the Trustees shall refer to such person or persons solely in his or
her or their capacity or capacities as Trustee or Trustees hereunder.
(y) "Trust Property," as of any time, means any and all
property, real or personal, tangible or intangible, which as of such
time is owned or held by or for the account of any one or more of the
Trust and the Series, including, without limitation, the limited rights
referenced in ARTICLE X, Section 5 hereof.
(z) "vote of a majority of the outstanding Shares of a Series"
means the vote, at a meeting of the holders of Shares of such Series
duly called, (i) of sixty-seven percent (67%) or more of the Shares of
such Series present at such meeting, if holders of more than fifty
percent (50%) of the outstanding Shares of such Series are present or
represented by proxy or (ii) of more than fifty percent (50%) of the
outstanding Shares of such Series, whichever is less.
ARTICLE II.
PURPOSE AND NATURE OF TRUST
Section 1. PURPOSE OF TRUST
The purpose of the Trust is to conduct, operate and carry on the
business and affairs of an open-end management investment company registered
under the 1940 Act, through one or more investment portfolios, each investing in
securities and other property and represented by a Series.
Section 2. NATURE OF TRUST
It is the intention of the Trustees to create, and this Trust is and
shall continue to be, a business trust within the meaning of Section 3801(A) of
the Act. Accordingly, it is the intention of the Trustees to create only the
relationship of trustee and beneficial owners within the meaning of the Act
between the Trustees and Shareholders. It is not the intention of the Trustees
to create, and the Trust shall not be deemed to be or be treated as, a
corporation, general partnership, limited partnership, joint venture, joint
stock association or company, bailment, or any form of legal organization other
than a business trust within the meaning of Section 3801(A) of the Act.
Accordingly, nothing in this Declaration of Trust shall be construed to make the
Trustees or Shareholders, or any combination of them, shareholders of a
corporation, partners, joint venturers or members of a joint stock association
or company, for any purpose, nor shall the Trustees or Shareholders, or any
combination of them, for any purpose be deemed to be, or be treated in any way
whatsoever as though they were, liable or responsible hereunder as partners or
joint venturers.
ARTICLE III.
SHARES AND SHAREHOLDERS
Section 1. DIVISION OF BENEFICIAL INTEREST
The beneficial interest in the Trust shall at all times be divided into
an unlimited number of Shares having no par value; provided, however, that
subject to the requirements of the 1940 Act, the remainder of this ARTICLE III
and ARTICLES IV and V hereof, the Trustees, at any time and from time to time,
by Resolution, may authorize the division of Shares into two or more Series and
the division of any existing or new Series into two or more Classes (with each
such Series and Class being constituted of an unlimited number of Shares or such
number of Shares as the Trustees may deem appropriate in connection with such
authorization). Any such authorization shall (a) establish and designate, and
fix and determine the relative rights, powers, privileges, preferences and
duties of, the Series or Class so authorized; (b) set forth, either expressly or
by reference to another document or documents, the investment objectives,
policies, restrictions and limitations of the Series so authorized; (c) be
effective as of the date specified therein; and (d) be incorporated herein by
reference.
The Trustees shall cause the Trust to maintain separate and distinct
records for each Series authorized by the Trustees under this Section 1.
Section 2. ASSETS AND LIABILITIES ASSOCIATED WITH SERIES AND
CLASSES
Shares of each particular Series and Class that have been authorized
under and in accordance with ARTICLE III, Section 1 hereof, unless otherwise
expressly provided in such authorization, shall have the following relative
rights, powers, privileges, preferences and duties:
(a) Assets Associated with a Particular Series.
All consideration received by the Trust for the issuance or
sale of Shares of a particular Series, together with all assets in which such
consideration is invested or reinvested, and all income, earnings, profits and
proceeds thereof, from whatever source derived, including, without limitation,
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 be held in trust for the benefit of the
holders of Shares of such Series, and not for the benefit of holders of Shares
of any other Series, for all purposes, subject only to the liabilities
associated with such Series (or the applicable Class thereof) (as hereinafter
defined), and shall be accounted for and recorded upon the books of the Trust
separately from the assets associated with any other Series. Such consideration,
and such assets, income, earnings, profits and proceeds thereof, from whatever
source derived, including, without limitation, 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 associated with" that Series. In the event that
there are any assets, income, earnings, profits and proceeds thereof, and any
funds or payments, which are not readily associated with a 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 Asset so allocated to a particular Series shall thereupon be
deemed to be an asset associated with that Series. Each such allocation by the
Trustees shall be conclusive and binding upon the Shareholders of all Series for
all purposes.
Notwithstanding the foregoing, where a Series is divided into
two or more Classes under and in accordance with ARTICLE III, Section 1 hereof,
all income and realized and unrealized capital gains that are required under
Rule 18f-3 under the 1940 Act to be allocated to, between or among one or more
of such Classes in a particular manner shall be so allocated, and where the
Trustees have discretion under that Rule to allocate income and realized and
unrealized capital gains to, between or among one or more of such Classes, the
Trustees shall exercise such discretion (either in the authorization creating
such Classes or on an ongoing basis) in such manner and on such basis as they in
their sole discretion deem fair and equitable.
(b) Liabilities Associated with a Particular Series or
Class.
All liabilities, expenses, costs, charges and reserves of the
Trust which are readily associated with a particular Series shall be charged
against the assets associated with that Series, and any liabilities, expenses,
costs, charges and reserves of the Trust which are not readily associated with a
particular Series shall be allocated and charged by the Trustees 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; provided, however,
that where a Series is divided into two or more Classes under and in accordance
with ARTICLE III, Section 1 hereof, all expenses and realized and unrealized
capital losses that are required under Rule 18f-3 under the 1940 Act to be
allocated and charged to, between or among one or more of such Classes in a
particular manner shall be so allocated and charged, and where the Trustees have
discretion under that Rule to allocate and charge expenses and realized and
unrealized capital losses to, between or among one or more of such Classes, the
Trustees shall exercise such discretion (either in the authorization creating
such Classes or on an ongoing basis) in such manner and on such basis as they in
their sole discretion deem fair and equitable. The liabilities, expenses, costs,
charges and reserves so allocated and charged to a Series or Class are herein
referred to as "liabilities associated with" that Series or Class. Each
allocation of liabilities, expenses, costs, charges and reserves by the Trustees
shall be conclusive and binding upon the Shareholders of all Series and Classes
for all purposes.
Without limiting the generality of the foregoing, but subject
to the authority of the Trustees to allocate liabilities, expenses, costs,
charges and reserves which are not readily associated with a particular Series
as provided in the first sentence of this Section 2(b), the debts, liabilities,
obligations and expenses incurred by, contracted for or otherwise existing with
respect to a particular Series shall be enforceable against the assets
associated with that Series only, and not against the assets associated with any
other Series (or against the assets of the Trust generally). The Trustees may
cause notice of this limitation on interseries liabilities to be set forth in
the Certificate of Trust of the Trust (whether originally or by amendment) to be
filed in the Office of the Secretary of State of the State of Delaware pursuant
to the Act, and upon the giving of such notice in the Certificate of Trust, the
statutory provisions of Section 3804 (or any successor Section) of the Act
relating to limitations on interseries liabilities (and the statutory effect
under Section 3804 (or any successor Section) of setting forth such notice in
the Certificate of Trust) shall become applicable to the Trust and each Series.
All Persons who extend credit to (or with respect to) a particular Series, or
who contract with (or with respect to) or have a claim against a particular
Series, may look only to the assets associated with that Series for repayment of
such credit or to enforce or satisfy any such contract or claim; and no
Shareholder or Trustee or officer, employee or Service Provider of the Trust,
whether past, present or future, shall be personally liable therefor solely by
reason of his or her capacity as such.
(c) Dividends, Distributions, Redemptions, and
Repurchases.
Notwithstanding any other provision of this Declaration of
Trust, including, without limitation, any provision of ARTICLE IV hereof or of
ARTICLE IX, Section 1 hereof, no dividend or distribution on or with respect to
Shares of a particular Series, including, without limitation, any distribution
paid in connection with the dissolution of the Trust or the termination of that
Series, nor any redemption or repurchase of Shares of that Series, shall be
effected by the Trust other than from the assets associated with that Series,
nor shall any Shareholder or former Shareholder of a particular Series otherwise
have any right or claim against the assets associated with any other Series
(except to the extent that such Shareholder or former Shareholder has such a
right or claim hereunder as a Shareholder or former Shareholder of such other
Series or in a capacity other than as a Shareholder or former Shareholder).
Section 3. ISSUANCE OF AND INVESTMENTS IN SHARES
The Trustees, at any time and from time to time, may cause the Trust to
issue whole and fractional Shares of any Series or Class that has been
authorized under and in accordance with ARTICLE III, Section 1 hereof (in
addition to the then outstanding Shares of such Series or Class and Shares held
as treasury shares in accordance with ARTICLE III, Section 16 hereof), to such
Person or Persons, on such terms (including, without limitation, terms
establishing minimum required purchases), and for such type and amount of
consideration as is permitted by Section 3802(A) of the Act (including cash and
securities or other property), or for no consideration, as the Trustees may deem
appropriate.
Each investment in Shares by the purchaser thereof shall be credited to
such purchaser's individual Shareholder account in the form of whole and
fractional Shares of the Trust, of such Series and Class thereof as may be
available to such purchaser and as such purchaser may select, at the Net Asset
Value per Share next determined (under and in accordance with ARTICLE IV,
Section 1 hereof) for such Series and Class after receipt and/or acceptance of
the investment by or on behalf of the Trust on the terms determined by the
Trustees; provided, however, that subject to the requirements of the 1940 Act,
the Trustees may cause the Trust to impose a sales charge upon investments in
the Trust in such manner and amount or amounts and at such time or times as the
Trustees may deem appropriate.
The Trustees shall not be required to cause the Trust to issue Shares
of a Series or Class that has been authorized under and in accordance with
ARTICLE III, Section 1 hereof, and may terminate the sale of Shares of a Series
or Class at any time or suspend such sales from time to time for such any
periods as they may deem appropriate.
Section 4. NONASSESSABILITY OF SHARES
All Shares (including, without limitation, Shares issued in connection
with a dividend paid in Shares or in connection with a split or reverse split of
Shares), when issued on the terms determined by the Trustees, shall be fully
paid and nonassessable, and neither the Trust nor any Trustee, nor any officer,
employee or agent of the Trust, shall have the power or authority 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 by
way of subscription for Shares or otherwise; provided, however, that the
foregoing shall not be deemed to prohibit the Trustees from taking any of the
actions described in the second paragraph of ARTICLE IV, Section 1 hereof.
Section 5. NO PERSONAL LIABILITY; INDEMNIFICATION FOR PERSONAL
LIABILITY
Neither the Trust nor any Trustee, nor any officer, employee or agent
of the Trust, shall have the power or authority to bind any Shareholder
personally, and no Shareholder or former Shareholder shall be personally liable
for the debts, liabilities, obligations or expenses incurred by, contracted for
or otherwise existing with respect to the Trust, any Series or any Class, but
shall be entitled to the same limitation of personal liability as is extended to
stockholders of private corporations for profit organized under the General
Corporation Law of the State of Delaware. The Trustees may cause any note, bond,
contract, instrument, certificate, Share or other undertaking issued, executed
or made by or on behalf of the Trust or any Series to include a recitation
limiting the obligation represented thereby to the Trust or to such Series and
the assets associated therewith, but the omission of such a recitation shall not
operate to bind any Shareholder personally.
If any Shareholder or former Shareholder of any Series shall be held to
be personally liable solely by reason of being or having been a Shareholder and
not because of his or her acts or omissions, the Shareholder or former
Shareholder (or his or her heirs, executors, administrators or other legal
representatives or, in the case of a corporation or other entity, its corporate
or other general successor) shall be entitled, out of the assets associated with
that Series, to be held harmless from and indemnified against all losses and
expenses arising from such liability; provided, however, that there shall be no
obligation of the Trust or of any Series arising under this Section 5 to
reimburse any Shareholder or former Shareholder for taxes paid by reason of such
Shareholder's or former Shareholder's holding of any Share.
Section 6. EQUALITY
Each Share of a particular Series or Class thereof shall represent an
equal undivided beneficial interest in the assets associated with that Series
(subject to the liabilities associated with that Series or Class, as the case
may be), and, subject to the relative rights, powers, privileges, preferences
and duties as among Classes within a Series (with each Share within a particular
Class being equal in every respect to each other Share within that Class), each
Share of a particular Series shall be equal in every respect to each other Share
of that Series. Accordingly, (a) subject to the relative rights, powers,
privileges, preferences and duties as among Classes within a Series, (i) no
Share of a particular Series shall have any priority or preference over any
other Share of that Series with respect to dividends or distributions including,
without limitation, distributions paid in connection with the dissolution of the
Trust or the termination of such Series, and (ii) all dividends and other
distributions shall be made ratably among all Shareholders of a particular
Series from the assets associated with that Series according to the number of
Shares of that Series held of record by such Shareholders as of the applicable
Distribution Record Dates for the payment of such dividends and distributions;
and (b) (i) no Share of a particular Class shall have any priority or preference
over any other Share of that Class with respect to dividends or distributions
including, without limitation, distributions paid in connection with the
dissolution of the Trust or the termination of such Class, and (ii) all
dividends and other distributions shall be made ratably among all Shareholders
of a particular Class from the assets associated with the Series of which such
Class is a part according to the number of Shares of that Class held of record
by such Shareholders as of the applicable Distribution Record Dates for the
payment of such dividends and distributions.
The foregoing shall not be deemed to prohibit the Trust from
distributing different types of Trust Property to different Shareholders of a
particular Series or Class (or to a particular Shareholder in respect of the
various Shares of a particular Series or Class held by him or her) in the case
of a dividend, distribution, or redemption in-kind, so long as the Trust shall
have complied with the principles set forth in the preceding paragraph and in
ARTICLE IV, Section 5 hereof.
Section 7. DIVIDENDS AND OTHER DISTRIBUTIONS
Holders of Shares of a particular Series (and Class thereof) shall be
entitled to receive dividends and other distributions, if, when and as declared
by the Trustees on or with respect thereto, to the extent provided in ARTICLE IV
hereof.
Section 8. VOTING RIGHTS
Shareholders shall have no voting rights except to the extent provided
in ARTICLE V hereof.
In any case herein where it is provided that the Trustees shall or may
take a particular action, do a particular thing or make a particular
determination, and the 1940 Act or such case does not expressly provide for
Shareholder authorization or approval of such action, thing or determination,
the Trustees shall have full power and authority to take such action, to do such
thing or to make such determination without obtaining any prior or subsequent
authorization or approval of the Shareholders of any Series or Class (and the
Trustees may take such action, do such thing or make such determination in their
sole discretion on such terms and in such manner as they may deem appropriate,
unless the context requires otherwise).
Without limiting the generality of the foregoing, the Trustees may
authorize Series and Classes of Shares under and in accordance with ARTICLE III,
Section 1 hereof without obtaining authorization or approval of the Shareholders
of any Series or Class.
Section 9. TRANSFERABILITY
Unless otherwise expressly provided by the Trustees in the
authorization establishing and designating a Series or Class of Shares, Shares
of that Series or Class shall be transferable without restriction (subject to
the provisions of ARTICLE III, Section 17 hereof, ARTICLE IV, Section 2 hereof,
ARTICLE V, Section 5 hereof, ARTICLE X, Section 3 hereof and the By-Laws).
Section 10. NO PREEMPTIVE RIGHTS
Unless otherwise expressly provided by the Trustees in the
authorization establishing and designating a Series or Class of Shares or as
otherwise expressly provided by the Trustees by Resolution, no holder of Shares
of that Series or Class, as such, shall have any preemptive or other right to
acquire, purchase or subscribe for any Shares or other securities of the Trust
which the Trust may hereafter issue or sell, whether of the same or of any other
Series or Class or otherwise.
Section 11. ACTIONS BY SHAREHOLDERS
Except to the extent inconsistent with the requirements of the1940 Act:
(a) No action may be brought by a Shareholder on behalf of the
Trust, or on behalf of any Series or Class, unless holders of not less
than ten percent (10%) of the Shares then outstanding (in the case of
an action brought on behalf of the Trust), or of not less than ten
percent (10%) of the outstanding Shares of such Series or Class (in the
case of an action brought on behalf of such Series or Class), join in
the bringing of such action.
(b) A holder of Shares of a particular Series or Class, in his
or her capacity as such, shall not be entitled to participate in a
derivative action or class action lawsuit on behalf of any other Series
or Class or on behalf of the holders of Shares of any other Series or
Class.
Section 12. EXCHANGE PRIVILEGES AND CONVERSION FEATURES
Subject to the requirements of the 1940 Act, the Trustees, at any time
and from time to time, by Resolution, may provide that (a) the holders of Shares
of any Series (or Class) shall have the right to exchange said Shares for Shares
of one or more other Series (or Classes) or (b) Shares of any Series (or Class)
may or shall be converted into Shares of one or more other Series (or Classes),
in each case in accordance with such requirements and procedures as the Trustees
may deem appropriate. In the absence of such provision by the Trustees with
respect to a Series (or Class), Shareholders of that Series (or Class) shall
have no exchange privileges, and Shares of that Series (or Class) shall not be
subject to any conversion features.
Section 13. NO APPRAISAL RIGHTS
Shareholders shall have no appraisal rights with respect to their
Shares.
Section 14. OTHER ATTRIBUTES OF SHARES AND SHARE OWNERSHIP
Shares shall be deemed to be personal property giving only the rights,
powers, privileges and preferences provided herein, notwithstanding the nature
of the property held by the Trust or any Series thereof. Every Person who
purchases a Share on the terms determined by the Trustees under and in
accordance with ARTICLE III, Section 3 hereof and who is recorded on the books
of the Trust or of a transfer or similar agent of the Trust shall be deemed to
have complied with the conditions for becoming a beneficial owner in an interest
in the Trust and, by virtue of the foregoing, shall be held to have expressly
assented to, and to have agreed to be bound by, the terms hereof and to have
become a party hereto; provided, however, that no Shareholder shall be required
to execute this Declaration of Trust unless the Trustees determine otherwise.
Each holder of Shares shall upon demand by the Trustees disclose to the Trustees
in writing such information with respect to such holder's direct and indirect
ownership of Shares as the Trustees may deem necessary to comply with the
requirements of any law or taxing authority. As Shares of a Series represent
only an undivided beneficial interest in the assets associated with that Series,
a holder or beneficial owner of Shares shall have no right, title or interest in
or to any specific Trust Property, nor shall such holder or beneficial owner
have any right to call for a partition or division, or possession, of the same
or for an accounting. The death of a Shareholder during the existence of this
Trust shall not operate to annul or dissolve this Trust or to terminate any
Series or Class, nor entitle the representative of any deceased Shareholder to
an accounting or to take any action in court or elsewhere against the Trust or
the Trustees, but any such representative shall be entitled only to the same
rights to which said deceased Shareholder would have been entitled under this
Declaration of Trust but for such Shareholder's death.
Section 15. FRACTIONAL SHARES
Any outstanding fractional Share of a Series (or Class) shall carry
proportionately all the rights, powers, privileges, preferences and duties of a
whole Share of that Series (or Class), including rights with respect to voting
and receipt of dividends and other distributions, as well as rights accorded to
Shares of such Series (or Class) in connection with (a) the redemption or
purchase of such Shares by the Trust or (b) the dissolution of the Trust or the
termination of such Series (or Class).
Section 16. TREASURY SHARES
Any Shares redeemed, purchased or otherwise acquired by the Trust shall
be deemed to be treasury shares and shall not be canceled (unless the Trustees
provide otherwise at or subsequent to the time of such redemption, purchase or
acquisition).
The Trustees may cause the Trust from time to time to reissue treasury
shares in accordance with ARTICLE III, Section 3 hereof.
The Trustees may classify or reclassify any unissued Shares or any
Shares redeemed, purchased or otherwise acquired by the Trust, regardless of
Series or Class, into one or more Series or Classes that have been or may be
authorized from time to time under and in accordance with ARTICLE III, Section 1
hereof.
Shares held by the Trust as treasury shares shall not be considered
outstanding for any purpose of this Declaration of Trust and, in that
connection, shall not confer any voting rights on the Trust or the Trustees, nor
shall such Shares be entitled to any dividends or other distributions declared
or paid on or with respect to Shares.
Section 17. OWNERSHIP AND TRANSFER OF SHARES
The ownership and transfer of Shares shall be recorded on the books of
the Trust or of a transfer or similar agent for the Trust, which books shall be
maintained separately and distinctly for the Shares of each Series (and Class).
No certificates certifying the ownership of Shares shall be issued except as the
Trustees otherwise may determine from time to time. The Trustees may make such
rules as they deem appropriate for the issuance of share certificates, the
transfer of Shares of each Series (and Class) and similar matters. The record
books of the Trust as kept by the Trust or by any transfer or similar agent, as
the case may be, shall be conclusive as to who are the holders of Shares of each
Series (and Class) and as to the number of Shares of each Series (and Class)
held from time to time by each.
Section 18. COMBINATION OF SHARES
The Trustees, at any time and from time to time, may divide or combine
the Shares of any particular Series into a greater or lesser number of Shares of
that Series (with corresponding adjustments being made to the number of Shares
of each Class within such Series). No such division or combination shall be
deemed, for purposes of ARTICLE VIII, Section 1 hereof or for any other purpose,
to adversely affect to a material degree the rights, powers, privileges,
preferences or duties of the Shares of that Series (or Class) or of the Shares
of any other Series (or Class).
Section 19. RIGHTS OF SHAREHOLDERS TO INSPECT RECORDS
(a) In addition to the rights provided for in the first
sentence of ARTICLE X, Section 1 hereof, each holder of Shares has the
right, subject to such reasonable standards (including standards
governing what information and documents are to be furnished at what
time and location and at whose expense) as may be established from time
to time by the Trustees, to obtain from the Trust from time to time
upon reasonable demand for any purpose reasonably related to the
holder's interest as a holder of Shares:
(1) any written powers of attorney pursuant to which
this Declaration of Trust and any amendments hereto and any
certificates filed by or on behalf of this Trust with the
Office of the Secretary of State of the State of Delaware
pursuant to the Act have been executed;
(2) a current list of the name and last known
business, residence or mailing address of each record holder
of Shares;
(3) information regarding the business and
financial condition of the Trust; and
(4) other information regarding the affairs of
the Trust as is reasonable.
(b) Notwithstanding the foregoing, the Trustees shall have the
right to keep confidential from the holders of Shares, for such period
of time as the Trustees deem reasonable, any information that the
Trustees reasonably believe to be in the nature of trade secrets or
other information the disclosure of which the Trustees in good faith
believe is not in the best interest of the Trust or could damage the
Trust or its business or which the Trust is required by law or by
agreement with a third party to keep confidential.
(c) Any demand by a holder of Shares under this Section 19
shall be in writing under oath and shall state the purpose of such
demand.
Section 20. PURCHASE OF SHARES BY TRUSTEES, OFFICERS, EMPLOYEES
AND AGENTS OF TRUST
Any Trustee, officer, employee or agent of the Trust, and any
organization in which any of the foregoing has an interest, may acquire, own,
hold, redeem and dispose of Shares of any Series or Class to the same extent as
if such person were not a Trustee, officer, employee or agent of the Trust; and
the Trust may issue and sell or cause to be issued and sold and may purchase or
redeem or cause to be purchased or redeemed Shares of any Series or Class to or
from any such person or organization subject only to the provisions of the 1940
Act and to the general limitations, restrictions or other provisions applicable
to the issuance, sale, purchase or redemption of Shares of such Series or Class
generally.
ARTICLE IV.
DETERMINATION OF NET ASSET VALUE, DIVIDENDS AND DISTRIBUTIONS, AND REDEMPTIONS
Section 1. DETERMINATION OF NET ASSET VALUE
The Trustees shall prescribe and set forth in the By-laws or other
written instrument such bases and times for determining the value of Trust
Property, the net asset value of each Series and Class and net income
attributable to the Shares of each Series and Class as they may deem appropriate
consistent with the requirements of the 1940 Act and generally accepted
accounting principles. To the extent not inconsistent with the requirements of
the 1940 Act and generally accepted accounting principles, the Trustees may
determine which items shall be treated as income and which items as capital; and
each such determination shall be conclusive and binding upon the Shareholders of
all Series and Classes for all purposes.
The Trustees may determine to maintain the Net Asset Value per Share of
any Series at a designated constant dollar amount and in connection therewith
may adopt procedures not inconsistent with the requirements of the 1940 Act for
the continuing declarations of income attributable to that Series as dividends
payable in additional Shares of that Series at the designated constant dollar
amount and for the handling of any losses attributable to that Series. To the
extent not inconsistent with the requirements of the 1940 Act, each Shareholder
of the Trust, by his or her investment in any Series with respect to which the
Trustees shall have adopted any such procedures, shall be held to have agreed to
be bound by the following provisions of this paragraph in the event of any such
loss. If, for any reason, the net income of any Series, determined at any time,
is a negative amount, the Trustees may, with respect to that Series, (a) offset
each Shareholder's pro rata share of such negative amount against the accrued
dividend account of such Shareholder; (b) reduce the number of outstanding
Shares of such Series by reducing the number of Shares in the account of each
Shareholder of such Series by a pro rata portion of that number of whole and
fractional Shares which represents such negative amount; (c) cause to be
recorded on the books of such Series an asset account in the amount of such
negative amount (provided that the same shall thereupon become an asset
associated with such Series but shall not be paid to any Shareholder),which
account may be reduced by the amount of dividends declared thereafter upon the
outstanding Shares of such Series from and including the day such negative
amount is experienced until such asset account is reduced to zero; (d) combine
the methods described in clauses (a), (b) and (c) of this sentence; or (e) take
any other action they may deem appropriate, in order to cause (or in order to
assist in causing) the Net Asset Value per Share of such Series to remain at a
constant amount per outstanding Share immediately after each such determination.
The Trustees also may determine not to declare a dividend out of net income for
the purpose of causing the Net Asset Value per Share to be increased. The
Trustees shall not be required to, but at any time may, adopt, discontinue or
amend the practice of maintaining the Net Asset Value per Share of a Series at a
designated dollar amount. In event that any Series is divided into Classes, the
provisions of this paragraph, to the extent applicable as determined by the
Trustees consistent with the requirements of the 1940 Act, may be applied
equally to each such Class.
The Trustees may delegate any of their powers, authority, functions and
duties under this Section 1 with respect to determining the value of Trust
Property and the net asset value of each Series (and Class) or with respect to a
suspension of the determination of net asset value to an officer or officers or
agent or agents of the Trust designated from time to time by the Trustees.
Section 2. DIVIDENDS AND OTHER DISTRIBUTIONS
The Trustees from time to time may declare and cause the Trust to pay
dividends (including, without limitation, dividends paid in Shares) or other
distributions on or with respect to the Shares of any Series or Class, in such
amounts and with such frequency as the Trustees in their sole discretion may
deem appropriate (subject, however, to the provisions of ARTICLE III hereof and
applicable law). Without limiting the generality of the foregoing, such
dividends or other distributions may be declared and paid daily or otherwise
pursuant to a standing resolution or resolutions adopted only once or with such
frequency as the Trustees may deem appropriate.
For the purpose of determining the Shareholders who are entitled to
receive payment of any dividend or other distribution, the Trustees may from
time to time fix a date and time, by standing resolution or otherwise (any such
date and time being herein referred to as a "Distribution Record Date"), for
determining the Shareholders who are entitled to receive such payment, and in
such case only Shareholders of record as of the Distribution Record Date shall
have that right, notwithstanding any transfer of Shares on the record books of
the Trust after the Distribution Record Date. Without fixing a Distribution
Record Date, the Trustees may close the register or transfer books for one or
more Series (or Classes) for all or any part of the period (not exceeding ten
(10) days) preceding the date for the payment of a dividend or other
distribution. Nothing in this Declaration of Trust shall be construed as
precluding the Trustees from setting different Distribution Record Dates for
different Series (or Classes).
Subject to the requirements of the 1940 Act and ARTICLE IV, Section 5
hereof, any dividend or other distribution on or with respect to the Shares of a
Series or Class may be made in cash, Shares of such Series or Class or in-kind
(that is, in securities or other property associated with the Series on or with
respect to which such dividend or distribution is being paid), or in any
combination thereof, as the Trustees may deem appropriate.
Section 3. REDEMPTIONS AT THE OPTION OF THE SHAREHOLDER
Each holder of record of Shares of a particular Series shall have the
right at such times as may be permitted by this Declaration of Trust and as
otherwise required by the 1940 Act to require the applicable Series of the Trust
to redeem all or any number of his or her Shares of that Series at a redemption
price equal to the Net Asset Value per Share of that Series (or applicable Class
thereof) next determined (under and in accordance with ARTICLE IV, Section 1
hereof) after the Shares are properly tendered for redemption; provided,
however, that subject to the requirements of the 1940 Act, the Trustees may
cause the Trust to impose a redemption charge upon redemptions of Shares in such
manner and amount or amounts and at such time or times as the Trustees may deem
appropriate. A Shareholder will not be deemed properly to have tendered Shares
for redemption unless and until he or she shall have complied with such
procedures for redemption as the Trustees may from time to time deem
appropriate, including, without limitation, procedures requiring the redeeming
Shareholder to deposit at the office of the applicable transfer or similar agent
a written request or such other form of request as the Trustees may from time to
time deem appropriate (together with such accompanying documentation as the
Trustees may from time to time deem appropriate) requesting that the applicable
Series of the Trust redeem such Shares in accordance with this Section 3.
Payment of the redemption price shall be in cash; provided, however, that if the
Trustees determine, which determination shall be conclusive, that conditions
exist which make payment wholly in cash inadvisable or undesirable, the Trust,
subject to the requirements of the 1940 Act and ARTICLE IV, Section 5 hereof,
may make payment wholly or partly in-kind (that is, in securities or other
property associated with the Series of which the Shares being redeemed are
part).
Notwithstanding the foregoing, the Trustees may cause the Trust to
postpone payment of the redemption price or to suspend the right of the holders
of the Shares of any Series to require the Trust to redeem Shares of that Series
during any period or at any time when and to the extent permissible under the
1940 Act. Such suspension shall take effect at such time as the Trustees shall
determine but not later than the close of business on the business day next
following the declaration of suspension, and thereafter there shall be no right
of redemption or payment until the Trustees shall declare the suspension at an
end. In the case of a suspension of the right of redemption, a Shareholder
either may withdraw his or her request for redemption or receive payment based
on the Net Asset Value per Share next determined after the termination of the
suspension, in accordance with such procedures as the Trustees from time to time
may deem appropriate. In the event that any Series is divided into Classes, the
provisions of this paragraph, to the extent applicable as determined by the
Trustees consistent with the requirements of the 1940 Act, may be applied
equally to each such Class.
Section 4. REDEMPTIONS AT THE OPTION OF THE TRUST
The Trustees, at any time and from time to time, may cause the Trust to
redeem Shares of a particular Series or Class held by any holder thereof at the
Net Asset Value per Share thereof (determined under and in accordance with
ARTICLE IV, Section 1 hereof): (a) if at such time the Shares of such Series or
Class held by such holder have an aggregate net asset value of less than an
amount determined from time to time by the Trustees and set forth in the Trust's
prospectus or statement of additional information relating to such Series or
Class prior to the time such Shares were purchased, as the minimum aggregate net
asset value that must be maintained by a holder with respect to such Shares in
order for such Shares not to be subject to redemption at the option of the
Trust; (b) if at such time such holder holds Shares of the Trust or of any
Series or Class in excess of a percentage determined from time to time by the
Trustees and set forth in the Trust's prospectus or statement of additional
information relating to such Series or Class prior to the time such Shares were
purchased, as the maximum percentage of Shares of the Trust or of such Series or
Class that may be held by a holder in order for Shares held by a holder not to
be subject to redemption at the option of the Trust; or (c) if the Trustees
shall determine that direct or indirect ownership of Shares of any Series has or
may become concentrated in any Person to an extent which would disqualify such
Series as a regulated investment company under the Internal Revenue Code of
1986, as amended (in which case the Trustees may (i) call for redemption by any
such Person of a number, or principal amount, of Shares sufficient to maintain
or bring the direct or indirect ownership of Shares into conformity with the
requirements for such qualification and (ii) refuse to transfer or issue Shares
to any Person whose acquisition of Shares in question would result in such
disqualification).
No redemption shall be effected pursuant to subSections (a) or (b) of
this Section 4 unless the Trust has given the holder at least thirty (30) days
notice of the Trust's intention to redeem and such holder is given an
opportunity, within such thirty-day period, to adjust his or her holdings so as
to avoid the application of this Section 4.
Redemptions effected pursuant to this Section 4 shall otherwise be
effected in the manner provided in ARTICLE IV, Section 3 hereof.
Section 5. DIVIDENDS, DISTRIBUTIONS AND REDEMPTIONS IN-KIND
In the event the Trustees determine that dividends or other
distributions on or with respect to Shares of a particular Series or Class
(including, for purposes of this Section 5, without limitation, distributions
upon redemption of Shares of such Series or Class or in connection with the
dissolution of the Trust or the termination of such Series or Class) shall be
paid wholly or partly in-kind, the Trustees first must determine that such
payments shall not be prejudicial to the interest of the remaining Shareholders
of such Series. The selection and quantity of securities or other property to be
paid in-kind shall be determined by or under the authority of the Trustees;
provided, however, that the value of the securities or other property paid
in-kind shall be the value of such securities or other property used in
determining the Net Asset Value of the Series with which such securities or
other property are associated. In no case shall the Trust or Trustees be liable
for any delay of any Person in transferring securities or other property
selected for delivery as all or part of any payment in-kind.
ARTICLE V.
SHAREHOLDERS' VOTING POWERS AND MEETINGS
Section 1. VOTING POWERS
Shareholders shall have power to vote only (a) for the election and
removal of Trustees to the extent provided in ARTICLE VI, Sections 3 and 4
hereof, respectively; (b) to the extent provided in ARTICLES VIII and IX hereof;
(c) with respect to such additional matters relating to this Trust or any Series
or Class as may be required by the 1940 Act or any registration of this Trust or
any Series or Class with the Commission (or any successor agency) or any State;
and (d) with respect to such additional matters as the Trustees may deem
appropriate; provided, however, that in no event shall holders of Shares of a
Series or Class be entitled to vote such Shares with respect to any matter that
does not affect any interest of such Series or Class, as the case may be, unless
otherwise required by the 1940 Act.
Each whole Share shall carry one vote as to any matter on which it is
entitled to be voted, and each fractional Share shall carry a proportionate
fractional vote.
In the case of (a) the election or removal of Trustees and (b) an
amendment to the provisions of ARTICLE VIII hereof, and where required by the
1940 Act or by any registration of this Trust with the Commission (or any
successor agency) or any State, all Shares entitled to be voted shall be voted
in the aggregate without differentiation among the separate Series or Classes.
In all other cases, (a) where Rule 18f-3 under the 1940 Act does not apply in
connection with the matter to be voted on and such matter does not involve an
amendment to this Declaration of Trust that would adversely affect to a material
degree the rights, powers, privileges, preferences or duties of Shares of a
particular Class in a manner different from the Shares of any other Class within
the same Series, all Shares entitled to be voted with respect to the matter
shall be voted separately by individual Series and (b) where Rule 18f-3 under
the 1940 Act applies in connection with the matter to be voted on, or where such
matter involves an amendment to this Declaration of Trust that would adversely
affect to a material degree the rights, powers, privileges, preferences or
duties of Shares of a particular Class in a manner different from the Shares of
any other Class within the same Series, all Shares entitled to be voted with
respect to the matter shall be voted separately by individual Class; provided,
however, that the Trustees in their sole discretion may determine that, in
situations where the Shares of more than one Series (or Class) are entitled to
be voted with respect to a matter, such Shares shall be voted as a single class
with respect to such matter if and to the extent permitted under the 1940 Act.
There shall be no cumulative voting in the election of Trustees or for
any other purpose.
Shares may be voted in person or by written proxy or in any manner
provided for in the By-Laws; provided, however, that in the event a proposal by
anyone other than the Trustees or the officers of the Trust is submitted to a
vote of the Shareholders of one or more Series or Classes or of the Trust, or in
the event of any proxy contest or proxy solicitation or proposal in opposition
to any proposal by the Trustees or the officers of the Trust, Shares may be
voted only in person or by written proxy. A proxy with respect to Shares held in
the name of two or more Persons shall be valid if executed by any one of them
unless at or prior to exercise of the proxy the Trust receives a specific
written notice to the contrary from any one of them. A proxy purporting to be
executed by or on behalf of a Shareholder shall be deemed valid unless
challenged at or prior to its exercise, and the burden of proving invalidity
shall rest on the challenger.
Until Shares are issued, the Trustees may exercise all rights hereunder
that pertain to Shares and may take any action required or permitted by law,
this Declaration of Trust or any of the By-Laws of the Trust to be taken by
Shareholders (including, without limitation, the right to amend this Declaration
of Trust and the By-Laws).
Section 2. MEETINGS
No annual or regular meetings of Shareholders are required. The
Trustees, their Chairman or the President of the Trust may from time to time
call and give notice of meetings of the Shareholders in general, or of the
Shareholders of any one or more Series or Classes in particular, for the purpose
of taking action upon any matter requiring Shareholder authorization or approval
as herein provided or upon any other matter as the Trustees may deem
appropriate. The Trustees, their Chairman or the President of the Trust shall
promptly call and give notice of a meeting of Shareholders for the purpose of
voting upon the question of removal of any Trustee or Trustees when requested to
do so in writing by Shareholders holding of record at least ten percent (10%) of
the Shares then outstanding. In that connection, the provisions of the third,
fourth and fifth paragraphs of Section 16(c) of the 1940 Act shall apply to this
Trust as though this Trust were subject to those provisions. The Trustees, their
Chairman or the President of the Trust shall call and give notice of a meeting
within thirty (30) days after written application by Shareholders holding of
record at least ten percent (10%) of the Shares then outstanding entitled to be
voted on the matter requesting a meeting be called for the purpose of taking
action upon a matter requiring authorization or approval of the holders of such
Shares under the provisions of ARTICLE V, Sections l(b) or (c) hereof.
A meeting of Shareholders may be held at any place designated by the
Trustees, within or without the State of Delaware.
Section 3. QUORUM AND REQUIRED VOTE
In cases where all Shares of the Trust are to be voted in the aggregate
without differentiation among the separate Series and Classes pursuant to the
terms of this Declaration of Trust, the holders of at least 33 2/3% of the
Shares entitled to be voted in person or by proxy at a meeting of the holders of
such Shares shall constitute a quorum for the transaction of business at a
meeting of such holders. In cases where Shares of a Series (or Class) are to be
voted separately by Series (or Class) pursuant to the terms of this Declaration
of Trust, the holders of more than 50% of the Shares of such Series (or Class)
entitled to be voted in person or by proxy at a meeting of the holders of such
Shares shall constitute a quorum for the transaction of business at a meeting of
such holders. In cases where Shares of more than one but fewer than all Series
(or Classes) are to be voted as a single class pursuant to the terms of this
Declaration of Trust, the holders of more than 50% of such Shares entitled to be
voted in person or by proxy at a meeting of the holders of such Shares shall
constitute a quorum for the transaction of business at a meeting of such
holders.
Any meeting of Shareholders may be adjourned from time to time to
another date and time by a majority of the votes properly cast in person or by
proxy upon the question of adjournment, whether or not a quorum is present, and
the meeting so adjourned may be held within a reasonable time after the date set
for the original meeting, without the necessity for giving further notice.
Subject to the provisions of the preceding paragraph, when a quorum of
holders of Shares entitled to be voted on the matter is present at any meeting,
a majority of the votes properly cast in person or by proxy shall decide any
questions and a plurality shall elect a Trustee, except where a larger
percentage is required by the 1940 Act, by any express provision of this
Declaration of Trust or by any registration of this Trust with the Commission
(or any successor agency) or any State.
Section 4. ACTION BY WRITTEN CONSENT
Any action requiring authorization or approval of Shareholders may be
taken without a meeting of such Shareholders and without prior notice if holders
of at least 66 2/3% of the Shares entitled to be voted on the matter consent to
the action in writing and such written consent or consents are filed with the
records of the meetings of Shareholders (except where a larger percentage is
required by the 1940 Act or by any express provision of this Declaration of
Trust). Such consent shall be treated for all purposes as a vote taken at a
meeting of such Shareholders.
Section 5. RECORD DATES
For the purpose of determining the Shareholders who are entitled to
notice of and to vote or act at any meeting or any adjournment thereof, the
Trustees may fix a date and time, which shall be not more than ninety (90) days
prior to the date of such meeting, as the date and time of record (a "Meeting
Record Date") for determining the Shareholders who are entitled to receive
notice of and to vote or act at such meeting and any adjournment thereof, and in
such case only Shareholders of record as of the Meeting Record Date shall have
that right, notwithstanding any transfer of Shares on the record books of the
Trust after the Meeting Record Date. Without fixing a Meeting Record Date, the
Trustees may close the register or transfer books for one or more Series (or
Classes) for all or any part of the period (not exceeding ten (10) days)
preceding the date of a meeting of Shareholders. Nothing in this Declaration of
Trust shall be construed as precluding the Trustees from setting different
Meeting Record Dates for different Series (or Classes).
Section 6. ADDITIONAL PROVISIONS
The By-Laws may include further provisions for Shareholders' votes and
meetings and related matters not inconsistent with the provisions hereof.
ARTICLE VI.
THE TRUSTEES
Section 1. NUMBER AND QUALIFICATIONS
Prior to any offering of Shares, there shall be an Initial Trustee and
thereafter the number of Trustees shall be fixed at such number as the Trustees
from time to time hereafter may fix by Resolution; provided, however, that the
number of authorized Trustees shall in no event be less than one (1) nor more
than fifteen (15). A Trustee must be a natural person at least 21 years of age
who is not under a legal disability. A Trustee need not be a Shareholder, a
citizen of the United States or a resident of the State of Delaware. No decrease
in the authorized number of Trustees shall have the effect of removing any
Trustee from office prior to the expiration of his or her term, but the
authorized number of Trustees may be decreased in conjunction with a vacancy
created by the death, physical or mental incapacity, resignation or removal of a
Trustee.
Section 2. INITIAL TRUSTEE
The initial Trustee shall be the person whose signature appears below
on the signature page dated March 25, 2000 (the "Initial Trustee").
Section 3. ELECTION OF TRUSTEES
Except for the Initial Trustee and Trustees appointed to fill vacancies
pursuant to ARTICLE VI, Section 5 hereof, Trustees shall be elected by
Shareholders at such meetings of Shareholders as the Trustees may from time to
time determine to call in their sole discretion; provided, however, that the
Trustees shall call meetings of Shareholders for the purpose of electing
Trustees at such time or times and in such manner as may be required by the 1940
Act.
Section 4. TERM OF OFFICE
Each Trustee shall serve and hold office until the next meeting of
Shareholders held for the purpose of considering the reelection of such Trustee
or the election of a successor to such Trustee and until his or her successor is
elected and qualified (or until the earlier death or physical or mental
incapacity of such Trustee), and any Trustee who is appointed by the Trustees to
fill a vacancy as provided in ARTICLE VI, Section 5 hereof shall have the same
remaining term of his or her predecessor, if any, or such term as the Trustees,
by Resolution, may determine; provided, however, that without the need for a
prior or subsequent accounting, (a) any Trustee may resign at any time by a
written instrument signed by him or her and delivered to any officer of the
Trust or to a meeting of the Trustees, such resignation to be effective upon
such delivery unless such written instrument specifies a later effective date;
(b) any Trustee may be removed at any time with or without cause by a written
instrument signed by at least two-thirds of the number of Trustees then in
office (including, solely for the purpose of determining two-thirds of the
number of the Trustees then in office, the Trustee sought to be removed), such
removal to be effective upon the date specified in such written instrument; and
(c) any Trustee may be removed at any time with or without cause (i) at any
meeting of the Shareholders called for that purpose by a vote of Shareholders
holding of record at least 66 2/3% of the outstanding Shares, properly cast in
person or by proxy at such meeting or (ii) by way of a written instrument signed
by Shareholders holding of record at least 66 2/3% of the outstanding Shares,
and delivered to an officer of the Trust. A meeting of Shareholders for the
purpose of removing one or more Trustees may be called (a) by the Trustees or
(b) at the request of Shareholders in accordance with the provisions of ARTICLE
V, Section 2 hereof.
Notwithstanding the foregoing, if, after giving effect to the
resignation or removal of a Trustee, the Trust would not have any Trustee then
in office, such resignation or removal shall not become effective unless and
until there shall be at least one Trustee then in office.
Section 5. VACANCIES AND APPOINTMENTS
In case of the death, physical or mental incapacity, resignation or
removal of a Trustee, or an increase in the authorized number of Trustees, a
vacancy shall occur. As conclusive evidence of such vacancy, a written
instrument certifying the existence of such vacancy may be executed by an
officer of the Trust or by the Trustees. Subject to (a) the provisions of the
last sentence of ARTICLE VI, Section 1 hereof and (b) the right of the Trustees,
in their sole discretion, to call a meeting of Shareholders for the purpose of
electing a Trustee or Trustees, as provided in ARTICLE VI, Section 3 hereof, and
subject in all cases to the proviso to ARTICLE VI, Section 3 hereof, in the case
of a vacancy, the remaining Trustees, by Resolution, shall appoint a person to
fill such vacancy in a manner consistent with the requirements of the 1940 Act
and the By-Laws (including, without limitation, provisions of the 1940 Act
relating to the number of Interested Persons who may serve as Trustees). Such
appointment shall be recorded in the minutes of a meeting of the Trustees,
whereupon such appointment shall become effective if accepted by the person so
appointed by becoming a signatory to this Declaration of Trust as a Trustee.
An appointment of a Trustee may be made by the Trustees, by Resolution,
in anticipation of a vacancy to occur by reason of the resignation of a Trustee
or Trustees or an increase in the authorized number of Trustees, provided that
said appointment shall become effective only at or after the effective date of
said resignation or increase.
Section 6. EFFECT OF DEATH, RESIGNATION, ETC. OF A TRUSTEE
The death, physical or mental incapacity, resignation or removal of one
or more Trustees, or all of them, during the existence of this Trust shall not
operate to annul or dissolve this Trust, to terminate any Series or Class or to
revoke any existing agency created pursuant to the terms of this Declaration of
Trust. Whenever a vacancy in the authorized number of Trustees shall occur,
until such vacancy is filled as provided in ARTICLE VI, Section 5 hereof, the
Trustees then in office, regardless of their number, but subject to the
requirements of the 1940 Act, shall have all the powers and authority granted to
the Trustees hereunder and shall discharge all the duties imposed upon the
Trustees by this Declaration of Trust. 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 on account of such removal.
Section 7. ACTION BY THE TRUSTEES
Except as otherwise required by the 1940 Act or by the provisions of
ARTICLE VI, Section 4(b) hereof, and except where this Declaration of Trust
expressly provides that an action to be taken by Trustees shall be taken by
Resolution, any action to be taken by the Trustees on behalf of this Trust or
any Series or Class may be taken by (a) a majority of the Trustees present at a
duly constituted meeting of the Trustees (a quorum, consisting of at least a
majority of the Trustees then in office, being present), including any meeting
held by means of a conference telephone or other communications equipment
through which all persons participating in the meeting can hear each other at
the same time or (b) written consents signed by a majority of the Trustees then
in office; provided, however, that whether or not a quorum is present, a
majority of the Trustees present at a duly constituted meeting of the Trustees
may adjourn the meeting to another place and time.
Section 8. CHAIRMAN OF THE TRUSTEES
The Trustees may appoint one of their number to be Chairman of the
Trustees. The Chairman shall preside at all meetings of the Trustees to the
extent reasonably feasible and, to the extent provided by the Trustees, shall be
responsible for the execution of policies established by the Trustees and the
administration of the Trust. The Chairman may be (but is not required to be) the
chief executive, financial and/or accounting officer of the Trust.
Section 9. PRINCIPAL TRANSACTIONS
Except to the extent prohibited by the 1940 Act, the Trustees may, on behalf of
the Trust, buy any securities from or sell any securities to, or lend any Trust
Property to, any Trustee or any officer or employee of the Trust or any
organization in which any such person has a direct or indirect interest, acting
as principal.
Section 10. POWERS
Subject only to such restrictions as are set forth in this Declaration
of Trust, the 1940 Act and other applicable law, the Trustees shall have
exclusive control over the Trust Property and over the management of the
business and affairs of the Trust to the same extent as if the Trustees were the
sole owners and holders of the Trust Property and business and affairs in their
own right, and shall possess and may exercise all the powers and authority which
may be possessed and exercised by trustees of a business trust established under
the Act; provided, however, that the foregoing shall not be construed to
prohibit the Trustees from delegating their powers and authority in the manner
described herein.
Without limiting the generality of the foregoing, in addition to the
powers and authority granted to the Trustees elsewhere herein, the Trustees
shall have full power and authority, for and on behalf of any one or more of the
Trust and the Series and Classes, to do or cause the Trust or other Persons to
do any one or more of the following, subject only to such restrictions as may be
set forth in this Declaration of Trust, the 1940 Act and other applicable law:
(a) To conduct, operate and carry on the business and affairs
of an open-end management investment company organized as a series
company and registered under the 1940 Act and do any and all acts or
things (including, without limitation, the making and execution of such
agreements, contracts and instruments) as the Trustees may deem
necessary, convenient, appropriate, incidental or customary in
connection therewith or in the interest of any one or more of the Trust
and the Series and Classes (it being understood that, for purposes of
this Section 10(a), any good faith determination by the Trustees as to
what is in the interest of any one or more of the Trust and the Series
and Classes shall be conclusive);
(b) To adopt by-laws, not inconsistent with this Declaration
of Trust, containing additional provisions relating to the conduct of
the business and affairs of the Trust, and amend and repeal them to the
extent that such by-laws do not expressly and exclusively reserve that
right to the Shareholders;
(c) To conduct, operate and carry on the business and affairs
of the Trust, and maintain offices of the Trust, both within and
without the State of Delaware, in any and all other States and in any
and all foreign jurisdictions;
(d) To elect and remove such officers and hire and terminate
such employees, and provide for the compensation of any or all of the
foregoing (any one or more of any of whom may be a Trustee), as the
Trustees may deem appropriate;
(e) To establish, by appointing from the Trustees' own number
or from among other Persons, and terminate, any one or more committees
consisting of two or more Trustees or other Persons, and adopt
committee charters providing for such responsibilities, membership and
other characteristics of such committees as the Trustees may deem
appropriate;
(f) To delegate such powers, authority, functions and duties
(including, without limitation, those set forth in ARTICLE IV, Section
1 hereof) as the Trustees may deem appropriate to (i) any officer,
employee or Service Provider (and authorize any of the foregoing to
employ subagents and to delegate, to any other Person, any of the
powers, authority, functions or duties so delegated to them); (ii) any
committee consisting of Trustees or other Persons (including, without
limitation, (A) an executive committee consisting of less than the
whole number of Trustees then in office, which may, when the Trustees
are not in session, exercise some or all of the powers and authority of
the Trustees and 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, and (B) a special committee which may exercise some or all of
the powers and authority of the Trustees, and 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
claim, action, suit or proceeding (civil, criminal, administrative or
other, including appeals) which shall be pending or threatened to be
brought before any court, administrative agency or other adjudicatory
body); and (iii) other Trustees, to the extent and in the manner
provided in the By-Laws;
(g) To provide for the distribution of Shares either through
one or more Principal Underwriters or distributors, as described more
fully in ARTICLE VI, Section 13(b) hereof or by the Trust itself, or
both, or otherwise pursuant to a plan of distribution of any kind;
(h) To interpret the investment objectives, policies
restrictions and limitations applicable to a particular Series;
(i) To invest and reinvest cash and other property, hold cash
and other property uninvested, and subscribe for, invest in, reinvest
in, purchase or otherwise acquire, own, hold, pledge, sell, assign,
transfer, trade, exchange, distribute, write options on, lend, and deal
in or dispose of contracts for the future acquisition or delivery of,
securities and instruments of every nature and kind, including, without
limitation, all types of bonds, debentures, common stocks, preferred
stocks, negotiable or non-negotiable instruments, obligations,
evidences of indebtedness, certificates of deposit or indebtedness,
commercial paper, repurchase agreements, bankers' acceptances, futures
contracts, options on futures contracts, swaps, caps, collars, floors
and other securities and instruments of any nature and kind, issued,
created, guaranteed or sponsored by any and all Persons, including,
without limitation, the United States government, States, foreign
governments, any political subdivision, agency or instrumentality of
any of the foregoing or of any combination of the foregoing, any
supranational organization, any bank or savings institution, or any
corporation or other entity organized under the laws of the United
States, any State, or any foreign jurisdiction, or in "when issued"
contracts for any such securities;
(j) To sell, exchange, lend, pledge, mortgage, hypothecate or
lease, or write options with respect to or otherwise deal in any
property rights relating to, any or all of the Trust Property or the
assets associated with any Series;
(k) To vote or give assent or otherwise act, or exercise any
and all rights, powers and privileges of ownership or interest, 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 may deem appropriate, granting to such Person or Persons such
power and discretion with relation to the Trust Property as the
Trustees may deem appropriate (including, without limitation, the power
and authority to act in the name of the Trust or the Trustees; to sign
documents and to act as attorney-in-fact for the Trust or the
Trustees);
(l) To exercise powers and rights of subscription or
otherwise which in any manner arise out of ownership of securities or
other property; and to pay calls or subscriptions with respect to any
security held by or for the account of the Trust;
(m) To hold any security or other property in a form not
indicating that it is trust property, whether in bearer, book entry,
unregistered or other negotiable form; to deposit, or authorize any
custodian or subcustodian of Trust Property to deposit, all or any part
of the Trust Property in one or more systems for the central handling
of securities or other instruments or with a Federal Reserve Bank (each
of the foregoing, a "Securities Depository"), and authorize any
Securities Depository to utilize the services of one or more other
Securities Depositories or agents; and to hold all or any part of the
Trust Property in the name(s) of one or more custodians, subcustodians,
Securities Depositories, nominees or otherwise;
(n) To consent to, or participate in, any plan for the
reorganization, consolidation or merger of any corporation or issuer of
any security which is or was held by or for the account of the Trust;
and to consent to any contract, lease, mortgage, purchase or sale of
property by such corporation or issuer;
(o) To join with other security holders in acting through a
committee, depositary, voting trustee or otherwise, and in that
connection deposit any security with, or transfer any security to, any
such committee, depositary or trustee, and delegate to them such power
and authority with relation to any security (whether or not so
deposited or transferred) as the Trustees may deem appropriate; and to
agree to pay, and pay, such portion of the expenses and compensation of
such committee, depositary or trustee as the Trustees may deem
appropriate;
(p) To compromise, arbitrate or otherwise adjust claims in
favor of or against this Trust or any Series or any matter in
controversy, including, without limitation, claims for taxes;
(q) To enter into joint ventures, general or limited
partnerships and any other combinations or associations;
(r) To borrow money or other property in the name of the Trust
or of any Series exclusively for the purposes of the Trust or of such
Series, and in that connection issue notes or other evidences of
indebtedness;
(s) To endorse or guarantee the payment of any notes or other
obligations or undertake the performance of any obligation or
engagement of any Person; and to make contracts of guaranty or
suretyship, or otherwise assume liability for payment thereof;
(t) To purchase and pay for entirely out of Trust Property
such insurance as the Trustees may deem appropriate for the conduct of
the business and affairs of the Trust, including, without limitation,
insurance policies insuring the assets of the Trust or payment of
distributions or principal on the Trust's portfolio investments, and
insurance policies insuring the Shareholders and Trustees and officers,
employees and Service Providers of the Trust or any thereof (or any
Person connected therewith), individually against all claims and
liabilities of every nature arising by reason of holding or having held
Shares or holding or having held any such office or position, or by
reason of any action alleged to have been taken or omitted by any such
Person in any such capacity, including any action taken or omitted that
may be determined to constitute negligence, whether or not the Trust
would have the power to indemnify such Person against liability;
(u) To adopt, establish and carry out pension, profit-sharing,
share bonus, share purchase, savings, thrift and other retirement,
incentive and benefit plans, including the purchasing of life insurance
and annuity contracts as a means of providing retirement and other
benefits, for any or all of the Trustees, officers, employees and
agents of the Trust;
(v) To adopt and offer to Shareholders such dividend
reinvestment plans, cash dividend payout plans and related plans as the
Trustees may deem appropriate;
(w) To redeem Shares in accordance with the provisions of
ARTICLE IV hereof and purchase or otherwise acquire Shares; and
(x) To do everything that the Trustees may deem necessary,
convenient, appropriate, incidental or customary for the accomplishment
of any valid purpose or the attainment of any valid object or for the
furtherance of any power herein before set forth, either alone or in
association with others, the foregoing clauses to be construed as
objects as well as powers.
In construing the provisions of this Declaration of Trust, the
presumption shall be in favor of (a) a grant of power and authority to the
Trustees and (b) the power and authority of the Trustees to delegate any of
their powers and authority, and the enumeration of any specific powers shall not
be construed as limiting or restricting in any manner the general powers of the
Trustees. The Trust and the Trustees shall not be limited to investing in
securities or instruments maturing before the possible dissolution of the Trust
or the termination of one or more Series. The Trust and the Trustees shall not
in any way be bound or limited by any present or future law or custom in regard
to investments by trustees or other fiduciaries, but shall have full power and
authority to make any and all investments which they may deem appropriate to
accomplish the purpose of the Trust or of any Series. No Person dealing with the
Trustees shall be bound to make any inquiry concerning the authority of the
Trustees or 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 the Trustees or upon its or their order. The Trust and the Trustees
shall not be required to resort to any court or other authority or to obtain an
order of any court or other authority to deal with any Trust Property or the
assets associated with any Series or take any other action hereunder.
Section 11. PAYMENT OF EXPENSES BY THE TRUST
The Trust, and not the Trustees, shall be responsible for all
liabilities, expenses, costs and charges incurred or arising in connection with
the Trust or any Series (or Class), or in connection with the management
thereof, and, subject to the other provisions of this Declaration of Trust, the
Trustees are authorized to pay or cause to be paid (which authorization carries
with it the authorization to reimburse themselves for), out of the principal or
income of the Trust or any Series (or Class), or partly out of such principal
and partly out of such income, all such liabilities, expenses, costs and
charges, including, without limitation: interest charges; taxes; brokerage fees
and commissions; expenses related to the issuance, redemption and purchase of
Shares; insurance premiums; fees, and expenses of third parties, including
Service Providers; fees of pricing, interest, dividend, credit and other
reporting services; costs of membership in trade associations;
telecommunications expenses; costs of preparing transmission expenses; auditing,
legal and compliance expenses; costs of creating the Trust and maintaining its
existence; costs of preparing and printing the Trust's prospectuses, statements
of additional information and shareholder reports and delivering them to
existing and prospective shareholders; expenses of meetings of shareholders and
proxy solicitations therefor; costs of maintaining books and accounts; costs of
reproduction, stationery and supplies, fees and expenses of the Trustees;
compensation of the Trust's officers and employees and costs of other personnel
performing services for the Trust; costs of Trustee meetings, Commission
registration fees and related expenses; State or foreign securities laws
registration fees and related expenses; and such non-recurring items as may
arise, including litigation to which the Trust or the Trustees or any of them is
a party, and, subject to the provisions of ARTICLE VII, Section 3 hereof, for
all losses and expenses incurred by them in administering the Trust, and for the
payment of such losses and expenses the Trustees shall have a lien on the assets
belonging to the appropriate Series, or in the case of a loss or an expense
allocable to more than one Series, on the assets of each such Series, prior to
any rights or interests of the Shareholders thereto. This Section shall not
preclude the Trust from directly paying any of the aforementioned liabilities,
expenses, costs or charges.
Section 12. OWNERSHIP OF ASSETS OF THE TRUST
The Trust Property (including Trust Property associated with the
various Series) shall be held separate and apart from any assets now or
hereafter held in any capacity other than as Trustee hereunder by the Trustees
or any successor Trustees. Legal right, title and interest in and to all Trust
Property (including all Trust Property associated with the various Series) and
the right to conduct the business and affairs of the Trust shall at all times be
considered as vested in the Trust as a separate legal entity under the Act,
except that the Trustees may cause or authorize legal right, title or interest
in or to any Trust Property to be held by or in the name of the Trustees or any
of them or as provided in ARTICLE VI, Section 10(m) hereof. To the extent that
legal right, title or interest in or to any Trust Property is vested in the
Trustees, upon the death, physical or mental incapacity, resignation or removal
of a Trustee, he or she automatically shall cease to have any such right, title
or interest, and such right, title or interest shall vest automatically in the
remaining Trustees and in each person who may thereafter become a Trustee. To
the maximum extent permitted by law, such cessation and vesting of right, title
and interest shall be effective whether or not conveyancing documents have been
executed and delivered and whether or not any other action has been taken.
Section 13. SERVICE CONTRACTS
Subject to such requirements and restrictions as may be set forth in
the By-Laws:
(a) the Trustees, at any time and from time to time, may cause
the Trust (or any Series or Class thereof) to contract for exclusive or
nonexclusive management, advisory and/or administrative services with
one or more Investment Managers or other Persons, on such terms as the
Trustees may deem appropriate, including, without limitation, terms
authorizing any Investment Manager to determine (or to employ another
Investment Manager 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.
(b) The Trustees, at any time and from time to time, may cause
the Trust (or any Series or Class thereof) to contract with one or more
Persons, appointing any such Person exclusive or nonexclusive Principal
Underwriter or distributor for the Shares of one or more of the Series
(or Classes) or other securities to be issued by the Trust, on such
terms as the Trustees may deem appropriate.
(c) The Trustees, at any time and from time to time, may cause
the Trust (or any Series or Class thereof) to contract with one or more
Persons, appointing any such Person the custodian, transfer or similar
agent, shareholder servicing agent and/or dividend disbursement agent
for the Trust or for one or more of its Series (or Classes), on such
terms as the Trustees may deem appropriate (including, without
limitation, terms authorizing any such Person to employ subagents).
(d) The Trustees, at any time and from time to time, may cause
the Trust (or any Series or Class thereof) to contract with any other
Service Provider to provide such other services as the Trustees may
deem appropriate, on such terms as the Trustees may deem appropriate.
(e) The fact that: shall not affect the validity of any such
Trust Contract or disqualify any Trustee or Shareholder 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,
however, that approval of each such Trust Contract is obtained pursuant
to the applicable requirements of the 1940 Act.
(i) any of the Trustees or Shareholders or officers
of the Trust has a management, advisory or administration
contract, or Principal Underwriter's or distributor's
contract, or transfer or similar agent, shareholder servicing
agent, dividend disbursement agent or other type of service
contract with the Trust, or that
(ii) any of the Trustees or Shareholders or officers
of the Trust is or may become a shareholder, trustee,
director, officer, partner, member, employee, investment
manager or adviser, Principal Underwriter, distributor, or
affiliate or agent of or for any Person, or of or for any
parent or affiliate of any Person, with which a management,
advisory or administration contract, or Principal
Underwriter's or distributor's contract, or transfer or
similar agent, shareholder servicing agent, dividend
disbursement agent or other type of service contract may have
been or may hereafter be made by the Trust, or that any such
Person or any parent or affiliate thereof, is a Shareholder
or has an interest in the Trust, or that
(iii) any Person with which a management, advisory or
administration contract, or Principal Underwriter's or
distributor's contract, or transfer or similar agent,
shareholder servicing agent, dividend disbursement agent or
other type of service contract may have been or may hereafter
be made by the Trust (a "Trust Contract") also has a
management, advisory or administration contract, or Principal
Underwriter's or distributor's contract, or transfer or
similar agent, shareholder servicing agent, dividend
disbursement agent or other service contract with one or more
other Persons, or has other business or interests,
Subject to the foregoing proviso, nothing in this Declaration
of Trust shall be deemed to preclude (a) any one Person from entering
into more than one Trust Contract with the Trust or (b) any one Person
from being financially interested in or otherwise affiliated with more
than one Person with whom the Trust has entered into a Trust Contract.
ARTICLE VII.
COMPENSATION, LIMITATION OF LIABILITY AND
INDEMNIFICATION OF TRUSTEES AND OFFICERS
Section 1. COMPENSATION
The Trustees shall be entitled to compensation from the Trust for their
services as such, and the Trustees may from time to time fix such compensation
in such reasonable amount as they may deem appropriate.
Section 2. LIMITATION OF LIABILITY
Every note, bond, contract, instrument, certificate, Share or other
undertaking and every other act or thing whatsoever issued, executed, made or
done by the Trustees or officers or employees or (to the extent permitted by the
Trustees) Service Providers of the Trust or any of them on behalf of the Trust
or any Series or Class thereof shall conclusively be deemed to have been issued,
executed, made or done only in or with respect to such capacities or capacity,
and not in their or his or her individual capacities or capacity. In addition,
neither a Trustee nor an officer of the Trust shall be liable for any act or
omission or any conduct whatsoever in his or her capacity as Trustee or officer
(including, without limitation, errors of judgment or mistakes of fact or law),
provided that nothing contained herein shall protect any Trustee or officer
against any liability to the Trust or the Shareholders to which he or she
otherwise would be subject by reason of willful misfeasance, bad faith, gross
negligence or reckless disregard of the duties involved in the conduct of the
office of Trustee or officer. Accordingly, a Trustee or officer of the Trust,
when acting in such capacity (a) shall not personally be liable to any Person
(except as set forth in clause (b) immediately following) for any act, omission,
debt or obligation of the Trust or of such Trustee or officer and (b) shall be
liable to the Trust and the Shareholders only to the extent provided in the
preceding sentence. Without limiting the generality of the foregoing, but
subject in each case to clause (b) immediately above, (i) the exercise by the
Trustees or officers of the Trust of their powers and authority in good faith
shall be binding on the Trust, the Shareholders and every other interested
person; (ii) a Trustee shall not be responsible or liable for any act, omission,
debt or obligation of any officer, employee or Service Provider of the Trust, or
of any other Trustee; (iii) an officer shall not be responsible or liable for
any act, omission, debt or obligation of any Trustee, employee or Service
Provider of the Trust, or of any other officer; (iv) the Trustees and officers
may take advice of counsel or other experts with respect to the meaning and
operation of this Declaration of Trust and their duties as Trustees or officers
hereunder, and shall not be liable for any act or omission in accordance with
such advice or for failing to follow such advice; and (v) in discharging their
duties, the Trustees, when acting in good faith, shall be entitled to rely upon
the books of account of the Trust and upon written reports made to the Trustees
by any officer, employee or Service Provider appointed by them, any independent
public accountant and (with respect to the subject matter of the contract
involved) any officer, partner, member or responsible employee or agent of any
other party to any contract entered into by the Trust or by the Trustees on
behalf of the Trust. The Trustees and officers shall not be required to give any
bond as such, nor any surety if a bond is required or obtained. The provisions
of this Declaration of Trust, to the extent they restrict the duties and
liabilities of the Trustees and officers otherwise existing at law or in equity,
are agreed by the Shareholders and all other Persons to replace such other
duties and liabilities of the Trustees and officers.
Every note, bond, contract, instrument, certificate, Share or other
undertaking issued, executed or made by the Trustees or any of them or by the
officers, employees or (to the extent permitted by the Trustees) Service
Providers of the Trust or any of them may recite that the same was issued,
executed or made by or on behalf of the Trust by them solely in such capacities
or capacity and not personally and that the obligations of such instrument are
not binding upon any of them personally but are binding only upon the assets and
property of the Trust or a particular Series thereof, and may contain such
further recitals as they or he or she may deem appropriate, but the omission
thereof shall not operate to bind any Trustee or any officer, employee or
Service Provider of the Trust personally.
Section 3. INDEMNIFICATION
Subject to the exceptions and limitations contained in this Section 3,
every person who is, or has been, a Trustee or officer of the Trust, or who
serves at the request of the Trust or at the request of a Trustee on behalf of
the Trust as a trustee, director, member, officer, employee or agent of another
organization in which the Trust has an interest as a shareholder, creditor or
otherwise (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 or her, 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 or her being or having been such a
Trustee, trustee, director, member, officer, employee or agent and against
amounts paid or incurred by him or her in settlement thereof.
No indemnification shall be provided hereunder to a Covered Person:
(a) for any liability to this Trust or the Shareholders
arising out of a final adjudication by the court or other body before
which the proceeding was brought that he or she engaged in willful
misfeasance, bad faith, gross negligence or reckless disregard of the
duties involved in the conduct of his or her office;
(b) with respect to any matter as to which he or she shall
have been finally adjudicated by the court or other body before which
the proceeding was brought not to have acted in good faith in the
reasonable belief that his or her action was in the best interest of
the Trust; or
(c) in the event of a settlement or other disposition not
involving a final adjudication (as provided in paragraph (a) or (b)
immediately above) and resulting in a payment by a Covered Person,
unless there has been either a determination that such Covered Person
did not engage in willful misfeasance, bad faith, gross negligence or
reckless disregard of the duties involved in the conduct of his or her
office by the court or other body approving the settlement or other
disposition or a reasonable determination, based on a review of the
readily available facts (as opposed to a full trial-type inquiry), that
he or she did not engage in such conduct, such determination being made
by:
(i) a vote of a majority of the Disinterested
Trustees acting on the matter (provided that a majority of
the Disinterested Trustees then in office act on the matter);
or
(ii) a written opinion of independent legal
counsel.
The rights of indemnification herein provided may be insured against by
policies maintained by the Trust, shall be severable, shall not exclude or
affect any other rights to which any Covered Person may now or hereafter be
entitled, shall be considered enforceable contract rights of Covered Persons,
shall continue as to a Person who has ceased to be a Covered Person (but only
with respect to the acts or omissions of such person occurring prior to the time
such person 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 may be entitled by contract or otherwise under law. The Trustees
from time to time may provide for such indemnification as they deem appropriate
(but in no event more extensive than that provided in this Section 3), for
employees, agents and Service Providers of this Trust. For purposes of this
Section 3, this Trust shall include any successor in interest to this Trust.
Expenses in connection with preparation and presentation of a defense
to any claim, action, suit or proceeding subject to a claim for indemnification
under this Section 3 may be advanced by the Trust or applicable Series from time
to time prior to final disposition thereof upon receipt of an undertaking by or
on behalf of the recipient to repay such amount to the Trust or applicable
Series if it is ultimately determined that he or she is not entitled to
indemnification under this Section 3, provided that either:
(a) such undertaking is secured by a surety bond or some other
appropriate security supplied by the recipient (unless the Trustees
shall waive the requirement that such surety bond or security be
supplied by the recipient) or the Trust shall be insured against losses
arising out of any such advances; or
(b) a majority of the Disinterested Trustees acting on the
matter (provided that a majority of the Disinterested Trustees then in
office act on the matter) or independent legal counsel in a written
opinion shall determine, based on a review of the readily available
facts (as opposed to a full trial-type inquiry), that there is reason
to believe that the recipient ultimately will be found to be entitled
to indemnification under this Section 3.
For purposes of this Section 3, a "Disinterested Trustee" is a Trustee
(i) who is not an Interested Person of the Trust (including anyone who has been
exempted from being an Interested Person by any rule, regulation or order of the
Commission), and (ii) against whom none of such claims, actions, suits or other
proceedings or another claim, action, suit or proceeding on the same or similar
grounds is then or has been pending.
For purposes of this Section 3 and Section 4 immediately below, the
words "claim," "action," "suit" or "proceeding" shall apply to all claims,
actions, suits or proceedings (civil, criminal, administrative or other,
including appeals), actual or threatened and while in office or thereafter; and
the words "liability," "losses" and "expenses" shall include, without
limitation, attorneys' fees, costs, judgments, amounts paid in settlement,
fines, penalties and other liabilities.
Section 4. INSURANCE
The Trustees may to the fullest extent permitted by law purchase with
Trust assets insurance for liability and for all expenses reasonably incurred or
paid or expected to be paid by a Covered Person 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 or her being or having been a Person who falls within
the definition of Covered Person, whether or not the Trust would have the power
to indemnify him or her against such liability under the provisions of this
Article.
ARTICLE VIII.
AMENDMENT
Notwithstanding any other provision of this Declaration of Trust, the
Trustees, at any time and from time to time, by Resolution, without any need for
Shareholder authorization or approval, may amend this Declaration of Trust so as
to add to, delete, replace or otherwise modify any provision hereof (including,
without limitation, any provision (a) relating to the Shares (or any Series or
Class thereof) or (b) contained in any document incorporated herein by reference
("Incorporated Document") or in any document incorporated by reference into an
Incorporated Document); provided, however, that (i) the Trustees must obtain
Shareholder authorization or approval of any such amendment to the extent they
are required to do so by the 1940 Act; (ii) the Trustees must obtain the
authorization or approval of holders of not less than seventy-five percent (75%)
of the outstanding Shares, voting together without differentiation among the
separate Series or Classes, to adopt any amendment to this ARTICLE VIII; (iii)
the Trustees must obtain the authorization or approval of Shareholders of a
particular Series (or Class) to adopt any amendment which would adversely affect
to a material degree the rights, powers, privileges, preferences or duties of
the Shares of such Series (or Class), in the manner provided in ARTICLE V,
Section 1 hereof; (iv) to the extent voting rights are accorded to Shareholders
under the provisions of this Declaration of Trust to authorize or approve a
particular matter, the Trustees may not adopt any amendment to any such voting
right, or any amendment which would have the effect of altering or nullifying
such voting right, unless they first obtain the same authorization or approval
of such Shareholders as would be required to be obtained from them if such
Shareholders were voting on such matter; and (v) no amendment to ARTICLE VII
hereof shall limit the rights to indemnification or insurance provided herein
which arise prior to such amendment.
An amendment required to be authorized or approved by holders of
particular Shares in a particular manner shall not be effective with respect to
such Shares if not so approved by such holders in such manner.
Any amendment hereto shall be effective at the time specified by the
Trustees by Resolution (or upon the time specified in any requisite
authorization or approval of the Shareholders).
The Certificate of Trust of the Trust also may be amended in accordance
with the foregoing principles, and any such amendment shall be effective
immediately upon the filing of a certificate of amendment with the Office of the
Secretary of State of the State of Delaware or upon such future date as may be
stated therein. Any such certificate of amendment may be signed by any one
Trustee pursuant to authorization of the Trustees.
ARTICLE IX.
DISSOLUTION OF TRUST OR TERMINATION OF SERIES OR CLASSES; REORGANIZATION
Section 1. DISSOLUTION OF TRUST OR TERMINATION OF SERIES OR
CLASSES
Unless dissolved as provided herein, the Trust shall continue without
limitation of time. The Trust may be dissolved (a) at any time by approval of
the Trustees and the holders of at least 66 2/3% of the outstanding Shares of
each Series, voting separately by Series; (b) at any time by the Trustees, by
Resolution and written notice to the Shareholders; or (c) in accordance with the
provisions of ARTICLE IX, Section 2 hereof. Any Series or Class may be
terminated (a) at any time by approval of the Trustees and the vote of the
holders of at least 66 2/3% of the outstanding Shares of that Series or Class;
(b) at any time by the Trustees, by Resolution and written notice to the
Shareholders of that Series or Class; or (c) in accordance with the provisions
of ARTICLE IX, Section 2 hereof. At any time there are no Shares of a previously
authorized Series or Class outstanding, the Trustees, by Resolution, may abolish
that Series or Class and rescind the authorization thereof, such Resolution to
be effective as of the date specified therein, and to be incorporated by
reference herein upon adoption.
Upon the dissolution of the Trust (or the termination of any Series, as
the case may be), the Trustees shall proceed to cause the Trust (or Series) to
wind up its business and affairs. After paying or otherwise providing,
severally, for all liabilities, expenses, costs, charges and reserves with
respect to each Series (or the applicable Series, as the case may be), whether
due or accrued or anticipated, as may be determined by the Trustees, the Trust
shall, in accordance with such procedures as the Trustees may deem appropriate,
reduce the remaining assets held, severally, with respect to each Series (or the
applicable Series, as the case may be), to distributable form in cash or shares
or other securities, or any combination thereof, and distribute the proceeds
associated with each Series (or the applicable Series, as the case may be), to
the Shareholders of that Series, as a Series, ratably according to the number of
Shares of that Series held of record by such Shareholders on the Distribution
Record Date established by the Trustees in connection with the dissolution or
termination (giving due effect to the differences among the various Classes
within each such Series).
Upon completion of the distribution of all of the Trust Property, or
upon completion of the distribution to holders of Shares of a Series of all of
the assets associated with that Series, whether pursuant to this Section 1 or
ARTICLE IX, Section 2 hereof, the Trustees shall be discharged of any and all
further liabilities and duties hereunder with respect to the Trust or such
Series, as the case may be, and the right, title and interest of all parties
with respect to the Trust or such Series, as the case may be, shall be canceled
and discharged.
In the event of a dissolution of the Trust, following completion of
winding up of the Trust's business and affairs, the Trustees shall cause a
certificate of cancellation of the Trust's Certificate of Trust to be filed in
accordance with the Act, which certificate of cancellation may be signed by any
one Trustee pursuant to authorization of the Trustees.
Section 2. REORGANIZATION
The Trustees, by Resolution, may cause the Trust to sell, convey and
transfer all or substantially all of the assets of the Trust, or all or
substantially all of the assets associated with any one or more Series, to
another trust, partnership, limited liability company, association or
corporation organized under the laws of any State, or to one or more separate
series thereof, or to the Trust to be held as assets associated with one or more
other Series of the Trust, in exchange for cash, shares or other securities
(including, without limitation, in the case of a transfer to another Series of
the Trust, Shares of such other Series) with such transfer either (a) being made
subject to, or with the assumption by the transferee of, the liabilities
associated with each Series the assets of which are so transferred, or (b) not
being made subject to, or not with the assumption of, such liabilities;
provided, however, that, if required by the 1940 Act, no assets associated with
any particular Series shall be so sold, conveyed or transferred unless the terms
of such transaction shall first have been approved at a meeting called for that
purpose by the affirmative vote of a majority of the outstanding Shares of that
Series. Following such sale, conveyance and transfer, the Trustees shall
distribute such cash, shares or other securities (giving due effect to the
assets and liabilities associated with and any other differences among the
various Series the assets associated with which have so been sold, conveyed and
transferred) ratably among the Shareholders of the Series the assets associated
with which have been so sold, conveyed and transferred (giving due effect to the
differences among the various Classes within each such Series); and if all of
the assets of the Trust have been so sold, conveyed and transferred the Trust
shall be dissolved.
The Trustees may cause the Trust, or any one or more Series, either as
the successor, survivor, or non-survivor, (a) to consolidate with one or more
other trusts, partnerships, limited liability companies, associations or
corporations organized under the laws of any State, or with one or more separate
series thereof, or with one or more other Series, thereby forming a new
consolidated trust, partnership, limited liability company, association,
corporation, series or Series under the laws of which any one of the constituent
entities is organized, or (b) to merge into one or more other trusts,
partnerships, limited liability companies, associations or corporations
organized under the laws of any State, or into one or more separate series
thereof, or into one or more other Series, or to have one or more of such
trusts, partnerships, limited liability companies, associations, corporations,
series or Series merged into it, any such consolidation or merger to be upon
such terms and conditions as are specified in an agreement and plan of
reorganization entered into by the Trust, or any one or more Series, as the case
may be, in connection therewith. The terms "merge" or "merger" as used herein
also shall include the purchase or acquisition, other than in the ordinary
course of business, of any assets or business of any other trust, partnership,
limited liability company, association or corporation which is an investment
company organized under the laws of any State, or of any series thereof, or of
any Series. Any such consolidation or merger shall require a Resolution of the
Trustees and, if required by the 1940 Act, the affirmative vote of a majority of
the outstanding Shares of each Series affected thereby, at a meeting duly called
for that purpose.
In accordance with Section 3815(F) of the Act, an agreement of merger
or consolidation approved in accordance with this Section 2 may effect any
amendment to this Declaration of Trust or the By-Laws or effect the adoption of
a new declaration of trust or by-laws of this Trust if this Trust is the
surviving or resulting business trust. A certificate of merger or consolidation
of this Trust shall be signed by a majority of the Trustees.
ARTICLE X.
MISCELLANEOUS
Section 1. FILING OF COPIES; REFERENCES; HEADINGS; SINGULAR AND
PLURAL; COUNTERPARTS
The original or a copy of this Declaration of Trust, each amendment or
restatement hereof, each document incorporated herein by reference and each
certificate filed by or on behalf of this Trust with the Office of the Secretary
of State of the State of Delaware pursuant to the Act shall be kept at the
principal executive office of this Trust where it may be inspected by any
Shareholder at any reasonable time during usual office hours. The inspection
shall include the right to make copies and extracts, at the sole cost and
expense of the Shareholder making the inspection. Anyone dealing with this Trust
may rely on a certificate by a Trustee or officer of this Trust as to whether or
not any such amendments or restatements have been made and as to any matter in
connection with this Trust hereunder; and, with the same effect as if it were
the original, may rely on a copy certified by a Trustee or officer of this Trust
to be a copy of this Declaration of Trust or of any such amendment or
restatement.
In this Declaration of Trust and in any such amendment or restatement
hereof, references to this Declaration of Trust, and all expressions like
"hereby," "herein," "hereof," "hereto" and "hereunder," shall be deemed to refer
to this Declaration of Trust as amended or restated or affected by any such
amendment or restatement.
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 Declaration of Trust.
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 may be executed in any number of
counterparts, each of which shall be deemed an original.
Section 2. APPLICABLE LAW; CONSTRUCTION
This Declaration of Trust is executed and delivered by all of the
Trustees with reference to the Act and the laws of the State of Delaware, and
this Trust and all provisions of this Declaration of Trust (which shall be the
governing instrument of this Trust), and the rights, duties and obligations of
the Trustees and Shareholders hereunder, are to be governed by and construed and
administered in accordance with the Act and the internal substantive laws of
said State without regard to principles of conflict of laws (unless and to the
extent preempted by the 1940 Act or other applicable Federal securities laws);
provided, however, that there shall not be applicable to this Trust, the
Trustees or this Declaration of Trust (a) the provisions of Section 3540 of
Title 12 of the Delaware Code or (b) any provisions of the laws (statutory or
common) of the State of Delaware (other than the Act) pertaining to trusts which
are inconsistent with the powers and authority and limitations of liability of
the Trustees set forth or referenced herein or which 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 court or other governmental approval concerning the
acquisition, holding or disposition of real or personal property, (iv) fees or
other sums payable 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 of responsibilities or limitations on the acts or powers of
trustees. This Trust shall be of the type commonly called a "business trust,"
and without limiting the provisions hereof, this Trust specifically reserves the
right to exercise any of the powers or privileges afforded to trusts and to take
actions that may be taken by trusts under the Act, and the absence of a specific
reference herein to any such power, privilege or action shall not imply that
this Trust may not exercise such powers or privileges or take such actions.
In construing the meaning or application of the Securities Act of 1933,
as amended, or any rule or regulation of the Commission thereunder (the"1933
Act"), the Securities Exchange Act of 1934, as amended, or any rule or
regulation of the Commission thereunder (the "1934 Act") or the 1940 Act, the
Trustees may consider the effect of any applicable order or interpretive release
issued by the Commission, or any applicable "no action" or interpretive position
issued by the staff of the Commission, that modifies or interprets any of the
foregoing.
If any provision of this Declaration of Trust appears to the Trustees
to be ambiguous or inconsistent with any other provision hereof, the Trustees
may construe such provision in such manner as they reasonably may determine in
good faith, and such construction shall be conclusive and binding as to the
meaning to be given to such provision.
Section 3. RECORD DATES FOR OTHER PURPOSES
The Trustees may establish such procedures for determining record dates
for purposes other than those set forth in ARTICLE IV, Section 2 hereof and
ARTICLE V, Section 5 hereof as they may deem appropriate. In lieu of
establishing record dates in connection with such other purposes, the Trustees
may close the register or transfer books for one or more Series (or Classes),
for such periods as they may deem appropriate, preceding a date that serves the
same purpose as a record date.
Section 4. PROVISIONS IN CONFLICT WITH LAW OR REGULATIONS
(a) The provisions of this Declaration of Trust are severable,
and if the Trustees shall determine, with the advice of counsel, that
any such provision is in conflict with (i) the 1933 Act, the 1934 Act
or the 1940 Act, or any rule, regulation or order of the Commission
under any of the foregoing, (ii) the regulated investment company
provisions of the Internal Revenue Code of 1986, as amended, or (iii)
the Act or other applicable laws, rules, regulations or orders, whether
generally or in a particular application, the conflicting provision or
such particular application thereof, as the case may be, shall not be
deemed to constitute a part of this Declaration of Trust for so long as
such conflict exists; provided, however, that such determination shall
not affect any of the remaining provisions of this Declaration of Trust
or any lawful application of any provision, or render invalid or
improper any action taken or omitted prior to such determination.
(b) If any provision or the application of any provision of
this Declaration of Trust shall be held invalid or unenforceable in any
jurisdiction, such invalidity or unenforceability shall attach only to
such provision or application in such jurisdiction and shall not in any
manner affect such provision or application in any other jurisdiction
or any other provision of this Declaration of Trust in any
jurisdiction.
IN WITNESS WHEREOF, the Trustee named below does hereby make and enter into this
Declaration of Trust as of the 25th day of March, 2000.
/s/ Xxxxx X. Xxxxxx
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Xxxxx X. Xxxxxx
THE PRINCIPAL PLACE OF BUSINESS OF THE TRUST IS:
000 XXXXX XXXXXX, XXX XXXX, XX 00000
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