EX-99.a.1
Amended and Restated
AGREEMENT AND DECLARATION OF TRUST
of
Aberdeen Funds
a Delaware Statutory Trust
Formed September 27, 2007
As amended December 12, 2007
TABLE OF CONTENTS
Page
ARTICLE I Name and Definitions. ................................................2
Section 1. Name ................................................................2
Section 2. Registered Agent and Registered Office; Principal Place
of Business.....................................................................2
(a) Registered Agent and Registered Office......................................2
(b) Principal Place of Business ................................................2
Section 3. Definitions .........................................................2
(a) "1940 Act" .................................................................2
(b) "Affiliated Person".........................................................2
(c) "Assignment" ...............................................................2
(d) "Board of Trustees" ........................................................2
(e) "By-Laws" ..................................................................3
(f) "Certificate of Trust" .....................................................3
(g) "Code"......................................................................3
(h) "Commission"................................................................3
(i) The "DSTA"..................................................................3
(j) "Declaration of Trust"......................................................3
(k) "General Liabilities".......................................................3
(l) "Interested Person".........................................................3
(m) "Investment Adviser" or "Adviser"...........................................3
(n) "Majority Shareholder Vote" ................................................3
(o) "National Financial Emergency"..............................................3
(p) "Person"....................................................................4
(q) "Principal Underwriter" ....................................................4
(r) "Series" ...................................................................4
(s) "Shares"....................................................................4
(t) "Shareholder" ..............................................................4
(u) "Trust" ....................................................................4
(v) "Trust Property"............................................................4
(w) "Trustee" or "Trustees" ....................................................4
ARTICLE II Purpose of Trust.....................................................4
ARTICLE III Shares. ............................................................8
Section 1. Division of Beneficial Interest......................................8
Section 2. Ownership of Shares .................................................9
Section 3. Investments in the Trust.............................................10
Section 4. Status of Shares and Limitation of Personal Liability ...............10
Section 5. Power of Board of Trustees to Change Provisions
Relating to Shares .............................................................10
Section 6. Establishment and Designation of Series..............................11
(a) Assets Held with Respect to a Particular Series ............................11
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(b) Liabilities Held with Respect to a Particular Series........................12
(c) Dividends, Distributions, Redemptions and Repurchases.......................13
(d) Voting .....................................................................13
(e) Equality ...................................................................14
(f) Fractions ..................................................................14
(g) Exchange Privilege .........................................................14
(h) Combination of Series ......................................................14
(i) Elimination of Series ......................................................14
(j) Dissolution or Termination .................................................14
Section 7. Indemnification of Shareholders .....................................15
ARTICLE IV The Board of Trustees. ..............................................15
Section 1. Number, Election and Tenure .........................................15
Section 2. Effect of Death, Resignation, Removal, etc. of a Trustee.............16
Section 3. Powers; Written Consent; Other Business Interests;
Quorum and Required Vote. ......................................................17
(a) Powers .....................................................................17
(b) Written Consent ............................................................18
(c) Other Business Interests....................................................19
(d) Quorum and Required Vote ...................................................19
Section 4. Chairman of the Trustees.............................................19
Section 5. Payment of Expenses by the Trust.....................................19
Section 6. Payment of Expenses by Shareholders .................................20
Section 7. Ownership of Trust Property .........................................20
Section 8. Service Contracts. ..................................................20
ARTICLE V Shareholders' Voting Powers and Meetings..............................21
Section 1. Voting Powers........................................................21
Section 2. Meetings ............................................................22
Section 3. Quorum and Required Vote ............................................22
Section 4. Shareholder Action by Written Consent without a
Meeting.........................................................................22
Section 5. Record Dates ........................................................23
Section 6. Derivative Actions...................................................24
Section 7. Additional Provisions................................................24
ARTICLE VI Net Asset Value, Distributions and Redemptions.......................24
Section 1. Determination of Net Asset Value, Net Income and
Distributions. .................................................................24
Section 2. Redemptions at the Option of a Shareholder ..........................26
Section 3. Redemptions at the Option of the Trust...............................28
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ARTICLE VII Compensation and Limitation of Liability of Officers and
Trustees. ......................................................................28
Section 1. Compensation ........................................................28
Section 2. Indemnification and Limitation of Liability. ........................28
Section 3. Officers and Trustees' Good Faith Action, Expert Advice,
No Bond or Surety...............................................................30
Section 4. Insurance ...........................................................30
ARTICLE VIII Certain Transactions. .............................................30
Section 1. Liability of Third Persons Dealing with Trustees.....................30
Section 2. Dissolution of Trust or Series.......................................30
Section 3. Merger and Consolidation; Conversion. ...............................32
(a) Merger and Consolidation ...................................................32
(b) Conversion .................................................................32
Section 4. Reorganization.......................................................32
Section 5. Master Feeder Structure .............................................33
Section 6. Absence of Appraisal or Dissenters' Rights ..........................33
ARTICLE IX Amendments and Miscellaneous.........................................33
Section 1. Amendments Generally ................................................33
Section 2. Filing of Copies, References, Headings...............................34
Section 3. Applicable Law ......................................................34
Section 4. Provisions in Conflict with Law or Regulations. .....................35
Section 5. Statutory Trust Only ................................................35
Section 6. Fiscal Year..........................................................35
Section 7. Use of the Name "Aberdeen"...........................................35
Schedule A - Series of the Trust................................................A-1
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AMENDED AND RESTATED
AGREEMENT AND DECLARATION OF TRUST
OF
ABERDEEN FUNDS
THIS AMENDED AND RESTATED AGREEMENT AND DECLARATION OF TRUST is made this
12th day of December, 2007, by the Trustees hereunder, and by the holders of
shares of beneficial interest to be issued hereunder as hereinafter provided,
and amends and restates the original Agreement and Declaration of Trust dated
September 27, 2007 (the "Original Declaration of Trust") pursuant to Article IX,
Section 1, of such Original Declaration of Trust, as hereinafter provided.
W I T N E S S E T H:
WHEREAS this Trust has been formed to carry on the business of an
investment company; and
WHEREAS this Trust is authorized to issue its shares of beneficial interest
in separate Series, and to issue classes of Shares of any Series or divide
Shares of any Series into two or more classes, all in accordance with the
provisions hereinafter set forth; and
WHEREAS the Trustees have agreed to manage all property which they may from
time to time acquire in any manner as Trustees of this Trust, a Delaware
statutory trust formed and existing in accordance with the provisions of the
Delaware Statutory Trust Act of 2002 (12 Del. C.ss.3801, et seq.), as from time
to time amended and including any successor statute of similar import (the
"DSTA"), and the provisions hereinafter set forth;
NOW, THEREFORE, the Trustees hereby agree and declare that:
(i) the Original Declaration of Trust is amended and restated in its
entirety in the manner herein set forth;
(ii) the Trustees will hold all cash, securities, property and other assets
which one or more of them may from time to time acquire in any manner as
Trustees hereunder IN TRUST to manage and dispose of the same upon the following
terms and conditions for the benefit of the holders from time to time of shares
of beneficial interest in this Trust and the Series created hereunder as
hereinafter set forth; and
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(iii) this Declaration of Trust and the By-Laws shall be binding in
accordance with their terms on every Trustee, by virtue of having become a
Trustee of the Trust, and on every Shareholder, by virtue of having become a
Shareholder of the Trust, pursuant to the terms of the Original Declaration of
Trust and/or this Declaration of Trust and the By-Laws.
ARTICLE I
Name and Definitions.
Section 1. Name. The name of the Trust hereby created is "Aberdeen Funds"
and the Trustees shall conduct the business of the Trust under that name, or any
other name as they may from time to time determine.
Section 2. Registered Agent and Registered Office; Principal Place of
Business.
(a) Registered Agent and Registered Office. The name of the registered
agent of the Trust and the address of the registered office of the Trust are as
set forth on the Certificate of Trust.
(b) Principal Place of Business. The principal place of business of the
Trust is 5 Tower Bridge, 000 Xxxx Xxxxxx Xxxxx, Xxxxx 000, Xxxx Xxxxxxxxxxxx,
Xxxxxxxxxxxx 00000, or such other location within or outside of the State of
Delaware as the Board of Trustees may determine from time to time.
Section 3. Definitions. Whenever used herein, unless otherwise required by
the context or specifically provided:
(a) "1940 Act" shall mean the Investment Company Act of 1940 and the rules
and regulations thereunder, all as adopted or amended from time to time;
(b) "Affiliated Person" shall have the meaning given in Section 2(a)(3) of
the 1940 Act when used with reference to a specified Person;
(c) "Assignment" shall have the meaning given in the 1940 Act, as modified
by or interpreted by any applicable order or orders of the Commission or any
rules or regulations adopted or interpretive releases of the Commission or
no-action positions of the Commission's staff thereunder.
(d) "Board of Trustees" shall mean the governing body of the Trust, which
is comprised of the Trustees of the Trust whose number is fixed as provided in
Article IV, Section 1 of this Declaration of Trust;
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(e) "By-Laws" shall mean the By-Laws of the Trust, as amended from time to
time in accordance with Article VIII of the By-Laws, and incorporated herein by
reference;
(f) "Certificate of Trust" shall mean the certificate of trust filed with
the Office of the Secretary of State of the State of Delaware as required under
the DSTA to form the Trust as a Delaware Statutory Trust;
(g) "Code" shall mean the Internal Revenue Code of 1986 and the rules and
regulations thereunder, all as adopted or amended or restated from time to time;
(h) "Commission" shall have the meaning given in Section 2(a)(7) of the
1940 Act;
(i) The "DSTA" shall mean the Delaware Statutory Trust Act (12 Del.
C.ss.3801 et seq.), as amended from time to time;
(j) "Declaration of Trust" shall mean this Agreement and Declaration of
Trust, as amended or restated from time to time;
(k) "General Liabilities" shall have the meaning given in Article III,
Section 6(b) of this Declaration Trust;
(l) "Interested Person" shall have the meaning given in Section 2(a)(19) of
the 1940 Act;
(m) "Investment Adviser" or "Adviser" shall mean a Person, as defined
below, furnishing services to the Trust pursuant to any investment advisory or
investment management contract described in Article IV, Section 8(a) hereof;
(n) "Majority Shareholder Vote" shall have the same meaning as the term
"vote of a majority of the outstanding voting securities" is given in Section
2(a)(42) of the 1940 Act, as modified by or interpreted by any applicable order
or orders of the Commission or any rules or regulations adopted or interpretive
releases of the Commission or no-action positions of the Commission's staff
thereunder;
(o) "National Financial Emergency" shall mean the whole or any part of any
period set forth in Section 22(e) of the 1940 Act. The Board of Trustees may, in
its discretion, declare that the suspension relating to a National Financial
Emergency shall terminate, as the case may be, on the first business day on
which the New York Stock Exchange shall have reopened or the period specified in
Section 22(e) of the 1940 Act shall have expired (as to which, in the absence of
an official ruling by the Commission, the determination of the Board of Trustees
shall be conclusive);
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(p) "Person" shall mean a natural person, partnership, limited partnership,
trust, statutory trust, estate, association, corporation, organization,
custodian, nominee or any other individual or entity in its own or any
representative capacity, in each case, whether domestic or foreign;
(q) "Principal Underwriter" shall have the meaning given in Section
2(a)(29) of the 1940 Act;
(r) "Series" means a series of Shares of the Trust established and
designated in accordance with the provisions of Article III, Section 6;
(s) "Shares" shall mean the outstanding shares of beneficial interest into
which the beneficial interest in the Trust shall be divided from time to time,
and shall include fractional and whole shares;
(t) "Shareholder" shall mean a record owner of Shares;
(u) "Trust" shall refer to the Delaware statutory trust established by this
Declaration of Trust and the Certificate of Trust which was filed with the
Secretary of State of the State of Delaware, as amended from time to time;
(v) "Trust Property" shall mean any and all property, real or personal,
tangible or intangible, which is owned or held by or for the account of the
Trust or one or more of any Series, including, without limitation, the rights
referenced in Article IX, Section 7 and Article VII, Section 2 hereof;
(w) "Trustee" or "Trustees" shall refer to each signatory to this
Declaration of Trust as a trustee, and all other Persons who may, from time to
time, be duly elected or appointed, qualified and serving on the Board of
Trustees in accordance with the provisions hereof and of the By-Laws, so long as
such signatory or other Person continues in office in accordance with the terms
hereof and of the By-Laws. Reference herein to a Trustee or the Trustees shall
refer to such Person or Persons in their capacity as Trustees hereunder and
under the By-Laws.
ARTICLE II
Purpose of Trust.
The purpose of the Trust is to conduct, operate and carry on the business
of a registered management investment company registered under the 1940 Act
through one or more Series investing primarily in securities and, in addition to
any authority given by law, to exercise all of the powers and to do any and all
of the things as fully and to the same extent as any private corporation
organized for profit under the general corporation law of the State of Delaware,
now or hereafter in force, including, without limitation, the following powers:
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(a) To invest and reinvest cash, to hold cash uninvested, and to subscribe
for, invest in, reinvest in, purchase or otherwise acquire, own, hold, pledge,
sell, assign, mortgage, transfer, exchange, distribute, write options on, lend
or otherwise deal in or dispose of contracts for the future acquisition or
delivery of fixed income or other securities, and securities or property of
every nature and kind, including, without limitation, all types of bonds,
debentures, stocks, preferred stocks, negotiable or non-negotiable instruments,
obligations, evidences of indebtedness, certificates of deposit or indebtedness,
commercial paper, repurchase agreements, bankers' acceptances, and other
securities of any kind, issued, created, guaranteed, or sponsored by any and all
Persons, including, without limitation, states, territories, and possessions of
the United States and the District of Columbia and any political subdivision,
agency, or instrumentality thereof, any foreign government or any political
subdivision of the U.S. Government or any foreign government, or any
international instrumentality, or by any bank or savings institution, or by any
corporation or organization organized under the laws of the United States or of
any state, territory, or possession thereof, or by any corporation or
organization organized under any foreign law, or in "when issued" contracts for
any such securities, to change the investments of the assets of the Trust;
(b) To exercise any and all rights, powers and privileges with reference to
or incident to ownership or interest, use and enjoyment of any of such
securities and other instruments or property of every kind and description,
including, but without limitation, the right, power and privilege to own, vote,
hold, purchase, sell, negotiate, assign, exchange, lend, transfer, mortgage,
hypothecate, lease, pledge or write options with respect to or otherwise deal
with, dispose of, use, exercise or enjoy any rights, title, interest, powers or
privileges under or with reference to any of such securities and other
instruments or property, the right to consent and otherwise act with respect
thereto, with power to designate one or more Persons, to exercise any of said
rights, powers, and privileges in respect of any of said instruments, and to do
any and all acts and things for the preservation, protection, improvement and
enhancement in value of any of such securities and other instruments or
property;
(c) To sell, exchange, lend, pledge, mortgage, hypothecate, lease or write
options with respect to or otherwise deal in any property rights relating to any
or all of the assets of the Trust or any Series, subject to any requirements of
the 1940 Act;
(d) To vote or give assent, or exercise any rights of ownership, with
respect to stock or other securities or property; and to execute and deliver
proxies or powers of attorney to such person or persons as the Trustees shall
deem proper, granting to such person or persons such power and discretion with
relation to securities or property as the Trustees shall deem proper;
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(e) To exercise powers and right of subscription or otherwise which in any
manner arise out of ownership of securities;
(f) To hold any security or property in a form not indicating that it is
trust property, whether in bearer, unregistered or other negotiable form, or in
its own name or in the name of a custodian or subcustodian or a nominee or
nominees or otherwise or to authorize the custodian or a subcustodian or a
nominee or nominees to deposit the same in a securities depository, subject in
each case to proper safeguards according to the usual practice of investment
companies or any rules or regulations applicable thereto;
(g) To consent to, or participate in, any plan for the reorganization,
consolidation or merger of any corporation or issuer of any security which is
held in the Trust; to consent to any contract, lease, mortgage, purchase or sale
of property by such corporation or issuer; and to pay calls or subscriptions
with respect to any security held in the Trust;
(h) To join with other security holders in acting through a committee,
depositary, voting trustee or otherwise, and in that connection to deposit any
security with, or transfer any security to, any such committee, depositary or
trustee, and to delegate to them such power and authority with relation to any
security (whether or not so deposited or transferred) as the Trustees shall deem
proper, and to agree to pay, and to pay, such portion of the expenses and
compensation of such committee, depositary or trustee as the Trustees shall deem
proper;
(i) To compromise, arbitrate or otherwise adjust claims in favor of or
against the Trust or any matter in controversy, including but not limited to
claims for taxes;
(j) To enter into joint ventures, general or limited partnerships and any
other combinations or associations;
(k) To endorse or guarantee the payment of any notes or other obligations
of any Person; to make contracts of guaranty or suretyship, or otherwise assume
liability for payment thereof;
(l) To purchase and pay for entirely out of Trust Property such insurance
as the Trustees may deem necessary or appropriate for the conduct of the
business, including, without limitation, insurance policies insuring the assets
of the Trust or payment of distributions and principal on its portfolio
investments, and insurance policies insuring the Shareholders, Trustees,
officers, employees, agents, Investment Advisers, Principal Underwriters, or
independent contractors of the Trust, individually against all claims and
liabilities of every nature arising by reason of holding Shares, holding, being
or having held any such office or position, or by reason of any action alleged
to have been taken or omitted by any such Person as Trustee, officer, employee,
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agent, Investment Adviser, Principal Underwriter, or independent contractor, to
the fullest extent permitted by this Declaration of Trust, the By-laws and by
applicable law; and
(m) To adopt, establish and carry out pension, profit-sharing, share bonus,
share purchase, savings, thrift and other retirement, incentive and benefit
plans, trusts and provisions, including the purchasing of life insurance and
annuity contracts as a means of providing such retirement and other benefits,
for any or all of the Trustees, officers, employees and agents of the Trust.
(n) To purchase or otherwise acquire, own, hold, sell, negotiate, exchange,
assign, transfer, mortgage, pledge or otherwise deal with, dispose of, use,
exercise or enjoy, property of all kinds.
(o) To buy, sell, mortgage, encumber, hold, own, exchange, rent or
otherwise acquire and dispose of, and to develop, improve, manage, subdivide,
and generally to deal and trade in real property, improved and unimproved, and
wheresoever situated; and to build, erect, construct, alter and maintain
buildings, structures, and other improvements on real property.
(p) To borrow or raise moneys for any of the purposes of the Trust, and to
mortgage or pledge the whole or any part of the property and franchises of the
Trust, real, personal, and mixed, tangible or intangible, and wheresoever
situated.
(q) To enter into, make and perform contracts and undertakings of every
kind for any lawful purpose, without limit as to amount.
(r) To issue, purchase, sell and transfer, reacquire, hold, trade and deal
in Shares, bonds, debentures and other securities, instruments or other property
of the Trust, from time to time, to such extent as the Board of Trustees shall,
consistent with the provisions of this Declaration of Trust, determine; and to
repurchase, re-acquire and redeem, from time to time, its Shares or, if any, its
bonds, debentures and other securities.
The Trust shall not be limited to investing in obligations maturing before
the possible dissolution of the Trust or one or more of its Series. The Trust
shall not in any way be bound or limited by any present or future law or custom
in regard to investment by fiduciaries. Neither the Trust nor the Trustees shall
be required to obtain any court order to deal with any assets of the Trust or
take any other action hereunder.
The foregoing clauses shall each be construed as purposes, objects and
powers, and it is hereby expressly provided that the foregoing enumeration of
specific purposes, objects and powers shall not be held to limit or restrict in
any manner the powers of the Trust, and that they are in furtherance of, and in
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addition to, and not in limitation of, the general powers conferred upon the
Trust by the DSTA and the other laws of the State of Delaware or otherwise; nor
shall the enumeration of one thing be deemed to exclude another, although it be
of like nature, not expressed.
ARTICLE III
Shares.
Section 1. Division of Beneficial Interest. The beneficial interest in the
Trust shall at all times be divided into Shares, all without par value. The
number of Shares authorized under the Original Declaration of Trust and
authorized hereunder is unlimited. The Board of Trustees may authorize the
division of Shares into separate and distinct Series and the division of any
Series into separate classes of Shares. The different Series and classes shall
be established and designated, and the variations in the relative rights and
preferences as between the different Series and classes shall be fixed and
determined by the Board of Trustees without the requirement of Shareholder
approval. If no separate Series or classes shall be established, the Shares
shall have the rights and preferences provided for herein and in Article III,
Section 6 hereof to the extent relevant and not otherwise provided for herein,
and all references to Series and classes shall be construed (as the context may
require) to refer to the Trust. The fact that a Series shall have initially been
established and designated without any specific establishment or designation of
classes (i.e., that all Shares of such Series are initially of a single class)
shall not limit the authority of the Board of Trustees to establish and
designate separate classes of said Series. The fact that a Series shall have
more than one established and designated class, shall not limit the authority of
the Board of Trustees to establish and designate additional classes of said
Series, or to establish and designate separate classes of the previously
established and designated classes.
The Board of Trustees shall have the power to issue Shares of the Trust, or
any Series or class thereof, from time to time for such consideration (but not
less than the net asset value thereof) and in such form as may be fixed from
time to time pursuant to the direction of the Board of Trustees.
The Board of Trustees may hold as treasury shares, reissue for such
consideration and on such terms as they may determine, or cancel, at their
discretion from time to time, any Shares of any Series reacquired by the Trust.
The Board of Trustees may classify or reclassify any unissued Shares or any
Shares previously issued and reacquired of any Series or class into one or more
Series or classes that may be established and designated from time to time.
Notwithstanding the foregoing, the Trust and any Series thereof may acquire,
hold, sell and otherwise deal in, for purposes of investment or otherwise, the
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Shares of any other Series of the Trust or Shares of the Trust, and such Shares
shall not be deemed treasury shares or cancelled.
Subject to the provisions of Section 6 of this Article III and Article IV,
Section 3, each Share shall have voting rights as provided in Article V hereof,
and the Shareholders of any Series shall be entitled to receive dividends and
distributions, when, if and as declared with respect thereto in the manner
provided in Article IV, Section 3 hereof. No Share shall have any priority or
preference over any other Share of the same Series or class with respect to
dividends or distributions paid in the ordinary course of business or
distributions upon dissolution of the Trust or of such Series or class made
pursuant to Article IX, Section 2 hereof. All dividends and distributions shall
be made ratably among all Shareholders of a particular class of Series from the
Trust Property held with respect to such Series according to the number of
Shares of such class of such Series held of record by such Shareholders on the
record date for any dividend or distribution. Shareholders shall have no
preemptive or other right to subscribe to new or additional Shares or other
securities issued by the Trust or any Series. The Trustees may from time to time
divide or combine the Shares of any particular Series into a greater or lesser
number of Shares of that Series. Such division or combination may not materially
change the proportionate beneficial interests of the Shares of that Series in
the Trust Property held with respect to that Series or materially affect the
rights of Shares of any other Series.
Any Trustee, officer or other agent of the Trust, and any organization in
which any such Person is interested, may acquire, own, hold and dispose of
Shares of the Trust to the same extent as if such Person were not a Trustee,
officer or other agent of the Trust; and the Trust may issue and sell or cause
to be issued and sold and may purchase Shares from any such Person or any such
organization subject only to the general limitations, restrictions or other
provisions applicable to the sale or purchase of such Shares generally.
Section 2. Ownership of Shares. The ownership of Shares shall be recorded
on the books of the Trust kept by the Trust or by a transfer or similar agent
for the Trust, which books shall be maintained separately for the Shares of each
Series and class thereof that has been established and designated. No
certificates certifying the ownership of Shares shall be issued except as the
Board of Trustees may otherwise determine from time to time. The Board of
Trustees may make such rules not inconsistent with the provisions of the 1940
Act as they consider appropriate for the issuance of Share certificates, the
transfer of Shares of each Series or class and similar matters. The record books
of the Trust as kept by the Trust or any transfer or similar agent, as the case
may be, shall be conclusive as to who are the Shareholders of each Series or
class thereof and as to the number of Shares of each Series or class thereof
held from time to time by each such Shareholder.
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Section 3. Investments in the Trust. Investments may be accepted by the
Trust from such Persons, at such times, on such terms, and for such
consideration as the Board of Trustees may, from time to time, authorize. Each
investment shall be credited to the individual Shareholder's account in the form
of full and fractional Shares of the Trust, in such Series or class as the
purchaser may select, at the net asset value per Share next determined for such
Series or class after receipt of the investment; provided, however, that the
Principal Underwriter may, pursuant to its agreement with the Trust, impose
sales charges upon investments in the Trust.
Section 4. Status of Shares and Limitation of Personal Liability. Shares
shall be deemed to be personal property giving to Shareholders only the rights
provided in this Declaration of Trust and under applicable law. Every
Shareholder by virtue of having become a Shareholder shall be held to have
expressly assented and agreed to the terms hereof and to have become a party
hereto. The death of a Shareholder during the existence of the Trust shall not
operate to dissolve the Trust or any Series, 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 or any Series, but entitles such
representative only to the rights of said deceased Shareholder under this
Declaration of Trust. Ownership of Shares shall not entitle the Shareholder to
any title in or to the whole or any part of the Trust Property or right to call
for a partition or division of the same or for an accounting, nor shall the
ownership of Shares constitute the Shareholders as partners. Neither the Trust
nor the Trustees, nor any officer, employee or agent of the Trust, shall have
any power to bind personally any Shareholder, nor, except as specifically
provided herein, to call upon any Shareholder for the payment of any sum of
money or assessment whatsoever other than such as the Shareholder may at any
time personally agree to pay. All Shares when issued on the terms determined by
the Board of Trustees shall be fully paid and nonassessable. As provided in the
DSTA, Shareholders of the Trust shall be entitled to the same limitation of
personal liability extended to stockholders of a private corporation organized
for profit under the general corporation law of the State of Delaware.
Section 5. Power of Board of Trustees to Change Provisions Relating to
Shares. Notwithstanding any other provisions of this Declaration of Trust and
without limiting the power of the Board of Trustees to amend this Declaration of
Trust or the Certificate of Trust as provided elsewhere herein, the Board of
Trustees shall have the power to amend this Declaration of Trust, or the
Certificate of Trust, at any time and from time to time, in such manner as the
Board of Trustees may determine in its sole discretion, without the need for
Shareholder action, so as to add to, delete, replace or otherwise modify any
provisions relating to the Shares contained in this Declaration of Trust,
provided that Shareholder approval is not otherwise required by the 1940 Act or
other applicable law. Furthermore, in the event that the Board of Trustees
determines that the Trust shall no longer be operated as an investment
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company required to be registered in accordance with the provisions of the 1940
Act, the Board of Trustees may adopt such amendments to this Declaration of
Trust to delete those terms the Board of Trustees identifies as being required
by the 1940 Act.
Subject to the foregoing Paragraph, the Board of Trustees may amend the
Declaration of Trust to amend any of the provisions set forth in paragraphs (a)
through (i) of Section 6 of this Article III.
The Board of Trustees shall have the power, in its discretion, to make such
elections as to the tax status of the Trust as may be permitted or required
under the Code as presently in effect or as amended, without the vote of any
Shareholder.
Section 6. Establishment and Designation of Series. Without limiting the
authority of the Trustees to establish and designate any further Series or
class, the Trustees hereby establish and designate twenty-six (26) separate
Series of Shares as listed on Schedule A to this Declaration of Trust. The
establishment and designation of any additional Series or class of Shares shall
be effective upon the resolution by a majority of the then Board of Trustees,
adopting a resolution which sets forth such establishment and designation and
the relative rights and preferences of such Series or class. Each such
resolution shall be incorporated herein by reference upon adoption. Any such
resolution may be amended by a further resolution of a majority of the Board of
Trustees, and if Shareholder approval would be required to make such an
amendment to the language set forth in this Declaration of Trust, such further
resolution shall require the same Shareholder approval that would be necessary
to make such amendment to the language set forth in this Declaration of Trust.
Each such further resolution shall be incorporated herein by reference upon
adoption.
Each Series shall be separate and distinct from any other Series and shall
maintain separate and distinct records on the books of the Trust, and the assets
and liabilities belonging to any such Series shall be held and accounted for
separately from the assets and liabilities of the Trust or any other Series.
Shares of each Series or class established pursuant to this Section 6,
unless otherwise provided in the resolution establishing such Series, shall have
the following relative rights and preferences:
(a) Assets Held with Respect to a Particular Series. All consideration
received by the Trust for the issue or sale of Shares of a particular Series,
together with all assets in which such consideration is invested or reinvested,
all income, earnings, profits, and proceeds thereof from whatever source
derived, including, without limitation, any proceeds derived from the sale,
exchange or liquidation of such assets, and any funds or payments derived
11
from any reinvestment of such proceeds in whatever form the same may be, shall
irrevocably be held with respect to that Series for all purposes, subject only
to the rights of creditors with respect to that Series, and shall be so recorded
upon the books of account of the Trust. Such consideration, assets, income,
earnings, profits and proceeds thereof, from whatever source derived, including,
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
held with respect to" that Series. In the event that there are any assets,
income, earnings, profits and proceeds thereof, funds or payments which are not
readily identifiable as assets held with respect to any particular Series
(collectively "General Assets"), the Board of 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 Board of Trustees, in its sole discretion, deems fair
and equitable, and any General Asset so allocated to a particular Series shall
be held with respect to that Series. Each such allocation by the Board of
Trustees shall be conclusive and binding upon the Shareholders of all Series for
all purposes.
(b) Liabilities Held with Respect to a Particular Series. The assets of the
Trust held with respect to each particular Series shall be charged against the
liabilities of the Trust held with respect to that Series and all expenses,
costs, charges and reserves attributable to that Series, and any liabilities,
expenses, costs, charges and reserves of the Trust which are not readily
identifiable as being held with respect to any particular Series (collectively
"General Liabilities") shall be allocated and charged by the Board of Trustees
to and among any one or more of the Series in such manner and on such basis as
the Board of Trustees in its sole discretion deems fair and equitable. The
liabilities, expenses, costs, charges, and reserves so charged to a Series are
herein referred to as "liabilities held with respect to" that Series. Each
allocation of liabilities, expenses, costs, charges and reserves by the Board of
Trustees shall be conclusive and binding upon the Shareholders of all Series for
all purposes. All Persons who have extended credit which has been allocated to a
particular Series, or who have a claim or contract that has been allocated to
any particular Series, shall look, and shall be required by contract to look
exclusively, to the assets of that particular Series for payment of such credit,
claim, or contract. In the absence of an express contractual agreement so
limiting the claims of such creditors, claimants and contract providers, each
creditor, claimant and contract provider will be deemed nevertheless to have
impliedly agreed to such limitation unless an express provision to the contrary
has been incorporated in the written contract or other document establishing the
claimant relationship.
Subject to the right of the Board of Trustees in its discretion to allocate
General Liabilities as provided herein, the debts, liabilities, obligations and
expenses incurred, contracted for or otherwise existing with respect to a
12
particular Series, whether such Series is now authorized and existing pursuant
to this Declaration of Trust or is hereafter authorized and existing pursuant to
this Declaration of Trust, shall be enforceable against the assets held with
respect to that Series only, and not against the assets of any other Series or
the Trust generally and none of the debts, liabilities, obligations and expenses
incurred, contracted for or otherwise existing with respect to the Trust
generally or any other Series thereof shall be enforceable against the assets
held with respect to such Series. Notice of this limitation on liabilities
between and among Series shall be set forth in the Certificate of Trust of the
Trust (whether originally or by amendment) as filed or to be filed in the Office
of the Secretary of State of the State of Delaware pursuant to the DSTA, and
upon the giving of such notice in the Certificate of Trust, the statutory
provisions of Section 3804 of the DSTA ("Section 3804") relating to limitations
on liabilities between and among Series (and the statutory effect under Section
3804 of setting forth such notice in the Certificate of Trust) shall become
applicable to the Trust and each Series.
(c) Dividends, Distributions, Redemptions and Repurchases. Notwithstanding
any other provisions of this Declaration of Trust, including, without
limitation, Article VI, no dividend or distribution including, without
limitation, any distribution paid upon dissolution of the Trust or of any Series
with respect to, nor any redemption or repurchase of, the Shares of any Series
or class shall be effected by the Trust other than from the assets held with
respect to such Series, nor, except as specifically provided in Section 7 of
this Article III, shall any Shareholder of any particular Series otherwise have
any right or claim against the assets held with respect to any other Series or
the Trust generally except to the extent that such Shareholder has such a right
or claim hereunder as a Shareholder of such other Series. The Board of Trustees
shall have full discretion, to the extent not inconsistent with the 1940 Act, to
determine which items shall be treated as income and which items as capital; and
each such determination and allocation shall be conclusive and binding upon the
Shareholders.
(d) Voting. All Shares of the Trust entitled to vote on a matter shall vote
without differentiation between the separate Series or classes; provided
however, (i) if any matter to be voted on affects only the interests of some but
not all Series or classes, then only the Shareholders of such affected Series or
classes shall be entitled to vote on the matter or (ii) if the 1940 Act or other
applicable law or regulation requires voting by Series or by class, then the
Shares shall vote as prescribed by such law or regulation; provided that, in
case there is a conflict between or among such laws or regulations, the
provisions of the 1940 Act shall take precedence. The Shareholder of record (as
of the record date established pursuant to Article V, Section 5 of this
Declaration of Trust) of each Share shall be entitled to one vote for each full
Share, and a fractional vote for each fractional Share.
13
(e) Equality. All Shares of each particular Series shall represent an equal
proportionate undivided beneficial interest in the assets held with respect to
that Series (subject to the liabilities held with respect to that Series and
such rights and preferences as may have been established and designated with
respect to classes of Shares within such Series), and each Share of any
particular Series shall be equal to each other Share of that Series (subject to
the rights and preferences with respect to separate classes of such Series).
(f) Fractions. Any fractional Share of a Series shall carry proportionately
all the rights and obligations of a whole Share of that Series, including rights
with respect to voting, receipt of dividends and distributions, redemption of
Shares and dissolution of the Trust or that Series.
(g) Exchange Privilege. The Board of Trustees shall have the authority to
provide that the holders of Shares of any Series shall have the right to
exchange said Shares for Shares of one or more other Series in accordance with
such requirements and procedures as may be established by the Board of Trustees,
and in accordance with the 1940 Act and the rules and regulations thereunder.
(h) Combination of Series. The Board of Trustees shall have the authority,
without the approval of the Shareholders of any Series unless otherwise required
by applicable law, to combine the assets and liabilities held with respect to
any two or more Series into assets and liabilities held with respect to a single
Series.
(i) Elimination of Series. At any time that there are no Shares outstanding
of any particular Series or class previously established and designated, the
Board of Trustees may by resolution of a majority of the then Board of Trustees
abolish that Series or class and rescind the establishment and designation
thereof.
(j) Dissolution or Termination. Any particular Series shall be dissolved
upon the occurrence of the applicable dissolution events set forth in Article
VIII, Section 2 hereof. Upon dissolution of a particular Series, the Trustees
shall wind up the affairs of such Series in accordance with Article VIII Section
2 hereof and thereafter, rescind the establishment and designation thereof. The
Board of Trustees shall terminate any particular class and rescind the
establishment and designation thereof: (i) upon approval by a majority of votes
cast at a meeting of the Shareholders of such class, provided a quorum of
Shareholders of such class are present, or by action of the Shareholders of such
class by written consent without a meeting pursuant to Article V, Section 4; or
(ii) at the discretion of the Board of Trustees either (A) at any time there are
no Shares outstanding of such class, or (B) upon prior written notice to the
Shareholders of such class; provided, however, that upon the rescission of the
establishment and designation of any particular Series, every class of such
14
Series shall thereby be terminated and its establishment and designation
rescinded. Each resolution of the Board of Trustees pursuant to this Section
6(j) shall be incorporated herein by reference upon adoption.
Section 7. Indemnification of Shareholders. If any Shareholder or former
Shareholder shall be exposed to liability by reason of a claim or demand
relating solely to his or her being or having been a Shareholder of the Trust
(or by having been a Shareholder of a particular Series), and not because of
such Person's acts or omissions, the Shareholder or former Shareholder (or, in
the case of a natural person, 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 to be held harmless
from and indemnified out of the assets of the Trust or out of the assets of the
applicable Series (as the case may be) against all loss and expense arising from
such claim or demand; provided, however, there shall be no liability or
obligation of the Trust (or any particular Series) arising hereunder to
reimburse any Shareholder for taxes paid by reason of such Shareholder's
ownership of any Shares.
ARTICLE IV
The Board of Trustees.
Section 1. Number, Election and Tenure. The number of Trustees constituting
the Board of Trustees may be fixed from time to time by a written instrument
signed, or by resolution approved at a duly constituted meeting, by a majority
of the Board of Trustees, provided, however, that the number of Trustees shall
in no event be less than one (1) nor more than fifteen (15). The Person who
signed the Original Declaration of Trust was the initial sole Trustee on the
Board of Trustees. In accordance with Section 3801 of the DSTA, each additional
Trustee shall become a Trustee and be bound by this Declaration of Trust and the
By-Laws when such Person signs this Declaration of Trust as a trustee and/or is
duly elected or appointed, qualified and serving on the Board of Trustees in
accordance with the provisions of this Declaration of Trust and the By-Laws. The
Board of Trustees, by action of a majority of the then Trustees, regardless of
the number and even if less than a quorum, at a duly constituted meeting or by
written consent as provided herein, may fill vacancies in the Board of Trustees
or remove any Trustee with or without cause. The Shareholders may elect
Trustees, including filling any vacancies in the Board of Trustees, at any
meeting of Shareholders called by the Board of Trustees for that purpose. A
meeting of Shareholders for the purpose of electing one or more Trustees may be
called by the Board of Trustees or, to the extent provided by the 1940 Act and
the rules and regulations thereunder, by the Shareholders. Shareholders shall
have the power to remove a Trustee only to the extent provided by the 1940 Act
and the rules and regulations thereunder. Notwithstanding the above, whenever
and for so long as the Trust
15
is a participant in or otherwise has in effect a plan under which the Trust may
be deemed to bear expenses of distributing its Shares as that practice is
described in Rule 12b-1 under the 1940 Act, or any successor rule thereunder,
then the selection and nomination of each of the Trustees who is not an
Interested Person of the Trust or any Adviser or Principal Underwriter of the
Trust (each of such Trustees is referred to herein as a "Disinterested Trustee")
shall be, and is, committed to the discretion of the Disinterested Trustees
remaining in office. In the event that all Trustee offices become vacant, an
authorized officer of the Investment Adviser shall serve as the sole remaining
Trustee effective upon the vacancy in the office of the last Trustee. In such
case, an authorized officer of the Investment Adviser, as the sole remaining
Trustee, shall, as soon as practicable, fill all of the vacancies on the Board
of Trustees; provided, however, that the percentage of Trustees who are
Disinterested Trustees shall be no less than that permitted by the 1940 Act.
Upon the qualification of such Trustees, the authorized officer of the
Investment Adviser shall resign as Trustee and a meeting of the Shareholders
shall be called, as required by the 1940 Act, for the election of Trustees. An
appointment of a Trustee may be made by the Trustees then in office in
anticipation of a vacancy to occur by reason of retirement, resignation, or
removal of a Trustee, or an increase in number of Trustees effective at a later
date, provided that said appointment shall become effective only at the time or
after the expected vacancy occurs.
Each Trustee shall serve during the continued lifetime of the Trust until
he or she dies, resigns, is declared bankrupt or incompetent by a court of
appropriate jurisdiction, or is removed, or, if sooner than any of such events,
until the next meeting of Shareholders called for the purpose of electing
Trustees and until the election and qualification of his or her successor. Any
Trustee may resign at any time by written instrument signed by him or her and
delivered to any officer of the Trust or to a meeting of the Board of Trustees.
Such resignation shall be effective upon receipt unless specified to be
effective at some later time. Except to the extent expressly provided in a
written agreement with the Trust, no Trustee resigning and no Trustee removed
shall have any right to any compensation for any period following any such event
or any right to damages on account of such events or any actions taken in
connection therewith following his or her resignation or removal.
Section 2. Effect of Death, Resignation, Removal, etc. of a Trustee. The
death, declination, resignation, retirement, removal, declaration as bankrupt or
incapacity of one or more Trustees, or of all of them, shall not operate to
dissolve the Trust or any Series or to revoke any existing agency created
pursuant to the terms of this Declaration of Trust. Whenever a vacancy in the
Board of Trustees shall occur, until such vacancy is filled as provided in this
Article IV, Section 1, the Trustee(s) in office, regardless of the number and
even if less than a quorum, shall have all the powers granted to the Board of
Trustees and shall discharge all the duties imposed upon the Board of Trustees
16
by this Declaration of Trust and the By-Laws as though such number constituted
the entire Board. In the event of the death, declination, resignation,
retirement, removal, declaration as bankrupt or incapacity of all of the then
Trustees, the investment adviser(s) to the Trust, which shall not include any
investment sub-adviser of a Series, are empowered to appoint new Trustees,
subject to the provisions of section 16(a) of the 1940 Act.
Section 3. Powers; Written Consent; Other Business Interests; Quorum and
Required Vote.
(a) Powers. Subject to the provisions of this Declaration of Trust, the
Board of Trustees shall manage the business of the Trust, and such Board of
Trustees shall have all powers necessary or convenient to carry out that
responsibility, including, without limitation, the power to engage in securities
or other transactions of all kinds on behalf of the Trust. The Board of Trustees
shall have full power and authority to do any and all acts and to make and
execute any and all contracts and instruments that it may consider necessary or
appropriate in connection with the administration of the Trust. The Trustees
shall not be bound or limited by present or future laws or customs with regard
to investment by trustees or fiduciaries, but shall have full authority and
absolute power and control over the assets of the Trust and the business of the
Trust to the same extent as if the Trustees were the sole owners of the assets
of the Trust and the business in their own right, including such authority,
power and control to do all acts and things as they, in their sole discretion,
shall deem proper to accomplish the purposes of this Trust. Without limiting the
foregoing, the Trustees may: (1) adopt, amend and repeal By-Laws not
inconsistent with this Declaration of Trust providing for the regulation and
management of the affairs of the Trust; (2) fill vacancies in or remove from
their number in accordance with this Declaration of Trust or the By-Laws, and
may elect and remove such officers and appoint and terminate such agents as they
consider appropriate; (3) appoint from their own number and establish and
terminate one or more committees consisting of two or more Trustees which may
exercise the powers and authority of the Board of Trustees to the extent that
the Board of Trustees determine; (4) employ one or more custodians of the Trust
Property and may authorize such custodians to employ subcustodians and to
deposit all or any part of such Trust Property in a system or systems for the
central handling of securities or with a Federal Reserve Bank; (5) retain a
transfer agent, dividend disbursing agent, a shareholder servicing agent or
administrative services agent, or all of them; (6) provide for the issuance and
distribution of Shares by the Trust directly or through one or more Principal
Underwriters or otherwise; (7) retain one or more Investment Adviser(s); (8)
redeem, repurchase and transfer Shares pursuant to applicable law; (9) set
record dates for the determination of Shareholders with respect to various
matters, in the manner provided in Article V, Section 5 of this Declaration of
Trust; (10) declare and pay dividends and distributions to Shareholders from the
Trust Property; (11) establish from time to time, in
17
accordance with the provisions of Article III, Section 6 hereof, any Series or
class of Shares, each such Series to operate as a separate and distinct
investment medium and with separately defined investment objectives and policies
and distinct investment purposes; (12) hire personnel as staff for the Board of
Trustees or for the Disinterested Trustees, set the compensation to be paid by
the Trust to such personnel, exercise exclusive supervision of such personnel,
and remove one or more of such personnel, at the discretion of the Board of
Trustees or the Disinterested Trustees, as applicable; (13) retain special
counsel, other experts and/or consultants for the Board of Trustees, for the
Disinterested Trustees, and/or for one or more of the committees of the Board of
Trustees, set the compensation to be paid by the Trust to such special counsel,
other experts and/or consultants, and remove one or more of such special
counsel, other experts and/or consultants, at the discretion of the Board of
Trustees or the Disinterested Trustees, as applicable; (14) engage in and
prosecute, defend, compromise, abandon, or adjust, by arbitration, or otherwise,
any actions, suits, proceedings, disputes, claims, and demands relating to the
Trust, and out of the assets of the Trust pay or satisfy any debts, claims or
expenses incurred in connection therewith, including those of litigation, and
such power shall include, without limitation, the power of the Trustees, or any
appropriate committee thereof, in the exercise of their or its good faith
business judgment, to dismiss any action, suit, proceeding, dispute, claim or
demand, derivative or otherwise, brought by any person, including a shareholder
in its own name or in the name of the Trust, whether or not the Trust or any of
the Trustees may be named individually therein or the subject matter arises by
reason of business for or on behalf of the Trust; and (15) in general delegate
such authority as they consider desirable to any officer of the Trust, to any
committee of the Board of Trustees and to any agent or employee of the Trust or
to any such custodian, transfer, dividend disbursing or shareholder servicing
agent, Principal Underwriter or Investment Adviser. Any determination as to what
is in the best interests of the Trust made by the Board of Trustees in good
faith shall be conclusive.
In construing the provisions of this Declaration of Trust, the presumption
shall be in favor of a grant of power to the Trustees. Unless otherwise
specified herein or required by law, any action by the Board of Trustees shall
be deemed effective if approved or taken by a majority of the Trustees then in
office.
(b) Written Consent. Any action required or permitted to be taken by the
Board of Trustees, or a committee thereof, may be taken without a meeting if a
majority of the members of the Board of Trustees, or committee thereof, as the
case may be, shall individually or collectively consent in writing to that
action. Such action by written consent shall have the same force and effect as a
majority vote of the Board of Trustees, or committee thereof, as the case may
be. Such written consent or consents shall be filed with the minutes of the
proceedings of the Board of Trustees, or committee thereof, as the case may be.
18
(c) Other Business Interests. The Trustees shall devote to the affairs of
the Trust such time as may be necessary for the proper performance of their
duties hereunder, but neither the Trustees nor the officers, directors,
shareholders or partners of the Trustees, shall be expected to devote their full
time to the performance of such duties. The Trustees, or any Affiliate
shareholder, officer, director, partner or employee thereof, or any Person
owning a legal or beneficial interest therein, may engage in or possess an
interest in any other business or venture of any nature and description,
independently or with or for the account of others.
(d) Quorum and Required Vote. At all meetings of the Board of Trustees, a
majority of the Board of Trustees then in office shall be present in person in
order to constitute a quorum for the transaction of business. A meeting at which
a quorum is initially present may continue to transact business notwithstanding
the departure of Trustees from the meeting, if any action taken is approved by
at least a majority of the required quorum for that meeting. Subject to Article
III, Sections 1 and 6 of the By-Laws and except as otherwise provided herein or
required by applicable law, the vote of not less than a majority of the Trustees
present at a meeting at which a quorum is present shall be the act of the Board
of Trustees.
Section 4. Chairman of the Trustees. The Trustees shall appoint one of
their number to be Chairman of the Board of Trustees. The Chairman shall preside
at all meetings of the Trustees, shall be responsible for the execution of
policies established by the Trustees and the administration of the Trust, and
may be (but is not required to be) the chief executive, financial and/or
accounting officer of the Trust.
Section 5. Payment of Expenses by the Trust. The Board of Trustees is
authorized to pay or cause to be paid out of the principal or income of the
Trust or any particular Series or class, or partly out of the principal and
partly out of the income of the Trust or any particular Series or class, and to
charge or allocate the same to, between or among such one or more of the Series
or classes that may be established or designated pursuant to Article III,
Section 6, as it deems fair, all expenses, fees, charges, taxes and liabilities
incurred by or arising in connection with the maintenance or operation of the
Trust or a particular Series or class, or in connection with the management
thereof, including, but not limited to, the Trustees' compensation,
reimbursement of Trustees' expenses, and such expenses, fees, charges, taxes and
liabilities for the services of the Trust's officers, employees, Investment
Adviser, Principal Underwriter, auditors, counsel, custodian, sub-custodian (if
any), transfer agent, dividend disbursing agent, shareholder servicing agent,
and such other agents or independent contractors and such other expenses, fees,
charges, taxes and liabilities as the Board of Trustees may deem necessary or
proper to incur.
19
Section 6. Payment of Expenses by Shareholders. The Trust's custodian,
transfer, dividend disbursing, shareholder servicing or similar agent impose
fees directly on individual shareholders for certain services requested by the
shareholder ("Service Charges"). The Board of Trustees shall have the power to
assist the Trust's custodian, transfer, dividend disbursing, shareholder
servicing or similar agent in the collection of Service Fees by setting off such
Service Charges due from a Shareholder from declared but unpaid dividends or
distributions owed such Shareholder and/or by reducing the number of Shares in
the account of such Shareholder by that number of full and/or fractional Shares
which represents the outstanding amount of such Service Charges due from such
Shareholder.
Section 7. Ownership of Trust Property. Legal title to all of the Trust
Property shall at all times be considered to be vested in the Trust, except that
the Board of Trustees shall have the power to cause legal title to any Trust
Property to be held by or in the name of any Person as nominee, on such terms as
the Board of Trustees may determine, in accordance with applicable law.
Section 8. Service Contracts.
(a) Subject to such requirements and restrictions as may be set forth in
the By-Laws and/or the 1940 Act, the Board of Trustees may, at any time and from
time to time, contract for exclusive or nonexclusive advisory, management and/or
administrative services for the Trust or for any Series with any corporation,
trust, association or other organization, including any Affiliate; and any such
contract may contain such other terms as the Board of Trustees may determine,
including without limitation, authority for the Investment Adviser or
administrator to determine from time to time without prior consultation with the
Board of Trustees what securities and other instruments or property shall be
purchased or otherwise acquired, owned, held, invested or reinvested in, sold,
exchanged, transferred, mortgaged, pledged, assigned, negotiated, or otherwise
dealt with or disposed of, and what portion, if any, of the Trust Property shall
be held uninvested and to make changes in the Trust's or a particular Series'
investments, or such other activities as may specifically be delegated to such
party.
(b) The Board of Trustees may also, at any time and from time to time,
contract with any corporation, trust, association or other organization,
including any Affiliate, appointing it or them as the exclusive or nonexclusive
distributor or Principal Underwriter for the Shares of the Trust or one or more
of the Series or classes thereof or for other securities to be issued by the
Trust, or appointing it or them to act as the custodian, transfer agent,
dividend disbursing agent and/or shareholder servicing agent for the Trust or
one or more of the Series or classes thereof.
20
(c)The Board of Trustees is further empowered, at any time and from time to
time, to contract with any Persons to provide such other services to the Trust
or one or more of its Series, as the Board of Trustees determines to be in the
best interests of the Trust or one or more of its Series.
(d) The fact that:
(i) any of the Shareholders, Trustees, employees or officers of the Trust
is a shareholder, director, officer, partner, trustee, employee, manager,
Adviser, Principal Underwriter, distributor, or Affiliate or agent of or for any
corporation, trust, association, or other organization, or for any parent or
Affiliate of any organization with which an Adviser's, management or
administration contract, or Principal Underwriter's or distributor's contract,
or custodian, transfer, dividend disbursing, shareholder servicing or other type
of service contract may have been or may hereafter be made, or that any such
organization, or any parent or Affiliate thereof, is a Shareholder or has an
interest in the Trust, or that
(ii) any corporation, trust, association or other organization with which
an Adviser's, management or administration contract or Principal Underwriter's
or distributor's contract, or custodian, transfer, dividend disbursing,
shareholder servicing or other type of service contract may have been or may
hereafter be made also has an Adviser's, management or administration contract,
or Principal Underwriter's or distributor's contract, or custodian, transfer,
dividend disbursing, shareholder servicing or other service contract with one or
more other corporations, trusts, associations, or other organizations, or has
other business or interests, shall not affect the validity of any such contract
or disqualify any Shareholder, Trustee, employee 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 that the establishment of and
performance under each such contract is permissible under the provisions of the
1940 Act.
(e) Every contract referred to in this Section 8 shall comply with such
requirements and restrictions as may be set forth in the By-Laws, the 1940 Act
or stipulated by resolution of the Board of Trustees; and any such contract may
contain such other terms as the Board of Trustees may determine.
ARTICLE V
Shareholders' Voting Powers and Meetings.
Section 1. Voting Powers. Subject to the provisions of Article III, Section
6(d), the Shareholders shall have power to vote only (i) for the election of
Trustees, including the filling of any vacancies in the Board of Trustees, as
21
provided in Article IV, Section 1; (ii) with respect to such additional matters
relating to the Trust as may be required by this Declaration of Trust, the
By-Laws, the 1940 Act or any registration statement of the Trust filed with the
Commission; and (iii) on such other matters as the Board of Trustees may
consider necessary or desirable. Shareholders shall not be entitled to
cumulative voting in the election of Trustees or on any other matter.
Shareholders may vote Shares in person or by proxy.
Section 2. Meetings. Meetings of the Shareholders may be held within or
outside the State of Delaware. Any Meetings of the Shareholders of the Trust or
a Series may be called by the Board of Trustees, Chairman of the Board or the
President of the Trust for any lawful purpose, including the purpose of electing
Trustees as provided in Article IV, Section 1. Special meetings of the
Shareholders of the Trust or any Series shall be called by the Board of
Trustees, Chairman or President upon the written request of Shareholders holding
not less than ten (10) percent of the Shares entitled to vote. Whenever ten or
more Shareholders meeting the qualifications set forth in Section 16(c) of the
1940 Act, as the same may be amended from time to time, seek the opportunity of
furnishing materials to the other Shareholders with a view to obtaining
signatures on such a request for a meeting, the Trustees shall comply with the
provisions of said Section 16(c) with respect to providing such Shareholders
access to the list of the Shareholders of record of the Trust or the mailing of
such materials to such Shareholders of record, subject to any rights provided to
the Trust or any Trustees provided by said Section 16(c).
Section 3. Quorum and Required Vote. Except when a larger quorum is
required by applicable law, by the By-Laws or by this Declaration of Trust,
thirty-three and one-third percent (33-1/3%) of the Shares present in person or
represented by proxy and entitled to vote at a Shareholders' meeting shall
constitute a quorum at such meeting. When a separate vote by one or more Series
or classes is required, thirty-three and one-third percent (33-1/3%) of the
Shares of each such Series or class present in person or represented by proxy
and entitled to vote shall constitute a quorum at a Shareholders' meeting of
such Series or class. Subject to the provisions of Article III, Section 6(d),
Article VIII, Section 4 and any other provision of this Declaration of Trust,
the By-Laws or applicable law which requires a different vote: (1) in all
matters other than the election of Trustees, the affirmative vote of the
majority of votes cast at a Shareholders' meeting at which a quorum is present
shall be the act of the Shareholders; (2) Trustees shall be elected by a
plurality of the votes cast at a Shareholders' meeting at which a quorum is
present.
Section 4. Shareholder Action by Written Consent without a Meeting. Any
action which may be taken at any meeting of Shareholders may be taken without a
meeting and without prior notice if a consent in writing setting forth the
action so taken is signed by the holders of Shares having not less than the
22
minimum number of votes that would be necessary to authorize or take that action
at a meeting at which all Shares entitled to vote on that action were present
and voted. All such consents shall be filed with the secretary of the Trust and
shall be maintained in the Trust's records. Any Shareholder giving a written
consent or the Shareholder's proxy holders or a transferee of the Shares or a
personal representative of the Shareholder or its respective proxy-holder may
revoke the consent by a writing received by the secretary of the Trust before
written consents of the number of Shares required to authorize the proposed
action have been filed with the secretary.
If the consents of all Shareholders entitled to vote have not been
solicited in writing and if the unanimous written consent of all such
Shareholders shall not have been received, the secretary shall give prompt
notice of the action taken without a meeting to such Shareholders. This notice
shall be given in the manner specified in the By-Laws.
Section 5. Record Dates. For purposes of determining the Shareholders
entitled to notice of or to vote at any meeting of Shareholders, or any
adjournment thereof, or entitled to give consent to action without a meeting,
the Board of Trustees may fix in advance a record date which record date shall
not precede the date upon which the resolution fixing the record date is adopted
by the Board of Trustees, and which shall not be more than one hundred eighty
(180) days nor less than seven (7) days before the date of any such meeting. A
determination of Shareholders of record entitled to notice of or to vote at a
meeting of Shareholders shall apply to any adjournment of the meeting; provided,
however, that the Board of Trustees may fix a new record date for the adjourned
meeting.
If the Board of Trustees does not so fix a record date:
(a) The record date for determining Shareholders entitled to notice of or
to vote at a meeting of Shareholders shall be at the close of business on the
business day next preceding the day on which notice is given or, if notice is
waived, at the close of business on the business day which is five (5) business
days next preceding to the day on which the meeting is held.
(b) The record date for determining Shareholders entitled to give consent
to action in writing without a meeting, (i) when no prior action by the Board of
Trustees has been taken, shall be the day on which the first written consent is
given, or (ii) when prior action of the Board of Trustees has been taken, shall
be at the close of business on the day on which the Board of Trustees adopts the
resolution taking such prior action or the seventy-fifth (75th) day before the
date of such other action, whichever is later.
For the purpose of determining the Shareholders of any Series or class who
are entitled to receive payment of any dividend or of any other
23
distribution, the Board of Trustees may from time to time fix a date, which
shall be before the date for the payment of such dividend or such other
distribution, as the record date for determining the Shareholders of such Series
or class having the right to receive such dividend or distribution. Nothing in
this Section shall be construed as precluding the Board of Trustees from setting
different record dates for different Series or classes.
Section 6. Derivative Actions. In addition to the requirements set forth in
Section 3816 of the DSTA, a Shareholder may bring derivative action on behalf of
the Trust only if the Shareholder or Shareholders first make a pre-suit demand
upon the Trustees to bring the subject action unless an effort to cause the
Trustees to bring such action is excused. A demand on the Trustees shall only be
excused if a majority of the Board of Trustees, or a majority of any committee
established to consider the merits of such action, has a personal financial
interest in the action at issue. A Trustee shall not be deemed to have a
personal financial interest in an action or otherwise be disqualified from
ruling on a Shareholder demand by virtue of the fact that such Trustee receives
remuneration from his service on the Board of Trustees of the Trust or on the
boards of one or more investment companies with the same or an affiliated
investment advisor or underwriter.
Section 7. Additional Provisions. The By-Laws may include further
provisions for Shareholders' votes, meetings and related matters.
ARTICLE VI Net
Asset Value, Distributions and Redemptions.
Section 1. Determination of Net Asset Value, Net Income and Distributions.
(a) Subject to Article III, Section 6 hereof, the Board of Trustees shall
have the power to determine from time to time the offering price for authorized,
but unissued, Shares of beneficial interest of the Trust or any Series or class
thereof, respectively, that shall yield to the Trust or such Series or class not
less than the net asset value thereof, in addition to any amount of applicable
sales charge to be paid to the Principal Underwriter or the selling broker or
dealer in connection with the sale of such Shares, at which price the Shares of
the Trust or such Series or class, respectively, shall be offered for sale,
subject to any other requirements or limitations of the 1940 Act.
(b) Subject to Article III, Section 6 hereof and the 1940 Act, the Board of
Trustees may prescribe and shall set forth in the By-Laws, this Declaration of
Trust or in a resolution of the Board of Trustees such bases and time for
determining the net asset value per Share of the Trust or any Series or class
thereof, or net income attributable to the Shares of the Trust or any Series or
24
class thereof or the declaration and payment of dividends and distributions on
the Shares of the Trust or any Series or class thereof, as it may deem necessary
or desirable, and such dividends and distributions may vary between the classes
to reflect differing allocations of the expenses of the Trust between such
classes to such extent and for such purposes as the Trustees may deem
appropriate.
(c) The Shareholders of the Trust or any Series or class, if any, shall be
entitled to receive dividends and distributions, when, if and as declared by the
Board of Trustees with respect thereto, provided that with respect to classes,
such dividends and distributions shall comply with the 1940 Act. The right of
Shareholders to receive dividends or other distributions on Shares of any class
may be set forth in a plan adopted by the Board of Trustees and amended from
time to time pursuant to the 1940 Act. No Share shall have any priority or
preference over any other Share of the Trust with respect to dividends or
distributions paid in the ordinary course of business or distributions upon
dissolution of the Trust made pursuant to Article VIII, Section 2 hereof;
provided however, that
(i) if the Shares of the Trust are divided into Series thereof, no Share of
a particular Series shall have any priority or preference over any other Share
of the same Series with respect to dividends or distributions paid in the
ordinary course of business or distributions upon dissolution of the Trust or of
such Series made pursuant to Article VIII, Section 2 hereof;
(ii) if the Shares of the Trust are divided into classes thereof, no Share
of a particular class shall have any priority or preference over any other Share
of the same class with respect to dividends or distributions paid in the
ordinary course of business or distributions upon dissolution of the Trust made
pursuant to Article VIII, Section 2 hereof; and
(iii) if the Shares of a Series are divided into classes thereof, no Share
of a particular class of such Series shall have any priority or preference over
any other Share of the same class of such Series with respect to dividends or
distributions paid in the ordinary course of business or distributions upon
dissolution of such Series made pursuant to Article VIII, Section 2 hereof or
upon dissolution of such class made pursuant to Article III, Section 6(j)
hereof.
All dividends and distributions shall be made ratably among all
Shareholders of the Trust, a particular class of the Trust, a particular Series,
or a particular class of a Series from the Trust Property held with respect to
the Trust, such Series or such class, respectively, according to the number of
Shares of the Trust, such Series or such class held of record by such
25
Shareholders on the record date for any dividend or distribution; provided,
however, that:
(i) if the Shares of the Trust are divided into Series thereof, all
dividends and distributions from the Trust Property and, if applicable, held
with respect to such Series, shall be distributed to each Series thereof
according to the net asset value computed for such Series and within such
particular Series, shall be distributed ratably to the Shareholders of such
Series according to the number of Shares of such Series held of record by such
Shareholders on the record date for any dividend or distribution; and
(ii) if the Shares of the Trust or of a Series are divided into classes
thereof, all dividends and distributions from the Trust Property and, if
applicable, held with respect to the Trust or such Series, shall be distributed
to each class thereof according to the net asset value computed for such class
and within such particular class, shall be distributed ratably to the
Shareholders of such class according to the number of Shares of such class held
of record by such Shareholders on the record date for any dividend or
distribution.
Dividends and distributions may be paid in cash, in kind or in Shares.
(d) Before payment of any dividend there may be set aside out of any funds
of the Trust, or the applicable Series thereof, available for dividends such sum
or sums as the Board of Trustees may from time to time, in its absolute
discretion, think proper as a reserve fund to meet contingencies, or for
equalizing dividends, or for repairing or maintaining any property of the Trust,
or any Series thereof, or for such other lawful purpose as the Board of Trustees
shall deem to be in the best interests of the Trust, or the applicable Series,
as the case may be, and the Board of Trustees may abolish any such reserve in
the manner in which the reserve was created.
Section 2. Redemptions at the Option of a Shareholder. Unless otherwise
provided in the prospectus of the Trust relating to the Shares, as such
prospectus may be amended from time to time ("Prospectus"):
(a) The Trust shall purchase such Shares as are offered by any Shareholder
for redemption, upon the presentation of a proper instrument of transfer
together with a request directed to the Trust or a Person designated by the
Trust that the Trust purchase such Shares or in accordance with such other
procedures for redemption as the Board of Trustees may from time to time
authorize. If certificates have been issued to a Shareholder, any such request
by such Shareholder must be accompanied by surrender of any outstanding
certificate or certificates for such Shares in form for transfer, together with
such proof of the authenticity of signatures as may reasonably be
26
required on such Shares and accompanied by proper stock transfer stamps, if
applicable.
(b) The Trust shall pay for such Shares the net asset value thereof
(excluding any applicable redemption fee or sales load), in accordance with this
Declaration of Trust, the By-Laws, the 1940 Act and other applicable law.
Payments for Shares so redeemed by the Trust shall be made in cash, except
payment for such Shares may, at the option of the Board of Trustees, or such
officer or officers as it may duly authorize in its complete discretion, be made
in kind or partially in cash and partially in kind. In case of any payment in
kind, the Board of Trustees, or its delegate, shall have absolute discretion as
to what security or securities of the Trust shall be distributed in kind and the
amount of the same; and the securities shall be valued for purposes of
distribution at the value at which they were appraised in computing the then
current net asset value of the Shares, provided that any Shareholder who cannot
legally acquire securities so distributed in kind shall receive cash to the
extent permitted by the 1940 Act. Shareholders shall bear the expenses of
in-kind transactions, including, but not limited to, transfer agency fees,
custodian fees and costs of disposition of such securities.
(c) Payment by the Trust shall be made by the Trust for such redemption of
Shares shall be made by the Trust to the Shareholder within seven days after the
date on which the redemption request is received in proper form and/or such
other procedures authorized by the Board of Trustees are complied with;
provided, however, that if payment shall be made other than exclusively in cash,
any securities to be delivered as part of such payment shall be delivered as
promptly as any necessary transfers of such securities on the books of the
several corporations whose securities are to be delivered practicably can be
made, which may not necessarily occur within such sevenday period. Moreover,
redemptions may be suspended in the event of a National Financial Emergency. In
no case shall the Trust be liable for any delay of any corporation or other
Person in transferring securities selected for delivery as all or part of any
payment in kind.
(d) The obligations of the Trust set forth in this Section 2 are subject to
the provision that such obligations may be suspended or postponed by the Board
of Trustees (1) during any time the New York Stock Exchange (the "Exchange") is
closed for other than weekends or holidays; (2) if permitted by the rules of the
Commission, during periods when trading on the Exchange is restricted; or (3)
during any National Financial Emergency. The Board of Trustees may, in its
discretion, declare that the suspension relating to a National Financial
Emergency shall terminate, as the case may be, on the first business day on
which the Exchange shall have reopened or the period specified above shall have
expired (as to which, in the absence of an official ruling by the Commission,
the determination of the Board of Trustees shall be conclusive).
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(e) The right of Shareholders to receive dividends or other distributions on
Shares may be set forth in a Plan adopted by the Board of Trustees and amended
from time to time pursuant to Rule 18f-3 of the 1940 Act. The right of any
Shareholder of the Trust to receive dividends or other distributions on Shares
redeemed and all other rights of such Shareholder with respect to the Shares so
redeemed by the Trust, except the right of such Shareholder to receive payment
for such Shares, shall cease at the time as of which the purchase price of such
Shares shall have been fixed, as provided above.
Section 3. Redemptions at the Option of the Trust. Subject to the 1940 Act,
the Board of Trustees may, from time to time, without the vote or consent of the
Shareholders, redeem Shares or authorize the closing of any Shareholder account,
subject to such conditions as may be established from time to time by the Board
of Trustees.
ARTICLE VII Compensation and Limitation of Liability of Officers and
Trustees.
Section 1. Compensation. Except as set forth in the last sentence of this
Section 1, the Board of Trustees may, from time to time, fix a reasonable amount
of compensation to be paid by the Trust to the Trustees and officers of the
Trust. Nothing herein shall in any way prevent the employment of any Trustee for
advisory, management, legal, accounting, investment banking or other services
and payment for the same by the Trust.
Section 2. Indemnification and Limitation of Liability.
(a) For the purpose of this Article, "Agent" means any Person who is or was
a Trustee, officer, employee or other agent of the Trust or is or was serving at
the request of the Trust as a trustee, director, officer, employee or other
agent of another foreign or domestic corporation, partnership, joint venture,
trust or other enterprise; "Proceeding" means any threatened, pending or
completed action or proceeding, whether civil, criminal, administrative or
investigative. To the fullest extent that limitations on the liability of Agents
are permitted by the DSTA and other applicable law, the Agents shall not be
responsible or liable in any event for any act or omission of any other Agent of
the Trust or any Investment Adviser or Principal Underwriter of the Trust.
(b) The Trust, out of the Trust Property, shall indemnify and hold harmless
each and every officer and Trustee from and against any and all claims and
demands whatsoever arising out of or related to such officer's or Trustee's
performance of his or her duties as an officer or Trustee of the Trust. This
limitation on liability and indemnification applies to events occurring at the
time a Person serves as a Trustee or officer of the Trust whether or not
28
such Person is a Trustee or officer at the time of any Proceeding in which
liability is asserted. Nothing herein contained shall indemnify, hold harmless
or protect any officer or Trustee from or against any liability to the Trust or
any Shareholder to which such Person would otherwise be subject by reason of
willful misfeasance, bad faith, gross negligence or reckless disregard of the
duties involved in the conduct of such Person's office (such conduct referred to
herein as "Disqualifying Conduct").
(c) Subject to subsection (b) of this Section 2 and to the fullest extent
that limitations on the liability of Agents are permitted by the DSTA, the
Agents shall not be responsible or liable in any event for any act or omission
of any other Agent of the Trust or any Investment Adviser or Principal
Underwriter of the Trust.
(d) No Agent, when acting in its respective capacity as such, shall be
personally liable to any Person, other than the Trust or a Shareholder to the
extent provided in subsections (b) and (c) of this Section 2, for any act,
omission or obligation of the Trust or any Trustee thereof.
(e) Every note, bond, contract, instrument, certificate or undertaking and
every other act or document whatsoever issued, executed or done by or on behalf
of the Trust, the officers or the Trustees or any of them in connection with the
Trust shall be conclusively deemed to have been issued, executed or done only in
such Person's capacity as Trustee and/or as officer, and such Trustee or
officer, as applicable, shall not be personally liable therefor, except as
described in the last sentence of the first paragraph of this Section 2 of this
Article VII.
(f) The failure to make timely collection of dividends or interest, or to
take timely action with respect to entitlements, on the Trust's securities
issued in emerging countries, shall not be deemed to be negligence or other
fault on the part of any Agent, and no Agent shall have any liability for such
failure or for any loss or damage resulting from the imposition by any
government of exchange control restrictions which might affect the liquidity of
the Trust's assets or from any war or political act of any foreign government to
which such assets might be exposed, except, in the case of a Trustee or officer,
for liability resulting from such Trustee's or officer's Disqualifying Conduct.
(g) The limitation on liability contained in this Article applies to events
occurring at the time a Person serves as an Agent whether or not such Person is
an Agent at the time of any Proceeding in which liability is asserted.
(h) No amendment or repeal of this Article shall adversely affect any right
or protection of an Agent that exists at the time of such amendment or repeal.
29
Section 3. Officers and Trustees' Good Faith Action, Expert Advice, No Bond
or Surety. The exercise by the Trustees of their powers and discretions
hereunder shall be binding upon everyone interested. An officer or Trustee shall
be liable to the Trust and to any Shareholder solely for such officer's or
Trustee's own Disqualifying Conduct, and for nothing else, and shall not be
liable for errors of judgment or mistakes of fact or law. Each Trustee, officer
and employee of the Trust shall, in the performance of his or her duties, be
fully and completely justified and protected with regard to any act or any
failure to act resulting from reliance in good faith upon the books of account
or other records of the Trust, upon an opinion of counsel, or upon reports made
to the Trust by any of its officers or employees or by the Investment Adviser,
the Principal Underwriter, any other Agent, selected dealers, accountants,
appraisers or other experts or consultants selected with reasonable care by the
Trustees, regardless of whether such counsel or expert may also be a Trustee.
The officers and Trustees may obtain the advice of counsel or other experts with
respect to the meaning and operation of this Declaration of Trust, the By- Laws,
applicable law, and their respective duties as officers or Trustees. No such
officer or Trustee shall be liable for any act or omission in accordance with
such advice and no inference concerning liability shall arise from a failure to
follow such advice. The officers and Trustees shall not be required to give any
bond as such, nor any surety if a bond is required.
Section 4. Insurance. To the fullest extent permitted by applicable law,
the officers and Trustees shall be entitled and have the authority to purchase
with Trust Property, insurance for liability and for all expenses reasonably
incurred or paid or expected to be paid by a Trustee or officer in connection
with any claim, action, suit or proceeding in which such Person becomes involved
by virtue of such Person's capacity or former capacity with the Trust, whether
or not the Trust would have the power to indemnify such Person against such
liability under the provisions of this Article.
ARTICLE VIII
Certain Transactions.
Section 1. Liability of Third Persons Dealing with Trustees. No person
dealing with the Trustees shall be bound to make any inquiry concerning the
validity of any actions made or to be made by the Trustees.
Section 2. Dissolution of Trust or Series. Unless dissolved as provided
herein, the Trust shall have perpetual existence. The Trust or a particular
Series may be dissolved:
(a) with respect to the Trust, (i) at any time by vote of a
majority of the Shares of the Trust entitled to vote, or (ii) at the discretion
of the Board of
30
Trustees either (A) at any time there are no Shares outstanding of the Trust, or
(B) upon prior written notice to the Shareholder of the Trust;
(b) with respect to any Series, at any time by vote of a majority of the
Shares of the Series entitled to vote, or (ii) at the discretion of the Board of
Trustees either (A) at any time there are no Shares outstanding of the Series,
or (B) upon prior written notice to the Shareholder of the Series;
(c) with respect to the Trust (or a particular Series), upon the occurrence
of a dissolution or termination event pursuant to any other provision of this
Declaration of Trust (including Article VIII, Section 3) or the DSTA; or
(d) with respect to any Series, upon any event that causes the dissolution
of the Trust.
Upon dissolution of the Trust (or a particular Series, as the case may be),
the Trustees shall (in accordance withss.3808 of the DSTA) pay or make
reasonable provision to pay all claims and obligations of each Series (or the
particular Series, as the case may be), including all contingent, conditional or
unmatured claims and obligations known to the Trust, and all claims and
obligations which are known to the Trust but for which the identity of the
claimant is unknown. If there are sufficient assets held with respect to each
Series of the Trust (or the particular Series, as the case may be), such claims
and obligations shall be paid in full and any such provisions for payment shall
be made in full. If there are insufficient assets held with respect to each
Series of the Trust (or the particular Series, as the case may be), such claims
and obligations shall be paid or provided for according to their priority and,
among claims and obligations of equal priority, ratably to the extent of assets
available therefor. Any remaining assets (including without limitation, cash,
securities or any combination thereof) held with respect to each Series of the
Trust (or the particular Series, as the case may be) shall be distributed to the
Shareholders of such Series, ratably according to the number of Shares of such
Series held by the several Shareholders on the record date for such dissolution
distribution; provided, however, that if the Shares of the Trust or a Series are
divided into classes thereof, any remaining assets (including, without
limitation, cash, securities or any combination thereof) held with respect to
the Trust or such Series, as applicable, shall be distributed to each class of
the Trust or such Series according to the net asset value computed for such
class and within such particular class, shall be distributed ratably to the
Shareholders of such class according to the number of Shares of such class held
of record by the several Shareholders on the date for such dissolution
distribution. Upon the winding up of the Trust in accordance with Section 3808
of the DSTA and its termination, any one (1) Trustee shall execute, and cause to
be filed, a certificate of cancellation, with the office of the Secretary of
31
State of the State of Delaware in accordance with the provisions of Section 3810
of the DSTA.
Section 3. Merger and Consolidation; Conversion.
(a) Merger and Consolidation. Pursuant to an agreement of merger or
consolidation, the Trust, or any one or more Series, may, by act of a majority
of the Board of Trustees, merge or consolidate with or into one or more business
trusts or other business entities formed or organized or existing under the laws
of the State of Delaware or any other state or the United States or any foreign
country or other foreign jurisdiction. Any such merger or consolidation shall
not require the vote of the Shareholders affected thereby, unless such vote is
required by the 1940 Act, or unless such merger or consolidation would result in
an amendment of this Declaration of Trust, which would otherwise require the
approval of such Shareholders. In accordance with Section 3815(f) of the DSTA,
an agreement of merger or consolidation may affect any amendment to this
Declaration of Trust or the By-Laws or affect the adoption of a new declaration
of trust or by-laws of the Trust if the Trust is the surviving or resulting
business trust. Upon completion of the merger or consolidation, the Trustees
shall file a certificate of merger or consolidation in accordance with Section
3810 of the DSTA.
(b) Conversion. A majority of the Board of Trustees may, without the vote
or consent of the Shareholders, cause (i) the Trust to convert to a common-law
trust, a general partnership, limited partnership or a limited liability company
organized, formed or created under the laws of the State of Delaware as
permitted pursuant to Section 3821 of the DSTA; (ii) the Shares of the Trust or
any Series to be converted into beneficial interests in another business trust
(or series thereof) created pursuant to this Section 3 of this Article VIII, or
(iii) the Shares to be exchanged under or pursuant to any state or federal
statute to the extent permitted by law; provided, however, that if required by
the 1940 Act, no such statutory conversion, Share conversion or Share exchange
shall be effective unless the terms of such transaction shall first have been
approved at a meeting called for that purpose by the "vote of a majority of the
outstanding voting securities," as such phrase is defined in the 1940 Act, of
the Trust or Series, as applicable; provided, further, that in all respects not
governed by statute or applicable law, the Board of Trustees shall have the
power to prescribe the procedure necessary or appropriate to accomplish a sale
of assets, merger or consolidation including the power to create one or more
separate business trusts to which all or any part of the assets, liabilities,
profits or losses of the Trust may be transferred and to provide for the
conversion of Shares of the Trust or any Series into beneficial interests in
such separate business trust or trusts (or series thereof).
Section 4. Reorganization. A majority of the Board of Trustees may cause
the Trust to sell, convey and transfer all or substantially all of the assets
32
of the Trust, or all or substantially all of the assets associated with any one
or more Series, to another trust, business trust, partnership, limited
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 "vote of a
majority of the outstanding voting securities," as such phrase is defined in the
1940 Act, of that Series. Following such sale, conveyance and transfer, the
Board of 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.
Section 5. Master Feeder Structure. If permitted by the 1940 Act, the Board
of Trustees, by vote of a majority of the Trustees, and without a Shareholder
vote, may cause the Trust or any one or more Series to convert to a master
feeder structure (a structure in which a feeder fund invests all of its assets
in a master fund, rather than making investments in securities directly) and
thereby cause existing Series of the Trust to either become feeders in a master
fund, or to become master funds in which other funds are feeders.
Section 6. Absence of Appraisal or Dissenters' Rights. No Shareholder shall
be entitled, as a matter of right, to relief as a dissenting Shareholder in
respect of any proposal or action involving the Trust or any Series or any class
thereof.
ARTICLE IX
Amendments and Miscellaneous.
Section 1. Amendments Generally. This Declaration of Trust may be restated
and/or amended at any time by an instrument in writing signed by not less than a
majority of the Board of Trustees and, to the extent required by this
Declaration of Trust, the 1940 Act or the requirements of any securities
33
exchange on which Shares are listed for trading, by approval of such amendment
by the Shareholders in accordance with Article III, Section 6 hereof and Article
V hereof. Any such restatement and/or amendment hereto shall be effective
immediately upon execution and approval or upon such future date and time as may
be stated therein. The Certificate of Trust shall be restated and/or amended at
any time by the Board of Trustees, without Shareholder approval, to correct any
inaccuracy contained therein. Any such restatement and/or amendment of the
Certificate of Trust shall be executed by at least one (1) Trustee and shall be
effective immediately upon its filing with the office of the Secretary of State
of the State of Delaware or upon such future date as may be stated therein.
Notwithstanding the above, the Board of Trustees expressly reserves the
right to amend or repeal any provisions contained in this Declaration of Trust
or the Certificate of Trust, in accordance with the provisions of Section 5 of
Article III hereof, and all rights, contractual and otherwise, conferred upon
Shareholders are granted subject to such reservation. The Board of Trustees
further expressly reserves the right to amend or repeal any provision of the By-
Laws pursuant to Article VIII, Section 2 of the By-Laws.
Section 2. Filing of Copies, References, Headings. The original or a copy
of this Declaration of Trust and of each restatement and/or amendment hereto
shall be kept at the principal executive office of the Trust where any
Shareholder may inspect it. Anyone dealing with the Trust may rely on a
certificate by an officer of the Trust as to whether or not any such
restatements and/or amendments have been made and as to any matters in
connection with the Trust hereunder; and, with the same effect as if it were the
original, may rely on a copy certified by an officer of the Trust to be a copy
of this instrument or of any such restatements and/or amendments. In this
Declaration of Trust and in any such restatements and/or amendments, references
to this instrument, and all expressions of similar effect to "herein," "hereof"
and "hereunder," shall be deemed to refer to this instrument as amended or
affected by any such restatements and/or amendments. Headings are placed herein
for convenience of reference only and shall not be taken as a part hereof or
control or affect the meaning, construction or effect of this instrument.
Whenever the singular number is used herein, the same shall include the plural;
and the neuter, masculine and feminine genders shall include each other, as
applicable. Any references herein to specific sections of the DSTA, the Coder or
the 1940 Act shall refer to such sections as amended from time to time or any
successor sections thereof. This instrument may be executed in any number of
counterparts, each of which shall be deemed an original.
Section 3. Applicable Law. This Declaration of Trust is created under and
is to be governed by and construed and administered according to the laws of the
State of Delaware and the applicable provisions of the 1940 Act and the Code.
The Trust shall be a Delaware statutory trust pursuant to the DSTA,
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and without limiting the provisions hereof, the Trust may exercise all powers
which are ordinarily exercised by such a statutory trust.
Section 4. Provisions in Conflict with Law or Regulations.
(a) The provisions of this Declaration of Trust are severable, and if the
Board of Trustees shall determine, with the advice of counsel, that any of such
provisions is in conflict with the 1940 Act, the Code, the DSTA, or with other
applicable laws and regulations, the conflicting provision shall be deemed not
to have constituted a part of this Declaration of Trust from the time when such
provisions became inconsistent with such laws or regulations; provided, however,
that such determination shall not affect any of the remaining provisions of this
Declaration of Trust or render invalid or improper any action taken or omitted
prior to such determination.
(b) If 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 in such jurisdiction and shall not in any manner
affect such provision in any other jurisdiction or any other provision of this
Declaration of Trust in any jurisdiction.
Section 5. Statutory Trust Only. It is the intention of the Trustees to
create a statutory trust pursuant to the DSTA, and thereby to create hereby the
relationship of trustee and beneficial owners within the meaning of the DSTA
between, respectively, the Trustees and each Shareholder. It is not the
intention of the Trustees to create a general or limited partnership, limited
liability company, joint stock association, corporation, bailment, or any form
of legal relationship other than a statutory trust pursuant to the DSTA. Nothing
in this Declaration of Trust shall be construed to make the Shareholders, either
by themselves or with the Trustees, partners or members of a joint stock
association.
Section 6. Fiscal Year. The fiscal year of the Trust shall end as set forth
in the Bylaws, provided, however, that the Trustees may, without Shareholder
approval, change the fiscal year of the Trust.
Section 7. Use of the Name "Aberdeen". The Board of Trustees expressly
agrees and acknowledges that the name "Aberdeen," is the sole property of
Aberdeen Asset Management Inc. ("AAM"). AAM has granted to the Trust a
non-exclusive license to use such name as part of the name of the Trust now and
in the future; provided that the activities and operations of the Trust under
this license are in compliance with the quality standards set by AAM. The Board
of Trustees further expressly agrees and acknowledges that the non-exclusive
license granted herein may be terminated by AAM if the Trust ceases to use AAM
or one of its Affiliates as Investment Adviser or to use other Affiliates or
successors of AAM for such purposes. In such event, the
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nonexclusive license may be revoked by AAM and the Trust shall cease using the
name "Aberdeen," or any name misleadingly implying a continuing relationship
between the Trust and AAM or any of its Affiliates, as part of its name unless
otherwise consented to by AAM or any successor to its interests in such names.
The Board of Trustees further understands and agrees that so long as AAM
and/or any future advisory Affiliate of AAM shall continue to serve as the
Trust's Investment Adviser, other registered open- or closed-end investment
companies ("funds") as may be sponsored or advised by AAM or its Affiliates
shall have the right permanently to adopt and to use the name "Aberdeen", in
their names and in the names of any series or class of shares of such funds.
(Signatures on next page.)
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IN WITNESS WHEREOF, the Trustees named below do hereby make and enter into
this Declaration of Trust as of the date first above written.
/s/P. Xxxxxx Xxxxxx /s/Xxxxxx X. Xxxxx
P. Xxxxxx Xxxxxx Xxxxxx X. Xxxxx
Trustee Trustee
/s/Xxxxxxx X. XxXxx /s/Xxxx Xxxxx
Xxxxxxx X. XxXxx Xxxx Xxxxx
Trustee Trustee
/s/Xxxxx X. Xxxxx /s/Xxxxxx Xxxxxxx
Xxxxx X. Xxxxx Xxxxxx Xxxxxxx
Trustee Trustee
/s/Xxxx X. Xxxxxx /s/Xxxx X. Xxxxxxxx
Xxxx X. Xxxxxx Xxxx X. Xxxxxxxx
Trustee Trustee
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Schedule A - Series of the Trust
Aberdeen Small Cap Fund
Aberdeen Global Natural Resources Fund
Aberdeen Mid Cap Growth Fund
Aberdeen Tax-Free Income Fund
Aberdeen Hedged Core Equity Fund
Aberdeen Select Growth Fund
Aberdeen Global Technology and Communications Fund
Aberdeen Global Health Sciences Fund
Aberdeen Global Financial Services Fund
Aberdeen Select Equity Fund
Aberdeen Equity Long-Short Fund
Aberdeen Small Cap Value Fund
Aberdeen Small Cap Opportunities Fund
Aberdeen Market Neutral Fund
Aberdeen Small Cap Growth Fund
Aberdeen Select Small Cap Fund
Aberdeen China Opportunities Fund
Aberdeen Developing Markets Fund
Aberdeen International Equity Fund
Aberdeen Select Worldwide Fund
Aberdeen Global Utilities Fund
Aberdeen Optimal Allocations Fund: Moderate
Aberdeen Optimal Allocations Fund: Moderate Growth
Aberdeen Optimal Allocations Fund: Growth
Aberdeen Optimal Allocations Fund: Specialty
Aberdeen Optimal Allocations Fund: Defensive
Date: December 12, 2007
A-1
