EXHIBIT INDEX
Attachment to item 77Q1: - Exhibits
EXHIBIT A: AMENDED AND RESTATED DECLARATION OF TRUST
EXHIBIT B: INVESTMENT ADVISORY AGREEMENT - SCHEDULE A
EXHIBIT C: INVESTMENT SUB-ADVISORY AGREEMENT
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EXHIBIT A:
▇▇▇▇▇ FARGO FUNDS TRUST
AMENDED AND RESTATED DECLARATION OF TRUST
DATED NOVEMBER 5, 2002
[PAGE BREAK]
DECLARATION OF TRUST
OF
▇▇▇▇▇ FARGO FUNDS TRUST
TABLE OF CONTENTS
Page Numbers
ARTICLE I DEFINITIONS 1
ARTICLE II THE TRUSTEES 2
Section 1. Management of the Trust 2
Section 2. Initial Trustees; Election and Number of Trustees 2
Section 3. Term of Office of Trustees. 3
Section 4. Age Limitation of Trustees 3
Section 5. Vacancies; Appointment of Trustees 3
Section 6. Temporary Vacancies or Absence 4
Section 7. Chairman; Lead Trustee 4
Section 8. Action by Trustees. 4
Section 9. Meetings of the Trustees; Required Notice 4
Section 10. Committees 5
Section 11. Audit Committee 5
Section 12. Nominating Committee 6
Section 13. Ownership of Trust Property 6
Section 14. Effect of Trustees Not Serving 6
Section 15. Trustees as Shareholders 6
Section 16. Compensation of Trustees 6
ARTICLE III POWERS OF THE TRUSTEES 7
Section 1. Powers 7
Section 2. Certain Transactions 10
ARTICLE IV SERIES; CLASSES; SHARES 10
Section 1. Establishment of Series or Class 10
Section 2. Shares 10
Section 3. Investment in the Trust 11
Section 4. Assets and Liabilities of Series. 11
Section 5. Ownership and Transfer of Shares 12
Section 6. Status of Shares; Limitation of Shareholder
Liability 12
ARTICLE V DISTRIBUTIONS AND REDEMPTIONS 13
Section 1. Distributions 13
Section 2. Redemptions 13
Section 3. Determination of Net Asset Value 13
Section 4. Suspension of Right of Redemption 14
ARTICLE VI SHAREHOLDERS' VOTING POWERS AND MEETINGS 14
Section 1. Voting Powers 14
Section 2. Meetings of Shareholders 15
Section 3. Quorum; Required Vote 15
Section 4. Inspectors of Election 15
ARTICLE VII CONTRACTS WITH SERVICE PROVIDERS 16
Section 1. Investment Adviser 16
Section 2. Principal Underwriter 16
Section 3. Transfer Agency, Accounting, Administration and
Other Services 16
Section 4. Custodian 16
Section 5. Parties to Contracts with Service Providers 17
ARTICLE VIII EXPENSES OF THE TRUST AND SERIES 17
ARTICLE IX LIMITATION OF LIABILITY AND INDEMNIFICATION 18
Section 1. Limitation of Liability 18
Section 2. Mandatory Indemnification 18
Section 3. Indemnification of Shareholders 20
Section 4. Contractual Modification of Duties 20
ARTICLE X OFFICERS 20
Section 1. General 20
Section 2. Election, Tenure and Qualifications of Officers 20
Section 3. Vacancies and Newly Created Offices 20
Section 4. Removal and Resignation 21
Section 5. President 21
Section 6. Treasurer and Assistant Treasurers 21
Section 7. Secretary and Assistant Secretaries 21
Section 8. Authority to Execute and File Applications for
Exemptive Relief 22
Section 9. Compensation of Officers 22
Section 10. Surety Bond 22
ARTICLE XI MISCELLANEOUS 22
Section 1. Trust Not a Partnership 22
Section 2. Trustee Action; Expert Advice; No Bond or Surety 22
Section 3. Record Dates 22
Section 4. Dissolution or Termination of a Class, Series or
the Trust 23
Section 5. Reorganization 24
Section 6. Declaration 24
Section 7. Derivative Actions 24
Section 8. Applicable Law 25
Section 9. Amendments 25
Section 10. Fiscal Year 25
Section 11. Severability 25
Section 12. Principal Office 26
Section 13. Maintenance and Inspection of the Books. 26
AMENDED AND RESTATED
DECLARATION OF TRUST
OF
▇▇▇▇▇ FARGO FUNDS TRUST
This Declaration of Trust, made on March 10, 1999, and
amended and restated on March 26, 1999, August 19, 1999, and
November 5, 2002, creates a Delaware business trust, and by the
November 5, 2002 restatement, a Delaware statutory trust, for
the investment and reinvestment of money and property received
by the Trust from time to time. The Trustees declare that all
money and property received by the Trust shall be held and
managed in trust pursuant to this Declaration. The name of the
Trust created by this Declaration is ▇▇▇▇▇ Fargo Funds Trust.
ARTICLE I
DEFINITIONS
Unless otherwise provided or required by the context:
(a) "1940 Act" means the Investment Company Act of 1940,
as amended from time to time, and all terms and requirements
that are defined herein by reference to the 1940 Act shall be
interpreted as that term or requirement has been modified or
interpreted by applicable orders of the Commission or any rules
or regulations adopted by, or interpretive releases of the
Commission or its staff, and staff no-action letters issued
under the 1940 Act;
(b) "Board" means the Board of Trustees of the Trust as
described in Article II of this Declaration;
(c) "By-Laws" means the By-Laws of the Trust if adopted by
the Trustees, as amended from time to time;
(d) "Class" means the class of Shares of a Series
established pursuant to Article IV;
(e) "Code" means the Internal Revenue Code of 1986, as
amended from time to time, and the rules and regulations
thereunder, as adopted or amended from time to time;
(f) "Commission," "Interested Person," and "Principal
Underwriter" have the meanings provided in the 1940 Act;
(g) "Covered Person" means a person so defined in
Article IX, Section 2;
(h) "Declaration" shall mean this Amended and Restated
Declaration of Trust as amended, modified, supplemented or
restated from time to time.
(i) "Delaware Act" means Chapter 38 of Title 12 of the
Delaware Code entitled "Treatment of Delaware Statutory Trusts,"
as amended from time to time, and as interpreted by the Delaware
courts;
(j) "Majority Shareholder Vote" means "the vote of a
majority of the outstanding voting securities" as defined in the
1940 Act of a Class, a Series, or the Trust as the case may be;
(k) "Net Asset Value" means the net asset value of each
share of a Class or Series of the Trust, determined as provided
in Article V, Section 3;
(l) "Outstanding Shares" means Shares shown in the books
and records of the Trust or its transfer agent as then issued
and outstanding, but does not include any Shares that have been
repurchased or redeemed by the Trust and are being held in the
treasury of the Trust;
(m) "Series" means a series of Shares established pursuant
to Article IV;
(n) "Shareholder" means a record owner of Outstanding
Shares;
(o) "Shares" means the equal proportionate transferable
units of interest into which the beneficial interest of each
Series or Class is divided from time to time (including whole
Shares and fractions of Shares);
(p) "Trust" means ▇▇▇▇▇ Fargo Funds Trust, created hereby;
(q) "Trustee" means a person serving as a Trustee in
accordance with Article II, in his capacity as such, and
"Trustees," when used collectively, means the Trustees acting
collectively as the Board;
(r) "Trust Property" means any and all property, real or
personal, tangible or intangible, which is owned or held by or
for the Trust or any Series or by the Trustees on behalf of the
Trust or any Series.
ARTICLE II
THE TRUSTEES
Section 1. Management of the Trust.
The business and affairs of the Trust shall be managed by
or under the direction of the Board, and the Trustees shall have
all powers necessary or desirable, convenient or incidental, to
carry out that responsibility. The Trustees may execute all
instruments and take all action they deem necessary, desirable,
convenient or incidental, to promote the interests of the Trust.
To the extent allowable under federal and state law, the Board
may delegate any or all of its responsibilities to one or more
appropriate officers of the Trust and/or any other person. Any
determination made by the Trustees in good faith as to what is
in the interests of the Trust shall be conclusive.
Section 2. Initial Trustees; Election and Number of
Trustees. The initial Trustees shall be the persons initially
signing this Declaration prior to its amendment and restatement.
The number of Trustees (other than the initial Trustees) shall
be such number as is fixed from time to time by a majority of
the Trustees; provided, that the number shall, at all times, be
at least two (2). The Shareholders shall elect the Trustees
only if required by the 1940 Act, on such dates as the Trustees
may fix from time to time. Otherwise, the Trustees other than
the initial Trustees shall be appointed by the other Trustees as
provided herein.
Section 3. Term of Office of Trustees. Each Trustee shall
hold office for life or until his or her successor is elected or
the Trust terminates; except that (a) any Trustee may resign by
delivering to the other Trustees or to any Trust officer a
written resignation effective upon delivery or a later date
specified therein; (b) any Trustee may be removed with or
without cause at any time by a written instrument signed by at
least two-thirds of the other Trustees, specifying the effective
date of removal; (c) any Trustee who requests to be retired, or
has become physically or mentally incapacitated or is otherwise
unable to serve fully, may be retired by a written instrument
signed by a majority of the other Trustees, specifying the
effective date of retirement; and (d) any Trustee may be removed
at any meeting of the Shareholders by a vote of at least two-
thirds of the Outstanding Shares if required by Section 16(c) of
the 1940 Act as interpreted by the staff of the Commission.
Notwithstanding the foregoing, each Trustee shall retire from
service on the Board no later than the end of the calendar year
in which such Trustee reaches the age of 72, or such other time
as may be determined by an appropriate resolution of the full
Board, including a majority of the remaining Trustees.
Section 4. Age Limitation of Trustees. No person shall
stand for election or be appointed as a Trustee if such person
has already reached the age of 70.
Section 5. Vacancies; Appointment of Trustees. Whenever a
vacancy in the Board exists, regardless of the reason for such
vacancy, the remaining Trustees may appoint any person as they
determine in their sole discretion to fill that vacancy, except
that the Trustee appointed may not be an Interested Person if
the appointment of an Interested Person would cause a violation
of the 1940 Act, and the person must meet the qualification
standards set out in Section 4. Such appointment shall be made
by a written instrument signed by a majority of the Trustees or
by an appropriate resolution, duly adopted and recorded in the
records of the Trust, specifying the effective date of the
appointment. The Trustees may appoint a new Trustee as provided
above in anticipation of a vacancy expected to occur because of
the retirement, resignation, or removal of a Trustee, or an
increase in number of Trustees, provided that such appointment
shall become effective only at or after the expected vacancy
occurs. As soon as any such Trustee has signed this Declaration
or otherwise accepted his or her appointment in writing, the
trust estate shall vest in the new Trustee, together with the
continuing Trustees, without any further act or conveyance, and
he or she shall be deemed a Trustee hereunder. The power of
appointment is subject to Section 16(a) of the 1940 Act, and
shareholders are entitled to vote on such appointments only if
expressly required under the 1940 Act.
The death, resignation, retirement, removal or incapacity
of one or more Trustees, or all of them, shall not operate to
annul the Trust or to revoke any existing agency created
pursuant to the terms of this Declaration. Whenever a vacancy
on the Board shall occur, until such vacancy is filled, the
Trustees in office, regardless of their number, shall have all
the powers granted to the Trustees and shall discharge all the
duties imposed upon the Trustees by this Declaration. As
conclusive evidence of such vacancy, a written instrument
certifying the existence of such vacancy may be executed by an
officer of the Trust or by a majority of the Board. In the
event of the death, resignation, retirement, removal or
incapacity of all the then Trustees within a short period of
time and without the opportunity for at least one Trustee being
able to appoint additional Trustees to fill vacancies, the
Trust's investment adviser(s) are empowered to appoint new
Trustees subject to the provisions of Section 16(a) of the 1940
Act.
Notwithstanding the foregoing, all of the initial Trustees
may resign by written instrument to be effective on the date
specified in the instrument ("Resignation Instrument").
However, before resigning as permitted in this paragraph, the
initial Trustees shall determine and set forth in the
Resignation Instrument the number of Trustees of the Trust
(subject to the Trustees' power to change the number as detailed
in Section 2 of this Article) and shall appoint their
successors.
Section 6. Temporary Vacancies or Absence. Whenever a
vacancy in the Board exists, until such vacancy is filled, or
while any Trustee is absent from his or her domicile (unless
that Trustee has made arrangements to be informed about, and to
participate in, the affairs of the Trust during such absence),
or is physically or mentally incapacitated or is otherwise
unable to serve fully, the remaining Trustees shall have all the
powers hereunder and their certification as to such vacancy,
absence, or incapacity or inability shall be conclusive. To the
extent permitted under the 1940 Act, any Trustee may, by power
of attorney, delegate his or her powers as Trustee for a period
not exceeding six (6) months at any one time to any other
Trustee or Trustees.
Section 7. Chairman; Lead Trustee. The Board may appoint
one or more of its members to be Chairman or Co-Chairmen of the
Board. References to the Chairman in this Declaration shall be
construed to include any such Co-Chairmen, acting singly or
jointly as the context requires. The Chairman shall preside at
all meetings of the Trustees, and shall have such other powers
and responsibilities and any limitations thereon as the Trustees
may determine from time to time. Absent an express declaration
otherwise by an appropriate resolution of the Board, the
Chairman is not considered an officer of the Trust and shall not
have the powers or duties of an officer of the Trust.
In addition to a Chairman, the Board may appoint one or
more Trustees as "Lead Trustee(s)" to act as a liaison with
service providers, officers, attorneys, and other Trustees
generally between meetings, and with such other powers and
responsibilities and any limitations thereon as the Trustees may
determine from time to time.
Section 8. Action by Trustees. The Trustees shall act by
majority vote at a meeting duly called at which a quorum is
present, in person or by proxy, or by written consent of a
majority of the Trustees (or such greater number as may be
required by applicable law) without a meeting. Unless a higher
amount is required by this Declaration, by Board resolution, or
the 1940 Act, a quorum of the Trustees at a meeting shall be
one-third of the total number of Trustees, present in person or
by proxy, but no less than two Trustees present in person. An
action of a majority of the Trustees present in person or by
proxy, or acting by written consent, shall constitute action by
the Trustees except to the extent otherwise required by the 1940
Act, this Declaration or by Board resolution. Any Trustee may
grant a proxy to any other Trustee to the extent (and in the
manner) permitted by Delaware law.
Section 9. Meetings of the Trustees; Required Notice.
Unless required under this Declaration or under the 1940 Act,
the Trustees may act with or without a meeting. All of the
Trustees or any one of them may participate in a meeting by
means of a conference call or similar communication equipment,
provided that all participants may hear each other, and
participation in a meeting pursuant to such communication
equipment shall constitute presence at the meeting, unless the
1940 Act specifically requires the Trustees to act "in person,"
in which case such term shall be construed in accordance with
the 1940 Act. Unless required otherwise by this Declaration,
Board resolution or by the 1940 Act, any action of the Trustees
may be taken without a meeting by written consent of a majority
of the Trustees.
Meetings of the Trustees may be called orally or in writing
by the Chairman, if any, or by any two other trustees. Regular
meetings of the Trustees may be held without call or notice at a
place and time fixed by Board resolution of the Trustees.
Notice of any other meeting shall, and notice of any regular
meeting may, be given to each Trustee by first class mail sent
at least three business days before the meeting, by overnight
delivery sent at least two business days before the meeting, or
by telephone, facsimile, email or other electronic mechanism
sent to his or her home or business address at least twenty-four
hours before the meeting. Notice need not be given to any
Trustee who attends the meeting without objecting to the lack of
notice or who signs a waiver of notice either before or after
the meeting. Subject only to any express limitation in the 1940
Act, the Board, by majority vote, may delegate to any
Trustee(s), officer(s), or any other individual(s), the
authority to approve particular matters or take particular
action on behalf of the Trust, including adjournment of any
meeting to another time and place. Written consents or waivers
of the Trustees may be executed in one or more counterparts, and
may be provided and delivered to the Trust by facsimile, email
or other similar electronic mechanism.
Section 10. Committees. To facilitate certain
requirements under the 1940 Act, the Trust shall have a standing
Audit Committee and a standing Nominating Committee
(collectively, the "Standing Committees"). The Trustees may
designate other committees of the Board. The Trustees shall
determine the number of members of each committee, and may
determine the quorum for each committee, and shall appoint its
members and its chair. Each committee member shall serve at the
pleasure of the Trustees. The Trustees may abolish any
committee other than the Standing Committees, at any time. Each
committee shall maintain records of its meetings and report its
actions to the full Board. The Trustees may rescind any action
of any committee, but such rescission shall not have retroactive
effect except as agreed by the committee. The Trustees may
delegate to any committee any of its powers, subject only to the
express limitations of the 1940 Act.
Committees may act with or without a meeting. Each
committee may adopt such rules governing its proceedings, quorum
and manner of acting as it deems proper and desirable if the
Board does not determine otherwise. In the absence of the
adoption of such rules, a majority of the committee shall
constitute a quorum, and a committee shall act at a meeting by
the vote of a majority of the members present, or without a
meeting by written consent of a majority of the committee
members.
Section 11. Audit Committee. The Audit Committee is
responsible for (a) recommending independent accountants for
selection by the Boards, (b) reviewing the scope of audit,
accounting and financial internal controls and the quality and
adequacy of each Trust's accounting staff with the independent
accountants and such other persons as may be deemed appropriate,
(c) reviewing, as necessary, with the accounting staff and the
independent accountants the compliance of transactions between
each Trust and any affiliated persons of the Trust,
(d) reviewing reports of the independent accountants, and
(e) making themselves directly available to the independent
accountants and responsible officers of the Trusts for
consultation on audit, accounting and related financial matters.
The Board may expand or clarify the responsibilities of the
Audit Committee by adopting a committee charter or otherwise,
but may not narrow the responsibilities set forth here without
the consent of the Audit Committee.
Section 12. Nominating Committee. The Nominating
Committee is responsible for recommending to the Board persons
to be nominated for election as Trustees by the Shareholders at
any required Shareholder meeting and a person to be appointed to
fill any vacancy occurring on the Board. Notwithstanding this
section, the nomination and selection of those Trustees who are
not Interested Persons shall be committed to the discretion of
the Trustees who are not Interested Persons so long as the Trust
has in effect one or more plans pursuant to Rule 12b-1 under the
1940 Act or relies on one or more of the Rules under the 1940
Act that condition reliance thereon on such commitment. The
Board may expand or clarify the responsibilities of the
Nominating Committee by adopting a committee charter or
otherwise, but may not narrow the responsibilities set forth
here without the consent of the Nominating Committee.
Section 13. Ownership of Trust Property. The Trust
Property of the Trust and of each Series shall be held separate
and apart from any assets now or hereafter held in any capacity
(other than as Trustee hereunder) by the Trustees or any
successor Trustees. All of the Trust Property and legal title
thereto shall at all times be considered as vested in the
Trustees on behalf of the Trust, except that the Trustees may
cause legal title to any Trust Property to be held by or in the
name of the Trust, or in the name of any person as nominee. No
Shareholder shall have any interest in specific property of the
Trust or of any Series or any right of partition or possession
thereof, but each Shareholder shall have, as provided in
Article IV, a proportionate undivided beneficial interest in the
assets of the Trust or Series represented by ▇▇▇▇▇▇.
Section 14. Effect of Trustees Not Serving. The death,
resignation, retirement, removal, incapacity, or inability or
refusal to serve of any one or more or all of the Trustees,
shall not operate to annul the Trust or to revoke any existing
agency created pursuant to the terms of this Declaration.
Section 15. Trustees as Shareholders. Subject to any
restrictions that the Trustees may establish, any Trustee,
officer, agent or independent contractor of the Trust may
acquire, own and dispose of Shares to the same extent as any
other Shareholder. The Trustees are not required to be
Shareholders of the Trust.
Section 16. Compensation of Trustees. Each Trustee and
each committee member may receive such compensation for his or
her services and reimbursement for expenses as may be fixed from
time to time by the Trustees. The Chairman, any Lead Trustee
and any committee chairman may receive such additional
compensation as may be fixed from time to time by the Trustees.
Nothing herein shall be construed to preclude any Trustee from
serving the Trust in any other capacity as an officer, agent,
employee, or otherwise and receiving compensation for those
services. Nothing herein shall be construed to preclude the
employment of any Trustee for advisory, management, legal,
accounting, investment banking, or other services and payment
for the same by the Trust.
ARTICLE III
POWERS OF THE TRUSTEES
Section 1. Powers. The Board shall have full, exclusive
and complete power and discretion to manage and control the
business and affairs of the Trust, and to make all decisions
affecting the business and affairs of the Trust. No Shareholder
or assignee of Shares, as such, shall have any authority, right
or power to bind the Trust or to manage or control, or to
participate in the management or control of, the business and
affairs of the Trust in any manner whatsoever. The Trustees
shall have exclusive and absolute control over the Trust
Property and over the business of the Trust to the same extent
as if they were the sole owners of the Trust Property and
business in their own right. The Trustees shall have full power
and authority to take or refrain from taking any action and to
execute any contracts and instruments that they may consider
necessary, desirable, convenient or incidental in the management
of the Trust. To the fullest extent permitted by applicable
law, the Trustees shall not in any way be bound or limited by
current or future laws or customs applicable to trust
investments, but shall have full power and authority to make any
investments which they, in their sole discretion, deem proper to
accomplish the purposes of the Trust, and to dispose of the
same. The Trustees may exercise all of their powers without
recourse to any court or other authority. Subject only to any
express limitation in the 1940 Act, this Declaration or
contained in any Board resolution, the Trustees' power and
authority shall include, without limitation, the power and the
authority:
(a) To operate as and carry on the business of a registered
investment company, and exercise all the powers necessary,
proper or convenient to conduct such a business;
(b) To subscribe for, invest in, reinvest in, purchase, or
otherwise acquire, hold, pledge, sell, assign, transfer,
exchange, distribute, or otherwise deal in or dispose of any
form of property, including, without limitation, cash (U.S.
currency, foreign currencies and related instruments), and
securities (including, without limitation, common and preferred
stocks, equity interests and securities, warrants, bonds,
debentures, time notes, and all other evidences of indebtedness,
negotiable or non-negotiable instruments, obligations,
certificates of deposit or indebtedness, commercial paper,
repurchase agreements, reverse repurchase agreements,
convertible securities, forward contracts, options, and futures
contracts) issued, guaranteed, or sponsored by, without
limitation, any state, territory, or possession of the United
States or the District of Columbia or their political
subdivisions, agencies, or instrumentalities, or by the U.S.
government, any foreign government, or any agency,
instrumentality, or political subdivision thereof, or by any
international instrumentality, or by any bank, savings
institution, corporation, partnership, limited liability
company, trust, or other business entity organized under the
laws of the United States (including a registered investment
company or any series thereof, subject to the provisions of the
1940 Act) or under foreign laws without regard to whether any
such securities mature before or after the possible termination
of the Trust; to exercise any and all rights, powers, and
privileges of ownership or interest in respect of any and all
such property of every kind and description; and to hold cash or
other property uninvested, without in any event being bound or
limited by any current or future law or custom concerning
investments by trustees;
(c) To adopt By-Laws not inconsistent with this Declaration
providing for the conduct of the business of the Trust and to
amend and repeal them;
(d) To elect and remove such officers of the Trust and
appoint and terminate such agents of the Trust as they deem
appropriate;
(e) To employ as custodian of any assets of the Trust,
subject to any provisions herein or by resolution of the Board,
one or more banks, trust companies or companies that are members
of a national securities exchange, or other entities permitted
by the Commission to serve as such;
(f) To retain one or more investment advisers,
administrators, transfer agents or shareholder servicing agents,
with any such sub-service providers as the investment advisers,
administrators, transfer agents, or shareholder servicing agents
shall recommend or retain;
(g) To provide for the distribution of Shares either through
a Principal Underwriter as provided herein or by the Trust
itself, or both, and, subject to applicable law, to adopt a
distribution plan of any kind;
(h) To set record dates in the manner provided for herein or
in the By-Laws;
(i) To delegate such authority as they consider desirable to
such of their number or to officers, employees or agents of the
Trust including, without limitation, the ability to perform
actions or execute instruments in the name of the Trust, the
name of the Trustees or otherwise as the Trustees may deem
necessary, desirable or convenient;
(j) To sell or exchange any or all of the assets of the
Trust, subject to Article XI, Section 4;
(k) To vote or give assent, or exercise any rights of
ownership, with respect to other securities or property; and, if
necessary, to execute and deliver powers of attorney delegating
such power to other persons;
(l) To establish separate and distinct Series, each with its
own defined investment objectives and policies and distinct
investment purposes, and with separate Shares representing
beneficial interests in such Series, and to establish separate
Classes, all in accordance with the provisions of Article IV;
(m) To incur and pay all expenses that in the Trustees'
opinion are necessary or incidental to carry out any of the
purposes of this Declaration; to pay reasonable compensation to
themselves as Trustees from the Trust Property or the assets
belonging to any appropriate Series or Class; to pay themselves
such compensation for special services, including legal and
brokerage services, and such reimbursement for expenses
reasonably incurred by themselves on behalf of the Trust or any
Series or Class, as they in good faith may deem reasonable; and
to fix the compensation of all officers and employees of the
Trust;
(n) To the full extent permitted by Section 3804 of the
Delaware Act, to allocate assets, revenue, liabilities and
expenses of the Trust to a particular Series and liabilities and
expenses to a particular Series or Class or to apportion the
same between or among two or more Series or Classes, provided
that any liabilities or expenses incurred by a particular Series
or Class shall be payable solely out of the assets belonging to
that Series or Class as provided for in Article IV, Section 4;
(o) 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;
(p) To make distributions of income and of capital gains to
Shareholders in the manner hereinafter provided for;
(q) To borrow money or other property, issue evidence of
indebtedness or otherwise obtain credit and to secure the same
by mortgaging, pledging, or otherwise subjecting as security any
assets of the Trust, including the lending of portfolio
securities, and to endorse, guarantee, or undertake the
performance of any obligation, contract, or engagement of any
other person, firm, association, or corporation, subject only to
the requirements of the 1940 Act and any other applicable law;
(r) To establish committees for such purposes, with such
membership, and with such responsibilities as the Trustees may
consider proper, including a committee consisting of fewer than
all of the Trustees then serving, which may act for and bind the
Trustees and the Trust with respect to the institution,
prosecution, dismissal, settlement, review or investigation of
any legal action, suit or proceeding, pending or threatened;
(s) To purchase, and pay for out of Trust Property or the
assets belonging to any appropriate Series, insurance policies
insuring the Shareholders, Trustees, officers, employees,
agents, and/or independent contractors of the Trust (including
the investment adviser of any Series) against all claims arising
by reason of holding any such position or by reason of any
action taken or omitted by any such person in such capacity,
whether or not the Trust would have the power to indemnify such
person against such claim;
(t) To issue, sell, repurchase, redeem, cancel, retire,
acquire, hold, resell, reissue, dispose of and otherwise deal in
Shares; to establish terms and conditions regarding the
issuance, sale, repurchase, redemption, cancellation,
retirement, acquisition, holding, resale, reissuance,
disposition of or dealing in Shares; and, subject to Articles IV
and V, to apply to any such repurchase, redemption, retirement,
cancellation or acquisition of Shares any funds or property of
the Trust or of the particular Series with respect to which such
Shares are issued;
(u) To definitively interpret the investment objectives,
policies and limitations of the Trust or any Series; and
(v) To carry on any other business in connection with or
incidental to any of the foregoing powers, to do everything
necessary, desirable or convenient to accomplish any purpose or
to further any of the foregoing powers, and to take any other
action in connection with or incidental to the foregoing
business or purposes, objects or powers.
The clauses above shall be construed as objects and powers,
and the enumeration of specific powers shall not limit in any
way the general powers of the Board or the Trustees. Any action
by one or more of the Trustees in their capacity as Trustee(s)
shall be deemed an action on behalf of the Trust or the
applicable Series, and not an action in an individual capacity.
No one dealing with the Trustees shall be under any obligation
to make any inquiry concerning the authority of the Trustees, or
to see to the application of any payments made or property
transferred to the Trustees or upon their order. In construing
this Declaration, the presumption shall be in favor of a grant
of power to the Board and the Trustees.
Section 2. Certain Transactions. Except as expressly
prohibited by applicable law, the Trustees may, on behalf of the
Trust, buy any securities from or sell any securities to, or
lend any assets of the Trust to, any Trustee or officer of the
Trust or any firm of which any such Trustee or officer is a
member, acting as principal, or have any such dealings with any
investment adviser, administrator, principal underwriter or
transfer agent for the Trust or with any Interested Person of
such person. The Trust may employ any such person or entity in
which such person is an Interested Person, or broker, legal
counsel, registrar, investment adviser, administrator,
distributor, transfer agent, dividend disbursing agent,
custodian or in any other capacity upon customary terms.
ARTICLE IV
SERIES; CLASSES; SHARES
Section 1. Establishment of Series or Class. The Board
may divide the Trust into one or more Series. The Trustees may
divide any Series into one or more Classes of Shares. The
Initial Trustees shall establish the initial Series and Classes
of each Series by written unanimous consent. Each additional
Series or division of Series into Classes may be established by
any permissible action of the Trustees, including by resolution
at a meeting. The Trustees may designate the relative rights
and preferences of the Shares of each Series. If a Series is
divided into Classes, each Class of a Series shall represent an
undivided beneficial interest in the assets of that Series and
have identical voting, dividend, liquidation and other rights
and the same terms and conditions, except that expenses
allocated to a Class shall be borne solely by such Class as
determined by the Trustees and a Class may have exclusive voting
rights with respect to matters affecting only that Class. The
Trust shall maintain separate and distinct records for each
Series and hold and account for the assets thereof separately
from the other assets of the Trust or of any other Series. A
Series may issue any number of Shares and need not issue any
Shares. Each Share of a Series shall represent an equal
undivided beneficial interest in the net assets of such Series
except to the extent affected by expense allocations. Each
holder of Shares of a Series shall be entitled to receive his or
her pro rata share of all distributions made with respect to
such Series except to the extent affected by expense
allocations. Upon redemption of his or her Shares, such
Shareholder shall be paid solely out of the funds and property
of such Series. The Trustees may change the name of any Series
or Class.
Section 2. Shares. The beneficial interest in the Trust
shall be divided into Shares of one or more separate and
distinct Series or Classes established by the Trustees. The
number of Shares of each Series and Class is unlimited and each
Share shall have a par value (if any) as the Trustees may
determine from time to time. All Shares issued hereunder shall
be fully paid and nonassessable. Shareholders shall have no
preemptive or other right to subscribe to any additional Shares
or other securities issued by the Trust. The Trustees shall
have full power and authority, in their sole discretion and
without obtaining Shareholder approval, to: (i) issue original
or additional Shares at such times and on such terms and
conditions as they deem appropriate; (ii) issue fractional
Shares and Shares held in the treasury; (iii) establish and
change in any manner Shares of any Series or Classes with such
preferences, terms of conversion, voting powers, rights and
privileges as the Trustees may determine; (iv) divide or
combine the Shares of any Series or Classes into a greater or
lesser number; (v) classify or reclassify any unissued Shares
of any Series or Classes into one or more Series or Classes of
Shares; (vi) abolish and/or liquidate any one or more Series or
Classes of Shares; (vii) issue Shares to acquire other assets
(including assets subject to, and in connection with, the
assumption of liabilities) and businesses; and (viii) take such
other action with respect to the Shares as the Trustees may deem
desirable. Shares held in the treasury shall not confer any
voting rights on the Trustees and shall not be entitled to any
dividends or other distributions declared with respect to the
Shares. Except as expressly required under the 1940 Act or
conferred under other applicable law, Shareholders shall have no
right to obtain or inspect any information regarding Share
ownership, and may not obtain or inspect a shareholder list,
except as the Trustees may expressly authorize.
Section 3. Investment in the Trust. The Trust may accept
investments in any Series from any persons and in any form,
subject to such limitations or terms as they may from time to
time impose. Unless the Board directs otherwise, such
investments, subject only to the express requirements of the
1940 Act, may be in the form of cash or securities in which that
Series is authorized to invest, valued as provided in Article V,
Section 3. Investments in a Series shall be credited to each
Shareholder's account in the form of full Shares at the Net
Asset Value per Share next determined after the investment is
received or accepted as may be determined by the Trustees;
provided, however, that the Trustees may, in their discretion,
(a) impose a sales charge upon investments in any Series or
Class, (b) issue fractional Shares, or (c) determine the Net
Asset Value per Share of the initial investment. The Trustees
shall have the right to refuse to accept investments, or any
investment, in any Series at any time without any cause or
reason whatsoever.
Section 4. Assets and Liabilities of 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 (including any proceeds
derived from the sale, exchange or liquidation of such assets,
and any funds or payments derived from any reinvestment of such
proceeds in whatever form the same may be), shall be held and
accounted for separately from the other assets of the Trust and
every other Series and are referred to as "assets belonging to"
that Series. The assets belonging to a Series shall belong only
to that Series for all purposes, and to no other Series, and
shall be subject only to the rights of creditors of that Series.
Any assets, income, earnings, profits, and proceeds thereof,
funds, or payments which are not readily identifiable as
belonging to any particular Series shall be allocated by the
Trustees or officers of the Trust between and among one or more
Series as the Trustees or officers deem fair and equitable.
Each such allocation shall be conclusive and binding upon the
Shareholders of all Series for all purposes, and such assets,
earnings, income, profits or funds, or payments and proceeds
thereof shall be referred to as assets belonging to that Series.
The assets belonging to a Series shall be so recorded upon the
books of the Trust, and shall be held by the Trustees in trust
for the benefit of the Shareholders of that Series. The assets
belonging to a Series shall be charged with the liabilities of
that Series and all expenses, costs, charges and reserves
attributable to that Series, except that liabilities and
expenses allocated solely to a particular Class shall be borne
by that Class. Any general liabilities, expenses, costs,
charges or reserves of the Trust which are not readily
identifiable as belonging to any particular Series or Class
shall be allocated and charged by the Trustees or officers of
the Trust between or among any one or more of the Series or
Classes in such manner as the Trustees or officers deem fair and
equitable. Each such allocation shall be conclusive and binding
upon the Shareholders of all Series or Classes for all purposes.
Without limiting the foregoing, but subject to the right of
the Trustees or officers of the Trust to allocate general
liabilities, expenses, costs, charges or reserves as herein
provided, the debts, liabilities, obligations and expenses
incurred, contracted for or otherwise existing with respect to a
particular Series shall be enforceable against the assets of
such Series only, and not against the assets of the Trust
generally or of any other Series and, unless otherwise provided
in this Declaration, none of the debts, liabilities,
obligations, expenses incurred, contracted for or otherwise
existing with respect to the Trust generally or any other Series
shall be enforceable against the assets of a Series. Notice of
this contractual limitation on liabilities among Series may, in
the Trustees' discretion, be set forth in the certificate of
trust of the Trust (whether originally or by amendment) as filed
or to be filed in the Office of the Secretary of State of the
State of Delaware pursuant to the Delaware Act, and upon the
giving of such notice in the certificate of trust, the statutory
provisions of Section 3804 of the Delaware Act relating to
limitations on liabilities among Series (and the statutory
effect under Section 3804 of the Delaware Act of setting forth
such notice in the certificate of trust) shall become applicable
to the Trust and each Series. Any person extending credit to,
contracting with or having any claim against any Series may look
only to the assets of that Series to satisfy or enforce any
debt, with respect to that Series. No Shareholder or former
Shareholder of any Series shall have a claim on or any right to
any assets allocated or belonging to any other Series.
Section 5. Ownership and Transfer of Shares. The Trust or
Transfer Agent shall maintain a register containing the names
and addresses of the Shareholders of each Series and Class
thereof, the number of Shares of each Series and Class held by
such Shareholders, and a record of all Share transfers. The
register shall be conclusive as to the identity of Shareholders
of record and the number of Shares held by them from time to
time. Shares shall be uncertificated unless expressly
authorized by the Trustees. The Trustees may authorize the
issuance of certificates representing Shares and adopt rules
governing their use. The Trustees may make rules governing the
transfer of Shares, whether or not represented by certificates.
No Shareholder shall be entitled to payments of distributions
nor to any notice given, until it has given its address to such
officer or agent as shall keep the register.
Section 6. Status of Shares; Limitation of Shareholder
Liability. Shares shall be deemed to be personal property
giving Shareholders only the rights provided in this
Declaration. Every Shareholder, by virtue of having acquired a
Share, shall be held expressly to have assented to and agreed to
be bound by the terms of this Declaration and to have become a
party hereto. No Shareholder, as such, shall be personally
liable for the debts, liabilities, obligations and expenses
incurred by, contracted for, or otherwise existing with respect
to, the Trust or any Series. Shareholders, as such, shall have
the same limitation of personal liability as is extended to
Stockholders of a private corporation for profit organized under
The General Corporation Law of the State of Delaware. Every
written obligation of the Trust or any Series shall contain a
statement to the effect that such obligation may only be
enforced against the assets of the Trust or such Series;
however, the omission of such statement shall not operate to
bind or create personal liability for any Shareholder or Trustee
or any other Series.
ARTICLE V
DISTRIBUTIONS AND REDEMPTIONS
Section 1. Distributions. The Trustees may declare and
pay dividends and other distributions, including dividends on
Shares of a particular Series and other distributions from the
assets belonging to that Series. The amount and payment of
dividends or distributions and their form, whether they are in
cash, Shares or other Trust Property, shall be determined by the
Trustees in their discretion. Dividends and other distributions
may be paid pursuant to a standing resolution adopted once or
more often as the Trustees determine. All dividends and other
distributions on Shares of a particular Series shall be
distributed pro rata to the Shareholders of that Series in
proportion to the number of Shares of that Series they held on
the record date established for such payment, except that such
dividends and distributions shall appropriately reflect expenses
allocated to a particular Class of such Series. The Trustees
may adopt and offer to Shareholders such dividend reinvestment
plans, cash dividend payout plans or similar plans as the
Trustees deem appropriate.
Section 2. Redemptions. As required under the 1940 Act,
each Shareholder of a Series shall have the right at such times
as may be determined by the Trustees to require the Series to
redeem all or any part of his or her Shares at a redemption
price per Share equal to the Net Asset Value per Share
determined as of such time as the Trustees shall have prescribed
by resolution, less any applicable charges or sales loads. In
the absence of such resolution, the redemption price per Share
shall be the Net Asset Value next determined after receipt by
the Series of a request for redemption in proper form less such
charges as are determined by the Trustees and described in the
Trust's Registration Statement for that Class or Series under
the Securities Act of 1933 and/or the 1940 Act. The Trustees
may specify conditions, prices, and places of redemption, and
may specify binding requirements for the proper form or forms of
requests for redemption. Payment of the redemption price may be
wholly or partly in securities or other assets at the value of
such securities or assets used in such determination of Net
Asset Value, or may be in cash. Upon redemption, Shares shall
not be cancelled and may be reissued from time to time. The
Trustees may require Shareholders to redeem Shares for any
reason under terms set by the Trustees, including the failure of
a Shareholder to supply a personal identification number if
required to do so, or to have the minimum investment required,
or to pay when due for the purchase of Shares issued to him. To
the extent permitted by law, the Trustees may retain the
proceeds of any redemption of Shares required by them for
payment of amounts due and owing by a Shareholder to the Trust
or any Series or Class. Notwithstanding the foregoing, the
Trustees may postpone payment of the redemption price and may
suspend the right of the Shareholders to require any Series or
Class to redeem Shares during any period of time when and to the
extent permissible under the 1940 Act.
Section 3. Determination of Net Asset Value. The Trustees
shall cause the Net Asset Value of Shares of each Series or
Class to be determined from time to time in a manner consistent
with the 1940 Act. The Trustees may delegate the power and duty
to determine Net Asset Value per Share to one or more Trustees
or officers of the Trust or to a custodian, depository or other
agent appointed for such purpose. The Net Asset Value of Shares
shall be determined separately for each Series or Class as of
such times and dates as may be prescribed by the Trustees or, in
the absence of action by the Trustees, as of the close of
regular trading on the New York Stock Exchange on each day such
Exchange is open for trading.
Section 4. Suspension of Right of Redemption. If, as
referred to in Section 2 of this Article, the Trustees postpone
payment of the redemption price and suspend the right of
Shareholders to redeem their Shares, such suspension shall take
effect at the time the Trustees shall specify, but not later
than the close of business on the business day next following
the declaration of suspension. Thereafter, Shareholders shall
have no right of redemption or payment until the Trustees
declare the end of the suspension. If the right of redemption
is suspended, a Shareholder may either withdraw his or her
request for redemption or receive payment based on the Net Asset
Value per Share next determined after the suspension terminates.
ARTICLE VI
SHAREHOLDERS' VOTING POWERS AND MEETINGS
Section 1. Voting Powers. The Shareholders shall have the
right to vote only on matters as expressly required under the
1940 Act or under the law of Delaware applicable to statutory
trusts. This Declaration shall not confer any independent right
to Shareholders to vote for any matter, including the creation,
operation, dissolution, or termination of the Trust. The
Shareholders shall have the right to vote on other matters only
as the Trustees may consider desirable, and so authorize. To
the extent that the 1940 Act or Delaware law is amended by rule,
regulation, order, or no-action letter to eliminate or limit
Shareholders' right to vote on any specific matter, the
Shareholders' right to vote shall be deemed to be amended,
modified or interpreted in accordance therewith without further
approval by the Trustees or the Shareholders.
Currently, the 1940 Act requires that shareholders have the
right to vote, under certain circumstances, to: (a) elect
Trustees; (b) approve investment advisory agreements and
amendments thereto; (c) approve a change in subclassification;
(d) approve any change in fundamental investment policies; (e)
approve a distribution plan and amendments thereto under Rule
12b-1 of the 1940 Act; and (f) terminate the Trust's independent
public accountant. The Shareholders may vote on any additional
matter only as the Trustees may consider desirable, and so
authorize. Shareholders have the right to call special meetings
and to vote to remove Trustees but only if and to the extent
that the Commission staff takes the position by rule,
interpretation, or other release that Section 16(c) of the 1940
Act gives them such right.
On any matter that requires Shareholder approval under the
1940 Act, whether Shareholders are required to vote by Series or
Class shall be determined by reference to the express
requirements of the 1940 Act. On other matters submitted to a
vote of the Shareholders in the discretion of the Trustees, or
for which the 1940 Act does not expressly specify the voting
procedure, all Shares shall be voted in the aggregate and not by
Series or Class unless the Trustees determine otherwise. Each
whole Share shall be entitled to one vote as to any matter on
which it is entitled to vote, and each fractional Share shall be
entitled to a proportionate fractional vote. There shall be no
cumulative voting in the election of Trustees. Shares may be
voted in person or by proxy or in any manner authorized by the
Trustees. Unless the Trustees declare otherwise, proxies may be
given by any electronic or telecommunications device, including
telefax, telephone or through the Internet, but if a proposal by
anyone other than the officers or Trustees is submitted to a
vote of the Shareholders of any Series or Class, or if there is
a proxy contest or proxy solicitation or proposal in opposition
to any proposal by the officers or Trustees, Shares may be voted
only in person or by written proxy unless the Trustees
specifically authorize other permissible methods of
transmission. Until Shares of a Series are issued, as to that
Series the Trustees may exercise all rights of Shareholders and
may take any action required or permitted to be taken by
Shareholders by law, or this Declaration.
Section 2. Meetings of Shareholders. There shall be no
annual Shareholders' meeting unless required by law. The first
Shareholders' meeting shall be held to elect Trustees at such
time and place as the Trustees designate, unless such action is
taken by consent of Shareholders. Special meetings of the
Shareholders of any Series or Class may be called by the
Trustees. Only if required under Section 16(c) of the 1940 Act,
as interpreted by the staff of the Commission, special meetings
shall be called by the Trustees upon the written request of
Shareholders owning at least ten percent of the Outstanding
Shares of the Trust entitled to vote for purposes of removing a
Trustee. Shareholders shall be entitled to at least fifteen
calendar days notice of any meeting, given as determined by the
Trustees.
A meeting of the Shareholders may be called at any time by
the Board, and notice of such meeting shall be given by the
Board, any Trustee, the Chairman, or other officer of the Trust.
The notice shall specify the place, date and hour of the
meeting, and the general nature of the business to be
transacted. Meetings of Shareholders shall be held at any place
designated by the Board. In the absence of any such
designation, Shareholders' meetings shall be held at the
principal executive offices of the Trust.
Section 3. Quorum; Required Vote. One-third of the
Outstanding Shares of each Series or Class, or one-third of the
Outstanding Shares of the Trust, entitled to vote in person or
by proxy shall be a quorum for the transaction of business at a
Shareholders' meeting with respect to such Series or Class, or
with respect to the entire Trust, respectively. Any
Shareholders' meeting, whether or not a quorum is present, may
be adjourned from time to time by the vote of a majority of the
Shares represented at the meeting, either in person or by proxy.
Any adjourned session of a Shareholders' meeting may be held
within a reasonable time without further notice. Except when a
larger vote is expressly required by the 1940 Act, if a quorum
is present at a meeting, an affirmative vote of a majority of
the Outstanding Shares of the Trust voted in person or by proxy
shall decide any matters to be voted upon with respect to the
entire Trust. However, if the 1940 Act requires, or this
Declaration permits, or the Trustees determine, that Shares be
voted on any matter by Series or Classes, then a majority of the
Outstanding Shares of that Series or Class (or, if required by
law, a Majority Shareholder Vote of that Series or Class) voted
in person or by proxy shall decide that matter insofar as that
Series or Class is concerned. Shareholders may act as to the
Trust or any Series or Class by the written consent of a
majority (or such greater amount as may be required by
applicable law or this Declaration) of the Outstanding Shares of
the Trust or of such Series or Class, as the case may be.
Section 4. Inspectors of Election. One or more officers
may serve as chairman of a shareholder meeting, and unless
otherwise designated by the Board, any officer or the chairman
may also serve as inspector(s) of election at the meeting. No
formal appointment of inspectors of election is required for any
officer or the chairman to:
(a) Determine the number of shares outstanding and the
voting power of each, the shares represented at the
meeting, the existence of a quorum and the
authenticity, validity and effect of proxies;
(b) Receive votes, ballots or consents;
(c) Hear and determine all challenges and questions in
any way arising in connection with the right to
vote;
(d) Count and tabulate all votes or consents;
(e) Determine when the polls shall close;
(f) Determine the result; and
(g) Do any other acts that may be proper to conduct the
election or vote with fairness to shareholders.
ARTICLE VII
CONTRACTS WITH SERVICE PROVIDERS
Section 1. Investment Adviser. The Trustees may enter
into one or more investment advisory contracts on behalf of the
Trust or any Series, providing for investment advisory services,
statistical and research facilities and services, and other
facilities and services to be furnished to the Trust or Series
on terms and conditions acceptable to the Trustees. Any such
contract may provide for the investment adviser to effect
purchases, sales or exchanges of portfolio securities or other
Trust Property on behalf of the Trustees or may authorize any
officer or agent of the Trust to effect such purchases, sales or
exchanges pursuant to recommendations of the investment adviser.
The Trustees may authorize the investment adviser to employ one
or more sub-advisers. The Shareholders of the Trust or any
Series shall have the right to vote to approve investment
advisory contracts to the extent such approval is required under
the 1940 Act.
Section 2. Principal Underwriter. The Trustees may enter
into one or more distribution contracts on behalf of the Trust
or any Series or Class, providing for the distribution and sale
of Shares by the other party, either directly or through sales
agents, on terms and conditions acceptable to the Trustees. The
Trustees may adopt a plan or plans of distribution with respect
to Shares of any Series or Class and enter into any related
agreements, whereby the Series or Class finances directly or
indirectly any activity that is primarily intended to result in
sales of its Shares, subject to the requirements of Section 12
of the 1940 Act, Rule 12b-1 thereunder, and other applicable
rules and regulations.
Section 3. Transfer Agency, Accounting, Administration and
Other Services. The Trustees, on behalf of the Trust or any
Series or Class, may enter into one or more transfer agency,
accounting, administration contracts and contracts for such
other services necessary or appropriate to carry out the
business and affairs of the Trust with any party or parties on
terms and conditions acceptable to the Trustees and may
authorize any such entity to employ one or more sub-contractors.
Section 4. Custodian. The Trustees shall at all times
place and maintain the securities and similar investments of the
Trust and of each Series in custody under arrangements that meet
the requirements of Section 17(f) of the 1940 Act and the rules
thereunder. The Trustees, on behalf of the Trust or any Series,
may enter into one or more contracts with a custodian on terms
and conditions acceptable to the Trustees, providing for the
custodian, among other things, to (a) hold the securities owned
by the Trust or any Series and deliver the same upon written
order or oral order confirmed in writing, (b) receive and
receipt for any moneys due to the Trust or any Series and
deposit the same in its own banking department or elsewhere,
(c) disburse such funds upon orders or vouchers, and (d) employ
one or more sub-custodians.
Section 5. Parties to Contracts with Service Providers.
The Trustees may enter into any contract with any entity, even
if one or more of the Trustees or officers of the Trust may be
an officer, director, trustee, partner, Shareholder, or member
of such entity, and no such contract shall be invalidated or
rendered void or voidable because of such relationship. No
person having such a relationship shall be disqualified from
voting on or executing a contract in his or her capacity as
Trustee and/or Shareholder, or be liable merely by reason of
such relationship for any loss or expense to the Trust with
respect to such a contract or accountable for any profit
realized directly or indirectly therefrom; provided, that the
contract was reasonable and fair to the Trust and not
inconsistent with this Declaration.
Each contract referred to in Sections 1 and 2 of this
Article shall be consistent with and subject to the applicable
requirements of Section 15 of the 1940 Act and the rules and
orders thereunder with respect to its continuance in effect, its
termination, and the method of authorization and approval of
such contract or renewal.
ARTICLE VIII
EXPENSES OF THE TRUST AND SERIES
Subject to Article IV, Section 4, the Trust or a particular
Series shall pay, or shall reimburse the Trustees, from the
Trust estate or the assets belonging to the particular Series,
for their expenses and disbursements, including, but not limited
to, interest charges, taxes, brokerage fees and commissions;
expenses of issue, repurchase and redemption of Shares;
insurance premiums; applicable fees, interest charges and
expenses of third parties, including the Trust's investment
advisers, managers, administrators, distributors, custodians,
transfer agents and fund accountants; fees of pricing, interest,
dividend, credit and other reporting services; costs of
membership in trade associations; telecommunications expenses;
funds transmission expenses; auditing, legal and compliance
expenses; costs of forming the Trust and its Series and
maintaining their existence; costs of preparing and printing the
prospectuses of the Trust and each Series, statements of
additional information and Shareholder reports and delivering
them to Shareholders; expenses of meetings of Shareholders and
proxy solicitations therefor; costs of maintaining books and
accounts; costs of reproduction, stationery and supplies; fees
and expenses of the Trustees; compensation of the Trust's
officers and employees and costs of other personnel performing
services for the Trust or any Series; costs of Trustee meetings;
Commission registration fees and related expenses; state or
foreign securities laws registration or notice fees and related
expenses; and for such non-recurring items as may arise,
including litigation to which the Trust or a Series (or a
Trustee or officer of the Trust acting as such) is a party, and
for all losses and liabilities incurred by any Trustee or
officer of the Trust acting as such in administering the Trust.
The Trustees shall have a lien on the assets belonging to the
appropriate Trust or the Series, or in the case of an expense
allocable to more than one Series, on the assets of each such
Series, prior to any rights or interests of the Shareholders
thereto, for the reimbursement to them of any such expenses or
disbursements, or for any losses or liabilities to which they
become subject in their capacity as Trustees.
ARTICLE IX
LIMITATION OF LIABILITY AND INDEMNIFICATION
Section 1. Limitation of Liability. All persons
contracting with or having any claim against the Trust or a
particular Series shall look only to the assets of the Trust or
such Series, respectively, for payment under such contract or
claim; and neither the Trustees nor any of the Trust's officers,
employees or agents, whether past, present or future (each a
"Covered Person," and collectively the "Covered Persons"), shall
be personally liable therefor. Notwithstanding any provision in
this Article IX, neither the investment adviser, Principal
Underwriter or other service providers, nor any officers,
employees or other agents of such entities, shall be indemnified
pursuant to this Article IX, except that dual officers,
employees or other agents of the Trust and such entities shall
be entitled to indemnification pursuant to this Article IX but
only to the extent that such officer, employee or other agent
was acting in his or her capacity as an officer, employee or
agent of the Trust in the conduct that gave rise to the claim
for indemnification. No Covered Person shall be liable to the
Trust or to any Shareholder for any loss, damage or claim
incurred by reason of any act performed or omitted by such
Covered Person in good faith on behalf of the Trust, a Series or
a Class, and in a manner reasonably believed to be within the
scope of authority conferred on such Covered Person by this
Declaration, except that a Covered Person shall be liable for
any loss, damage or claim incurred by reason of such Covered
Person's bad faith, gross negligence, willful misconduct or
reckless disregard of the duties involved in the conduct of his
or her office.
Section 2. Mandatory Indemnification. (a) Subject only to
the express limitations in the 1940 Act, other applicable laws,
and sub-paragraph (b) below, the Trust or the appropriate Series
shall indemnify each of its Covered Persons to the fullest
extent permitted under the 1940 Act and other applicable laws,
including, but not limited to, against all liabilities and
expenses reasonably incurred or paid by him or her in connection
with any claim, action, suit or proceeding in which he or she
becomes involved as a party or otherwise by virtue of his or her
being or having been a Covered Person and against amounts paid
or incurred in the settlement thereof.
As used herein, the words "claim," "action," "suit," or
"proceeding" shall apply to all claims, actions, suits or
proceedings (civil, criminal or other, including appeals),
actual or threatened, and the words "liability" and "expenses"
shall include, without limitation, reasonable attorneys' fees,
costs, judgments, amounts paid in settlement, fines, penalties
and other liabilities.
(b) Notwithstanding any provision to the contrary
contained herein, no Covered Person shall be entitled to
indemnification for any liability arising by reason of such
Covered Person's willful misfeasance, bad faith, gross
negligence, or the reckless disregard of duties owed to the
Trust ("disabling conduct").
(c) No indemnification or advance shall be made under this
Article IX to the extent such indemnification or advance:
(i) would be inconsistent with a provision of the
Declaration, or an agreement in effect at the time of
accrual of the alleged cause of action asserted in the
proceeding in which the expenses were incurred or
other amounts were paid which prohibits or otherwise
limits indemnification; or
(ii) would be inconsistent with any condition
expressly imposed by a court in a judgment, order, or
approval of a settlement.
(d) Any indemnification under this Article shall be made
by the Trust only if authorized in the specific case on a
determination that the Covered Person was not liable by reason
of disabling conduct by:
(i) a final decision on the merits by a court or
other body before whom the proceeding was brought; or
(ii) in the absence of such a decision, by any
reasonable and fair means established in accordance
with, and subject to the requirements and limitations
of, Section 17(h) of the 1940 Act and any
interpretation thereunder by the Commission or its
staff.
(e) The rights of indemnification herein provided may be
insured against by policies of insurance maintained by the
Trust, shall be severable, shall not be exclusive of or affect
any other rights to which any Covered Person may now or
hereafter be entitled, and shall inure to the benefit of the
heirs, executors and administrators of a Covered Person.
(f) To the maximum extent permitted by the 1940 Act and
other applicable laws, expenses in connection with the
preparation and presentation of a defense to any claim, action,
suit or proceeding of the character described in subsection (a)
of this Article IX shall be paid by the Trust or applicable
Series from time to time prior to final disposition thereof upon
receipt of an undertaking by or on behalf of such Covered Person
that such amount will be paid over by him or her to the Trust or
applicable Series if it is ultimately determined that he or she
is not entitled to indemnification under this Article IX;
provided, however, that either (i) such Covered Person shall
have provided appropriate security for such undertaking, (ii)
the Trust is insured against losses arising out of any such
advance payments or (iii) either a majority of the Trustees who
are neither Interested Persons of the Trust nor parties to the
matter, or independent legal counsel in a written opinion, shall
have determined, based upon a review of readily available facts
(as opposed to a full trial-type inquiry) that there is reason
to believe that such Covered Person will not be disqualified
from indemnification under this Article IX; provided, however,
that the Trust shall not be obligated to pay the expenses of any
agent acting pursuant to a written contract with the Trust,
except to the extent required by such contract.
(g) Any repeal or modification of this Article IX shall be
prospective only, to the extent that such repeal or modification
would, if applied retrospectively, affect any limitation on the
liability of any Covered Person in an a manner that would be
adverse to such Covered Person or affect any indemnification
available to any Covered Person in a manner that would be
adverse to such Covered Person with respect to any act or
omission which occurred prior to such repeal, modification or
adoption.
Section 3. Indemnification of Shareholders. If any
Shareholder or former Shareholder of any Series shall be held
personally liable solely by reason of his or her being or having
been a Shareholder and not because of his or her acts or
omissions or for some other reason, the Shareholder or former
Shareholder (or his or her heirs, executors, administrators or
other legal representatives or in the case of any entity, its
general successor) shall be entitled out of the assets belonging
to the applicable Series to be held harmless from and
indemnified against all loss and expense arising from such
liability to the fullest extent permitted under the 1940 Act and
other applicable laws. The Trust, on behalf of the affected
Series, shall, at its discretion, be entitled to assume the
defense of any claim made against such Shareholder for any act
or obligation of the Series and satisfy any judgment thereon
from the assets of the Series.
Section 4. Contractual Modification of Duties. To the
extent that, at law or equity, a Covered Person has duties
(including fiduciary duties) and liabilities relating to the
Trust or any Series thereof or to any Shareholder, any such
Covered Person acting under this Declaration shall not be liable
to the Trust or any Series thereof or to any Shareholder for the
Covered Person's good faith reliance on the provisions of this
Declaration. The provisions of this Declaration, to the extent
that they restrict or limit the duties and liabilities of a
Covered Person otherwise existing at law or in equity, are
agreed by the parties hereto to replace such other duties and
liabilities of such Covered Person.
ARTICLE X
OFFICERS
Section 1. General. The officers of the Trust shall be a
President, a Treasurer, and a Secretary, and may include one or
more Assistant Treasurers or Assistant Secretaries and such
other officers ("Other Officers") as the Trustees may determine.
As specified in Section 7 of Article II, the Trustees may select
one or more of their members to be Chairman or Co-Chairmen of
the Board, and may, but need not, determine that such Chairman
or Co-Chairmen shall be officer(s) of the Trust.
Section 2. Election, Tenure and Qualifications of
Officers. The Trustees shall appoint the President, Treasurer
and Secretary of the Trust. The Trustees, President, or
Chairman of the Trust may appoint Assistant Treasurers,
Assistant Secretaries, and Other Officers. Each officer shall
hold office until his or her successor shall have been appointed
and qualified or until his or her earlier death, inability to
serve, or resignation. Any person may hold more than one
office, except that the President and the Secretary may not be
the same individual. A person who holds more than one office in
the Trust may not act in more than one capacity to execute,
acknowledge, or verify an instrument required by law to be
executed, acknowledged, or verified by more than one officer.
No officer need be a Trustee or a Shareholder, unless specified
otherwise by the Trustees.
Section 3. Vacancies and Newly Created Offices. The
Trustees may create any additional offices as they deem
appropriate or desirable. Whenever a vacancy shall occur in any
office or if any new office is created, such vacancy or new
office may be filled by the Trustees, the President, or the
Chairman as described in Section 2 of this Article.
Section 4. Removal and Resignation. Officers serve at the
pleasure of the Trustees and may be removed at any time with or
without cause. The President or Chairman may also remove any
Assistant Treasurer, Assistant Secretary, or Other Officer with
or without cause. Any officer may resign from office at any
time by delivering a written resignation to the Trustees,
President, or the Chairman. Unless otherwise specified therein,
such resignation shall take effect upon delivery.
Section 5. President. The President is the principal
executive officer of the Trust and shall have the power and
responsibility to perform all duties incidental to the office of
President, subject to the Trustees' supervision, including, but
not limited to, the authority to make, execute, deliver, amend
and terminate, in the name and on behalf of the Trust, any and
all contracts, agreements, instruments, filings, applications,
notices, documents and other writings, except where required by
law to be otherwise signed and executed or where the Trustees by
resolution expressly delegate specific signing and execution
authority to some other officer or agent of the Trust, and shall
perform such other duties as from time to time may be assigned
by the Board. In the absence of a Chairman, the President shall
preside over meetings of the Board, unless the Trustees
determine otherwise.
Section 6. Treasurer and Assistant Treasurers. The
Treasurer is the principal financial officer and principal
accounting officer of the Trust. As such, the Treasurer shall
have general charge of the finances and books of the Trust, and
shall report to the Trustees as requested regarding the
financial condition of each Series. The Treasurer shall be
responsible for the delivery of all funds and securities of the
Trust to such company as the Trustees shall retain as Custodian.
The Treasurer shall have the power and responsibility to perform
all acts incidental to the office of Treasurer, subject to the
Trustees' supervision, including, but not limited to, the
authority to make, execute, deliver, amend and terminate, in the
name and on behalf of the Trust, any and all contracts,
agreements, instruments, filings, applications, notices,
documents and other writings, except where required by law to be
otherwise signed and executed or where the Trustees by
resolution expressly delegate specific signing and execution
authority to some other officer or agent of the Trust, and shall
perform such other duties as from time to time may be assigned
by the Board.
Any Assistant Treasurer may perform such duties of the
Treasurer as the Trustees, the Chairman, the President or the
Treasurer may assign, and, in the absence of the Treasurer, may
perform all the duties of the Treasurer.
Section 7. Secretary and Assistant Secretaries. The
Secretary shall record all resolutions, votes and proceedings of
the meetings of Trustees and Shareholders in books to be kept
for that purpose. The Secretary shall be responsible for giving
and serving notices of the Trust, unless the Trustees determine
otherwise. The Secretary shall have custody of any seal of the
Trust and shall be responsible for the records of the Trust
other than those maintained by one or more service providers
engaged by the Trust pursuant to the terms of this Declaration.
The Secretary shall have the power and responsibility to perform
all acts incidental to the office of Secretary, subject to the
supervision of the Trustees, including, but not limited to, the
authority to make, execute, deliver, amend and terminate, in the
name and on behalf of the Trust, any and all contracts,
agreements, instruments, filings, applications, notices,
documents and other writings, except where required by law to be
otherwise signed and executed or where the Trustees by
resolution expressly delegate specific signing and execution
authority to some other officer or agent of the Trust, and shall
perform such other duties as from time to time may be assigned
by the Board. In the absence of a Chairman or President, the
Secretary shall preside over meetings of the Board, unless the
Trustees determine otherwise.
Any Assistant Secretary may perform such duties of the
Secretary as the Trustees, the Chairman, the President or the
Secretary may assign, and, in the absence of the Secretary, may
perform all the duties of the Secretary.
Section 8. Authority to Execute and File Applications for
Exemptive Relief. The officers of the Trust, including, without
limitation, the President, Treasurer, any Assistant Treasurer,
Secretary, any Assistant Secretary, or any of them are delegated
the authority to prepare, execute and file with the Commission,
any and all applications for exemptive orders, and any
amendments or supplements thereto, that the officers believe are
necessary, desirable or convenient.
Section 9. Compensation of Officers. Each officer of the
Trust may receive such compensation from the Trust for services
and reimbursement for expenses as the Trustees may determine.
Section 10. Surety Bond. The Trustees may require any
officer or agent of the Trust to execute a bond (including,
without limitation, any bond required by the 1940 Act and the
rules and regulations of the Commission) to the Trust in such
sum and with such surety or sureties as the Trustees may
determine, conditioned upon the faithful performance of his or
her duties to the Trust, including responsibility for negligence
and for the accounting of any of the Trust's property, funds or
securities that may come into his or her hands.
ARTICLE XI
MISCELLANEOUS
Section 1. Trust Not a Partnership. This Declaration
creates a trust and not a partnership. No Trustee shall have
any power to bind personally either the Trust's officers or any
Shareholder to any obligation to which such person has not
consented.
Section 2. Trustee Action; Expert Advice; No Bond or
Surety. The exercise by the Trustees of their powers and
discretion in accordance with the terms of this Declaration in
good faith under the circumstances then prevailing shall be
binding upon everyone interested or affected thereby. Subject
to the provisions of Article IX, the Trustees shall not be
liable for errors of judgment or mistakes of fact or law. The
Trustees may take advice of counsel or other experts with
respect to the meaning and operation of this Declaration, and
subject to the provisions of Article IX, shall not be liable for
any act or omission in accordance with such advice or for
failing to follow such advice. The Trustees shall not be
required to give any bond as such, nor any surety if a bond is
obtained.
Section 3. Record Dates. The Trustees may fix in advance
a date up to one hundred twenty (120) days before the date of
any Shareholders' meeting, or the date for the payment of any
dividends or other distributions, or the date for the allotment
of any other rights, or the date when any change or conversion
or exchange of Shares shall go into effect as a record date for
the determination of the Shareholders entitled to notice of, and
to vote at, any such meeting, or entitled to receive payment of
such dividend or other distribution, or to receive any such
allotment of rights, or to exercise such rights in respect of
any such change, conversion or exchange of Shares. The Trustees
may delegate to one or more Trustees or officers the authority
to change, consistent with this section, any record date fixed
by the Trustees, provided that any such change is entered into
the minute books, and ratified by the Board at its next regular
meeting after a change is made.
Section 4. Dissolution or Termination of a Class, Series
or the Trust. (a) The Trust shall have perpetual existence.
Notwithstanding the foregoing, the Trustees may, without
Shareholder approval (unless the 1940 Act or other applicable
law expressly provides otherwise):
(i) sell and convey all or substantially all of the
assets of the Trust or any Series or Class of a Series to
another Class or to another Series or to another entity which is
an open-end investment company as defined in the 1940 Act, or is
a class or a series thereof, for adequate consideration, which
may include the assumption of all outstanding obligations, taxes
and other liabilities, accrued or contingent, of the Trust or
any affected Series or Class of a Series, and which may include
shares of or interests in such entity, class, or series thereof;
or
(ii) at any time sell and convey, or convert into
money, all or substantially all of the assets of the Trust or
any Series or Class of a Series; or
(iii) dissolve, liquidate, or
terminate a Series, a Class of a Series, or the Trust.
Upon payment or the making of reasonable provision for the
payment of all known liabilities of the Trust or any affected
Class or Series in either (i) or (ii), by assumption or
otherwise, the Trustees may distribute the remaining proceeds or
assets (as the case may be) ratably among the Shareholders of
the Trust or any affected Class or Series; however, the payment
to the Shareholders of any particular Class or Series may be
reduced by any fees, expenses or charges allocated to that
Series or Class; and may dissolve the Trust or any affected
Series or Class of a Series.
(b) In determining whether to dissolve the Trust, a Series
or a Class of a Series, the Trustees may take into account
whether continuation of the Trust, Series or Class is in the
best interests of the Trust, Series or such Class, or their
respective Shareholders as a result of factors or events
adversely affecting the ability of the Trust or such Series or
Class to conduct its business and operations in an economically
viable manner. Such factors and events may include the
inability of the Trust, Series or Class to maintain its assets
at an appropriate size, changes in laws or regulations governing
the Trust, Series or Class or affecting assets of the type in
which the Trust or Series invests, or economic developments or
trends having a significant adverse impact on the business or
operations of the Trust, Series or Class. If a majority of the
Trustees determine that the continuation of the Trust, Series,
or Class is not in the best interests of the Trust, such Series
or Shareholders, such determination is conclusive and binding
upon the Trust, Series, Class and their respective Shareholders.
(c) Upon completion of the winding up of the affairs of
the Trust and the distribution of the remaining proceeds or
assets pursuant to subsection (a), the Trust shall terminate and
the Trustees and the Trust shall be discharged of any and all
further liabilities and duties hereunder with respect thereto
and the right, title and interest of all parties therein shall
be canceled and discharged. Upon dissolution (as defined in the
Delaware Act) of the Trust, following completion of winding up
of its business, the Trustees shall cause a certificate of
cancellation of the Trust's certificate of Trust, which may be
signed by any one Trustee, to be filed in accordance with the
Delaware Act.
(d) The dissolution or termination of a Series or a Class
shall not affect the existence of the Trust or any other Series
or Class. Upon completion of the winding up of the affairs of a
terminated Series and the distribution of the assets pursuant to
subparagraph (a), the Trustees shall, by Board resolution or
other written instrument, record in the Trust's books and
records that the Series or Class is terminated.
Section 5. Reorganization. Unless Shareholder approval is
expressly required under the 1940 Act, the Trustees may, without
the need of any action or vote of the Shareholders or any other
person or entity, (a) cause the Trust to merge or consolidate
with or into one or more statutory trusts or other business
entities (as defined under the Delaware Act), if the surviving
or resulting entity is the Trust or another open-end management
investment company under the 1940 Act, or a series thereof, that
will succeed to or assume the Trust's registration under the
1940 Act, or (b) cause the Trust to incorporate under the laws
of Delaware.
Pursuant to and in accordance with the provisions of
Section 3815(f) of the Delaware Act, an agreement of merger or
consolidation approved by the Trustees in accordance with this
Section 5 may effect any amendment to the Declaration or effect
the adoption of a new governing Declaration of the Trust if it
is the surviving or resulting trust in the merger or
consolidation. Any agreement of merger or consolidation or
certificates of merger may be signed by any Trustee authorized
by resolution of a majority of the Trustees and facsimile
signatures conveyed by electronic or telecommunication means
shall be valid.
Section 6. Declaration. The original or a copy of this
Declaration and of each amendment hereto or Declaration
supplemental shall be kept at the office of the Trust. Anyone
dealing with the Trust may rely on a certificate by a Trustee or
an officer of the Trust as to the authenticity of the
Declaration of Trust or any such amendments or supplements and
as to any matters in connection with the Trust; 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 and in any such restatements and/or amendment,
references to this Declaration, and all expressions like
"herein", "hereof" and "hereunder", shall be deemed to refer to
this Declaration 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
Declaration. Whenever the singular number is used herein, the
same shall include the plural; and the neuter, masculine and
feminine genders shall include each other, as applicable. This
Declaration may be executed in any number of counterparts,
originally or by power of attorney, each of which shall be
deemed an original.
Section 7. Derivative Actions. As expressly provided in
the Delaware Act, Shareholders have the right to bring a
derivative action if they meet the express requirements of
Delaware law. However, no derivative action may be brought by
Shareholders unless, in addition to any requirements of Delaware
law, Shareholders owning not less than one-third of the
Outstanding Shares of all Series of the Trust, or of the
affected Series or Classes of the Trust, as the case may be,
join in the bringing of the derivative action.
Section 8. Applicable Law. This Declaration and the Trust
created hereunder are governed by and construed and administered
according to the Delaware Act and the applicable laws of the
State of Delaware; provided, however, that there shall not be
applicable to the Trust, the Trustees or this Declaration (a)
the provisions of Section 3540 of Title 12 of the Delaware Code,
or (b) any provisions of the laws (statutory or common) of the
State of Delaware (other than the Delaware Act) pertaining to
trusts which relate to or regulate (i) the filing with any court
or governmental body or agency of trustee accounts or schedules
of trustee fees and charges, (ii) affirmative requirements to
post bonds for trustees, officers, agents or employees of a
trust, (iii) the necessity for obtaining court or other
governmental approval concerning the acquisition, holding or
disposition of real or personal property, (iv) fees or other
sums payable to trustees, officers, agents or employees of a
trust, (v) the allocation of receipts and expenditures to income
or principal, (vi) restrictions or limitations on the
permissible nature, amount or concentration of trust investments
or requirements relating to the titling, storage or other manner
of holding of trust assets, or (vii) the establishment of
fiduciary or other standards of responsibilities or limitations
on the acts or powers of trustees, which are inconsistent with
the limitations or liabilities or authorities and powers of the
Trustees set forth or referenced in this Declaration. The Trust
shall be of the type commonly called a Delaware statutory trust,
and, without limiting the provisions hereof, the Trust may
exercise all powers which are ordinarily exercised by such a
trust under Delaware law. The Trust specifically reserves the
right to exercise any of the powers or privileges afforded to
trusts or actions that may be engaged in by trusts under the
Delaware Act, and the absence of a specific reference herein to
any such power, privilege or action shall not imply that the
Trust may not exercise such power or privilege or take such
actions.
Section 9. Amendments. Because this Declaration does not
confer any independent rights to Shareholders not expressly
granted under Delaware law or the 1940 Act, this Declaration may
be amended without Shareholder approval, and all Shareholders
purchase Shares with notice that this Declaration may be so
amended unless expressly required under the 1940 Act. The
Trustees may, without any Shareholder vote, amend or otherwise
supplement this Declaration by making an amendment, a trust
instrument supplemental hereto or an amended and restated
declaration of trust; provided, that Shareholders shall have the
right to vote on any amendment if expressly required under the
1940 Act or other applicable law, or submitted to them by the
Trustees in their discretion.
Section 10. Fiscal Year. The fiscal year of the Trust or
specific Series within the Trust shall end on a specific date as
determined by the Trustees in this Declaration or by resolution
or other written instrument. The Trustees may change the fiscal
year of the Trust, or any Series of the Trust without
Shareholder approval.
Section 11. Severability. The provisions of this
Declaration are severable. If the Trustees determine, with the
advice of counsel, that any provision hereof conflicts with the
1940 Act, the applicable regulated investment company provisions
of the Internal Revenue Code or with other applicable laws and
regulations, the conflicting provision shall be deemed never to
have constituted a part of this Declaration; provided, however,
that such determination shall not affect any of the remaining
provisions of this Declaration or render invalid or improper any
action taken or omitted prior to such determination. If any
provision hereof shall be held invalid or unenforceable in any
jurisdiction, such invalidity or unenforceability shall attach
only to such provision only in such jurisdiction and shall not
affect any other provision of this Declaration.
Section 12. Principal Office. The principal office of the
Trust shall be located in San Francisco, California, or in such
other location as the Trustees may from time to time determine.
Section 13. Maintenance and Inspection of the Books. The
accounting books and records and minutes of proceedings of the
shareholders and the Board and any committee or committees of
the Board shall be kept at such place or places designated by
the Board or in the absence of such designation, at the
principal executive office of the Trust. The minutes shall be
kept in written form and the accounting books and records shall
be kept either in written form or in any other form capable of
being converted into written form. Except as expressly required
under the 1940 Act or conferred under other applicable law,
Shareholders shall have no right to obtain or inspect the books
of the Trust, or to obtain or inspect any of the other
information referenced in Section 3819 of the Delaware Act,
except as the Trustees may expressly authorize. The Trustees
may authorize that the books of the Trust or any of the other
information referenced in Section 3819 of the Delaware Act be
provided to or open to inspection by Shareholders under the
conditions and regulations that the Trustees deem desirable.
IN WITNESS WHEREOF, the undersigned, being the Trustees,
have executed this Declaration on the 5th day of November, 2002.
▇▇▇▇▇▇ ▇. ▇▇▇▇▇,
as Trustee and not individually
▇▇▇▇▇▇ ▇. ▇▇▇▇,
as Trustee and not individually
▇▇▇▇▇ ▇. ▇▇▇▇▇▇,
as Trustee and not individually
▇. ▇▇▇▇▇▇ ▇▇▇▇▇▇,
as Trustee and not individually
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇,
as Trustee and not individually
▇. ▇▇▇▇▇▇ ▇▇▇▇▇,
as Trustee and not individually
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇,
as Trustee and not individually
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇,
as Trustee and not individually
EXHIBIT B:
▇▇▇▇▇ FARGO FUNDS TRUST
INVESTMENT ADVISORY AGREEMENT
SCHEDULE A
FUNDS FEE AS % OF AVG.
DAILY NET ASSET VALUE
1. Asset Allocation Fund 0.75
2. California Limited Term Tax-Free Fund 0.40
3. California Tax-Free Fund 0.40
4. California Tax-Free Money Market Fund 0.30
5. California Tax-Free Money Market Trust 0.00
6. Cash Investment Money Market Fund 0.10
7. Colorado Tax-Free Fund 0.40
8. Diversified Bond Fund 0.50
9. Diversified Equity Fund 0.72
10. Diversified Small Cap Fund 0.87
11. Equity Income Fund 0.75
12. Equity Index Fund 0.25
13. Equity Value Fund 0.75
14. Government Institutional Money Market Fund 0.10
15. Government Money Market Fund 0.10 (1)
16. Growth Balanced Fund 0.65
17. Growth Equity Fund 0.97
18. Growth Fund 0.75
19. High Yield Bond Fund 0.60
20. Income Fund 0.50
21. Income Plus Fund 0.60
22. Index Allocation Fund 0.75
23. Index Fund 0.15
24. Inflation-Protected Bond Fund 0.50
25. Intermediate Government Income Fund 0.50
26. International Equity Fund 1.00
27. Large Cap Appreciation Fund 0.70
28. Large Company Growth Fund 0.75
29. Limited Term Government Income Fund 0.50
30. Liquidity Reserve Money Market Fund 0.35
31. Minnesota Money Market Fund 0.30
32. Minnesota Tax-Free Fund 0.40
33. Moderate Balanced Fund 0.60
34. Money Market Fund 0.40
35. Money Market Trust 0.00
36. ▇▇▇▇▇▇▇▇▇▇ Emerging Markets Focus Fund 1.10
37. ▇▇▇▇▇▇▇▇▇▇ Institutional Emerging Markets Fund 1.10
38. ▇▇▇▇▇▇▇▇▇▇ Mid Cap Growth Fund (2) 0.75
39. ▇▇▇▇▇▇▇▇▇▇ Short Duration Government Bond Fund 0.50
40. ▇▇▇▇▇▇▇▇▇▇ Small Cap Fund 0.90
41. ▇▇▇▇▇▇▇▇▇▇ Total Return Bond Fund 0.50
42. National Limited Term Tax-Free Fund 0.40
43. National Tax-Free Fund 0.40
44. National Tax-Free Institutional Money Market Fund 0.10
45. National Tax-Free Money Market Fund 0.25
46. National Tax-Free Money Market Trust 0.00
47. Nebraska Tax-Free Fund 0.50
48. Outlook Today Fund 0.70
49. Outlook 2010 Fund 0.70
50. Outlook 2020 Fund 0.70
51. Outlook 2030 Fund 0.70
52. Outlook 2040 Fund 0.70
53. Overland Express Sweep Fund 0.45
54. Prime Investment Institutional Money Market Fund 0.10
55. Prime Investment Money Market Fund 0.10
56. SIFE Specialized Financial Services Fund 0.95
57. Small Cap Growth Fund 0.90
58. Small Cap Opportunities Fund 0.90
59. Small Company Growth Fund 0.90
60. Small Company Value Fund 0.90
61. Specialized Health Sciences Fund 0.95
62. Specialized Technology Fund 1.05
63. Stable Income Fund 0.50
64. Strategic Growth Allocation Fund 0.72
65. Strategic Income Fund 0.52
66. Tactical Maturity Bond Fund 0.50
67. Treasury Plus Institutional Money Market Fund 0.10
68. Treasury Plus Money Market Fund 0.35
69. WealthBuilder Growth Balanced Portfolio 0.35
70. WealthBuilder Growth and Income Portfolio 0.35
71. WealthBuilder Growth Portfolio 0.35
72. 100% Treasury Money Market Fund 0.35
(1) On February 4, 2003, the Board approved a reduction to the fee for
advisory services for this Fund. Through July 25, 2003, the fee for
advisory services is 0.35. Effective July 28, 2003, the fee for
advisory services is 0.10.
(2) Name change of the Mid Cap Growth Fund to the ▇▇▇▇▇▇▇▇▇▇ Mid Cap
Growth Fund will take effect following the closing of the reorganization
of the ▇▇▇▇▇▇▇▇▇▇ Funds into the ▇▇▇▇▇ Fargo Funds effective on or
before June 2003.
Approved by Board of Trustees: October 24, 2000, December 18,
2000, February 6, 2001, May 8, 2001, August 7, 2000, November 6,
2001, November 27, 2001, December 23, 2001, February 5, 2002, May
7, 2002, November 5, 2002 and February 4, 2003.
Most Recent Annual Approval Date: August 6, 2002.
The foregoing fee schedule is agreed to as of February 4,
2003 and shall remain in effect until changed in writing by the
parties.
▇▇▇▇▇ FARGO FUNDS TRUST
By:
▇. ▇▇▇▇▇ ▇▇▇▇▇▇▇
Secretary
▇▇▇▇▇ FARGO FUNDS MANAGEMENT, LLC
By:
▇▇▇▇▇▇ ▇▇▇▇
Senior Vice President
EXHIBIT C:
▇▇▇▇▇ FARGO FUNDS TRUST
INVESTMENT SUB-ADVISORY AGREEMENT
Appendix A
Asset Allocation Fund
California Limited Term Tax-Free Fund
California Tax-Free Fund
California Tax-Free Money Market Fund
California Tax-Free Money Market Trust
Cash Investment Money Market Fund
Colorado Tax-Free Fund
Diversified Bond Fund
Diversified Equity Fund
Diversified Small Cap Fund
Equity Income Fund
Equity Index Fund
Equity Value Fund
Government Institutional Money
Market Fund
Government Money Market Fund
Growth Balanced Fund
Growth Equity Fund
Growth Fund
Income Fund
Income Plus Fund
Index Allocation Fund
Index Fund
Inflation-Protected Bond Fund
Intermediate Government Income Fund
International Equity Fund
Limited Term Government Income Fund
Liquidity Reserve Money Market Fund
Minnesota Money Market Fund
Minnesota Tax-Free Fund
Moderate Balanced Fund
Money Market Fund
Money Market Trust
▇▇▇▇▇▇▇▇▇▇ Emerging Markets Focus Fund
▇▇▇▇▇▇▇▇▇▇ Institutional Emerging
Markets Fund
▇▇▇▇▇▇▇▇▇▇ Mid Cap Growth Fund (1)
▇▇▇▇▇▇▇▇▇▇ Short Duration Government Bond Fund
▇▇▇▇▇▇▇▇▇▇ Small Cap Fund
▇▇▇▇▇▇▇▇▇▇ Total Return Bond Fund
National Limited Term Tax-Free Fund
National Tax-Free Fund
National Tax-Free Institutional Money Market Fund
National Tax-Free Money Market Fund
National Tax-Free Money Market Trust
Nebraska Tax-Free Fund
Overland Express Sweep Fund
Prime Investment Institutional Money Market Fund
Prime Investment Money Market Fund
SIFE Specialized Financial Services Fund
Small Cap Growth Fund
Strategic Growth Allocation Fund
Strategic Income Fund
Treasury Plus Institutional Money Market Fund
Treasury Plus Money Market Fund
WealthBuilder Growth Portfolio
WealthBuilder Growth and Income Portfolio
WealthBuilder Growth Balanced Portfolio
100% Treasury Money Market Fund
- - -
(1)Name change of the Mid Cap Growth Fund to the ▇▇▇▇▇▇▇▇▇▇ Mid Cap
Growth Fund will take effect following the closing of the reorganization
of the ▇▇▇▇▇▇▇▇▇▇ Funds into the ▇▇▇▇▇ Fargo Funds, effective on or
about June 2003.
Approved by Board of Trustees: October 24, 2000, May 8,
2001, August 7, 2001, November 6, 2001, December 23, 2001,
February 5, 2002, November 5, 2002 and February 4, 2003.
Most Recent Annual Approval Date: August 6, 2002.
SCHEDULE A
▇▇▇▇▇ FARGO FUNDS TRUST
INVESTMENT SUB-ADVISORY AGREEMENT
FEE AGREEMENT
This fee agreement is made as of the 4th day of
February, 2003, by and between ▇▇▇▇▇ Fargo Funds
Management, LLC (the "Adviser") and ▇▇▇▇▇ Capital
Management Incorporated (the "Sub-Adviser"); and
WHEREAS, the parties and ▇▇▇▇▇ Fargo Funds Trust (the
"Trust") have entered into an Investment Sub-Advisory
Agreement ("Sub-Advisory Agreement") whereby the Sub-
Adviser provides investment management advice to each
series of the Trust as listed in Schedule A to the Sub-
Advisory Agreement (each a "Fund" and collectively the
"Funds").
WHEREAS, the Sub-Advisory Agreement provides that the
fees to be paid to the Sub-Adviser are to be as agreed upon
in writing by the parties.
NOW THEREFORE, the parties agree that the fees to be
paid to the Sub-Adviser under the Sub-Advisory Agreement
shall be calculated as follows on a monthly basis by
applying the following annual rates listed for each Fund
listed in Appendix A, and for the Diversified Bond Fund,
Diversified Equity Fund, Diversified Small Cap Fund, Equity
Income Fund, Growth Balanced Fund, Growth Equity Fund,
Index Fund, Moderate Balanced Fund, Strategic Growth
Allocation Fund and Strategic Income Fund:
for the assets formerly invested in the Equity Income
Portfolio
a. 0.25% on the first $200 million;
b. 0.20% on the next $200 million;
c. 0.15% on all sums in excess of $400 million.
for the assets formerly invested in the Index
Portfolio
a. 0.02% on the first $200 million; and
b. 0.01% on all sums in excess of $200 million.
for the assets formerly invested in International
Equity Portfolio
a. 0.35% on the first $200 million;
b. 0.25% on all sums in excess of $200 million.
for the assets formerly invested in Small Cap Index
Portfolio
a. 0.02% on the first $200 million;
b. 0.01% on all sums in excess of $200 million.
provided, that no fee shall be payable hereunder with
respect to any of the Funds listed above during any period
in which the Fund invests all (or substantially all) of its
investment assets in a registered, open-end, management
investment company, or separate series thereof, in
accordance with and reliance upon Section 12(d)(1)(E) or
12(d)(1)(G) under the Act.
However, the sub-adviser shall receive a fee of 0.05%
of the assets of the Growth Balanced Fund, Moderate
Balanced Fund, Strategic Growth Allocation Fund and
Strategic Income Fund and 0.05% from each WealthBuilder
Portfolio for providing services with respect to which
Master Trust Portfolios (or, in the case of the
WealthBuilder Portfolios, other unaffiliated funds) these
Funds will invest in and the percentage to allocate to each
Master Portfolio or unaffiliated fund in reliance on
Section 12(d)(1)(G) under the Act, the rules thereunder, or
order issued by the Commission exempting the Fund from the
provisions of Section 12(d)(1)(A) under the Act (a "Fund of
Funds structure").
The net assets under management against which the
foregoing fees are to be applied are the net assets as of
the first business day of the month. If this fee agreement
becomes effective subsequent to the first day of a month or
shall terminate before the last day of a month,
compensation for that part of the month this agreement is
in effect shall be subject to a pro rata adjustment based
on the number of days elapsed in the current month as a
percentage of the total number of days in such month. If
the determination of the net asset value is suspended as of
the first business day of the month, the net asset value
for the last day prior to such suspension shall for this
purpose be deemed to be the net asset value on the first
business day of the month.
IN WITNESS WHEREOF, the parties hereto have cause this
Agreement to be executed in duplicate by their respective
officers on the day and year first written above.
▇▇▇▇▇ FARGO FUNDS MANAGEMENT, LLC
By:
▇▇▇▇▇▇ ▇▇▇▇
Senior Vice President
▇▇▇▇▇ CAPITAL MANAGEMENT INCORPORATED
By:
▇▇▇▇▇ ▇'▇▇▇▇▇
Chief Financial Officer
Appendix A to Schedule A
FUNDS TRUST FUNDS
FEE AS % OF AVG. DAILY NET ASSETS
Asset Allocation Fund
0-1000M 0.15
>1000M 0.10
California Limited Term Tax-Free Fund
0-400M 0.15
400-800M 0.125
>800M 0.10
California Tax-Free Fund
0-400M 0.15
400-800M 0.125
>800M 0.10
California Tax-Free Money Market Fund
0-1000M 0.05
>1000M 0.04
California Tax-Free Money Market Trust
0-1000M 0.0
>1000M 0.0
>800M 0.10
Cash Investment Money Market Fund
0-1000M 0.05
>1000M 0.04
Colorado Tax-Free Fund
0-400M 0.15
400-800M 0.125
>800M 0.10
Equity Index Fund
0-200M 0.02
>200M 0.01
Equity Value Fund
0-200M 0.25
200-400M 0.20
>400M 0.15
Government Institutional Money Market Fund
0-1000M 0.05
>1000M 0.04
Government Money Market Fund
0-1000M 0.05
>1000M 0.04
Growth Balanced Fund
0.05
Growth Fund
0-200M 0.25
200-400M 0.20
>400M 0.15
Income Fund
0-400M 0.15
400-800M 0.125
>800M 0.10
Income Plus Fund
0-400M 0.20
400-800M 0.175
>800M 0.15
Index Allocation Fund
0-1000M 0.15
>1000M 0.10
Inflation-Protected Bond Fund
0-400M 0.15
400-800M 0.125
>800M 0.10
Intermediate Government Income Fund
0-400M 0.15
400-800M 0.125
>800M 0.10
International Equity Fund
0-200M 0.35
>200M 0.25
Limited Term Government Income Fund
0-400M 0.15
400-800M 0.125
>800M 0.10
Liquidity Reserve Money Market Fund
0-1000M 0.05
>1000M 0.04
Minnesota Money Market Fund
0-1000M 0.05
>1000M 0.04
Minnesota Tax-Free Fund
0-400M 0.15
400-800M 0.125
>800M 0.10
Moderate Balanced Fund
0.05
Money Market Fund
0-1000M 0.05
>1000M 0.04
Money Market Trust
0-1000M 0.00
>1000M 0.00
▇▇▇▇▇▇▇▇▇▇ Emerging Markets Focus Fund
0-200M 0.35
>200M 0.25
▇▇▇▇▇▇▇▇▇▇ Institutional Emerging Markets Fund
0-200M 0.35
>200M 0.25
▇▇▇▇▇▇▇▇▇▇ Mid Cap Growth Fund (1)
0-200M 0.25
>200M 0.20
▇▇▇▇▇▇▇▇▇▇ Short Duration Government Bond Fund
0-400M 0.15
400-800M 0.125
>800M 0.10
▇▇▇▇▇▇▇▇▇▇ Small Cap Fund
0-200M 0.25
>200M 0.20
▇▇▇▇▇▇▇▇▇▇ Total Return Bond Fund
0-400M 0.15
400-800M 0.125
>800M 0.10
National Limited Term Tax-Free Fund
0-400M 0.15
400-800M 0.125
>800M 0.10
National Tax-Free Fund
0-400M 0.15
400-800M 0.125
>800M 0.10
National Tax-Free Institutional Money Market Fund
0-1000M 0.05
>1000M 0.04
National Tax-Free Money Market Fund
0-1000M 0.05
>1000M 0.04
National Tax-Free Money Market Trust
0-1000M 0.0
>1000M 0.0
Nebraska Tax-Free Fund
0-400M 0.15
400-800M 0.125
>800M 0.10
Overland Express Sweep Fund
0-1000M 0.05
>1000M 0.04
Prime Investment Institutional Money Market Fund
0-1000M 0.05
>1000M 0.04
Prime Investment Money Market Fund
0-1000M 0.05
>1000M 0.04
SIFE Specialized Financial Services Fund
0-200M 0.25
200-400M 0.20
>400M 0.15
Small Cap Growth Fund
0-200M 0.25
>200M 0.20
Strategic Growth Allocation Fund
0.05
Strategic Income Fund
0.05
Treasury Plus Institutional Money Market Fund
0-1000M 0.05
>1000M 0.04
Treasury Plus Money Market Fund
0-1000M 0.05
>1000M 0.04
WealthBuilder Growth Balanced Portfolio
0.05
WealthBuilder Growth and Income Portfolio
0.05
WealthBuilder Growth Portfolio
0.05
100% Treasury Money Market Fund
0-1000M 0.05
>1000M 0.04
(1)Name change of the Mid Cap Growth Fund to the ▇▇▇▇▇▇▇▇▇▇ Mid Cap
Growth Fund will take effect following the closing of the reorganization
of the ▇▇▇▇▇▇▇▇▇▇ Funds into the ▇▇▇▇▇ Fargo Funds, effective on or
about June 2003.
