AGREEMENT AND DECLARATION OF TRUST
OF
FIRST EAGLE TRUST
THIS AGREEMENT AND DECLARATION OF TRUST is made and entered
into as of the date set forth below by the Trustees named hereunder for the
purpose of forming a Delaware business trust in accordance with the provisions
hereinafter set forth,
NOW, THEREFORE, the Initial Trustees hereby direct that the
Certificate of Trust be filed with Office of the Secretary of State of the State
of Delaware, and the Initial Trustees do hereby declare that the Trustees will
hold in trust all cash, securities and other assets that the Trust now possesses
or may hereafter acquire from time to time in any manner and manage and dispose
of the same upon the following terms and conditions for the benefit of the
holders of Shares in the Trust.
ARTICLE I
Name and Definitions
Section 1. Name. This Trust shall be known as "First Eagle
Trust" and the Trustees shall conduct the business of the Trust under that name
or any other name as they may from time to time determine.
Section 2. Definitions. Whenever used herein, unless otherwise
required by the context or specifically provided:
(a) "By-Laws" shall mean the By-Laws of the Trust, as amended
from time to time, which By-Laws are expressly herein incorporated by reference
as part of the "governing instrument" within the meaning of the Delaware Act;
(b) "Certificate of Trust" means the certificate of trust, as
amended or restated from time to time, filed by the Trustees in the Office of
the Secretary of State of the State of Delaware in accordance with the Delaware
Act;
(c) "Class" means a class of Shares of a Series of the Trust
established in accordance with the provisions of Article III hereof;
(d) "Commission" means the Securities and Exchange Commission;
(e) "Declaration of Trust" means this Agreement and
Declaration of Trust, as amended or restated from time to time;
(f) "Delaware Act" means the Delaware Business Trust Act, 12
Del. C. 'SS''SS' 3801 et seq., as amended from time to time;
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(g) "Initial Trustees" means the person or persons who have
signed this Declaration of Trust;
(h) "Manager" means a party furnishing services to the Trust
pursuant to an investment management or investment advisory agreement described
in Article IV, Section 8(a) hereof;
(i) "1940 Act" means the Investment Company Act of 1940 and
the Rules and Regulations thereunder, all as amended from time to time;
(j) "Person" means and includes individuals, corporations,
partnerships, trusts, associations, joint ventures, estates and other entities,
whether or not legal entities, and governments and agencies and political
subdivisions thereof, whether domestic or foreign;
(k) "Principal Underwriter" shall have the meaning given to it
in the 1940 Act;
(l) "Series" means each Series of Shares established and
designated under or in accordance with the provisions of Article III hereof;
(m) "Shareholder" means a beneficial owner of outstanding
Shares;
(n) "Shares" means the Shares of beneficial interest into
which the beneficial interest in the Trust shall be divided, from time to time,
and includes fractions of Shares as well as whole Shares;
(o) "Trust" means the Delaware business trust established
under the Delaware Act by this Declaration of Trust and the filing of the
Certificate of Trust in the Office of the Secretary of State of the State of
Delaware;
(p) "Trust Property" means any and all property, real or
personal, tangible or intangible, that is from time to time owned or held by or
for the account of the Trust; and
(q) "Trustees" means the Initial Trustees, and all other
Persons who may, from time to time, be duly elected or appointed to serve as
Trustees in accordance with the provisions hereof, in each case so long as such
Person shall continue in office in accordance with the terms of this Declaration
of Trust, and reference herein to a Trustee or the Trustees shall refer to such
Person or Persons in her or his or their capacity as Trustees hereunder.
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ARTICLE II
Purpose of Trust
The purpose of the Trust is to conduct, operate and carry on
the business of a management investment company registered under the 1940 Act
through one or more Series investing primarily in securities, and to carry on
such other business as the Trustees may, from time to time, determine pursuant
to their authority under this Declaration of Trust.
ARTICLE III
Shares
Section 1. Division of Beneficial Interests. The beneficial
interests in the Trust may be divided into one or more Series. Each Series may
be divided into one or more Classes. Subject to the further provisions of this
Article III and any applicable requirements of the 1940 Act, the Trustees shall
have full power and authority, in their sole discretion, and without obtaining
any authorization or vote of the Shareholders of any Series or Class thereof,
(i) to divide the beneficial interests in the Trust or in each Series or Class
thereof into Shares, with or without par value as the Trustees shall determine,
(ii) to issue Shares without limitation as to number (including fractional
Shares) to such Persons and for such amount and type of consideration, including
cash or securities, at such time or times and on such terms as the Trustees may
deem appropriate, (iii) to establish and designate and to change in any manner
any Series or Class thereof and to fix such preferences, voting powers, rights,
duties and privileges and business purpose of each Series or Class thereof as
the Trustees may, from time to time, determine, which preferences, voting
powers, rights, duties and privileges may be senior or subordinate to (or in the
case of business purpose, different from) any existing Series or Class thereof
and may be limited to specified property or obligations of the Trust or profits
and losses associated with specified property or obligations of the Trust, (iv)
to divide or combine the Shares of any Series or Class thereof into a greater or
lesser number, or issue dividends in Shares with respect to Shares of any Series
or Class, without thereby materially changing the proportionate beneficial
interest of the Shares of such Series or Class in the assets held with respect
to that Series or Class thereof, (v) to classify or reclassify any issued Shares
of any Series or Class thereof into Shares of one or more Series or Classes
thereof and (vi) to take such other action with respect to the Shares as the
Trustees may deem desirable.
Subject to the distinctions permitted among Classes or
otherwise in Shares of the same Series as established by the Trustees consistent
with the requirements of the 1940 Act, each Share of a Series of the Trust shall
represent an equal beneficial interest in the net assets of such Series, and
each holder of Shares of a Series shall be entitled to receive such holder's pro
rata share of distributions of income and capital gains, if any, made with
respect to such Series. Upon redemption of the Shares of any Series or Class
thereof, the applicable
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Shareholder shall be entitled to be paid solely out of the funds and property of
such Series or Class thereof of the Trust.
All references to Shares in this Declaration of Trust shall be
deemed to be Shares of any or all Series or Classes thereof, as the context may
require. All provisions herein relating to the Trust shall apply equally to each
Series of the Trust and each Class thereof, except as the context otherwise
requires.
All Shares issued hereunder, including, without limitation,
Shares issued in connection with a dividend in Shares or a split or reverse
split of Shares, shall be fully paid and non-assessable. Except as otherwise
provided by the Trustees, Shareholders shall have no appraisal, preemptive or
other right to subscribe to any additional Shares or other securities issued by
the Trust.
Section 2. Ownership of Shares. The ownership of Shares shall
be recorded on the books of the Trust or a transfer or similar agent for the
Trust, which books shall be maintained separately for the Shares of each Series
(or Class). No certificates certifying the ownership of Shares shall be issued
except as the Trustees may otherwise determine from time to time. The Trustees
may make such rules as they consider appropriate for the issuance of Share
certificates, the transfer of Shares of each Series (or Class) and similar
matters. The record books of the Trust as kept by the Trust or any transfer or
similar agent, as the case may be, shall be conclusive as to the identity of the
Shareholders of each Series (or Class) and as to the number of Shares of each
Series (or Class) held, from time to time, by each Shareholder.
Section 3. Transfer of Shares. Except as otherwise provided by
the Trustees, Shares shall be transferable on the books of the Trust only by the
record holder thereof or by his duly authorized agent upon delivery to the
Trustees or the Trust's transfer agent of a duly executed instrument of
transfer, together with a Share certificate if one is outstanding, and such
evidence of the genuineness of the execution and authorization thereof as may be
required by the Trustees and of such other matters as may be required by the
Trustees. Upon such delivery, and subject to any further requirements specified
by the Trustees or contained in the By-Laws, the transfer shall be recorded on
the books of the Trust. Until a transfer is so recorded, the record holder of
Shares shall be deemed to be the holder of such Shares for all purposes
hereunder and neither the Trustees nor the Trust, nor any transfer agent,
shareholder servicing agent or similar agent, any officer, employee or agent of
the Trust, shall be affected by any notice of a proposed transfer.
Section 4. Investments in the Trust. Investments may be
accepted by the Trust from such Persons, at such times, on such terms, and for
such consideration as the Trustees, from time to time, may authorize.
Section 5. Status of Shares and Limitation of Personal
Liability. Shares shall be deemed to be personal property giving only the rights
provided in this instrument. Every
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Shareholder, by virtue of having become a Shareholder, shall be held to have
expressly assented and agreed to the terms hereof. The death, incapacity,
dissolution, termination or bankruptcy of a Shareholder during the existence of
the Trust shall not operate to dissolve the Trust, nor entitle the
representative of any such Shareholder to an accounting or to take any action in
court or elsewhere against the Trust or the Trustees, but entitles such
representative only to the rights of such Shareholder under this Trust.
Ownership of Shares shall not entitle the Shareholder to any title in or to the
whole or any part of the Trust Property or right to call for a partition or
division of the same or for an accounting, nor shall the ownership of Shares
constitute the Shareholders as partners. Neither the Trust nor the Trustees, nor
any officer, employee or agent of the Trust shall have any power to bind
personally any Shareholder, nor, except as specifically provided herein, to call
upon any Shareholder for the payment of any sum of money or assessment
whatsoever other than such as the Shareholder may at any time personally agree
to pay. Except as specifically provided herein, no Shareholder shall be
personally liable for the debts, liabilities, obligations or expenses incurred
by, contracted for, or otherwise existing with respect to, the Trust or by or on
behalf of any Series or Class. Every note, bond, contract or other understanding
issued by or on behalf of the Trust or Trustees relating to the Trust or to a
Series or Class may include a recitation limiting the obligation represented
thereby to the Trust or to one or more Series or Class and its respective assets
(but the omission of such a recitation shall not operate to bind any Shareholder
or Trustee of the Trust).
Section 6. Establishment and Designation of Series (or Class).
Without obtaining any authorization or vote of the Shareholders of any Series or
Class thereof (except as otherwise required by the 1940 Act), the establishment
and designation of any Series (or Class) of Shares shall be effective upon the
adoption by a majority of the then Trustees of a resolution that sets forth such
establishment and designation and the relative rights and preferences of such
Series (or Class), whether directly in such resolution or by reference to
another document including, without limitation, any registration statement of
the Trust, or as otherwise provided in such resolution.
Shares of each Series (or Class) established pursuant to this
Article III, unless otherwise provided in the resolution establishing such
Series, shall have the following relative rights and preferences:
(a) Assets Held with Respect to a Particular Series (or
Class). All consideration received by the Trust for the issue or sale of Shares
of a particular Series or Class thereof, together with all assets in which such
consideration is invested or reinvested, all income, earnings, profits, and
proceeds thereof from whatever source derived, including, without limitation,
any proceeds derived from the sale, exchange or liquidation of such assets, and
any funds or payments derived from any reinvestment of such proceeds in whatever
form the same may be, shall irrevocably be held with respect to that Series (or
Class) for all purposes, subject only to the rights of creditors of such Series
(or Class thereof to the extent provided below), and shall be so recorded upon
the books of account of the Trust. Such consideration, assets, income, earnings,
profits and proceeds thereof, from
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whatever source derived, including, without limitation, any proceeds derived
from the sale, exchange or liquidation of such assets, and any funds or payments
derived from any reinvestment of such proceeds, in whatever form the same may
be, are herein referred to as "assets held with respect to" that Series (or
Class thereof). In the event that there are any assets, income, earnings,
profits and proceeds thereof, funds or payments that are not readily
identifiable as assets held with respect to any particular Series (and the
Classes thereof) (collectively "General Assets"), the Trustees shall allocate
such General Assets to, between or among any one or more of the Series (and the
Classes thereof) in such manner and on such basis as the Trustees, in their sole
discretion, deem fair and equitable, and any General Assets so allocated to a
particular Series (and the Classes thereof) shall be assets held with respect to
that Series and such Classes. Each such allocation by the Trustees shall be
conclusive and binding upon the Shareholders of all Series and Classes for all
purposes. Separate and distinct records shall be maintained for each Series (and
the Classes thereof) and the assets held with respect to each Series (and the
Classes thereof) shall be held and accounted for separately from the assets held
with respect to all other Series (and the Classes thereof) and the General
Assets of the Trust not allocated to such Series or Classes.
(b) Liabilities Attributable to a Particular Series (or
Class). The assets of the Trust held with respect to each particular Series (or
Class thereof) shall be charged exclusively with the liabilities of the Trust
attributable to that Series or Class and all expenses, costs, charges and
reserves attributable to that Series or Class. Any general liabilities of the
Trust that are not readily identifiable as being attributable to any particular
Series (and the Classes thereof) shall be allocated and charged by the Trustees
to and among any one or more of the Series (and the Classes thereof) in such
manner and on such basis as the Trustees in their sole discretion deem fair and
equitable. All liabilities, expenses, costs, charges, and reserves so charged to
a Series (and the Classes thereof) are herein referred to as "liabilities
attributable to" that Series (or Class thereof). Each allocation of liabilities,
expenses, costs, charges and reserves by the Trustees shall be conclusive and
binding upon the Shareholders of all Series and Classes for all purposes. All
liabilities attributable to a particular Series shall be enforceable against the
assets held with respect to such Series only and not against the assets of the
Trust generally or against the assets held with respect to any other Series.
Notice of this limitation on the liability of each Series shall be set forth in
the Certificate of Trust or in an amendment thereto prior to the issuance of any
Shares of a Series. To the extent that the Trustees, pursuant to Section 2 of
Article VII hereof, include a Class limitation on liability in any note, bond,
contract, instrument, certificate or undertaking made with respect to any Class,
the parties to such note, bond, contract, instrument, certificate or undertaking
shall look only to the assets of such Class in satisfaction of the liabilities
arising thereunder and not to the assets of any other Class of the applicable
Series.
(c) Dividends, Distributions, Redemptions and Repurchases.
Notwithstanding any other provision of this Declaration of Trust, including,
without limitation, Article VI, no dividend or distribution, including, without
limitation, any distribution paid upon dissolution of the Trust or of any Series
(or Class) thereof with respect to, nor any redemption or repurchase of, the
Shares of any Series (or Class thereof) shall be
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effected by the Trust other than from the assets held with respect to such
Series (or Class thereof), nor shall any Shareholder of any particular Series
(or Class thereof) otherwise have any right or claim against the assets held
with respect to any other Series or Class except to the extent that such
Shareholder has such a right or claim hereunder as a Shareholder of such other
Series or Class. The Trustees shall have full discretion, to the extent not
inconsistent with the 1940 Act, to determine which items shall be treated as
income and which items as capital; and each such determination and allocation
shall be conclusive and binding upon the Shareholders.
(d) Equality. All the Shares of each particular Series (or
Class thereof) shall represent an equal proportionate interest in the assets
held with respect to that Series (or Class thereof), and each Share of any
particular Series shall be equal to each other Share of that Series (subject to
the liabilities attributable to that Series and such rights and preferences as
may have been established and designated with respect to Classes, or otherwise,
of Shares within such Series).
(e) Fractions. Any fractional Share of a Series (or Class
thereof) shall carry proportionately all the rights and obligations of a whole
Share of that Series or Class, including rights with respect to voting, receipt
of dividends and distributions, redemption of Shares and dissolution of the
Trust.
(f) Combination of Series. The Trustees shall have the
authority, without the approval of the Shareholders of any Series (or Class
thereof), unless otherwise required by applicable law, to combine the assets and
liabilities attributable to any two or more Series (or Classes) into assets and
liabilities attributable to a single Series or Class.
(g) Elimination of Series. At any time that there are no
Shares outstanding of any particular Series (or Class) previously established
and designated, the Trustees may by resolution of a majority of the Trustees
abolish that Series (or Class) and rescind the establishment and designation
thereof and may thereafter establish a new Series (or Class) with such
designation and otherwise as herein provided.
Section 7. Indemnification of Shareholders. If any Shareholder
or former Shareholder shall be exposed to liability by reason of a claim or
demand relating to such Person being or having been a Shareholder, and not
because of such Person's acts or omissions, the Shareholder or former
Shareholder (or such Person's heirs, executors, administrators, or other legal
representatives or in the case of a corporation or other entity, its corporate
or other general successor) shall be entitled to be held harmless from and
indemnified out of the assets of the Trust against all cost and expense
reasonably incurred in connection with such claim or demand, but only out of the
assets held with respect to the particular Series (or Class thereof) of Shares
of which such Person is or was a Shareholder and from or in relation to which
such liability arose. The Series (or Class thereof) may, at its option, and
shall, upon request by the Shareholder, assume the defense of any claim made
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against the Shareholder for any act or obligation of such Series and satisfy any
judgment thereon.
ARTICLE IV
Trustees
Section 1. Election of Trustees. Upon the issuance of
beneficial interests of the Trust, First Eagle Fund of America, Inc., a Maryland
corporation, and First Eagle International Fund, Inc., a Maryland corporation,
as initial shareholders of the Trust, shall each elect the Trustees of the
Trust; to the extent that persons so elected are different from the Initial
Trustee, such persons shall replace the Initial Trustee as Trustees of the
Trust.
Section 2. Number, Election and Tenure. The Initial Trustee
shall be Xxxxxx Xxxxx. After the initial election of Trustees, the number of
Trustees shall be eight or such other number as shall, from time to time, be
determined by the Trustees pursuant to Section 4 of this Article IV. Except as
described above with respect to the Initial Trustee, each Trustee shall serve
during the continued term of the Trust until she or he dies, resigns, is
declared bankrupt or incompetent by a court of appropriate jurisdiction, or is
removed, or, if sooner, until the next meeting of Shareholders called for the
purpose of electing Trustees and until the election and qualification of her or
his successor. In the event that less than the majority of the Trustees holding
office have been elected by the Shareholders, to the extent required by the 1940
Act, the Trustees then in office shall call a Shareholders' meeting for the
election of Trustees. Any Trustee may resign at any time by written instrument
signed by her or him and delivered to any officer of the Trust or to the
secretary of any meeting of the Trustees. Such resignation shall be effective
upon receipt unless specified to be effective at some other time. Except to the
extent expressly provided in a written agreement with the Trust, no Trustee
resigning and no Trustee removed shall have any right to any compensation for
any period following her or his resignation or removal, or any right to damages
on account of such removal. The Shareholders may elect Trustees at any meeting
of Shareholders called by the Trustees for that purpose. Any Trustee may be
removed at any meeting of Shareholders by a majority vote of the outstanding
Shares of the Trust, as defined in the 1940 Act.
Section 3. Effect of Death, Resignation or Removal of a
Trustee. The death, declination to serve, resignation, retirement, removal, or
incapacity of one or more Trustees, or all of them, shall not operate to annul
the Trust or to revoke any existing agency created pursuant to the terms of this
Declaration of Trust. Whenever there shall be fewer than the designated number
of Trustees, until additional Trustees are elected or appointed as provided
herein to bring the total number of Trustees equal to the designated number, the
Trustees in office, regardless of their number, shall have all the powers
granted to the Trustees and shall discharge all the duties imposed upon the
Trustees by this Declaration of Trust. As conclusive evidence of such vacancy, a
written instrument certifying the existence of such
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vacancy may be executed by an officer of the Trust or by a majority of the
Trustees then in office. In the event of the death, declination, resignation,
retirement, removal, or incapacity of all the then Trustees within a short
period of time and without the opportunity for at least one Trustee being able
to appoint additional Trustees to replace those no longer serving, the Trust's
Manager is empowered to appoint new Trustees subject to the applicable
provisions of the 1940 Act.
Section 4. Powers. Subject to the provisions of this
Declaration of Trust, the business of the Trust shall be managed by the
Trustees; the Trustees shall have full power and authority to do any and all
acts and to make and execute any and all contracts and instruments that they may
consider necessary or appropriate in connection with the management of the
Trust, including the power to engage in securities transactions of all kinds on
behalf of the Trust. Without limiting the foregoing, the Trustees may: adopt
By-Laws not inconsistent with this Declaration of Trust providing for the
regulation and management of the affairs of the Trust and may amend and repeal
them to the extent that such By-Laws do not reserve that right to the
Shareholders; enlarge or reduce their number; remove any Trustee with or without
cause at any time by written instrument signed by at least two-thirds of the
number of Trustees prior to such removal, specifying the date when such removal
shall become effective and fill vacancies caused by enlargement of their number
or by the death, resignation or removal of a Trustee; elect and remove, with or
without cause, such officers and appoint and terminate such agents as they
consider appropriate; appoint from their own number and establish and terminate
one or more committees consisting of two or more Trustees which may exercise the
powers and authority of the Board of Trustees to the extent that the Board of
Trustees determine; deposit all or any part of such assets in a system or
systems for the central handling of securities or with a Federal Reserve Bank;
provide for the issuance and distribution of Shares by the Trust directly or
through one or more Principal Underwriters or otherwise; redeem, repurchase and
transfer Shares pursuant to applicable law; declare and pay dividends and
distributions to Shareholders from the assets available therefor; and in general
exercise, or delegate to any officer of the Trust, to any committee of the
Trustees and to any agent or employee of the Trust or to any such custodian,
transfer or Shareholder servicing agent, or Principal Underwriter, such
authority as they consider desirable. Any determination as to what is in the
interests of the Trust made by the Trustees in good faith shall be conclusive.
In construing the provisions of this Declaration of Trust, the presumption shall
be in favor of a grant of power to the Trustees. Unless otherwise specified
herein or in the By-Laws or required by law, any action by the Trustees shall be
deemed effective if approved or taken by a majority of the Trustees present at a
meeting of Trustees at which a quorum of Trustees is present, within or without
the State of Delaware.
Without limiting the foregoing, the Trustees shall have the
power and authority to cause the Trust (or to act on behalf of the Trust):
(a) To operate as and carry out the business of an investment
company, and exercise all the powers necessary or appropriate to the conduct of
such operations;
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(b) To invest and reinvest cash, to hold cash uninvested, and
to subscribe for, invest in, reinvest in, purchase or otherwise acquire, own,
hold, pledge, sell, assign, transfer, exchange, distribute, purchase or write
options on, lend, enter into contracts for the future acquisition or delivery
of, or otherwise deal in or dispose of, securities, indices, currencies,
commodities or other property of every nature and kind, including, without
limitation, all types of bonds, debentures, stocks, negotiable or non-negotiable
instruments, obligations, evidences of indebtedness, certificates of deposit or
indebtedness, commercial paper, repurchase agreements, bankers' acceptances, and
other securities, commodities or contracts of any kind, issued, created,
guaranteed, or sponsored by any and all Persons, including, without limitation,
states, territories, and possessions of the United States and the District of
Columbia and any political subdivision, agency, or instrumentality thereof, the
U.S. Government or any foreign government or any political subdivision of the
U.S. Government or any foreign government, or any domestic or international
instrumentality, or by any bank or savings institution, or by any corporation or
organization organized under the laws of the United States or of any state,
territory, or possession thereof, or by any corporation or organization
organized under any foreign law, or in "when issued" contracts for any such
securities; to change the investments of the assets of the Trust; and to
exercise any and all rights, powers, and privileges of ownership or interest in
respect of any and all such investments of every kind and description,
including, without limitation, the right to consent and otherwise act with
respect thereto, with power to designate one or more Persons to exercise any of
said rights, powers, and privileges in respect of any of said instruments;
(c) To sell, exchange, lend, pledge, mortgage, hypothecate,
lease, or write options (including options on futures contracts) with respect to
or otherwise deal in any property rights relating to any or all of the assets of
the Trust or any Series or Class thereof;
(d) To vote or give assent, or exercise any rights of
ownership, with respect to stock or other securities or property; and to execute
and deliver proxies or powers of attorney to such Person or Persons as the
Trustees shall deem proper, granting to such Person or Persons such power and
discretion with relation to securities or property as the Trustees shall deem
proper;
(e) To set record dates for the determination of Shareholders
with respect to various matters, which, for purposes of determining the
Shareholders of any Series (or Class) who are entitled to receive payment of any
dividend or of any other distribution shall be on or before the date for the
payment of such dividend or such other payment, as the record date for
determining the Shareholders of such Series (or Class) having the right to
receive such dividend or distribution; without fixing a record date, the
Trustees may for distribution purposes close the register or transfer books for
one or more Series (or Classes) at any time prior to the payment of a
distribution; nothing in this subsection shall be construed as precluding the
Trustees from setting different record dates for different Series (or Classes);
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(f) To exercise powers and rights of subscription or otherwise
which in any manner arise out of ownership of securities or other property;
(g) To hold any security or property in a form not indicating
any trust, whether in bearer, unregistered or other negotiable form, or in its
own name or in the name of a custodian or a nominee or nominees or otherwise;
(h) To consent to or participate in any plan for the
reorganization, consolidation or merger of any corporation or issuer of any
security or property which is held in the Trust; to consent to any contract,
lease, mortgage, purchase or sale of property by such corporation or issuer; and
to pay calls or subscriptions with respect to any security or property held in
the Trust;
(i) To join with other security or property holders in acting
through a committee, depositary, voting trustee or otherwise, and in that
connection to deposit any security or property with, or transfer any security or
property to, any such committee, depositary or trustee, and to delegate to them
such power and authority with relation to any security or property (whether or
not so deposited or transferred) as the Trustees shall deem proper, and to agree
to pay, and to pay, such portion of the expenses and compensation of such
committee, depositary or trustee as the Trustees shall deem proper;
(j) 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;
(k) To enter into joint ventures, general or limited
partnerships and any other combinations or associations;
(l) To borrow funds or other property in the name of the Trust
or any Series thereof exclusively for Trust or the relevant Series purposes and
in connection therewith issue notes or other evidences of indebtedness; and to
mortgage and pledge the Trust Property or any part thereof to secure any or all
of such indebtedness;
(m) To endorse or guarantee the payment of any notes or other
obligations of any Person; to make contracts of guaranty or suretyship, or
otherwise assume liability for payment thereof; and to mortgage and pledge the
Trust Property or any part thereof to secure any of or all of such obligations;
(n) To purchase and pay for entirely out of Trust Property
such insurance as the Trustees may deem necessary or appropriate for the conduct
of the business, including, without limitation, insurance policies insuring the
assets of the Trust or payment of distributions and principal on its portfolio
investments, and insurance policies insuring the Shareholders, Trustees,
officers, employees, agents, investment advisers, principal underwriters, or
independent contractors of the Trust, individually against all claims and
liabilities of every nature arising by reason of holding Shares, holding, being
in or having
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held any such office or position, or by reason of any action alleged to have
been taken or omitted by any such Person as Trustee, officer, employee, agent,
investment adviser, principal underwriter, or independent contractor, including
any action taken or omitted that may be determined to constitute negligence,
whether or not the Trust would have the power to indemnify such Person against
liability;
(o) To adopt, establish and carry out pension, profit-sharing,
Share bonus, Share purchase, savings, thrift and other retirement, incentive and
benefit plans and trusts, including the purchasing of life insurance and annuity
contracts as a means of providing such retirement and other benefits, for any or
all of the Trustees, officers, employees and agents of the Trust;
(p) To enter into contracts of any kind and description;
(q) To interpret the investment policies, practices or
limitations of any Series or Class;
(r) To establish a registered office and have a registered
agent in the State of Delaware;
(s) To invest part or all of the Trust Property (or part or
all of the assets of any Series), or to dispose of part or all of the Trust
Property (or part or all of the assets of any Series) and invest the proceeds of
such disposition, in securities issued by one or more other investment companies
registered under the 1940 Act (including investment by means of transfer or part
of all of the Trust Property in exchange for an interest or interests in such
one or more investment companies) all without any requirement of approval by
Shareholders unless required by the 1940 Act. Any such other investment company
may (but need not) be a trust (formed under the laws of the State of Delaware or
of any other state) which is classified as a partnership for federal income tax
purposes.
(t) Subject to the 1940 Act, to engage in any other lawful act
or activity in which a business trust organized under the Delaware Act may
engage; and
(u) In general to carry on any other business in connection
with or incidental to any of the foregoing powers, to do everything necessary,
suitable or proper for the accomplishment of any purpose or the attainment of
any object or the furtherance of any power hereinbefore set forth, either alone
or in association with others, and to do every other act or thing incidental or
appurtenant to or growing out of or connected with the aforesaid business or
purposes, objects or powers.
The foregoing clauses shall be construed as objects and
powers, and the foregoing enumeration of specific powers shall not be held to
limit or restrict in any manner the general power of the Trustees. Any action by
one or more of the Trustees in their
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capacity as such hereunder shall be deemed an action on behalf of the Trust or
the applicable Series, and not an action in an individual capacity.
The Trust shall not be limited to investing in obligations
maturing before the possible dissolution of the Trust or one or more of its
Series or Classes thereof. The Trust shall not in any way be bound or limited by
any present or future law or custom in regard to investment by fiduciaries. The
Trust shall not be required to obtain any court order to deal with any assets of
the Trust or take any other action hereunder.
Section 5. Payment of Expenses by the Trust. The Trustees are
authorized to pay or cause to be paid out of the principal or income of the
Trust, or partly out of the principal and partly out of income, as they deem
fair, all expenses, fees, charges, taxes and liabilities incurred or arising in
connection with the Trust, or in connection with the management thereof,
including, but not limited to, the Trustees compensation and such expenses and
charges for the services of the Trust's officers, employees, investment adviser
or manager, Principal Underwriter, auditors, counsel, custodian, transfer agent,
Shareholder servicing agent, and such other agents or independent contractors
and such other expenses and charges as the Trustees may deem necessary or proper
to incur, which expenses, fees, charges, taxes and liabilities shall be
allocated in accordance with Article III, Section 6 hereof.
Section 6. Payment of Expenses by Shareholders. The Trustees
shall have the power to cause each Shareholder, or each Shareholder of any
particular Series or Class, to pay directly, at such intervals as the Trustees
may determine, in advance or arrears, for charges of the Trust's transfer agent,
Shareholder servicing or similar agent, an amount fixed, from time to time, by
the Trustees, by setting off such charges due from such Shareholder from
declared but unpaid dividends owed such Shareholder and/or by reducing the
number of Shares in the account of such Shareholder by that number of full
and/or fractional Shares which represents the outstanding amount of such charges
due from such Shareholder.
Section 7. Ownership of Assets of the Trust. The assets of the
Trust shall be held separate and apart from any assets now or hereafter held in
any capacity other than as Trustee hereunder by the Trustees. Title to all of
the assets of the Trust shall at all times be considered as vested in the Trust,
except that the Trustees shall have power to cause legal title to any Trust
Property to be held by or in the name of one or more of the Trustees, or in the
name of any other Person as nominee, on such terms as the Trustees may
determine. The right, title and interest of the Trustees in the Trust Property
shall vest automatically in each Person who may hereafter become a Trustee. Upon
the resignation, removal or death of a Trustee, she or he shall automatically
cease to have any right, title or interest in any of the Trust Property, and the
right, title and interest of such Trustee in the Trust Property shall vest
automatically in the remaining Trustees. Such vesting and cessation of title
shall be effective whether or not conveyancing documents have been executed and
delivered.
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Section 8. Service Contracts.
(a) Subject to such requirements and restrictions as may be
set forth under applicable federal or state law and in the By-Laws, including,
without limitation, on the date hereof the requirements of Section 15 of the
1940 Act, or any successor provision, the Trustees may, at any time and from
time to time, contract for exclusive or nonexclusive investment advisory,
management or administrative services for the Trust or for any Series (or Class
thereof) with any corporation, trust, association or other organization; and any
such contract may contain such other terms as the Trustees may determine,
including, without limitation, authority for the Manager or administrator to
delegate certain or all of its duties under such contracts to qualified
investment advisers or administrators and to determine from time to time,
without prior consultation with the Trustees, what investments shall be
purchased, held, sold or exchanged and what portion, if any, of the assets of
the Trust shall be held uninvested and to make changes in the Trust's
investments, or such other activities as may specifically be delegated to such
party.
(b) The Trustees may also, at any time and from time to time,
contract with any corporation, trust, association or other organization,
appointing it exclusive or nonexclusive distributor or Principal Underwriter for
the Shares of one or more of the Series (or Classes) or other securities to be
issued by the Trust. Every such contract shall comply with such requirements and
restrictions as may be set forth under applicable federal or state law and in
the By-Laws, including, without limitation, at the date hereof the requirements
of Section 15 of the 1940 Act, or any successor provision; and any such contract
may contain such other terms as the Trustees may determine.
(c) The Trustees are also empowered, at any time and from time
to time, to contract with any corporations, trusts, associations or other
organizations, appointing it or them the custodian, transfer agent or
Shareholder servicing agent for the Trust or one or more of its Series (or
Classes). Every such contract shall comply with such requirements and
restrictions as may be set forth under applicable federal or state law and in
the By-Laws or stipulated by resolution of the Trustees. The Trustees are
empowered, at any time and from time to time, to retain sub-agents (foreign or
domestic) in connection with any service provider to the Trust or one or more of
its Series (or Classes).
(d) Subject to applicable law, the Trustees are further
empowered, at any time and from time to time, to contract with any entity to
provide such other services, including, without limitation, accounting and
pricing services, to the Trust or one or more of the Series (or Classes
thereof), as the Trustees determine to be in the best interests of the Trust and
the applicable Series (or Class).
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(e) The fact that:
(i) any of the Shareholders, Trustees, or officers of
the Trust is a shareholder, director, officer, partner,
trustee, employee, manager, adviser, principal underwriter,
distributor, or affiliate or agent of or for any corporation,
trust, association, or other organization, or for any parent
or affiliate of any organization, with which an advisory,
management or administration contract, or Principal
Underwriter's or distributor's contract, or transfer,
shareholder servicing or other type of service contract may
have been or may hereafter be made, or that any such
organization, or any parent or affiliate thereof, is a
Shareholder or has an interest in the Trust, or that
(ii) any corporation, trust, association or other
organization with which an advisory, management or
administration contract or Principal Underwriter's or
distributor's contract, or transfer, shareholder servicing or
other type of service contract may have been or may hereafter
be made with the Trust or any Series of the Trust also has an
advisory, management or administration contract, or principal
underwriter's or distributor's contract, or transfer,
shareholder servicing or other service contract with one or
more other corporations, trusts, associations, or other
organizations, or has other business or interests, shall not
affect the validity of any such contract or disqualify any
Shareholder, Trustee or officer of the Trust from voting upon
or executing the same, or create any liability or
accountability to the Trust or its Shareholders, provided
approval of each such contract is made pursuant to the
requirements of the 1940 Act.
Section 9. Trustees and Officers as Shareholders. Any Trustee,
officer or agent of the Trust may acquire, own and dispose of Shares to the same
extent as if he or she were not a Trustee, officer or agent; and the Trustees
may issue and sell and cause to be issued and sold Shares to, and redeem such
Shares from, any such Person or any firm or company in which such Person is
interested, subject only to the general limitations contained herein or in the
By-Laws relating to the sale and redemption of such Shares.
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ARTICLE V
Shareholders' Voting Powers and Meetings
Section 1. Voting Powers, Meetings, Notice and Record Dates.
The Shareholders shall have power to vote only (i) for the election or removal
of Trustees to the extent and as provided in Article IV, Section 2, and (ii)
with respect to such additional matters relating to the Trust as may be required
by applicable law, this Declaration of Trust, the By-Laws or any registration of
the Trust with the Commission (or any successor agency) or any state, or as the
Trustees may consider necessary or desirable. Each Shareholder shall be entitled
to one vote for each dollar of net asset value (determined as of the applicable
record date) of each Share owned by such Shareholder (number of Shares owned
times net asset value per Share) on any matter on which such Shareholder is
entitled to vote and each fractional dollar amount shall be entitled to a
proportionate fractional vote. Notwithstanding any other provision of this
Declaration of Trust, on any matter submitted to a vote of the Shareholders, all
Shares of the Trust then entitled to vote shall be voted in aggregate, except
(i) when required by the 1940 Act, Shares shall be voted by individual Series or
Class; and (ii) when the matter involves the termination of a Series or Class or
any other action that the Trustees have determined will affect only the
interests of one or more Series or Classes, then only Shareholders of such
Series or Classes shall be entitled to vote thereon. There shall be no
cumulative voting in the election of Trustees. Shares may be voted in person or
by proxy. A proxy may be given in writing. The By-Laws may provide that proxies
may also, or may instead, be given by any electronic or telecommunications
device or in any other manner. Notwithstanding anything else contained herein or
in the By-Laws, in the event a proposal by anyone other than the officers or
Trustees of the Trust is submitted to a vote of the Shareholders of one or more
Series or Classes thereof or of the Trust, or in the event of any proxy contest
or proxy solicitation or proposal in opposition to any proposal by the officers
or Trustees of the Trust, Shares may be voted only in person or by written proxy
at a meeting. Until Shares are issued, the Trustees may exercise all rights of
Shareholders and may take any action required by law, this Declaration of Trust
or the By-Laws to be taken by the Shareholders. Meetings of the Shareholders
shall be called and notice thereof and record dates therefor shall be given and
set as provided in the By-Laws.
Section 2. Quorum and Required Vote. Except when a larger
quorum is required by applicable law, by the By-Laws or by this Declaration of
Trust, (i) thirty-three and one-third percent (33-1/3%) of the Shares entitled
to vote shall constitute a quorum at a Shareholders' meeting and (ii) when any
one or more Series (or Classes) is to vote as a single class separate from any
other Shares, thirty-three and one-third percent (33-1/3%) of the Shares of each
such Series (or Class) entitled to vote shall constitute a quorum at a
Shareholders' meeting of that Series (or Class). Except when a larger vote is
required by any provision of this Declaration of Trust or the By-Laws or by
applicable law, when a quorum is present at any meeting, a majority of the
Shares voted shall decide any questions and a plurality of the Shares voted
shall elect a Trustee, provided that where any provision of law or of this
Declaration of Trust requires that the holders of any Series shall vote as a
17
Series (or that holders of a Class shall vote as a Class), then a majority of
the Shares of that Series (or Class) voting on the matter (or a plurality with
respect to the election of a Trustee) shall decide that matter insofar as that
Series (or Class) is concerned.
Section 3. Additional Provisions. The By-Laws may include further
provisions for Shareholders' votes and meetings and related matters.
ARTICLE VI
Net Asset Value, Distributions and Redemptions
Section 1. Determination of Net Asset Value, Net Income, and
Distributions. Subject to applicable law and Article III, Section 6 hereof, the
Trustees, in their absolute discretion, may prescribe and shall set forth in the
Registration Statement of the Trust as filed on Form N-1A or any successor form
with the Commission (the "Registration Statement of the Trust") such bases and
time or times for determining the net asset value of the Shares of any Series or
Class, the net income attributable to the Shares of any Series or Class, or the
declaration and payment of dividends and distributions on the Shares of any
Series or Class, as they may deem necessary or desirable from time to time.
Section 2. Redemptions and Repurchases.
(a) The Trust shall purchase such Shares as are offered by any
record holder of such Shares for redemption, upon the presentation of a proper
instrument of transfer together with a request directed to the Trust or a Person
designated by the Trust that the Trust purchase such Shares or in accordance
with such other procedures for redemption as the Trustees may, from time to
time, authorize, and the Trust will pay therefor the net asset value thereof as
determined by the Trustees (or on their behalf), in accordance with any
applicable provisions of the By-Laws and applicable law. Unless extraordinary
circumstances exist, payment for said Shares shall be made by the Trust to the
Shareholder within seven (7) days after the date on which the request is made in
proper form. The obligation set forth in this Section 2 is subject to the
provisions regarding the suspension of the right of redemption that are set
forth in the Registration Statement of the Trust, and as the Trustees, in their
absolute discretion, may prescribe. In the case of a suspension of the right of
redemption as provided herein, a record holder of such Shares may either
withdraw the request for redemption or receive payment based on the net asset
value per Share next determined after the termination of such suspension.
(b) The redemption price may, in any case or cases, be paid
wholly or partly in-kind if the Trustees determine that such payment is
advisable and in the interest of the remaining Shareholders of the Series or
Class for which the Shares are being redeemed. The fair value, selection and
quantity of securities or other property so paid or delivered as all or part of
the redemption price may be determined by or under authority of the Trustees.
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In no case shall the Trust be liable for any delay of any corporation or other
Person in transferring securities selected for delivery as all or part of any
payment in-kind.
(c) If the Trustees shall, at any time and in good faith,
determine that direct or indirect ownership of Shares of any Series or Class has
or may become concentrated in any Person to an extent that would disqualify any
Series as a regulated investment company under the Internal Revenue Code of
1986, as amended (or any successor statute thereto), then the Trustees shall
have the power (but not the obligation) by such means as they deem equitable (i)
to involuntarily redeem any number, or principal amount, of Shares of such
Person sufficient to maintain or bring the direct or indirect ownership of
Shares into conformity with the requirements for such qualification, and (ii) to
refuse to transfer or issue Shares to any Person whose acquisition of the Shares
in question would result in such disqualification. Any such redemption shall be
effected at the redemption price and in the manner provided in this Article VI.
(d) The holders of Shares shall upon demand disclose to the
Trustees in writing such information with respect to direct and indirect
ownership of Shares as the Trustees deem necessary to comply with the provisions
of the Internal Revenue Code of 1986, as amended (or any successor statute
thereto), or to comply with the requirements of any other taxing or regulatory
authority.
(e) Subject to the requirements of the 1940 Act, the Board of
Trustees may cause the Trust to redeem, at the price and in the manner provided
in this Article VI, Shares of any Series or Class held by any Person (i) if such
Person is no longer qualified to hold such Shares in accordance with such
qualifications as may be established by the Trustees, (ii) if the net asset
value of such Shares is below the minimum investment amount which is set forth
in the Registration Statement of the Trust or (iii) if otherwise deemed by the
Trustees to be in the best interest of the Trust or that particular Series (or
Class) as a whole.
(f) Shares redeemed shall, upon redemption, be deemed to be retired and
restored to the status of unissued shares.
ARTICLE VII
Compensation and Limitation of Liability of Trustees
Section 1. Compensation. The Trustees as such shall be
entitled to reasonable compensation from the Trust, and they may fix the amount
of such compensation. Nothing herein shall in any way prevent the employment of
any Trustee for advisory, management, legal, accounting, investment banking or
other services and payment for the same by the Trust.
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Section 2. Indemnification and Limitation of Liability. A
Trustee, when acting in such capacity, shall not be personally liable to any
Person, other than the Trust or a Shareholder to the extent provided in this
Article VII, for any act, omission or obligation of the Trust, of such Trustee
or of any other Trustee. The Trustees shall not be responsible or liable in any
event for any neglect or wrongdoing of any officer, agent, employee, Manager or
Principal Underwriter of the Trust. The Trust (i) may indemnify an agent of the
Trust or any Person who is serving or has served at the Trust's request as an
agent of another organization in which the Trust has any interest as a
shareholder, creditor or otherwise and (ii) shall indemnify each Person who is,
or has been, a Trustee, officer or employee of the Trust and any Person who is
serving or has served at the Trust's request as a director, officer, trustee, or
employee of another organization in which the Trust has any interest as a
shareholder, creditor or otherwise, in the case of (i) and (ii), to the fullest
extent consistent with the 1940 Act and in the manner provided in the By-Laws;
provided that such indemnification shall not be available to any of the
foregoing Persons in connection with a claim, suit or other proceeding by any
such Person against the Trust or a Series (or Class) thereof.
All persons extending credit to, contracting with or having
any claim against the Trust or the Trustees shall look only to the assets of the
appropriate Series (or Class thereof if the Trustees have included a Class
limitation on liability in the agreement with such person as provided below),
or, if the Trustees have yet to establish Series, of the Trust for payment under
such credit, contract or claim; and neither the Trustees nor the Shareholders,
nor any of the Trust's officers, employees or agents, whether past, present or
future, shall be personally liable therefor.
Every note, bond, contract, instrument, certificate or
undertaking and every other act or thing whatsoever executed or done by or on
behalf of the Trust or the Trustees by any of them in connection with the Trust
shall conclusively be deemed to have been executed or done only in or with
respect to his or their capacity as Trustee or Trustees, and such Trustee or
Trustees shall not be personally liable thereon. At the Trustees' discretion,
any note, bond, contract, instrument, certificate or undertaking made or issued
by the Trustees or by any officer or officers may give notice that the
Certificate of Trust is on file in the Office of the Secretary of State of the
State of Delaware and that a statutory limitation on liability of Series exists
and such note, bond, contract, instrument, certificate or undertaking may, if
the Trustees so determine, recite that the same was executed or made on behalf
of the Trust by a Trustee or Trustees in such capacity and not individually or
by an officer or officers in such capacity and not individually and that the
obligations of such instrument are not binding upon any of them or the
Shareholders individually but are binding only on the assets and property of the
Trust or a Series thereof, and may contain such further recital as such Person
or Persons may deem appropriate including, without limitation, a requirement, in
any note, bond, contract, instrument, certificate or undertaking made with
respect to one or more Classes of any Series that the parties thereto look only
to the assets of such Class or Classes in satisfaction of the liabilities
arising thereunder. The omission of
20
any such notice or recital shall in no way operate to bind any Trustees,
officers or Shareholders individually.
Section 3. Trustee's Good Faith Action; Expert Advice; No Bond
or Surety. The exercise by the Trustees of their powers and discretions
hereunder shall be binding upon everyone interested. A Trustee shall be liable
to the Trust and to any Shareholder solely for her or his own willful
misfeasance, bad faith, gross negligence or reckless disregard of the duties
involved in the conduct of the office of Trustee, and shall not be liable for
errors of judgment or mistakes of fact or law. The Trustees may take advice of
counsel or other experts with respect to the meaning and operation of this
Declaration of Trust, and shall be under no liability for any act or omission in
accordance with such advice nor for failing to follow such advice. The Trustees
shall not be required to give any bond as such, nor any surety if a bond is
required.
Section 4. Insurance. The Trustees shall be entitled and
empowered to the fullest extent permitted by law to purchase with Trust assets
insurance for liability and for all expenses reasonably incurred or paid or
expected to be paid by a Trustee, officer, employee or agent of the Trust in
connection with any claim, action, suit or proceeding in which she or he becomes
involved by virtue of her or his capacity or former capacity with the Trust.
ARTICLE VIII
Miscellaneous
Section 1. Liability of Third Persons Dealing with Trustees.
No Person dealing with the Trustees shall be bound to make any inquiry
concerning the validity of any transaction made or to be made by the Trustees or
to see to the application of any payments made or property transferred to the
Trust or upon its order.
Section 2. Termination of Trust or Series.
(a) Unless dissolved as provided herein, the Trust shall
continue without limitation of time. The Trust may be dissolved at any time by
vote of a majority of the Shares of each Series entitled to vote, voting
separately by Series, or by the Trustees by written notice to the Shareholders.
Any Series of Shares (or Class thereof) may be dissolved at any time by vote of
a majority of the Shares of such Series or Class entitled to vote or by the
Trustees by written notice to the Shareholders of such Series or Class.
(b) Upon the requisite Shareholder vote or action by the
Trustees to dissolve the Trust or any one or more Series of Shares (or any Class
thereof), after paying or otherwise providing for all charges, taxes, expenses
and liabilities, whether due or accrued or anticipated, of the Trust or of the
particular Series (or any Class thereof) as may be determined by the Trustees,
the Trust shall in accordance with such procedures as the
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Trustees consider appropriate reduce the remaining assets of the Trust or of the
affected Series or Class to distributable form in cash or Shares (if any Series
remain) or other securities, or any combination thereof, and distribute the
proceeds to the Shareholders of the Series or Classes involved, ratably
according to the number of Shares of such Series or Class held by the several
Shareholders of such Series or Class on the date of distribution. Thereupon, the
Trust or any affected Series (or Class thereof) shall terminate and the Trustees
and the Trust shall be discharged of any and all further liabilities and duties
relating thereto or arising therefrom, and the right, title and interest of all
parties with respect to the Trust or such Series or Class shall be canceled and
discharged.
(c) Upon termination 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 to be filed in accordance with
the Delaware Act, which certificate of cancellation may be signed by any one
Trustee.
Section 3. Reorganization and Master/Feeder.
(a) Notwithstanding anything else herein, the Trustees may,
without any Shareholder approval or vote unless such approval or vote is
required by applicable law, in order to change the form or jurisdiction of
organization of the Trust or for any other purpose (i) cause the Trust to merge
or consolidate with or into one or more trusts (or series thereof to the extent
permitted by law), partnerships, associations, corporations or other business
entities (including trusts, partnerships, associations, corporations or other
business entities created by the Trustees to accomplish such merger or
consolidation), (ii) cause the Shares to be exchanged under or pursuant to any
state or federal statute to the extent permitted by law or (iii) cause the Trust
to reorganize under the laws of any state or other political subdivision of the
United States, if such action is determined by the Trustees to be in the best
interests of the Trust. Any agreement of merger or consolidation or exchange or
certificate of merger may be signed by a majority of the Trustees and facsimile
signatures conveyed by electronic or telecommunication means shall be valid.
(b) Pursuant to and in accordance with the provisions of
Section 3815(f) of the Delaware Act, and notwithstanding anything to the
contrary contained in this Declaration of Trust, an agreement of merger or
consolidation approved by the Trustees in accordance with this Section 3 of
Article VIII may effect any amendment to the governing instrument of the Trust
or effect the adoption of a new trust instrument of the Trust if the Trust is
the surviving or resulting trust in the merger or consolidation.
(c) The Trustees may, without any Shareholder approval or vote
unless such approval or vote is required by applicable law, create one or more
business trusts to which all or any part of the assets, liabilities, profits or
losses of the Trust or any Series or Class thereof may be transferred and may
provide for the conversion of Shares in the Trust or any Series or Class thereof
into beneficial interests in any such newly created trust or trusts or any
series or classes thereof.
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(d) Notwithstanding anything else herein, the Trustees may,
without Shareholder approval (unless required by the 1940 Act), invest all or a
portion of the Trust Property of any Series, or dispose of all or a portion of
the Trust Property of any Series, and invest the proceeds of such disposition in
interests issued by one or more other investment companies registered under the
1940 Act. Any such other investment company may (but not need) be a trust
(formed under the laws of the State of Delaware or any other state or
jurisdiction) (or series thereof) which is classified as a partnership for
federal income tax purposes. Notwithstanding anything else herein, the Trustees
may, without Shareholder approval unless such approval is required by the 1940
Act, cause a Series that is organized in the master/feeder fund structure to
withdraw or redeem its Trust Property from the master fund and cause such Series
to invest its Trust Property directly in securities and other financial
instruments or in another master fund.
Section 4. Amendments. Except as specifically provided in this
Section 4 of Article VIII, the Trustees may, without Shareholder vote, restate,
amend or otherwise supplement this Declaration of Trust. Shareholders shall have
the right to vote (i) on any amendment that would affect their right to vote
granted in Article V, Section 1 hereof, (ii) on any amendment to this Section 4
of Article VIII, (iii) on any amendment that may be required to be approved by
Shareholders by applicable law or by the Trust's registration statement filed
with the Commission, and (iv) on any amendment submitted to them by the
Trustees. Any amendment required or permitted to be submitted to the
Shareholders that, as the Trustees determine, shall affect the Shareholders of
one or more Series (or Classes thereof) shall be authorized by a vote of the
Shareholders of each Series or Class affected and no vote of Shareholders of a
Series or Class not affected shall be required. Notwithstanding anything else
herein, no amendment hereof shall limit the rights to insurance provided by
Article VII, Section 4 with respect to any acts or omissions of Persons covered
thereby prior to such amendment nor shall any such amendment limit the rights to
indemnification referenced in Article VII, Section 2 hereof as provided in the
By-Laws with respect to any actions or omissions of Persons covered thereby
prior to such amendment. The Trustees may, without Shareholder vote, restate,
amend, or otherwise supplement the Certificate of Trust as they deem necessary
or desirable.
Section 5. Filing of Copies, References, Headings. The
original or a copy of this instrument and of each restatement and/or amendment
hereto shall be kept at the office of the Trust where it may be inspected by any
Shareholder. Anyone dealing with the Trust may rely on a certificate by an
officer of the Trust as to whether or not any such restatements and/or
amendments have been made and as to any matters in connection with the Trust
hereunder; and, with the same effect as if it were the original, may rely on a
copy certified by an officer of the Trust to be a copy of this instrument or of
any such restatements and/or amendments. In this instrument and in any such
restatements and/or amendments, references to this instrument, and all
expressions such as "herein," "hereof" and "hereunder," shall be deemed to refer
to this instrument as amended or affected by any such restatements and/or
amendments. Headings are placed herein for convenience of reference only and
shall not be taken as a part hereof or control or affect the meaning,
23
construction or effect of this instrument. Whenever the singular number is used
herein, the same shall include the plural; and the neuter, masculine and
feminine genders shall include each other, as applicable. This instrument may be
executed in any number of counterparts each of which shall be deemed an
original.
Section 6. Applicable Law.
(a) The Trust is created under, and this Declaration of Trust
is to be governed by, and construed and enforced in accordance with, the laws of
the State of Delaware. The Trust shall be of the type commonly called a business
trust, and without limiting the provisions hereof, the Trust specifically
reserves the right to exercise any of the powers or privileges afforded to
business trusts or actions that may be engaged in by business trusts under the
Delaware Act, and the absence of a specific reference herein to any such power,
privilege or action shall not imply that the Trust may not exercise such power
or privilege or take such actions.
(b) Notwithstanding the first sentence of Section 6(a) of this
Article VIII, there shall not be applicable to the Trust, the Trustees or this
Declaration of Trust (x) the provisions of section 3540 of Title 12 of the
Delaware Code or (y) any provisions of the laws (statutory or common) of the
State of Delaware (other than the Delaware Act) pertaining to trusts that relate
to or regulate: (i) the filing with any court or governmental body or agency of
trustee accounts or schedules of trustee fees and charges, (ii) affirmative
requirements to post bonds for trustees, officers, agents or employees of a
trust, (iii) the necessity for obtaining a court or other governmental approval
concerning the acquisition, holding or disposition of real or personal property,
(iv) fees or other sums applicable to trustees, officers, agents or employees of
a trust, (v) the allocation of receipts and expenditures to income or principal,
(vi) restrictions or limitations on the permissible nature, amount or
concentration of trust investments or requirements relating to the titling,
storage or other manner of holding of trust assets, or (vii) the establishment
of fiduciary or other standards or responsibilities or limitations on the acts
or powers of trustees that are inconsistent with the limitations or liabilities
or authorities and powers of the Trustees set forth or referenced in this
Declaration of Trust.
Section 7. Provisions in Conflict with Law or Regulations.
(a) The provisions of the Declaration of Trust are severable,
and if the Trustees shall determine, with the advice of counsel, that any of
such provisions is in conflict with the 1940 Act, the regulated investment
company provisions of the Internal Revenue Code of 1986, as amended (or any
successor statute thereto), and the regulations thereunder, with the Delaware
Act or with other applicable laws and regulations, the conflicting provision
shall be deemed never to have constituted a part of the Declaration of Trust;
provided, however, that such determination shall not affect any of the remaining
provisions of the Declaration of Trust or render invalid or improper any action
taken or omitted prior to such determination.
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(b) If any provision of the Declaration of Trust shall be held
invalid or unenforceable in any jurisdiction, such invalidity or
unenforceability shall attach only to such provision in such jurisdiction and
shall not in any manner affect such provision in any other jurisdiction or any
other provision of the Declaration of Trust in any jurisdiction.
Section 8. Business Trust Only. It is the intention of the
Trustees to create a business trust pursuant to the Delaware Act. It is not the
intention of the Trustees to create a general partnership, limited partnership,
joint stock association, corporation, bailment, or any form of legal
relationship other than a business trust pursuant to the Delaware Act. Nothing
in this Declaration of Trust shall be construed to make the Shareholders, either
by themselves or with the Trustees, partners or members of a joint stock
association.
Section 9. Derivative Actions. In addition to the requirements
set forth in Section 3816 of the Delaware Act, a Shareholder may bring a
derivative action on behalf of the Trust only if the following conditions are
met:
(a) The Shareholder or Shareholders must make a pre-suit
demand upon the Trustees to bring the subject action unless an effort to cause
the Trustees to bring such an action is not likely to succeed. For purposes of
this Section 9(a), a demand on the Trustees shall only be deemed not likely to
succeed and therefore excused if a majority of the Board of Trustees, or a
majority of any committee established to consider the merits of such action, has
a personal financial interest in the transaction at issue, and a Trustee shall
not be deemed interested in a transaction or otherwise disqualified from ruling
on the merits of a Shareholder demand by virtue of the fact that such Trustee
receives remuneration for his service on the Board of Trustees of the Trust or
on the boards of one or more Trusts that are under common management with or
otherwise affiliated with the Trust.
(b) Unless a demand is not required under paragraph (a) of
this Section 9, Shareholders eligible to bring such derivative action under the
Delaware Act who hold at least 10% of the outstanding Shares of the Trust, or
10% of the outstanding Shares of the Series or Class to which such action
relates, shall join in the request for the Trustees to commence such action.
(c) Unless a demand is not required under paragraph (a) of
this Section 9, the Trustees must be afforded a reasonable amount of time to
consider such shareholder request and to investigate the basis of such claim.
The Trustees shall be entitled to retain counsel or other advisors in
considering the merits of the request and shall require an undertaking by the
Shareholders making such request to reimburse the Trust for the expense of any
such advisors in the event that the Trustees determine not to bring such action.
For purposes of this Section 9, the Board of Trustees may
designate a committee of one Trustee to consider a Shareholder demand if
necessary to create a committee with a majority of Trustees who do not have a
personal financial interest in the transaction at issue.
25
IN WITNESS WHEREOF, the Initial Trustee named below does
hereby make and enter into this Declaration of Trust as of December 23, 1997.
INITIAL TRUSTEE
/s/ Xxxxxx Xxxxx
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Xxxxxx Xxxxx, as Initial Trustee
