RESTATED
AGREEMENT AND DECLARATION OF TRUST
of
KIT XXXX INVESTMENT TRUST
a Delaware Business Trust
Principal Place of Business:
Kit Xxxx Investment Trust
000 Xxxxx Xxxxxx
Xxx Xxxxxx, Xxxxxxxxxx 00000
(Restated as of August 14, 2001)
TABLE OF CONTENTS
KIT XXXX INVESTMENT TRUST
AGREEMENT AND DECLARATION OF TRUST
ARTICLE I Name and Definitions
1. Name
2. Definitions
(a) Trust
(b) Trust Property
(c) Trustees
(d) Shares
(e) Shareholder
(f) Person
(g) Investment Company Act
(h) Commission and Principal Underwriter
(i) Declaration of Trust
(j) By-Laws
(k) Interested Person
(l) Investment Adviser
(m) Series
ARTICLE II Purpose of Trust
ARTICLE III Shares
1. Division of Beneficial Interest
2. Ownership of Shares
3. Investments in the Trust .
4. Status of Shares and Limitation of
Personal Liability
5. Power of Board of Trustees to Change
Provisions Relating to Shares
6. Establishment and Designation of Series
(a) Assets With Respect to a Particular Series
(b) Liabilities Held With Respect to a
Particular Series
(c) Dividends, Distributions, Redemptions
and Repurchases
(d) Voting
(e) Equality
(f) Fractions
(g) Exchange Privilege
(h) Combination of Series
(i) Elimination of Series
7. Indemnification of Shareholders
ARTICLE IV The Board of Trustees
1. Number, Election and Tenure
2. Effect of Death, Resignation, etc., of a Trustee
3. Powers
4. Payment of Expenses by the Trust
5. Payment of Expenses by Shareholders
6. Ownership of Assets of the Trust
7. Service Contracts
ARTICLE V Shareholders' Voting Powers and Meetings
1. Voting Powers
2. Voting Power and Meetings
3. Quorum and Required Vote
4. Action by Consent
5. Record Dates
6. Additional Provisions
ARTICLE VI Net Asset Value, Distributions,
and Redemptions
1. Determination of Net Asset Value, Net
Income and Distributions
2. Redemptions and Repurchases
3. Redemptions at the Option of the Trust
ARTICLE VII Compensation and Limitation of
Liability of Trustees
1. Compensation
2. Indemnification and Limitation of Liability
3. Trustee's Good Faith Action, Expert
Advice, No Bond or Surety
4. Insurance
ARTICLE VIII Miscellaneous
1. Liability of Third Persons Dealing with Trustees
2. Termination of Trust or Series
3. Merger and Consolidation
4. Amendments
5. Filing of Copies, References, Headings
6. Applicable Law
7. Provisions in Conflict with Law or Regulations
8. Business Trust Only
9. Use of the Identifying Words "Kit Xxxx"
RESTATED AGREEMENT AND DECLARATION OF TRUST
OF
KIT XXXX INVESTMENT TRUST
WHEREAS, THIS AGREEMENT AND DECLARATION OF TRUST was originally made
and entered into as of March 31, 2000, for the purpose of forming a
Delaware business trust in accordance with the provisions hereinafter set
forth, and was amended as of August 14, 2001, by action of the Trustees
named hereunder in accordance with its provisions, and
WHEREAS, a Certificate of Trust has been filed with the Office of the
Secretary of State of the State of Delaware,
NOW, THEREFORE, This Agreement and Declaration of Trust is hereby
restated to incorporate such amendment as follows:
RESOLVED: the Trustees do hereby declare that the Trustees will hold
IN TRUST all cash, securities and other assets which 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 pro rata benefit of the holders of Shares in this Trust.
ARTICLE I
Name and Definitions
Section 1. Name. This Trust shall be known as Kit Xxxx Investment
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) The "Trust" refers to the Delaware business trust established by
this Agreement and Declaration of Trust, as amended from time to time;
(b) The "Trust Property" means any and all property, real or personal,
tangible or intangible, which is owned or held by or for the account of the
Trust, including without limitation the rights referenced in Article VIII,
Section 9 hereof;
(c) "Trustees" refers to the persons who have signed this Agreement
and Declaration of Trust, so long as they continue in office in accordance
with the terms hereof, and all other persons who may from time to time be
duly elected or appointed to serve on the Board of Trustees in accordance
with the provisions hereof, and reference herein to a Trustee or the
Trustees shall refer to such person or persons in their capacity as
trustees hereunder;
(d) "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;
(e) "Shareholder" means a record owner of outstanding Shares;
(f) "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;
(g) The "Investment Company Act" refers to the Investment Company
Act of 1940, as amended, and the Rules and Regulations thereunder,
all as amended from time to time;
(h) The terms "Commission" and "Principal Underwriter" shall have the
meanings given them in the Investment Company Act;
(i) "Declaration of Trust" shall mean this Agreement and Declaration
of Trust, as amended or restated from time to time;
(j) "By-Laws" shall mean the By-Laws of the Trust as amended from time
to time and incorporated herein by reference;
(k) The term "Interested Person" has the meaning given it in the
Investment Company Act;
(l) "Investment Adviser" or "Manager" means a party furnishing
services to the Trust pursuant to any contract described in Article IV,
Section 7(a) hereof; and
(m) "Series" refers to each Series of Shares established and
designated under or in accordance with the provisions of Article III.
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 Investment
Company Act through one or more Series investing primarily in securities.
ARTICLE III
Shares
Section 1. Division of Beneficial Interest. The beneficial interest in
the Trust shall at all times be divided into an unlimited number of Shares,
with a par value of $ .01 per Share. The Trustees may authorize the
division of Shares into separate Series and the division of Series into
separate classes of Shares. The different Series shall be established and
designated, and the variations in the relative rights and preferences as
between the different Series shall be fixed and determined, by the
Trustees. If only one or no Series (or classes) shall be established, the
Shares shall have the rights and preferences provided for herein and in
this Article III, Section 6 hereof to the extent relevant and not otherwise
provided for herein, and all references to Series (and classes) shall be
construed (as the context may require) to refer to the Trust.
Subject to the provisions of Section 6 of this Article III, each Share
shall have voting rights as provided in Article V hereof, and holders of
the Shares of any Series shall be entitled to receive dividends when, if
and as declared with respect thereto in the manner provided in Article VI,
Section 1 hereof. No Share shall have any priority or preference over any
other Share of the same Series with respect to dividends or distributions
upon termination of the Trust or of such Series made pursuant to Article
VIII, Section 2 hereof. All dividends and distributions shall be made
ratably among all Shareholders of a particular class of a particular Series
and, if no classes, of a particular Series from the assets held with
respect to such Series according to the number of Shares of such class of
such Series or of such Series held of record by such Shareholder on the
record date for any dividend or distribution or on the date of termination,
as the case may be. Shareholders shall have no preemptive or other right to
subscribe to any additional Shares or other securities issued by the Trust
or any Series. The Trustees may from time to time divide or combine the
Shares of any particular Series into a greater or lesser number of Shares
of that Series without thereby materially changing the proportionate
beneficial interest of the Shares of that Series in the assets held with
respect to that Series or materially affecting the rights of Shares of any
other Series.
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 of each Series). No certificates certifying the ownership
of Shares shall be issued except as the Board of Trustees may otherwise
determine from time to time. The Trustees may make such rules as they
consider appropriate for the transfer of Shares of each Series (or class of
each Series) 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
of each Series) and as to the number of Shares of each Series (or class)
held from time to time by each.
Section 3. Investments in the Trust. Investments may be accepted by
the Trust from such Persons, at such times, on such terms, and for such
consideration as the Trustees from time to time may authorize.
Section 4. 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 Shareholder, by virtue of having become
a Shareholder, shall be held to have expressly assented and agreed to the
terms hereof and to have become a party hereto. The death of a Shareholder
during the existence of the Trust shall not operate to terminate the Trust,
nor entitle the representative of any deceased Shareholder to an accounting
or to take any action in court or elsewhere against the Trust or the
Trustees, but entitles such representative only to the rights of said
deceased 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.
Section 5. Power of Board of Trustees to Change Provisions Relating to
Shares. Notwithstanding any other provision of this Declaration of Trust
and without limiting the power of the Board of Trustees to amend the
Declaration of Trust as provided elsewhere herein, the Board of Trustees
shall have the power to amend this Declaration of Trust, at any time and
from time to time, in such manner as the Board of Trustees may determine in
their sole discretion, without the need for Shareholder action, so as to
add to, delete, replace or otherwise modify any provisions relating to the
Shares contained in this Declaration of Trust, provided that before
adopting any such amendment without Shareholder approval the Board of
Trustees shall determine that it is consistent with the fair and equitable
treatment of all Shareholders or that Shareholder approval is not otherwise
required by the Investment Company Act or other applicable law. If Shares
have been issued, Shareholder approval shall be required to adopt any
amendments to this Declaration of Trust that would adversely affect to a
material degree the rights and preferences of the Shares of any Series (or
class of any Series) or to increase or decrease the par value of the Shares
of any Series (or class of any Series).
Subject to the foregoing Paragraph, the Board of Trustees may amend
the Declaration of Trust to amend any of the provisions set forth in
paragraphs (a) through (i) of Section 6 of this Article III.
Section 6. Establishment and Designation of Series. The establishment
and designation of any Series (or class) of Shares shall be effective upon
the resolution by a majority of the then Trustees, adopting a resolution
that sets forth such establishment and designation and the relative rights
and preferences of such Series (or class). Each such resolution shall be
incorporated herein by reference upon adoption.
Shares of each Series (or class) established pursuant to this Section
6, unless otherwise provided in the resolution establishing such Series,
shall have the following relative rights and preferences:
(a) Assets Held with Respect to a Particular Series. All consideration
received by the Trust for the issue or sale of Shares of a particular
Series, together with all assets in which such consideration is invested or
reinvested, all income, earnings, profits, and proceeds thereof from
whatever source derived, including, without limitation, any proceeds
derived from the sale, exchange or liquidation of such assets, and any
funds or payments derived from any reinvestment of such proceeds in
whatever form the same may be, shall irrevocably be held with respect to
that Series for all purposes, subject only to the rights of creditors, and
shall be so recorded upon the books of account of the Trust. Such
consideration, assets, income, earnings, profits and proceeds thereof, from
whatever source derived, including, without limitation, any proceeds
derived from the sale, exchange or liquidation of such assets, and any
funds or payments derived from any reinvestment of such proceeds, in
whatever form the same may be, are herein referred to as "assets held with
respect to" that Series. In the event that there are any assets, income,
earnings, profits and proceeds thereof, funds or payments which are not
readily identifiable as assets held with respect to any particular Series
(collectively "General Assets"), the Trustees shall allocate such General
Assets to, between or among any one or more of the Series in such manner
and on such basis as the Trustees, in their sole discretion, deem fair and
equitable, and any General Asset so allocated to a particular Series shall
be held with respect to that Series. Each such allocation by the Trustees
shall be conclusive and binding upon the Shareholders of all Series for all
purposes.
(b) Liabilities Held With Respect to a Particular Series. The assets
of the Trust held with respect to each particular Series shall be charged
against the liabilities of the Trust held with respect to that Series and
all expenses, costs, charges and reserves attributable to that Series, and
any general liabilities of the Trust which are not readily identifiable as
being held with respect to any particular Series shall be allocated and
charged by the Trustees to and among any one or more of the Series in such
manner and on such basis as the Trustees in their sole discretion deem fair
and equitable. The liabilities, expenses, costs, charges, and reserves so
charged to a Series are herein referred to as "liabilities held with
respect to" that Series. Each allocation of liabilities, expenses, costs,
charges and reserves by the Trustees shall be conclusive and binding upon
the holders of all Series for all purposes. All Persons who have extended
credit which has been allocated to a particular Series, or who have a claim
or contract which has been allocated to any particular Series, shall look,
and shall be required by contract to look exclusively, to the assets of
that particular Series for payment of such credit, claim, or contract. In
the absence of an express contractual agreement so limiting the claims of
such creditors, claimants and contract providers, each creditor, claimant
and contract provider will be deemed nevertheless to have impliedly agreed
to such limitation unless an express provision to the contrary has been
incorporated in the written contract or other document establishing the
claimant relationship.
(c) Dividends, Distributions, Redemptions and Repurchases.
Notwithstanding any other provisions of this Declaration of Trust,
including, without limitation, Article VI, no dividend or distribution
including, without limitation, any distribution paid upon termination of
the Trust or of any Series (or class) with respect to, nor any redemption
or repurchase of, the Shares of any Series (or class) shall be effected by
the Trust other than from the assets held with respect to such Series, nor,
except as specifically provided in Section 7 of this Article III, shall any
Shareholder of any particular Series otherwise have any right or claim
against the assets held with respect to any other Series except to the
extent that such Shareholder has such a right or claim hereunder as a
Shareholder of such other Series. The Trustees shall have full discretion,
to the extent not inconsistent with the Investment Company Act, to
determine which items shall be treated as income and which items as
capital; and each such determination and allocation shall be conclusive and
binding upon the Shareholders.
(d) Voting. All Shares of the Trust entitled to vote on a matter shall
vote separately by Series (and, if applicable, by class): that is, the
Shareholders of each Series (or class) shall have the right to approve or
disapprove matters affecting the Trust and each respective Series (or
class) as if the Series (or classes) were separate companies. There are,
however, two exceptions to voting by separate Series (or classes). First,
if the Investment Company Act requires all Shares of the Trust to be voted
in the aggregate without differentiation between the separate Series (or
classes), then all the Trust's Shares shall be entitled to vote on the
basis of one vote for each dollar of net asset value per share. Second, if
any matter affects only the interests of some but not all Series (or
classes), then only the Shareholders of such affected Series (or classes)
shall be entitled to vote on the matter.
(e) Equality. All the Shares of each particular Series shall represent
an equal proportionate interest in the assets held with respect to that
Series (subject to the liabilities held with respect to that Series and
such rights and preferences as may have been established and designated
with respect to classes of Shares within such Series), and each Share of
any particular Series shall be equal to each other Share of that Series.
(f) Fractions. Any fractional Share of a Series shall carry
proportionately all the rights and obligations of a whole share of that
Series, including rights with respect to voting, receipt of dividends and
distributions, redemption of Shares and termination of the Trust.
(g) Exchange Privilege. The Trustees shall have the authority to
provide that the holders of Shares of any Series shall have the right to
exchange said Shares for Shares of one or more other Series of Shares in
accordance with such requirements and procedures as may be established by
the Trustees.
(h) Combination of Series. The Trustees shall have the authority,
without the approval of the Shareholders of any Series unless otherwise
required by applicable law, to combine the assets and liabilities held with
respect to any two or more Series into assets and liabilities held with
respect to a single Series.
(i) Elimination of Series. At any time that there are no Shares
outstanding of any particular Series (or class) previously established and
designated or such other time and such manner not prohibited by the
Investment Company Act or other applicable law, the Trustees may by
resolution of a majority of the then Trustees abolish that Series (or
class) and rescind the establishment and designation thereof.
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 his or her being or having been a Shareholder, and not
because of his or her acts or omissions, the Shareholder or former
Shareholder (or his or her heirs, executors, administrators, or other legal
representatives or in the case of a corporation or other entity, its
corporate or other general successor) shall be entitled to be held harmless
from and indemnified out of the assets of the applicable Series of the
Trust against all loss and expense arising from such claim or demand.
ARTICLE IV
The Board of Trustees
Section 1. Number, Election and Tenure. The number of Trustees
constituting the Board of Trustees shall be fixed from time to time by a
written instrument signed, or by resolution approved at a duly constituted
meeting, by a majority of the Board of Trustees, provided, however, that
the number of Trustees shall in no event be fewer than one (1) nor more
than fifteen (15). The Board of Trustees, by action of a majority of the
then Trustees at a duly constituted meeting, may fill vacancies in the
Board of Trustees or remove Trustees with or without cause. Each Trustee
shall serve during the continued lifetime of the Trust until he or she
dies, resigns, is declared bankrupt or incompetent by a court of
appropriate jurisdiction, or is removed, or, if sooner, until the next
meeting of Shareholders called for the purpose of electing Trustees and
until the election and qualification of his or her successor. Any Trustee
may resign at any time by written instrument signed by him or her and
delivered to any officer of the Trust or to a meeting of the 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
his or her resignation or removal, or any right to damages on account of
such removal. The Shareholders may fix the number of Trustees and 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
vote of two-thirds of the outstanding Shares of the Trust. A meeting of
Shareholders for the purpose of electing or removing one or more Trustees
may be called (i) by the Trustees upon their own vote, or (ii) upon the
demand of Shareholders owning 10% or more of the Shares of the Trust in the
aggregate.
Section 2. Effect of Death, Resignation, etc. of a Trustee. The death,
declination, 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 a vacancy in the Board of Trustees shall occur, until such
vacancy is filled as provided in this Article IV, Section l, 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 vacancy may be executed
by an officer of the Trust or by a majority of the Board of Trustees. 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 fill vacancies, the Trust's Investment Adviser(s)
are empowered to appoint new Trustees subject to the provisions of Section
16(a) of the Investment Company Act.
Section 3. Powers. Subject to the provisions of this Declaration of
Trust, the business of the Trust shall be managed by the Board of Trustees,
and such Board shall have all powers necessary or convenient to carry out
that responsibility, 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; fill vacancies in or
remove from their number, and may elect and remove 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 Trustees
determine; employ one or more custodians of the assets of the Trust and may
authorize such custodians to employ subcustodians and to 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; retain a transfer agent or a
shareholder servicing agent, or both; 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; set record dates for the determination of
Shareholders with respect to various matters; declare and pay dividends and
distributions to Shareholders of each Series from the assets of such
Series; and, in general, delegate such authority as they consider desirable
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. 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 or required by law, any action by the
Board of Trustees shall be deemed effective if approved or taken by a
majority of the Trustees then in office.
Without limiting the foregoing, the Trust shall have power and
authority:
(a) To invest and reinvest cash, to hold cash uninvested, and to
subscribe for, invest in, reinvest in, purchase or otherwise acquire, own,
hold, pledge, sell, assign, transfer, exchange, distribute, write options
on, lend or otherwise deal in or dispose of contracts for the future
acquisition or delivery of fixed income or other securities, and securities
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 of any kind, issued, created, guaranteed,
or sponsored by any and all Persons, including, without limitation, states,
territories, and possessions of the United States and the District of
Columbia and any political subdivision, agency, or instrumentality thereof,
any foreign government or any political subdivision of the U.S. Government
or any foreign government, or any international instrumentality, or by any
bank or savings institution, or by any corporation or organization
organized under the laws of the United States or of any state, territory,
or possession thereof, or by any corporation or organization organized
under any foreign law, or in "when issued" contracts for any such
securities, to change the investments of the assets of the Trust; 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;
(b) To sell, exchange, lend, pledge, mortgage, hypothecate, lease, or
write options with respect to or otherwise deal in any property rights
relating to any or all of the assets of the Trust or any Series;
(c) 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;
(d) To exercise powers and right of subscription or otherwise which in
any manner arise out of ownership of securities;
(e) 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 subcustodian or a nominee or
nominees or otherwise;
(f) To consent to or participate in any plan for the reorganization,
consolidation or merger of any corporation or issuer of any security which
is held in the Trust; to consent to any contract, lease, mortgage, purchase
or sale of property by such corporation or issuer; and to pay calls or
subscriptions with respect to any security held in the Trust;
(g) To join with other security holders in acting through a committee,
depositary, voting trustee or otherwise, and in that connection to deposit
any security with, or transfer any security to, any such committee,
depositary or trustee, and to delegate to them such power and authority
with relation to any security (whether or not so deposited or transferred)
as the Trustees shall deem proper, and to agree to pay, and to pay, such
portion of the expenses and compensation of such committee, depositary or
trustee as the Trustees shall deem proper;
(h) 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;
(i) To enter into joint ventures, general or limited partnerships and
any other combinations or associations;
(j) To borrow funds or other property in the name of the Trust
exclusively for Trust purposes;
(k) To endorse or guarantee the payment of any notes or other
obligations of any Person; to make contracts of guaranty or suretyship, or
otherwise assume liability for payment thereof;
(l) To purchase and pay for entirely out of Trust Property such
insurance as the Trustees may deem necessary or appropriate for the conduct
of the business, including, without limitation, insurance policies insuring
the assets of the Trust or payment of distributions and principal on its
portfolio investments, and insurance policies insuring the Shareholders,
Trustees, officers, employees, agents, investment advisers, principal
underwriters, or independent contractors of the Trust, individually against
all claims and liabilities of every nature arising by reason of holding
Shares, holding, being or having held any such office or position, or by
reason of any action alleged to have been taken or omitted by any such
Person as Trustee, officer, employee, 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; and
(m) To adopt, establish and carry out pension, profit-sharing, share
bonus, share purchase, savings, thrift and other retirement, incentive and
benefit plans, trusts and provisions, including the purchasing of life
insurance and annuity contracts as a means of providing such retirement and
other benefits, for any or all of the Trustees, officers, employees and
agents of the Trust.
The Trust shall not be limited to investing in obligations maturing
before the possible termination of the Trust or one or more of its Series.
The Trust shall not in any way be bound or limited by any present or future
law or custom in regard to investment by fiduciaries. 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 4. 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.
Section 5. Payment of Expenses by Shareholders. The Trustees shall
have the power, as frequently as they may determine, to cause each
Shareholder, or each Shareholder of any particular Series, to pay directly,
in advance or arrears, for charges of the Trust's custodian or transfer,
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 6. Ownership of Assets of the Trust. 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 the Trust, 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, he or she 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 has been
executed and delivered.
Section 7. Service Contracts.
(a) Subject to such requirements and restrictions as may be set forth
in the By-Laws, the Trustees may, at any time and from time to time,
contract for exclusive or nonexclusive advisory, management and/or
administrative services for the Trust or for any Series with any
corporation, trust, association or other organization; and any such
contract may contain such other terms as the Trustees may determine,
including without limitation, authority for the Investment Adviser or
administrator 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 in the By-Laws; 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 and/or
shareholder servicing agent for the Trust or one or more of its Series.
Every such contract shall comply with such requirements and restrictions as
may be set forth in the By-Laws or stipulated by resolution of the
Trustees.
(d) The Trustees are further empowered, at any time and from time to
time, to contract with any entity to provide such other services to the
Trust or one or more of the Series, as the Trustees determine to be in the
best interests of the Trust and the applicable Series.
(e) The fact that:
(i) any of the Shareholders, Trustees, or officers of the Trust
is a shareholder, director, officer, partner, trustee, employee,
investment adviser, manager, 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
(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 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 Investment Company Act.
ARTICLE V
Shareholders' Voting Powers and Meetings
Section 1. Voting Powers. Subject to the provisions of Article III,
Section 6(d), the Shareholders shall have power to vote only (i) for the
election or removal of Trustees as provided in Article IV, Section 1, and
(ii) with respect to such additional matters relating to the Trust as may
be required by 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. As appropriate, voting
may be by Series (or class). Each dollar of net asset value of a 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. A proxy with respect
to Shares held in the name of two or more persons shall be valid if
executed by any one of them unless at or prior to exercise of the proxy the
Trust receives a specific written notice to the contrary from any one of
them. A proxy purporting to be executed by or on behalf of a Shareholder
shall be deemed valid unless challenged at or prior to its exercise and the
burden of proving invalidity shall rest on the challenger.
Section 2. Voting Power and Meetings. Meetings of the Shareholders may
be called by the Trustees for the purpose of electing Trustees as provided
in Article IV, Section l and for such other purposes as may be prescribed
by law, by this Declaration of Trust or by the By-Laws. Meetings of the
Shareholders may also be called by the Trustees from time to time for the
purpose of taking action upon any other matter deemed by the Trustees to be
necessary or desirable. A meeting of Shareholders may be held at any place
designated by the Trustees. Written notice of any meeting of Shareholders
shall be given or caused to be given by the Trustees by mailing such notice
at least seven (7) days before such meeting, postage prepaid, stating the
time and place of the meeting, to each Shareholder at the Shareholder's
address as it appears on the records of the Trust. Whenever notice of a
meeting is required to be given to a Shareholder under this Declaration of
Trust or the By-Laws, a written waiver thereof, executed before or after
the meeting by such Shareholder or his or her attorney thereunto authorized
and filed with the records of the meeting, shall be deemed equivalent to
such notice.
Section 3. Quorum and Required Vote. Except when a larger quorum is
required by applicable law, by the By-Laws or by this Declaration of Trust,
forty percent (40%) of the dollar-weighted voting power of Shares entitled
to vote shall constitute a quorum at a Shareholders' meeting. When any one
or more Series (or classes) is to vote as a single class separate from any
other Shares, forty percent (40%) of the Shares of each such Series (or
classes) entitled to vote shall constitute a quorum at a Shareholder's
meeting of that Series. Any meeting of Shareholders may be adjourned from
time to time by a majority of the votes properly cast upon the question of
adjourning a meeting to another date and time, whether or not a quorum is
present, and the meeting may be held as adjourned within a reasonable time
after the date set for the original meeting without further notice. Subject
to the provisions of Article III, Section 6(d), when a quorum is present at
any meeting, a majority of the Shares voted shall decide any questions and
a plurality shall elect a Trustee, except when a larger vote is required by
any provision of this Declaration of Trust or the By-Laws or by applicable
law.
Section 4. Action by Consent. Any action taken by shareholders may be
taken without a meeting if Shareholders holding a majority of the Shares
entitled to vote on the matter (or such larger proportion thereof as shall
be required by any express provision of this Declaration of Trust or by the
By-Laws or by applicable law) and holding a majority (or such larger
proportion as aforesaid) of the Shares of any Series (or class) entitled to
vote separately on the matter consent to the action in writing or by means
of electronic communication and such consent is filed with the records of
the meetings of Shareholders. Such consent shall be treated for all
purposes as a vote taken at a meeting of Shareholders.
Section 5. Record Dates. For the purpose of determining the
Shareholders of any Series (or class) who are entitled to vote or act at
any meeting or any adjournment thereof, the Trustees may from time to time
fix a time, which shall be not more than ninety (90) days before the date
of any meeting of Shareholders, as the record date for determining the
Shareholders of such Series (or class) having the right to notice of and to
vote at such meeting and any adjournment thereof, and in such case only
Shareholders of record on such record date shall have such right,
notwithstanding any transfer of shares on the books of the Trust after the
record date. For the purpose of determining the Shareholders of any Series
(or class) who are entitled to receive payment of any dividend or of any
other distribution, the Trustees may from time to time fix a date, which
shall be 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 voting and/or
distribution purposes close the register or transfer books for one or more
Series for all or any part of the period between a record date and a
meeting of Shareholders or the payment of a distribution. Nothing in this
Section shall be construed as precluding the Trustees from setting
different record dates for different Series (or classes).
Section 6. Additional Provisions. The By-Laws may include further
provisions for Shareholders' votes and meetings and related matters.
ARTICLE VI
Net Asset Value, Distributions and Redemptions
Section 1. Determination of Net Asset Value, Net Income and
Distributions. Subject to Article III, Section 6 hereof, the Trustees, in
their absolute discretion, may prescribe and shall set forth in the By-laws
or in a duly adopted vote of the Trustees such bases and time for
determining the per-Share net asset value of the Shares of any Series or
net income attributable to the Shares of any Series, or the declaration and
payment of dividends and distributions on the Shares of any Series, as they
may deem necessary or desirable.
Section 2. Redemptions and Repurchases. The Trust shall purchase such
Shares as are offered by any Shareholder for redemption, upon the
presentation of a proper instrument of transfer together with a request
directed to the Trust or a Person designated by the Trust that the Trust
purchase such Shares or in accordance with such other procedures for
redemption as the Trustees may from time to time authorize; and the Trust
will pay therefor the net asset value thereof, in accordance with the
By-Laws and applicable law. Payment for said Shares shall be made by the
Trust to the Shareholder within seven 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 provision that in the event that any time the New York
Stock Exchange (the "Exchange") is closed for other than weekends or
holidays, or if permitted by the Rules of the Commission during periods
when trading on the Exchange is restricted or during any emergency which
makes it impracticable for the Trust to dispose of the investments of the
applicable Series or to determine fairly the value of the net assets held
with respect to such Series or during any other period permitted by order
of the Commission for the protection of investors, such obligations may be
suspended or postponed by the Trustees.
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 in the
interest of the remaining Shareholders of the Series for which the Shares
are being redeemed. Subject to the foregoing, 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. 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.
Section 3. Redemptions at the Option of the Trust. The Trust shall
have the right, at its option and at any time, to redeem Shares of any
Shareholder at the net asset value thereof as described in Section 1 of
this Article VI: (i) if at such time such Shareholder owns Shares of any
Series having an aggregate net asset value of less than an amount
determined from time to time by the Trustees prior to the acquisition of
said Shares; or (ii) to the extent that such Shareholder owns Shares of a
particular Series equal to or in excess of a percentage of the outstanding
Shares of that Series determined from time to time by the Trustees; or
(iii) to the extent that such Shareholder owns Shares equal to or in excess
of a percentage, determined from time to time by the Trustees, of the
outstanding Shares of the Trust or of any Series; or (iv) in connection
with the elimination of a series under Section 6(i) of Article III or
Section 2 of Article VIII.
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.
Section 2. Indemnification and Limitation of Liability. The Trustees,
including but not limited to any trust of which a Trustee is a grantor or
principal beneficiary, their estates, spouses and domestic partners, shall
not be responsible or liable in any event for any neglect or wrong-doing of
any officer, agent, employee, Investment Adviser or principal underwriter
of the Trust, nor shall any Trustee, including but not limited to any trust
of which the Trustee is a grantor or principal beneficiary, his/her estate,
spouse or domestic partner, be responsible for the act or omission of any
other Trustee. The Trust out of its assets shall indemnify and hold
harmless each and every Trustee, including but not limited to any trust of
which the Trustee is a grantor or principal beneficiary, his/her estate,
spouse or domestic partner, from and against any and all claims, demands
and expenses (including attorneys' fees) whatsoever arising out of or
related to each Trustee's performance of his or her duties as a Trustee of
the Trust; provided that nothing herein contained shall indemnify, hold
harmless or protect any Trustee from or against any liability to the Trust
or any Shareholder to which he or she would otherwise be subject by reason
of willful misfeasance, bad faith, gross negligence or reckless disregard
of the duties involved in the conduct of his or her office.
Every note, bond, contract, instrument, certificate or undertaking and
every other act or thing whatsoever issued, executed or done by or on
behalf of the Trust or the Trustees or any of them in connection with the
Trust shall be conclusively deemed to have been issued, executed or done
only in or with respect to their or his or her capacity as Trustees or
Trustee, and such Trustees or Trustee shall not be personally liable
thereon.
Section 3. Trustee's Good Faith Action, Expert Advice, No Bond or
Surety. The exercise by the Trustees of their powers and discretion
hereunder shall be binding upon everyone interested. A Trustee shall be
liable to the Trust and to any Shareholder solely for his or her own wilful
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 or officer in connection with any claim, action,
suit or proceeding in which he or she becomes involved by virtue of his or
her 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. Unless terminated as
provided herein, the Trust shall continue without limitation of time. The
Trust may be terminated 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 may be
terminated at any time by vote of a majority of the Shares of that Series
or by the Trustees by written notice to the Shareholders of that Series.
Upon termination of the Trust (or any Series, as the case may be),
after paying or otherwise providing for all charges, taxes, expenses and
liabilities held, severally, with respect to each Series (or the applicable
Series, as the case may be), whether due or accrued or anticipated as may
be determined by the Trustees, the Trust shall, in accordance with such
procedures as the Trustees consider appropriate, reduce the remaining
assets held, severally, with respect to each Series (or the applicable
Series, as the case may be), to distributable form in cash or shares or
other securities, or any combination thereof, and distribute the proceeds
held with respect to each Series (or the applicable Series, as the case may
be), to the Shareholders of that Series, as a Series, ratably according to
the number of Shares of that Series held by the several Shareholders on the
date of termination.
Section 3. Merger and Consolidation. The Trustees may cause (i) the
Trust or one or more of its Series to the extent consistent with applicable
law to be merged into or consolidated with another trust or company, (ii)
the Shares of the Trust or any Series to be converted into beneficial
interests in another business trust (or series thereof) created pursuant to
this Section 3 of this Article VIII, or (iii) the Shares to be exchanged
under or pursuant to any state or federal statute to the extent permitted
by law. Such merger or consolidation, Share conversion or Share exchange
must be authorized by vote of a majority of the outstanding Shares of the
Trust, as a whole, or any affected Series, as may be applicable; provided
that in all respects not governed by statute or applicable law, the
Trustees shall have the power to prescribe the procedure necessary or
appropriate to accomplish a sale of assets, merger or consolidation
including the power to create one or more separate business trusts to which
all or any part of the assets, liabilities, profits or losses of the Trust
may be transferred and to provide for the conversion of Shares of the Trust
or any Series into beneficial interests in such separate business trust or
trusts (or series thereof).
Section 4. Amendments. This Declaration of Trust may be restated
and/or amended at any time by an instrument in writing signed by a majority
of the then Trustees and, if required, by approval of such amendment by
Shareholders in accordance with Article V, Section 3 hereof. Any such
restatement and/or amendment hereto shall be effective immediately upon
execution and approval. The Certificate of Trust of the Trust may be
restated and/or amended by a similar procedure, and any such restatement
and/or amendment shall be effective immediately upon filing with the Office
of the Secretary of State of the State of Delaware or upon such future date
as may be stated therein.
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 amendment, references to
this instrument, and all expressions like "herein," "hereof" and
"hereunder," shall be deemed to refer to this instrument as amended or
affected by any such restatements and/or amendments. Headings are placed
herein for convenience of reference only and shall not be taken as a part
hereof or control or affect the meaning, construction or effect of this
instrument. Whenever the singular number is used herein, the same shall
include the plural; and the neuter, masculine and feminine genders shall
include each other, as applicable. This instrument may be executed in any
number of counterparts each of which shall be deemed an original.
Section 6. Applicable Law. This Agreement and Declaration of Trust is
created under and is to be governed by and construed and administered
according to the laws of the State of Delaware and the Delaware Business
Trust Act, as amended from time to time (the "Business Trust Act"). The
Trust shall be a Delaware business trust pursuant to such Business Trust
Act, and without limiting the provisions hereof, the Trust may exercise all
powers which are ordinarily exercised by such a business 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 Investment Company Act, the 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 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.
(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 Business Trust Act, and thereby to
create only the relationship of trustee and beneficial owners within the
meaning of such Business Trust Act between the Trustees and each
Shareholder. 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 such 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. Use of the Identifying Words "Kit Xxxx" The identifying
words "Kit Xxxx" and all rights to the use of such identifying words belong
to Kit Xxxx Investment Advisory Services, the proposed Investment Adviser
of the Trust's Shares. Kit Xxxx Investment Advisory Services has licensed
the Trust to use the identifying words "Kit Xxxx " in the Trust's name. If
Kit Xxxx Investment Advisory Services or an affiliate of Kit Xxxx
Investment Advisory Services is not appointed or ceases to be the
Investment Adviser of the Trust, the non-exclusive license may be revoked
by Kit Xxxx Investment Advisory Services, and the Trust and any series
thereof shall respectively cease using the identifying words "Kit Xxxx"
unless otherwise consented to by Kit Xxxx Investment Advisory Services or
any successor to Kit Xxxx Investment Advisory Services's interests.
IN WITNESS WHEREOF, the Trustees named below do hereby make and enter
into this Restated Declaration of Trust as of this 14th day of August,
2001.
/s/ Kit X. Xxxx
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Name: Kit X. Xxxx
Position: Trustee
/s/ Xxxxx Xxxxxxx
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Name: Xxxxx Xxxxxxx
Position: Trustee
/s/ Xxxxxxx Xxxxxxx
-----------------------------------------------
Name: Xxxxxxx Xxxxxxx
Position: Trustee
