Exhibit 1(a)
AGREEMENT AND DECLARATION OF TRUST
of
XXXXXXX XXXXX PRINCIPAL PRESERVATION TRUST
a Delaware Business Trust
Principal Place of Business:
000 Xxxxxxxx Xxxx Xxxx
Xxxxxxxxxx, XX 00000
TABLE OF CONTENTS
ARTICLE I Name and Definitions............................................... 1
Section 1. Name...................................................... 1
Section 2. Definitions............................................... 1
ARTICLE II Purpose of Trust.................................................. 3
ARTICLE III Shares........................................................... 3
Section 1. Division of Beneficial Interest............................ 3
Section 2. Ownership of Shares........................................ 4
Section 3. Transfer of Shares......................................... 4
Section 4. Investments in the Trust................................... 4
Section 5. Status of Shares and Limitation of Personal Liability...... 4
Section 6. Establishment and Designation of Series.................... 5
Section 7. Indemnification of Shareholders............................ 7
ARTICLE IV The Board of Trustees............................................. 7
Section 1. Number, Election and Tenure................................ 7
Section 2. Effect of Death, Resignation, etc. of a Trustee............ 8
Section 3. Powers..................................................... 8
Section 4. Payment of Expenses by the Trust........................... 11
Section 5. Payment of Expenses by Shareholders........................ 12
Section 6. Ownership of Assets of the Trust........................... 12
Section 7. Service Contracts.......................................... 12
Section 8. Trustees and Officers as Shareholders...................... 13
ARTICLE V Shareholders' Voting Powers and Meetings........................... 14
Section 1. Voting Powers, Meetings, Notice and Record Dates........... 14
Section 2. Quorum and Required Vote................................... 14
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Section 3. Record Dates............................................... 15
Section 4. Additional Provisions...................................... 15
ARTICLE VI Net Asset Value, Distributions and Redemptions.................... 15
Section 1. Determination of Net Asset Value, Net Income,
and Distributions........................................ 15
Section 2. Redemptions and Repurchases................................ 15
ARTICLE VII Compensation and Limitation of Liability of Trustees............. 16
Section 1. Compensation............................................... 16
Section 2. Indemnification and Limitation of Liability................ 16
Section 3. Trustee's Good Faith Action, Expert Advice,
No Bond or Surety........................................ 17
Section 4. Insurance.................................................. 17
ARTICLE VIII Miscellaneous................................................... 18
Section 1. Liability of Third Persons Dealing with Trustees........... 18
Section 2. Dissolution and Termination of Trust or
Series or Classes........................................ 18
Section 3. Reorganization and Master/Feeder........................... 19
Section 4. Amendments................................................. 20
Section 5. Filing of Copies, References, Headings,
Rules of Construction.................................... 20
Section 6. Applicable Law............................................. 21
Section 7. Provisions in Conflict with Law or Regulations............. 21
Section 8. Business Trust Only........................................ 22
Section 9. Derivative Actions......................................... 22
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AGREEMENT AND DECLARATION OF TRUST
OF
XXXXXXX XXXXX PRINCIPAL PRESERVATION TRUST
Dated: July 15, 2002
THIS AGREEMENT AND DECLARATION OF TRUST is made and entered into as of the
date set forth above by the Trustees named hereunder for the purpose of forming
a Delaware business trust in accordance with the provisions hereinafter set
forth.
WHEREAS, the Trustees desire to establish a business trust under the
Delaware Business Trust Act (the "Delaware Act") consisting of one or more
series or portfolios for the investment and reinvestment of funds contributed
thereto.
NOW, THEREFORE, the Trustees hereby direct that the Certificate of Trust
be filed with the Office of the Secretary of State of the State of Delaware and
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 benefit of the holders of Shares in this Trust.
ARTICLE I
Name and Definitions
Section 1. Name. This Trust shall be known as XXXXXXX XXXXX PRINCIPAL
PRESERVATION 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;
provided that the Trustees may, without Shareholder approval, change the name of
the Trust or any Series or Class thereof. In the event of any such change, the
Trustees shall cause notice to be given to the affected Shareholders within a
reasonable time after the implementation of such change.
Section 2. Definitions. Whenever used herein, unless otherwise required by
the context or specifically provided:
(1) "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;
(2) "Certificate of Trust" means the certificate of trust, as amended or
restated from time to time, filed by the Trustee in the Office of the Secretary
of State of the State of Delaware in accordance with the Delaware Act;
(3) "Class" means a class of Shares of a Series of the Trust established
in accordance with the provisions of Article III hereof;
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(4) "Commission" shall mean the Securities and Exchange Commission;
(5) "Declaration of Trust" means this Agreement and Declaration of Trust,
as amended or restated from time to time;
(6) "Delaware Act" means the Delaware Business Trust Act, 12 Del. C.,
Sections 3801 et seq., as amended from time to time;
(7) "Initial Series" shall mean the initial Series of the Trust
established pursuant to Section 6 of Article III hereof;
(8) "Interested Person" shall have the meaning given it in Section
2(a)(19) of the 1940 Act;
(9) "Investment Manager" or "Manager" means a party furnishing services to
the Trust pursuant to any contract described in Article IV, Section 7(1) hereof;
(10) "1940 Act" means the Investment Company Act of 1940 and the Rules and
Regulations thereunder, all as amended from time to time and any order or orders
thereunder which may from time to time be applicable to the Trust;
(11) "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;
(12) "Principal Underwriter" shall have the meaning given it in the 1940
Act;
(13) "Registration Statement" means the Trust's currently effective
registration statement under the Securities Act of 1933 and the 1940 Act, as it
may be amended or supplemented from time to time.
(14) "Series" means each Series of Shares established and designated under
or in accordance with Sections 3804 and 3806 of the Delaware Act and the
provisions of Article III hereof, each of which shall be accounted for and
maintained as a separate series or portfolio of the Trust;
(15) "Shareholder" means a record owner of outstanding Shares;
(16) "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;
(17) "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;
(18) "Trust Property" means any and all property, real or personal,
tangible or intangible, which is from time to time owned or held by or for the
account of the Trust each and
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every asset of which shall be allocated and belong to a specific series to the
exclusion of all other series; and
(19) "Trustees" means the persons who have signed this Declaration of
Trust and all other Person or 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 or Persons 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 his, her or
their capacities as trustee or trustees hereunder. Unless otherwise required by
the context or specifically provided, any reference herein to the Trustees shall
refer to the Trustee at any time that there is only one Trustee of the Trust.
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 Interest. The beneficial interest in the
Trust may be divided into one or more Series. Each Series may have no Classes,
may consist of one Class or may be divided into two 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 interest 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, subject to any restriction set forth in the By-Laws, 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 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, (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.
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Subject to the distinctions permitted among Classes 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, the applicable Shareholder shall be paid solely out of the
funds and property of such Series 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 Shares issued in connection with a
dividend in Shares or a split or reverse split of Shares, shall be fully paid
and nonassessable. Except as otherwise provided by the Trustees, Shareholders
shall have no 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 each such execution and authorization 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 Shareholder of record 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 or registrar or 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 Shareholder by virtue of having become a Shareholder shall be
held to have expressly assented
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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 terminate 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 Shareholders, 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 6. Establishment and Designation of Series. The establishment and
designation of any Series (or Class) of Shares (other than those established
hereby) shall be effective upon the adoption by a majority of the then Trustees
of a resolution that sets forth such establishment and designation whether
directly in such resolution or by reference to, or approval of, another document
that sets forth each such Series (or Class) including the Registration
Statement, or as otherwise provided in such resolution. The Trustees hereby
establish two initial Series of the Trust (the "Initial Series"), to be known as
Fundamental Growth Principal Preservation Fund and Basic Value Principal
Preservation Fund. Each Initial Series shall consist initially of a single Class
of Shares. The relative rights and preferences of each Series and Class thereof
shall be as set forth herein and as set forth in the Registration Statement,
unless otherwise provided in the resolution establishing such Series or Class.
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:
(1) 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, 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
of such Series, and shall be so recorded upon the books of account of the Trust.
Such consideration, assets, income, earnings, profits and proceeds thereof, from
whatever source derived, including, 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 Assets 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.
Separate
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and distinct records shall be maintained for each Series and the assets held
with respect to each Series shall be held and accounted for separately from the
assets held with respect to all other Series and the General Assets of the Trust
not allocated to such Series.
(2) 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. 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 deems fair and equitable. All 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
liabilities held with respect 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 and, except as otherwise provided in this Declaration of Trust,
none of the debts, liabilities, obligations and expenses incurred, contracted
for or otherwise existing with respect to the Trust generally or any other
Series thereof shall be enforceable against the assets of such Series. Notice of
this contractual 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.
(3) Dividends, Distributions, Redemptions, and Repurchases.
Notwithstanding any other provisions of this Declaration of Trust, including
Article VI, no dividend or distribution, including 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 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 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.
(4) 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 each Share of
any particular Series shall be equal to each other Share of that Series (subject
to such rights and preferences as may have been established and designated with
respect to Classes of Shares within such Series).
(5) 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.
(6) 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 or for interests in one
or more other trusts, corporations, or other
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business entities (or a series of any of the foregoing) in accordance with such
requirements and procedures as may be established by the Trustees.
(7) Combination of Series. The Trustees shall have the authority, without
the approval of the Shareholders of any Series unless otherwise required by the
1940 Act, 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.
(8) 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 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 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 loss and expense arising from such claim or
demand, but only out of the assets held with respect to the particular Series of
Shares of which such Person is or was a Shareholder and from or in relation to
which such liability arose.
ARTICLE IV
The Board of Trustees
Section 1. Number, Election and Tenure. The number of Trustees shall
initially be three, who shall be Xxxxxxx X. Xxxxxxxxx, Xxxxx X. Xxxxx and Xxx X.
Xxxxxxx. Hereafter, the number of Trustees shall at all times be at least one
and no more than fifteen as determined, from time to time, by the Trustees
pursuant to Section 3 of this Article IV. Each Trustee shall serve during the
continued lifetime of the Trust until the next meeting of Shareholders called
for the purpose of electing Trustees and until the election and qualification of
his or her successor or, if sooner, until he or she dies, resigns, retires, or
is removed as herein provided. If there is more than one Trustee, 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, but only to such
extent, 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 the Trustee 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 the effective date of his or her 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 the affirmative vote of the
majority of the outstanding Shares of the Trust with or without cause.
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Section 2. Effect of Death, Resignation, etc. 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 Trustee 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 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 replace those no longer serving,
the Trust's Investment Manager(s) are empowered to appoint new Trustees subject
to the provisions of Section 16(a) of the 1940 Act.
Section 3. Powers. Subject to the provisions of this Declaration of Trust,
the business of the Trust shall be managed by the Trustees, and the Trustees
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; 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 one 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
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 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 (as defined in the
By-Laws as the same may be amended from time to time) of Trustees are present,
within or without the State of Delaware.
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Without limiting the foregoing, the Trustees shall have the power and
authority to cause the Trust (or to act on behalf of the Trust):
(1) 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 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 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
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;
(2) To purchase, sell and hold currencies and enter into contracts for the
future purchase or sale of currencies, including but not limited to forward
foreign currency exchange contracts;
(3) 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;
(4) 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;
(5) To exercise powers and right of subscription or otherwise which in any
manner arise out of ownership of securities;
(6) 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;
(7) 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;
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(8) To join with other security holders in acting through a committee,
depository, voting trustee or otherwise, and in that connection to deposit any
security with, or transfer any security to, any such committee, depository 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, depository or trustee as the Trustees shall deem
proper;
(9) 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;
(10) To enter into joint ventures, general or limited partnerships and any
other combinations or associations;
(11) To borrow funds or other property in the name of the Trust
exclusively for Trust purposes and in connection therewith issue notes or other
evidence of indebtedness; and to mortgage and pledge the Trust Property or any
part thereof to secure any or all of such indebtedness;
(12) 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;
(13) 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 insurance policies insuring the assets of the Trust or
payment of distributions and principal on its portfolio investments, and
insurance policies insuring the Shareholders, the 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;
(14) 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;
(15) 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;
(16) To enter into contracts of any kind and description;
(17) To employ one or more banks, trust companies or companies that are
members of a national securities exchange or such other entities as the
Commission may permit as custodians
10
of any assets of the Trust subject to any conditions set forth in this
Declaration of Trust or in the By-Laws;
(18) To interpret the investment policies, practices or limitations of any
Series or Class;
(19) 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 of part
or 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;
(20) To establish one or more committees, to delegate any powers of the
Trustees to such committees and to adopt a committee charter providing for such
responsibilities, membership (including Trustees, officers or other agents of
the Trust therein) and other characteristics of such committees as the Trustees
may deem proper. Notwithstanding the provisions of this Article IV, and in
addition to such provisions or any other provision of this Declaration of Trust
or of the By-Laws, the Trustees may by resolution appoint a committee consisting
of fewer than the whole number of the Trustees then in office, which committee
may be empowered to act for and bind the Trustees and the Trust, as if the acts
of such committee were the acts of all the Trustees then in office, with respect
to any matter including the institution, prosecution, dismissal, settlement,
review or investigation of any action, suit or proceeding that may be pending or
threatened to be brought before any court, administrative agency or other
adjudicatory body;
(21) To provide for separate classes, groups or series of Trustees with
respect to any Series or Class thereof or any Trust property having such
relative rights, powers and duties as the Trustees may determine; and
(22) 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.
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
11
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 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 any
other Person as nominee, on such terms as the Trustees may determine, provided
that any such Person hold such legal title on behalf of the Trust. 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 have been executed and
delivered.
Section 7. Service Contracts.
(1) Subject to such requirements and restrictions as may be set forth
under federal law and in the By-Laws, including the requirements of Section 15
of the 1940 Act, 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 (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 authority for
the Investment Manager or administrator to delegate certain or all of its duties
under such contracts to qualified investment advisers and 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.
(2) 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 federal law and in the By-Laws,
12
including the requirements of Section 15 of the 1940 Act; and any such contract
may contain such other terms as the Trustees may determine.
(3) 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 under federal
law and in the By-Laws or stipulated by resolution of the Trustees.
(4) Subject to applicable federal law, including the 1940 Act, 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.
(5) 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 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 8. 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 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, in the By-Laws, or in the
Registration Statement 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 as and to the extent provided in Article IV, Section 1, and (ii) with
respect to such additional matters relating to the Trust as may be required by
the 1940 Act, Section 4 of Article VIII of this Declaration of Trust, Section 2
of Article X or Article XIII of 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 determined by the Trustees without the
vote or consent of Shareholders (except as required by the 1940 Act), on any
matter submitted to a vote of Shareholders, either (i) each whole Share shall be
entitled to one vote as to any matter on which it is entitled to vote and each
fractional Share shall be entitled to a proportionate fractional vote or (ii)
each dollar of Net Asset Value (number of Shares owned times Net Asset Value per
share of such Series or Class, as applicable) shall be entitled to one vote on
any matter on which such Shares are entitled to vote and each fractional dollar
amount shall be entitled to a proportionate fractional vote. Without limiting
the power of the Trustees in any way to designate otherwise in accordance with
the preceding sentence, the Trustees hereby establish that each whole Share
shall be entitled to one vote as to any matter on which it is entitled to vote
and each fractional Share shall be entitled to a proportionate fractional vote.
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; (ii) when the matter involves any
action that the Trustees have determined will affect only the interests of one
or more Series, then only Shareholders of such Series shall be entitled to vote
thereon; and (iii) when the matter involves any action that the Trustees have
determined will affect only the interests of one or more Classes, then only the
Shareholders of such Class 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 the 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 the Trustees of the Trust, then, solely with
respect to such proposal, proxy contest or proxy solicitation, 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 federal law, including the 1940 Act, by the By-Laws or by this
Declaration of Trust, the holders of Shares entitled to cast one-third of the
votes, present in person or by proxy, shall constitute a quorum at a
Shareholders' meeting. When any one or more Series (or Class) is to vote as a
single class separate from any other Shares, the holders of Shares of each such
Series (or Class) entitled to cast one-third of the votes, present in person or
by proxy, shall constitute a quorum at
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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
federal law, including the 1940 Act, when a quorum is present at any meeting, a
plurality of the Shares voted shall elect a Trustee and a majority of the Shares
voted shall decide any other matters, provided that where any provision of
federal law, including the 1940 Act, or of this Declaration of Trust requires or
permits the holders of any Series to vote as a Series (or that holders of a
Class shall vote as a Class), then a majority of the Shares of that Series (or
Class) voted 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. Record Dates. 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 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 Section shall be construed as
precluding the Trustees from setting different record dates for different Series
(or Classes).
Section 4. 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 a
duly adopted vote of the Trustees such bases and time for determining the per
Share or net asset value of the Shares of any Series (or Class) or 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.
Section 2. Redemptions and Repurchases.
(1) 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 as determined by the
Trustees (or on their behalf), in accordance with any applicable provisions of
the By-Laws, the Registration Statement and applicable law, less any fees
imposed on such redemption. 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 provision that in the event that
any time the New York Stock Exchange (the "Exchange") is closed for other than
weekends or holidays,
15
or if permitted by the rules and regulations or an order 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. In the case of a suspension of the right
of redemption as provided herein, a Shareholder 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, less any fees imposed on
such redemption.
(2) 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.
(3) The Trustees may require any Shareholder or any group of Shareholders
(including some or all of the Shareholders of any Series or Class) to redeem
Shares for any reason under terms set by the Trustees, including but not limited
to (i) the determination of the Trustees that direct or indirect ownership of
Shares of any Series has or may become concentrated in such Shareholder 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), (ii) the failure of a Shareholder to supply a tax identification
number if required to do so or any other identifying information as required by
applicable law, or to have the minimum investment required (which may vary by
Series), or (iii) the failure of a Shareholder to pay when due for the purchase
of Shares issued to him. Any such redemption shall be effected at the redemption
price and in the manner provided in this Article VI.
(4) 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 authority.
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 the Trustees 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. A Trustee, when
acting in such capacity, shall not be personally liable to any Person, other
than the Trust or a Shareholder
16
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, adviser, sub-adviser or Principal Underwriter of the
Trust. The Trust shall indemnify each Person who is, or has been, a Trustee,
officer, employee or agent of the Trust and any Person who is serving or has
served at the Trust's request as a director, officer, trustee, employee or agent
of another organization in which the Trust has any interest as a shareholder,
creditor or otherwise to the extent and in the manner provided in the By-Laws.
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 Series that such
person extended credit to, contracted with or has a claim against, 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 her 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 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. The omission of 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 his or her 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 he or she becomes involved by
virtue of his or her capacity or former capacity with the Trust.
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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. Dissolution and Termination of Trust or Series or Classes.
(1) Unless terminated as provided herein, the Trust shall continue without
limitation of time. The Trust may be dissolved at any time by the Trustees by
written notice to the Shareholders. Any Series of Shares may be dissolved at any
time by the Trustees by written notice to the Shareholders of such Series. Any
Class of any Series of Shares may be terminated at any time by the Trustees by
written notice to the Shareholders of such Class. Any action to dissolve the
Trust shall be deemed also to be an action to dissolve each Series and each
Class thereof.
(2) Upon the requisite action by the Trustees to dissolve the Trust or any
one or more Series of Shares, 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 as may be determined by the Trustees,
the Trust shall in accordance with such procedures as the Trustees consider
appropriate reduce the remaining assets of the Trust or of the affected Series
to distributable form in cash or Shares (if the Trust has not dissolved) or
other securities, or any combination thereof, and distribute the proceeds to the
Shareholders of the Trust or Series involved, ratably according to the number of
Shares of the Trust or such Series held by the several Shareholders of such
Series on the date of distribution. Thereupon, any affected Series 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 such Series shall be
canceled and discharged. Upon the requisite action by the Trustees to terminate
any Class of any Series of Shares, the Trustees may, to the extent they deem it
appropriate, follow the procedures set forth in this Section 2(2) with respect
to such Class that are specified in connection with the dissolution and winding
up of the Trust or any Series of Shares. Alternatively, in connection with the
termination of any Class of any Series of Shares, the Trustees may treat such
termination as a redemption of the Shareholders of such Class effected pursuant
to Section 2(3) of Article VI of this Declaration of Trust provided that the
costs relating to the termination of such Class shall be included in the
determination of the net asset value of the Shares of such Class for purposes of
determining the redemption price to be paid to the Shareholders of such Class
(to the extent not otherwise included in such determination).
(3) Following completion of winding up of the Trust's 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. Upon termination of the Trust,
the Trustees shall be discharged of any and all further liabilities and
18
duties relating thereto or arising therefrom, and the right, title and interest
of all parties with respect to the Trust shall be canceled and discharged.
Section 3. Reorganization and Master/Feeder.
(1) Notwithstanding anything else herein, the Trustees may, without
Shareholder approval unless such approval is required by the 1940 Act, (i) cause
the Trust to convert into or merge, reorganize or consolidate with or into one
or more trusts, partnerships, limited liability companies, associations,
corporations or other business entities (or a series of any of the foregoing to
the extent permitted by law) (including trusts, partnerships, limited liability
companies, associations, corporations or other business entities created by the
Trustees to accomplish such conversion, merger or consolidation) so long as the
surviving or resulting entity is an open-end management investment company under
the 1940 Act, or is a series thereof to the extent permitted by law, and that,
in the case of any trust, partnership, limited liability company, association,
corporation or other business entity created by the Trustees to accomplish such
conversion, merger or consolidation, may succeed to or assume the Trust's
registration under the 1940 Act and that, in any case, is formed, organized or
existing under the laws of the United States or of a state, commonwealth,
possession or colony of the United States, (ii) cause the Shares to be exchanged
under or pursuant to any state or federal statute to the extent permitted by
law, (iii) cause the Trust to incorporate under the laws of a state,
commonwealth, possession or colony of the United States, (iv) sell or convey all
or substantially all of the assets of the Trust or any Series or Class to
another Series or Class of the Trust or to another trust, partnership, limited
liability company, association, corporation or other business entity (or a
series of any of the foregoing to the extent permitted by law) (including a
trust, partnership, limited liability company, association, corporation or other
business entity created by the Trustees to accomplish such sale and conveyance),
organized under the laws of the United States or of any state, commonwealth,
possession or colony of the United States so long as such trust, partnership,
limited liability company, association, corporation or other business entity is
an open-end management investment company under the 1940 Act and, in the case of
any trust, partnership, limited liability company, association, corporation or
other business entity created by the Trustees to accomplish such sale and
conveyance, may succeed to or assume the Trust's registration under the 1940
Act, for adequate consideration as determined by the Trustees which may include
the assumption of all outstanding obligations, taxes and other liabilities,
accrued or contingent of the Trust or any affected Series or Class, and which
may include Shares of such other Series or Class of the Trust or shares of
beneficial interest, stock or other ownership interest of such trust,
partnership, limited liability company, association, corporation or other
business entity (or series thereof) or (v) at any time sell or convert into
money all or any part of the assets of the Trust or any Series or Class thereof.
Any agreement of merger, reorganization, consolidation, exchange or conversion
or certificate of merger, certificate of conversion or other applicable
certificate may be signed by a majority of the Trustees and facsimile signatures
conveyed by electronic or telecommunication means shall be valid.
(2) 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 may effect any amendment to the
governing instrument of the Trust or effect the
19
adoption of a new trust instrument of the Trust if the Trust is the surviving or
resulting trust in the merger or consolidation.
(3) Notwithstanding anything else herein, the Trustees may, without
Shareholder approval unless such approval is required by the 1940 Act, 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.
(4) Notwithstanding anything else herein, the Trustees may, without
Shareholder approval, 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 need not) be a trust (formed under the laws of the State of
Delaware or any other state or jurisdiction) (or subtrust 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,
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 is required to be approved by Shareholders by the 1940
Act or by the Registration Statement and (ii) 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 only affect the Shareholders
of one or more Series or one or more Classes shall be authorized by a vote of
only 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 of this Declaration of Trust
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 of this Declaration of Trust or 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 the Trustees
deem necessary or desirable.
Section 5. Filing of Copies, References, Headings, Rules of Construction.
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
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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. The terms "include," "includes" and "including" and any comparable
terms shall be deemed to mean "including, without limitation."
Section 6. Applicable Law.
(1) 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.
(2) Notwithstanding the first sentence of Section 6(1) of this Article
VIII, there shall not be applicable to the Trust, the Trustees or this
Declaration of Trust, the provisions of Section 3540 of Title 12 of the Delaware
Code or 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.
(1) The provisions of the Declaration of Trust are severable, and if the
Trustees shall determine, with the advice of counsel, that any of such provision
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, 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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(2) 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:
(1) 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(1), 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, is composed of
Trustees who are not "independent trustees" (as that term is defined in the
Delaware Act).
(2) 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
collectively hold at least 10% of the outstanding Shares of the Trust, or who
collectively hold at least 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; and
(3) 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. The Trustees shall be entitled to retain
counsel or other advisors in considering the merits of the request and may
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.
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IN WITNESS WHEREOF, the Trustees named below do hereby make and enter into
this Declaration of Trust as of the 15th day of July, 2002.
_________________________
Xxxxxxx X. Xxxxxxxxx
_________________________
Xxxxx X. Xxxxx
_________________________
Xxx X. Xxxxxxx
THE PRINCIPAL PLACE OF BUSINESS OF THE TRUST IS:
000 Xxxxxxxx Xxxx Xxxx
Xxxxxxxxxx, Xxx Xxxxxx 00000
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