AGREEMENT AND DECLARATION OF TRUST
OF
THE COMMUNITY DEVELOPMENT FUND
a Delaware Statutory Trust
PRINCIPAL PLACE OF BUSINESS:
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AGREEMENT AND DECLARATION OF TRUST
OF
THE COMMUNITY DEVELOPMENT FUND
TABLE OF CONTENTS
ARTICLE I - NAMES AND DEFINITIONS 1
Name 1
Definitions 1
ARTICLE II - PURPOSE OF THE TRUST 2
ARTICLE III -- SHARES 3
Division of Beneficial Interest 3
Ownership of Shares 3
Transfer of Shares 4
Investments in the Trust 4
Status of Shares and Limitation of Personal Liability 4
Power of Board of Trustees to Change Provisions Relating to Shares 4
Establishment and Designation of Shares 5
Indemnification of Shareholders 7
ARTICLE IV - THE BOARD OF TRUSTEES 7
Number, Election and Tenure 7
Effect of Death, Resignation, etc. of a Trustee 8
Powers 8
Payment of Expenses by the Trust 11
Payment of Expenses by Shareholders 12
Ownership of Assets of the Trust 12
Service Contracts 12
ARTICLE V - SHAREHOLDERS' VOTING POWERS AND MEETINGS 13
Voting Powers 13
Voting Power and Meetings 14
Quorum and Required Vote 14
Action by Written Consent 15
Record Dates 15
Additional Provisions 15
ARTICLE VI - NET ASSET VALUE, DISTRIBUTIONS, AND REDEMPTIONS 15
Determination of Net Asset Value, Net Income, and Distributions 15
Redemptions and Repurchases 15
Redemptions at the Option of the Trust 16
Disclosure of Ownership 16
ARTICLE VII - COMPENSATION AND LIMITATION OF LIABILITY OF TRUSTEES 16
Compensation 16
Standard of Care 16
Indemnification and Limitation of Liability 16
Trustee's Reliance, Expert Advice, No Bond or Surety 17
Insurance 17
ARTICLE VIII -- MISCELLANEOUS 17
Liability of Third Persons Dealing with Trustees 17
Termination of Trust or Series 18
Merger, Consolidation and Reorganization 18
Amendments 19
Filing of Copies, References and Headings 19
Applicable Law 20
Provisions in Conflict with Law or Regulations 20
Statutory Trust Only 21
Derivative Actions 21
Applicability of 1940 Act and Registration Statement 22
Trustees May Resolve Ambiguities 22
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AGREEMENT AND DECLARATION OF TRUST
OF
THE COMMUNITY DEVELOPMENT FUND
WHEREAS, THIS AGREEMENT AND DECLARATION OF TRUST is made and entered
into as of the date set forth below by the Trustees named hereunder for the
purpose of forming a Delaware statutory trust in accordance with the provisions
hereinafter set forth, to be effective upon the filing of the executed
Certificate of Trust with the State of Delaware.
NOW, THEREFORE, the Trustees hereby direct that a 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 pro rata benefit of the holders of
Shares of this Trust.
ARTICLE I
NAMES AND DEFINITIONS
SECTION 1. NAME. This trust shall be known as "THE COMMUNITY
DEVELOPMENT FUND" 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. Any
name change shall become effective on the execution by a majority of the
Trustees of an instrument setting forth the new name and the filing of a
certificate of amendment pursuant to Section 3810(b)(1) of the Delaware Act.
Any such instrument shall not require the approval of the Shareholders but
shall have the status of an amendment to this Declaration of Trust.
SECTION 2. DEFINITIONS. Whenever used herein, unless otherwise required by the
context or specifically provided:
(a) The "1940 Act" shall mean the Investment Company Act of
1940, the rules and regulations thereunder or any exemption therefrom, as such
statute, rules or regulations may be amended or interpreted from time to time,
and any successor statute thereto;
(b) "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 (defined herein);
(c) "Class" means a class of Shares in a Series of the
Trust established in accordance with the provisions of Article III hereof;
(d) The terms "Commission" and "Principal Underwriter"
shall have the respective meanings given them in Section 2(a)(7) and Section
2(a)(29) of the 1940 Act;
(e) "Declaration of Trust" shall mean this Agreement and
Declaration of Trust, as amended or restated from time to time;
(f) "Delaware Act" shall mean the Delaware Statutory Trust
Act (12 DEL. C. [section] 3801 ET SEQ.), as such statute may be amended or
interpreted from time to time, and any legislative enactment which may replace
or supersede such Act;
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(g) "Delaware General Corporation Law" shall mean Title 8,
Chapter 1 of the Delaware Code, as such statute may be amended or interpreted
from time to time, and any legislative enactment which may replace or supersede
such Code;
(h) The term "Interested Person" has the meaning given it in
Section 2(a)(19) of the 1940 Act;
(i) "Investment Manager" or "Manager" means a party
furnishing services to the Trust pursuant to any contract described in Article
IV, Section 7(a) hereof;
(j) "Person" means and includes individuals, corporations,
partnerships, trusts, associations, joint ventures, estates and other entities,
whether or not legal entities, and governments and agencies and political
subdivisions thereof, whether domestic or foreign;
(k) "Series" refers to each Series of Shares established
and designated under or in accordance with the provisions of Article III hereof
and shall mean an entity such as that described in Section 18(f)(2) of the 1940
Act, and subject to Rule 18f-2 thereunder;
(l) "Shareholder" means a record owner of outstanding
Shares;
(m) "Shares" shall mean the equal proportionate units of
beneficial interest into which the beneficial interest of each Series or Class
thereof shall be divided. "Shares" includes fractions of Shares as well as
whole Shares, and will be rounded to the nearest thousandth or such other
fraction as may be determined by the Trustees;
(n) The "Trust" refers to the Delaware statutory 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, as each may be amended from time to time, inclusive of each
and every Series established hereunder;
(o) "Trustee" or "Trustees" refer to the person or persons
who has or have signed this Declaration of Trust, so long as he, she or they
shall 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;
(p) 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 or any Series or by the Trustees on behalf of the Trust or
any Series.
ARTICLE II
PURPOSE OF THE 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 (including
options), debt instruments, money market instruments, commodities, commodity
contracts and options thereon and other instruments and rights of a financial
character and to exercise all of the powers and privileges granted to a
statutory trust formed under the laws of the State of Delaware and a management
investment company registered under the 1940 Act, now or hereafter in force.
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ARTICLE III
SHARES
SECTION 1. DIVISION OF BENEFICIAL INTEREST. The beneficial interest
in the Trust shall be divided into one or more Series. Each Series may be
divided into one or more Classes. Subject to the further provisions of this
Article III and any applicable requirements of the 1940 Act, the Trustees shall
have full power and authority, in their sole discretion, and without obtaining
any authorization or vote of the Shareholders of any Series or Class thereof,
(i) to divide the beneficial interest in each Series or Class thereof into an
unlimited amount of 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 or 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 or Class, (v) to classify or reclassify any issued Shares of any
Series or Class thereof into shares of one or more Series or Classes thereof,
and (vi) to take such other action with respect to the Shares as the Trustees
may deem desirable.
Subject to the distinctions permitted among Classes 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, without limitation, Shares
issued in connection with a dividend paid in Shares or a split or reverse split
of Shares, shall be fully paid and non-assessable. Except as otherwise provided
by the Trustees, Shareholders shall have no 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 Board of Trustees may otherwise determine from time to time. The
Trustees may make such rules as they consider appropriate for the issuance of
Share certificates, 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.
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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, the Trust's transfer or similar agent or other Person designated by
the Trustees 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 any 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. Each investment
shall be credited to the individual Shareholder's account in the form of full
and fractional Shares of the Trust, in such Series (or Class) as the purchaser
shall select, at the net asset value per Share next determined for such Series
(or Class) after receipt of the investment; provided, however, that the
Trustees may, in their sole discretion, impose a sales charge or transaction
fee upon investments in the Trust.
SECTION 5. STATUS OF SHARES AND LIMITATION OF PERSONAL LIABILITY. The
ownership of the Trust Property of every description and the right to conduct
any business herein before described are vested exclusively in the Trustees,
and the Shareholders shall have no interest therein other than the beneficial
interest conferred by their Shares, and they shall have no right to call for
any partition or division of any property, profits, rights or interests of the
Trust nor can they be called upon to share or assume any losses of the Trust
or, subject to the right of the Trustees to charge certain expenses directly to
Shareholders, suffer an assessment of any kind by virtue of their ownership of
Shares. Every Shareholder, by virtue of having purchased a Share, shall become
a Shareholder and shall be held to have expressly assented and agreed to be
bound by the terms hereof and to have become a party hereto. 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 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 such Shareholder under this
Declaration of Trust. Ownership of Shares shall not 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. The
Shares shall not entitle the holder to preference, preemptive, appraisal,
conversion or exchange rights (except as specified in this Declaration of Trust
or as specified by the Trustees when creating the Shares). No Shareholder of
the Trust shall be subject in such capacity to any personal liability
whatsoever to any Person in connection with Trust Property or the acts,
obligations or affairs of the Trust. Shareholders shall have the same
limitation of personal liability as is extended to stockholders of a private
corporation for profit incorporated under the Delaware General Corporation
Law.
SECTION 6. 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 this Declaration
of Trust and the Certificate of Trust, the Board of Trustees shall have the
power to amend this Declaration of Trust and the Certificate of Trust, at any
time and from time to time, in such manner as the Board of Trustees may
determine in its sole discretion, without the need for Shareholder action, so
as to add to, delete, replace or otherwise modify any provision 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
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of all Shareholders and that Shareholder approval is not otherwise required by
the 1940 Act or other applicable federal or state law; provided, however that
if Shares have been issued, Shareholder approval shall be required to adopt any
amendment to this Declaration of Trust that would adversely affect to a
material degree the rights and preferences of the Shares of any Series already
issued or the rights and preferences of any Class of Shareholders associated
with any such Series or as otherwise required by the 1940 Act. Subject to the
foregoing, the Board of Trustees may amend any provision set forth in
paragraphs (a) through (i) of Section 7 of this Article III.
SECTION 7. ESTABLISHMENT AND DESIGNATION OF SHARES. 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 which sets
forth such establishment and designation and the relative rights and
preferences of such Series (or Class) whether directly in such resolution or by
reference to another document including, without limitation, any registration
statement of the Trust, or as otherwise provided in such resolution.
Each Series shall be separate and distinct from any other Series,
separate and distinct records on the books of the Trust shall be maintained for
each Series, and the assets and liabilities belonging to any such Series shall
be held and accounted for separately from the assets and liabilities of the
Trust or any other Series. Shares of each Series (or Class) established
pursuant to this Section 7, unless otherwise provided in the resolution
establishing such Series (or Class), 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 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 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 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 as
allocated to a particular Series thereafter 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 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 General Assets of the Trust not allocated
to such Series.
(b) LIABILITIES HELD WITH RESPECT TO A PARTICULAR SERIES.
The assets of the Trust held with respect to each particular Series shall be
charged against the liabilities of the Trust held with respect to that Series
and all expenses, costs, charges and reserves attributable to that Series, and
any liabilities, debts, obligations, expenses, costs, charges and reserves of
the Trust that are not readily identifiable as being liabilities held with
respect to any particular Series (collectively "General Liabilities") shall be
allocated and charged by the Board of Trustees to and among any one or more of
the Series in such manner and on such basis as the Board of Trustees in its
sole discretion deems fair and equitable. The liabilities, expenses, costs,
charges, and reserves so charged to a Series are herein referred to as
"liabilities held with respect to" that Series. Each allocation of liabilities,
expenses, costs, charges and reserves by the Trustees shall be conclusive and
binding upon the Shareholders of all Series for all purposes. All
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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.
Subject to the right of the Board of Trustees in its
discretion to allocate General Liabilities as provided herein, the debts,
liabilities, obligations and expenses incurred, contracted for or otherwise
existing with respect to a particular Series, whether such Series is now
authorized and existing pursuant to this Declaration of Trust or is hereafter
authorized and existing pursuant to this Declaration of Trust, shall be
enforceable against the assets held with respect to such particular Series
only, and not against the assets of any other Series or the General Assets of
the Trust and none of the General Liabilities of the Trust or the debts,
liabilities, obligations and expenses incurred, contracted for or otherwise
existing with respect to any other Series thereof shall be enforceable against
the assets held with respect to such particular Series. Notice of this
limitation on liabilities between and among Series is set forth in the
Certificate of Trust, and by giving such notice in the Certificate of Trust,
the statutory provisions of Section 3804 of the Delaware Act relating to
limitations on liabilities between and among Series (and the statutory effect
under Section 3804 of setting forth such notice in the Certificate of Trust)
are applicable to the Trust and each Series.
(c) DIVIDENDS, DISTRIBUTIONS, REDEMPTIONS, AND REPURCHASES.
Notwithstanding any other provisions of this Declaration of Trust, including,
without limitation, Article VI, no dividend or distribution including, without
limitation, any distribution paid upon termination of the Trust or paid on or
in respect to any Series (or Class), 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 8 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
1940 Act, to determine which items shall be treated as income and which items
as capital; and each such determination and allocation shall be conclusive and
binding upon the Shareholders.
(d) VOTING. All Shares of the Trust entitled to vote on a
matter shall vote without differentiation between the separate Series (or, if
applicable, Classes) on a one vote per each whole Share (including fractional
votes for fractional Shares) basis; provided, however, if a matter to be voted
on affects only the interests of some, but not all, Series (or, if applicable,
Class(es)) of Shareholders or as otherwise required by the 1940 Act, then only
the Shareholders of such affected Series (or Class(es)) shall be entitled to
vote on the matter, separately by Series (or, if applicable, by Class) on the
same one vote per each whole Share (including fractional votes for fractional
Shares) basis.
(e) EQUALITY. All the Shares of each particular Series
shall represent an equal proportionate undivided 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 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.
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(g) EXCHANGE PRIVILEGE. The Trustees shall have the
authority to provide that the holders of Shares of any Series or Class shall
have the right to exchange said Shares for Shares of one or more other Series
or Class of Shares in accordance with such requirements and procedures as may
be established by the Trustees.
(h) COMBINATION OF SERIES OR CLASS. The Trustees shall have
the authority, without the approval of the Shareholders of any Series or Class,
unless otherwise required by applicable law, to combine the assets and
liabilities held with respect to any two or more Series or Classes into assets
and liabilities held with respect to a single Series or Class.
(i) DISSOLUTION OR TERMINATION OF A SERIES. Any particular
Series shall be dissolved upon the occurrence of the applicable dissolution
events set forth in Article VIII, Section 2. In addition, the Trustees shall
have the authority, without the approval of Shareholders of any Series, unless
otherwise required by applicable law, to adopt a resolution dissolving any such
Series and rescinding the establishment and designation thereof. Any particular
Class may be terminated at the time there are no Shares outstanding of the
particular Class. In addition, the Trustees shall have the authority, without
the approval of Shareholders of any Class, unless otherwise required by
applicable law, to adopt a resolution terminating any such Class and rescinding
the establishment and designation thereof; provided, however, that upon the
dissolution of any particular Series, every Class of such Series shall thereby
be terminated.
SECTION 8. INDEMNIFICATION OF SHAREHOLDERS. If any Shareholder or
former Shareholder shall be exposed to liability by reason of a claim or demand
relating solely to his or her being or having been a Shareholder, and not
because of such Person's acts or omissions, the Shareholder or former
Shareholder (or, in the case of a natural person, his or her heirs, executors,
administrators, or other legal representatives or, in the case of a corporation
or other entity, its corporate or other general successor) shall be entitled to
be held harmless from, and indemnified, but only out of the assets held with
respect to the particular Series or Class of which such Person is or was a
Shareholder and from or in relation to which such liability arose, against all
loss and expense arising from such claim or demand; provided, however, that
there shall be no liability or obligation of the Trust, or any particular
Series, as the case may be, arising hereunder to reimburse any Shareholder for
taxes paid by reason of such Shareholder's ownership of any Shares. The Trust
may, upon request of a Shareholder or former Shareholder, assume the defense of
any action made against any Shareholder for any obligation of the Trust or any
Series and satisfy any judgment thereof.
ARTICLE IV
THE BOARD OF TRUSTEES
SECTION 1. NUMBER, ELECTION AND TENURE. The initial Trustee shall be
the person named herein. Thereafter, the number of Trustees constituting the
initial Board of Trustees shall be such other persons as the initial Trustee
shall, prior to the first date on which Persons are admitted as Shareholders of
the Trust, appoint by a written instrument signed by the initial Trustee.
Thereafter, the number 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 less than one (1) nor more than fifteen (15). The Board of
Trustees, by action of a majority of the Trustees then in office at a duly
constituted meeting, may fill vacancies, including vacancies created by an
increase in the number of Trustees, in the Board of Trustees or remove Trustees
with or without cause. An appointment of a Trustee may be made by the Trustees
then in office in anticipation of a vacancy to occur by reason of retirement,
resignation or increase in the number of Trustees effective at a later date,
provided that said appointment shall become effective only at or after the
effective date of said retirement,
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resignation or increase in number of Trustees. Subject to any retirement or
similar policy adopted by the Board of Trustees, each Trustee shall serve
during the existence of the Trust until he or she dies, resigns, is declared
bankrupt or incompetent by a court of appropriate jurisdiction, or is removed,
or until the next meeting of Shareholders called for the purpose of electing
Trustees and until the election and qualification of his or her successor. In
the event that less than a majority of the Trustees holding office have been
elected by the Shareholders, 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 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.
Any Trustee who requests in writing to be retired or who has become mentally or
physically incapacitated may be retired by written instrument signed by a
majority of the other Trustees then in office, specifying the date of his or
her retirement. 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 or expense reimbursement for any period following his
or her resignation or removal, or any right to damages on account of such
removal. The Shareholders may elect or remove Trustees at any meeting of
Shareholders called by the Trustees for that purpose. 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 any
Series or to revoke any existing agency created pursuant to the terms of this
Declaration of Trust. Whenever a vacancy in the Board of Trustees shall occur,
until such vacancy is filled as provided in Article IV, Section 1, or while any
Trustee is physically or mentally incapacitated, 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.
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. Trustees, in all instances, shall act as
principals and are and shall be free from the control of the Shareholders. The
Trustees shall have full power and authority to do any and all acts and to make
and execute any and all contracts and instruments that they may consider
necessary or appropriate in connection with the administration of the Trust.
Any action by one or more of the Trustees in their capacity as such hereunder
shall be deemed an action on behalf of the Trust, and not an action in an
individual capacity. Without limiting the foregoing, the Trustees may: (i)
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; (ii) fill vacancies in or remove from its number in accordance
with this Declaration of Trust, and may elect and remove, with or without
cause, such officers and appoint and terminate such agents as they consider
appropriate; (iii) 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; (iv) 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,
distribution disbursing agent, a shareholder servicing agent or administrative
services agent, or all of them; (v) provide for the issuance and distribution
of Shares by the Trust directly or through one or more Principal Underwriters
or otherwise; (vi) retain one or more Investment Managers; (vii) redeem,
repurchase and transfer Shares pursuant to applicable law; (viii) set record
dates
8
for the determination of Shareholders with respect to various matters; (ix)
declare and pay dividends and distributions to Shareholders of each Series from
the assets of such Series; (x) establish from time to time, in accordance with
the provisions of Article III, hereof, any Series (or Class) of Shares, each
such Series (or Class) to operate as a separate and distinct investment medium
and with separately defined investment objectives and policies and distinct
investment purpose; and (xi) 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
administrator, custodian, transfer or shareholder servicing agent, Investment
Manager or Principal Underwriter. Without limiting the foregoing, the Board of
Trustees shall have all the powers granted to a board of directors under the
1940 Act. 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. The powers delegated to the Trustees in this Section 3
are without prejudice to the delegated powers of the Trustees set forth in the
other provisions of this Declaration of Trust and the By-Laws. Unless otherwise
specified herein or in the By-Laws 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, present at a meeting of Trustees at which a quorum of
Trustees is present, or a majority of any duly constituted committee of
Trustees within or without the State of Delaware. Any action required or
permitted to be taken at any meeting of the Board of Trustees, or any committee
thereof, may be taken without a meeting, without prior notice, if a majority of
the Trustees or committee (as the case may be) (or such larger proportion
thereof as shall be required by any express provision of this Declaration of
Trust or the By-Laws) consent thereto in writing (manually or electronically),
and the writing or writings are filed with the minutes of the proceedings of
the Board of Trustees, or committee, except as otherwise provided in the 1940
Act. Such action by written consent shall have the same force and effect as a
majority vote at a meeting of the Board of Trustees, or committee thereof, as
the case may be.
The Trustees shall devote to the affairs of the Trust such time as
may be necessary for the proper performance of their duties hereunder, but the
Trustees are not expected to devote their full time to the performance of such
duties. The Trustees or any affiliate, partner or employee thereof, may engage
in, or possess an interest in, any other business or venture of any nature and
description, independently or with or for the account of others. Neither the
Trust nor any Shareholder shall have the right to participate or share in such
business or venture or any profit or compensation derived therefrom.
Without limiting the foregoing, the Trustees shall have the power and
authority to cause the Trust (or to act on behalf of the Trust):
(a) To 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, securities of
every nature and kind, including, without limitation, all types of bonds,
debentures, stocks, preferred stocks, negotiable or non-negotiable instruments,
obligations, evidences of indebtedness, certificates of deposit or
indebtedness, commercial paper, repurchase agreements, bankers acceptances, and
other securities of any kind, currencies, swaps, notes and derivatives of any
kind thereon, 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, in "when issued" contracts for
any such securities, or such other instruments or interests as the Trustees
deem appropriate which are referred to as securities or commodity interests
under the federal securities and commodity laws, or otherwise; to change the
9
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, and to do any and all acts
and things for the preservation, protection, improvement and enhancement in
value of any of such securities and other instruments or property;
(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, subject
to any requirements of the 1940 Act;
(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 that it is Trust Property, whether in bearer, unregistered or other
negotiable form, or in its own name or in the name of a custodian or
subcustodian or a nominee or nominees or otherwise or to authorize the
custodian or a subcustodian or a nominee or nominees to deposit the same in a
securities depository;
(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 trust or otherwise, and in that connection to
deposit any security with, or transfer any security to, any such committee,
depositary or voting trust, 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 voting trust
as the Trustees shall deem proper;
(h) To litigate, compromise, arbitrate, settle or otherwise
adjust claims in favor of or against the Trust or a Series, 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 or Series 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
10
investments, and insurance policies insuring the Shareholders, Trustees,
officers, employees, agents, administrators, Investment Managers, 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 Manager, 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;
(m) To adopt, establish and carry out pension,
profit-sharing, share bonus, share purchase, savings, thrift and other
retirement, incentive and benefit plans, trusts and provisions, including the
purchasing of life insurance and annuity contracts as a means of providing such
retirement and other benefits, for any or all of the Trustees, officers,
employees and agents of the Trust;
(n) To 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 of any assets of the Trust
subject to any conditions set forth in this Declaration or Trust or in the
By-Laws;
(o) To interpret the investment policies, practices or
limitations of any Series or Class;
(p) 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; and
(q) To engage in any other lawful act or activity in which
corporations organized as Delaware statutory trusts 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.
The foregoing clauses shall each be construed as purposes, objects
and powers, and it is hereby expressly provided that the foregoing enumeration
of specific purposes, objects and powers shall not be held to limit or restrict
in any manner the powers of the Trust, and that they are in furtherance of, and
in addition to, and not in limitation of, the general powers conferred upon the
Trust by the Delaware Act, the Delaware General Corporation Law and the other
laws and regulations of the State of Delaware or otherwise; nor shall the
enumeration of one thing be deemed to exclude another, although it be of like
nature, not expressed.
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 any Series (or Class), or partly out of the principal and partly out
of the income, and to charge or allocate the same to, between or among such one
or more of the Series (or Classes) that may be established or designated
pursuant to Article III, as they deem fair, all expenses, fees, charges, taxes
and liabilities incurred or arising in connection with the Trust or Series (or
Class), or in connection with the management thereof, including, but not
limited to, the Trustees'
11
compensation and such expenses and charges for the services of the Trust's
officers, employees, Investment 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 agent, shareholder
servicing or similar agent, an amount fixed from time to time by the Trustees,
by setting off such charges due from such Shareholder from declared but unpaid
dividends owed such Shareholder and/or by reducing the number of Shares in the
account of such Shareholder by that number of full and/or fractional Shares
which represents the outstanding amount of such charges due from such
Shareholder.
SECTION 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
have 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 (and sub-advisory), management
and/or administrative services for the Trust or for any Series with any Person,
including any affiliate, and any such contract may contain such other terms as
the Trustees may determine, including without limitation, authority for the
Investment Manager or administrator to determine from time to time without
prior consultation with the Trustees what investments shall be purchased or
otherwise acquired, owned, held, invested or reinvested in, sold, exchanged,
transferred, mortgaged, pledged, assigned, negotiated, or otherwise dealt with
or disposed of, and what portion, if any, of the Trust Property shall be held
uninvested and to make changes in the Trust's or a particular Series'
investments, or such other activities as may specifically be delegated to such
Person.
(b) The Trustees may also, at any time and from time to
time, contract with any Person(s), including any affiliate, appointing such
Person(s) 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 Persons appointing such Person(s), including
any affiliate, to serve as custodians, transfer agents and/or shareholder
servicing agents or other agents for the Trust or one or more of its Series or
Classes. Every such contract shall comply with such requirements and
restrictions as may be set forth in the ByLaws or stipulated by resolution of
the Trustees.
(d) The Trustees are further empowered, at any time and from
time to time, to contract
12
with any Persons, including any affiliate, 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, 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 Person 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 or has other business or interests with any other Person, 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.
ARTICLE V.
SHAREHOLDERS' VOTING POWERS AND MEETINGS
SECTION 1. VOTING POWERS. Subject to the provisions of Article III,
Section 7(d), 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, the 1940 Act or any registration
statement of the Trust filed with the Commission (or any successor agency) or
any state, or as the Trustees may consider necessary or desirable. 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 as to any matter on which it is entitled to vote. There shall be no
cumulative voting in the election of Trustees. To the extent that the 1940 Act
or Delaware law is amended by rule, regulation, order, or no-action letter to
eliminate or limit Shareholders' right to vote on any specific matter, the
Shareholders' right to vote shall be deemed to be amended, modified or
interpreted in accordance therewith without further approval by the Trustees or
the Shareholders. Shares may be voted in person or by proxy or by any manner
authorized by the Trustees. Unless the Trustees declare otherwise, proxies may
be given by any electronic or telecommunications device, including telefax,
telephone or through the Internet or any other means permissible under the
Delaware Act, but if a proposal by anyone other than the officers or Trustees
is submitted to a vote of the Shareholders of any Series or Class, or if there
is a proxy contest or proxy solicitation or proposal in opposition to any
proposal by the officers or Trustees, Shares may be voted only in person or by
written proxy unless the Trustees specifically authorize other permissible
methods of transmission. Until Shares of a Series are issued, as to that Series
the Trustees may exercise all rights of Shareholders and may take any action
required or permitted to be taken by Shareholders by law, or this Declaration
of Trust or the By-Laws. 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.
13
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 1 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. Notice of any meeting of Shareholders shall be
given either personally or by first-class mail, courier, telegraphic, facsimile
or electronic mail, or other written communication, charges prepaid, addressed
to the Shareholder at the address of that Shareholder appearing on the books of
the Trust or its transfer agent or given by the Shareholder to the Trust for
the purpose of notice. If no such address appears on the Trust's books or is
given, notice shall be deemed to have been given if sent to that Shareholder by
first-class mail, courier, telegraphic, facsimile or electronic mail, or other
written communication to the Trust's principal executive office. Notice shall
be deemed to have been given at the time when delivered personally, deposited
in the mail or with a courier, or sent by telegram, facsimile, electronic mail
or other means of written communication. If any notice addressed to a
Shareholder at the address of that Shareholder appearing on the books of the
Trust is returned to the Trust marked to indicate that the notice to the
Shareholder cannot be delivered at that address, all future notices or reports
shall be deemed to have been duly given without further mailing, or substantial
equivalent thereof, if such notices shall be available to the Shareholder on
written demand of the Shareholder at the principal executive office of the
Trust for a period of one year from the date of the giving of the notice. The
notice shall specify the time and place of the meeting, and the general nature
of the business to be transacted. Except with respect to adjournments as
provided herein, no business shall be transacted at such meeting other than
that specified in the notice. Shareholders shall be entitled to at least seven
days notice of any meeting, given as determined by the Trustees. 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, or actual attendance at
the meeting of Shareholders in person or by proxy, shall be deemed equivalent
to such notice.
SECTION 3. QUORUM AND REQUIRED VOTE. Except when a larger quorum is
required by applicable law, this Declaration of Trust or the By-Laws,
thirty-three and one-third percent (33-1/3%) of the Shares present in person or
represented by proxy and entitled to vote at a Shareholders' meeting shall
constitute a quorum at such meeting. When a separate vote by one or more Series
or Classes is required, thirty-three and one-third percent (33-1/3%) of the
Shares of each such Series or Class present in person or represented by proxy
and entitled to vote shall constitute a quorum at a Shareholders' meeting of
such Series or Class. 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. Any adjournment may be with
respect to one or more proposals, but not necessarily all proposals, to be
voted or acted upon at such meeting and any adjournment will not delay or
otherwise affect the effectiveness and validity of a vote or other action taken
at a Shareholders' meeting prior to adjournment. Subject to the provisions of
Article III, Section 7(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. Abstentions and
broker non-votes will be included for purposes of determining whether a quorum
is present at a Shareholders' meeting. Abstentions and broker non-votes will be
treated as votes present at a Shareholders' meeting, but will not be treated as
Shares voted or votes cast at the meeting. Where any provision of law or of
this Declaration of Trust requires that the holders of any Series (or Class)
shall vote as a Series (or Class) on the matter at issue, then a majority of
the Shares of the Series (or Class) voted (or a plurality with respect to the
election of a Trustee) shall decide that matter insofar as that Series (or
Class) is concerned.
14
SECTION 4. ACTION BY WRITTEN CONSENT. Any action taken by
Shareholders may be taken without a meeting and without prior notice 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, 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 and such written consents are 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) 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 one hundred twenty (120) days before the date of any
meeting of Shareholders, as the record date for determining the Shareholders of
the Trust, or 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 no
later than 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 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 7 hereof, the Trustees, in their
absolute discretion, may prescribe and shall set forth in the ByLaws or 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, 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 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
15
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.
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 Trustees may
require Shareholders 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 to have the
minimum investment required (which may vary by Series or Class); 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.
SECTION 4. DISCLOSURE OF OWNERSHIP. 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 or other applicable law.
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 the advisory, management, legal, accounting, investment banking or
other services and payment for the same by the Trust.
SECTION 2. STANDARD OF CARE. The fiduciary duties of Trustees to the
Trust and its Shareholders are the same as those of the directors of a Delaware
corporation to the corporation and its shareholders.
SECTION 3. INDEMNIFICATION AND LIMITATION OF LIABILITY. A Trustee,
when acting in such capacity, shall not be personally liable to any Person,
other than the Trust or a Shareholder to the extent provided in this Article
VII, for any act, omission or obligation of the Trust, of such Trustee, or of
any other Trustee. 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 shall not be responsible or liable in any event
for any neglect or wrong-doing of any officer, agent, employee, Investment
Manager or Principal Underwriter of the Trust, nor shall any Trustee be
responsible for the act or omission of any other Trustee. The Trust shall
indemnify each Person who is, or has been, a Trustee, officer, employee or
agent of the Trust, any Person who is serving or has served at the Trust's
request as a Trustee, officer, trustee, employee or agent of another
organization in which the Trust has any interest as
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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
appropriate Series, 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 Trustees by any of them in connection with the Trust shall
conclusively be deemed to have been executed or done only in or with respect to
his or their capacity as Trustee or Trustees, and such Trustee or Trustees
shall not be personally liable thereon. At the Trustees' discretion, any note,
bond, contract, instrument, certificate or undertaking made or issued by the
Trustees or by any officer or officers may give notice that the Certificate of
Trust is on file in the Office of the Secretary of State of the State of
Delaware and that a limitation on the liability of each 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 or 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 4. TRUSTEE'S RELIANCE, EXPERT ADVICE, NO BOND OR SURETY. The
exercise by the Trustees of their powers and discretions hereunder shall be
binding upon everyone interested. The Trustees shall not be required to give
any bond as such, nor any surety if a bond is required. Each Trustee, officer
or employee of the Trust shall, in the performance of his or her duties, powers
and discretions hereunder, be fully and completely justified and protected with
regard to any act or any failure to act resulting from reliance in good faith
upon the books of account or other records of the Trust, upon an opinion of
counsel, or upon reports made to the Trust by any of its officers or employees
or by the Investment Manager, the administrator, the Principal Underwriter,
transfer agent, custodian, selected dealers, accountants, appraisers or other
experts or consultants selected with reasonable care by the Trustees, officers
or employees of the Trust, regardless of whether such counsel or expert may
also be a Trustee. The officers and Trustees may obtain the advice of counsel
or other experts with respect to the meaning and operation of this Declaration
of Trust and their duties as officers or Trustees. No such officer or Trustee
shall be liable for any act or omission in accordance with such advice and no
inference concerning liability shall arise from a failure to follow such
advice.
SECTION 5. INSURANCE. The Trustees shall be entitled and empowered to
the fullest extent permitted by law to purchase with Trust Property insurance
for liability and for all expenses reasonably incurred or paid or expected to
be paid by a Trustee or officer in connection with any claim, action, suit or
proceeding in which he or she becomes involved by virtue of his or her capacity
or former capacity with the Trust, whether or not the Trust would have the
power to indemnify him or her against such liability under the provisions of
this Article.
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
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Trustees or to see to the application of any payments made or property
transferred to the Trust or upon its order.
SECTION 2. TERMINATION OF TRUST OR SERIES.
(a) Unless 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 or Class may be terminated at any time by vote of a majority of the
Shares of that Series or Class entitled to vote, or by the Trustees by written
notice to the Shareholders of that Series or Class.
(b) Upon the requisite Shareholder vote or action by the
Trustees to terminate the Trust or any one or more Series of Shares or any
Class thereof, after paying or otherwise providing for all charges, taxes,
expenses and liabilities, whether due or accrued or anticipated, of the Trust
or of the particular Series of any Class thereof 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 or Class to distributable form in cash or Shares (if any Series
remain) or other securities, or any combination thereof, and distribute the
proceeds to the Shareholders of the Series or Classes involved, ratably
according to the number of Shares of such Series or Class held by the several
Shareholders of such Series or Class on the date of distribution. Thereupon,
the Trust or any affected Series or Class shall terminate and the Trustees and
the Trust shall be discharged of any and all further liabilities and duties
relating thereto or arising therefrom, and the right, title and interest of all
parties with respect to the Trust or such Series or Class shall be canceled and
discharged.
(c) Upon termination of the Trust, following completion of
winding up of its business, the Trustees shall cause a certificate of
cancellation of the Trust's Certificate of Trust to be filed in accordance with
the Delaware Act, which certificate of cancellation may be signed by any one
Trustee.
SECTION 3. MERGER, CONSOLIDATION AND REORGANIZATION.
(a) Notwithstanding anything else herein, the Trustees may,
without Shareholder vote or approval unless such approval or vote is required
by applicable federal and state law, (i) cause the Trust to convert or merge,
reorganize or consolidate with or into one or more trusts, partnerships,
limited liability companies, associations, corporations or other business
entities (or a segregated portfolio of assets ("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,
reorganization 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,
reorganization 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,
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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 or conversion
or exchange or certificate of merger, certificate of conversion or other
applicable certificate may be signed by a majority of the Trustees or any
Person designated by a majority of the Trustees and facsimile signatures
conveyed by electronic or telecommunication means shall be valid.
(b) Pursuant to and in accordance with the provisions of
Section 3815(f) of the Delaware Act, and notwithstanding anything to the
contrary contained in this Declaration of Trust, an agreement of merger or
consolidation approved by the Trustees in accordance with this Section 3 may
effect any amendment to this Declaration of Trust or effect the adoption of a
new governing instrument of the Trust if the Trust is the surviving or
resulting entity in the merger or consolidation.
(c) Notwithstanding anything else herein, the Trustees may,
without Shareholder vote or approval unless such approval or vote is required
by applicable federal and state law, 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 or corporation for federal income
tax purposes.
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:
(a) on any amendment that would affect their right to vote
granted in Article V, Section 1 hereof;
(b) on any amendment to this Section 4 Article VIII;
(c) on any amendment for which a Shareholder vote may be
required by applicable law or by the Trust's registration statement filed with
the Commission; and
(d) on any amendment submitted to them by the Trustees. Any
amendment required or permitted to be submitted to the Shareholders that, as
the Trustees determine, shall affect the Shareholders of one or more Series (or
Class) shall be authorized by a vote of the Shareholders of each Series (or
Class) affected and no vote of Shareholders of a Series (or Class) not affected
shall be required. Notwithstanding anything else herein, no amendment hereof
shall limit the rights to indemnification referred to in Article VII, Section 3
hereof 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 they deem necessary or desirable.
SECTION 5. FILING OF COPIES, REFERENCES, AND 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
19
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. 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.
(a) The Trust is created under, and this Declaration of
Trust is to be governed by, and construed and enforced in accordance with, the
laws of the State of Delaware. The Trust shall be of the type commonly called a
statutory trust, and without limiting the provisions hereof, the Trust
specifically reserves the right to exercise any of the powers or privileges
afforded to statutory trusts or actions that may be engaged in by statutory
trusts under the Delaware Act, and the absence of a specific reference herein
to any such power, privilege or action shall not imply that the Trust may not
exercise such power or privilege or take such actions.
(b) Notwithstanding the first sentence of Section 6(a) of
this Article VIII, there shall not be applicable to the Trust, the Trustees or
this Declaration of Trust (x) the provisions of Section 3540 of Title 12 of the
Delaware Code or (y) any provisions of the laws (statutory or common) of the
State of Delaware (other than the Delaware Act) pertaining to trusts that
relate to or regulate:
(i) the filing with any court or governmental
body or agency of trustee accounts or schedules of trustee fees and charges;
(ii) affirmative requirements to post bonds for
trustees, officers, agents oremployees of the 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 for trustees,
officers, agents or employees of a trust;
(v) the allocation of receipts and expenditures to
income or principal;
(vi) restrictions or limitations on the permissible
nature, amount or concentration of trust investments or requirements relating to
the titling, storage or other manner of holding of trust assets; or
(vii) the establishment of fiduciary or other standards
or responsibilities or limitations on the acts or powers of trustees that are
inconsistent with the limitations or liabilities or authorities and powers of
the Trustees set forth or referenced in this Declaration of Trust.
SECTION 7. PROVISIONS IN CONFLICT WITH LAW OR REGULATIONS.
(a) The provisions of this Declaration of Trust are
severable, and if the Trustees shall determine, with the advice of counsel,
that any of such provisions are in conflict with the 1940 Act, the
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regulated investment company provisions of the Internal Revenue Code of 1986,
as amended, the Delaware Act or with other applicable laws and regulations, the
conflicting provision shall be deemed never to have constituted a part of this
Declaration of Trust; provided, however, that such determination shall not
affect any of the remaining provisions of this Declaration of Trust or render
invalid or improper any action taken or omitted prior to such determination.
(b) If any provision of this Declaration of Trust shall be
held invalid or unenforceable in any jurisdiction, such invalidity or
unenforceability shall attach only to such provision in such jurisdiction and
shall not in any manner affect such provision in any other jurisdiction or any
other provision of this Declaration of Trust in any jurisdiction.
SECTION 8. STATUTORY TRUST ONLY. It is the intention of the Trustees
to create a statutory trust pursuant to the Delaware Act, and thereby to create
only the relationship of Trustee and beneficial owners within the meaning of
such Delaware 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 statutory trust pursuant to such Delaware Act.
Nothing in this Declaration of Trust shall be construed to make the
Shareholders, either by themselves or with the Trustees, partners or members of
a joint stock association.
SECTION 9. DERIVATIVE ACTIONS. In addition to the requirements set
forth in Section 3816 of the Delaware Act, a Shareholder may bring a derivative
action on behalf of the Trust only if the following conditions are met:
(a) The Shareholder or Shareholders must make a pre-suit
demand upon the Trustees to bring the subject action unless an effort to cause
the Trustees to bring such an action is not likely to succeed. For purposes of
this Section 9(a), a demand on the Trustees shall only be deemed not likely to
succeed and therefore excused if a majority of the Board of Trustees, or a
majority of any committee established to consider the merits of such action,
has a personal financial interest in the transaction at issue, and a Trustee
shall not be deemed interested in a transaction or otherwise disqualified from
ruling on the merits of a Shareholder demand by virtue of the fact that such
Trustee receives remuneration for his service on the Board of Trustees of the
Trust or on the boards of one or more Trusts that are under common management
with or otherwise affiliated with the Trust.
(b) Unless a demand is not required under paragraph (a) of
this Section 9, Shareholders eligible to bring such derivative action under the
Delaware Act who hold at least 10% of the outstanding Shares of the Trust, or
10% of the outstanding Shares of the Series or Class to which such action
relates, shall join in the request for the Trustees to commence such action;
and
(c) Unless a demand is not required under paragraph (a) of
this Section 9, the Trustees must be afforded a reasonable amount of time,
which shall be at least ninety (90) days, 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 the purposes of this Section 9, the Board of Trustees may
designate a committee of one Trustee to consider a Shareholder demand and 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 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.
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SECTION 10. APPLICABILITY OF 1940 ACT AND REGISTRATION STATEMENT. The
Trustees acknowledge that this Declaration of Trust is not intended to, and
does not, set forth the substantive provisions contained in the 1940 Act and
the Trust's registration statement that affect numerous aspects of the conduct
of the Trust's business and of the rights, privileges and obligations of the
Shareholders. Each provision of this Declaration of Trust shall be subject to
and interpreted in a manner consistent with the applicable provisions of the
1940 Act and such registration statement for so long as the Trust is registered
under the 1940 Act.
SECTION 11. TRUSTEES MAY RESOLVE AMBIGUITIES. The Trustees may
construe any of the provisions of this Declaration of Trust insofar as the same
may appear to be ambiguous or inconsistent with any other provisions hereof,
and any such construction hereof by the Trustees in good faith shall be
conclusive as to the meaning to be given to such provisions
[The remainder of this page left intentionally blank]
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IN WITNESS WHEREOF, the undersigned, being the initial Trustee of the Trust,
has executed this Agreement and Declaration of Trust as of the 30th day of July,
2015.
/s/ Xxxxxxx X. Xxxxxx
-----------------------
Xxxxxxx X. Xxxxxx, Ph.D.
Initial Trustee
THE PRINCIPAL PLACE OF BUSINESS OF THE TRUST IS:
0000 Xxxxxxx Xxxxx Xxxxx
Xxxxx, Xxxxxxx 00000
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