AGREEMENT AND DECLARATION OF TRUST
of
The Xxxxxxx Funds
a Delaware Business Trust
Principal Place of Business:
000 Xxxxx Xxxxxx
Xxx Xxxx, XX 00000
AGREEMENT AND DECLARATION OF TRUST
OF
THE XXXXXXX FUNDS
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 business trust in accordance with the provisions hereinafter
set forth,
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 in this Trust.
ARTICLE I.
Name and Definitions
Section 1.01. Name.
This trust shall be known as "The Xxxxxxx Funds" and the
Trustees shall conduct the business of the Trust under that name or any
other name as they may from time to time determine.
Section 1.02. Definitions.
Whenever used herein, unless otherwise required by
the context or specifically provided:
(a) The "Trust" refers to the Delaware business trust established by this
Agreement and Declaration of Trust, as amended from time to time;
(b) The "Trust Property" means any and all property, real or personal, tangible
or intangible, which is owned or held by or for the account of the Trust;
(c) "Trustees" refers to the persons who have signed this Agreement and
Declaration
of Trust, so long as they continue in office in accordance with the terms
hereof, and all other persons who may from time to time be duly elected or
appointed to serve on the Board of Trustees in accordance with the provisions
hereof, and reference herein to a Trustee or the Trustees shall refer to such
person or persons in their capacity as trustees hereunder;
(d) "Shares" means the shares of beneficial interest into which the beneficial
interest in the Trust shall be divided from time to time and includes fractions
of Shares as well as whole Shares;
(e) "Shareholder" means a record owner of outstanding Shares;
(f) "Person" means and includes individuals, corporations, partnerships,
trusts, foundations, plans, associations, joint ventures, estates and other
entities, whether or not legal entities, and governments and agencies and
political subdivisions thereof, whether domestic or foreign;
(g) The "1940 Act" refers to the Investment Company Act of 1940 and the Rules
and Regulations thereunder, all as amended from time to time. References herein
to specific sections of the 1940 Act shall be deemed to include such Rules and
Regulations as are applicable to such sections as determined by the Trustees or
their designees;
(h) 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;
(i) "Declaration of Trust" shall mean this Agreement and Declaration of
Trust, as amended or restated from time to time;
(i) "By-Laws" shall mean the By-Laws of the Trust as amended from time
to time;
(j) The term "Interested Person" has the meaning given it in Section 2(a)(19) of
the 1940 Act;
(k) "Investment Manager" or "Manager" means a party furnishing services to the
Trust pursuant to any contract described in Article IV, Section 7(a) hereof;
(l) "Series" refers to each Series of Shares established and designated under or
in accordance with the provisions of Article III.
ARTICLE II.
Purpose of Trust
The purpose of the Trust is to conduct, operate and carry on the business of a
management investment company registered under the 1940 Act through one or more
Series investing primarily in securities.
ARTICLE III.
Shares
Section 3.01. Division of Beneficial Interest.
The beneficial interest in the
Trust shall at all times be divided into an unlimited number of Shares, with a
par value of $ .001 per Share. The Trustees may authorize the division of Shares
into separate Series and the division of Series into separate classes of Shares.
The different Series shall be established and designated, and the variations in
the relative rights and preferences as between the different Series shall be
fixed and determined, by the Trustees. If only one Series shall be established,
the Shares shall have the rights and preferences provided for herein and in
Article III, Section 6 hereof to the extent relevant and not otherwise provided
for herein.
Subject to the provisions of Section 6 of this Article III, each Share
shall have voting rights as provided in Article V hereof, and holders of the
Shares of any Series shall be entitled to receive dividends, when, if and as
declared with respect thereto in the manner provided in Article VI, Section 1
hereof. No Share shall have any priority or preference over any other Share of
the same Series with respect to dividends or distributions of the Trust or
otherwise. All dividends and distributions shall be made ratably among all
Shareholders of a Series (or class) from the assets held with respect to such
Series according to the number of Shares of such Series (or class) held of
record by such Shareholders on the record date for any dividend or distribution
or on the date of termination of the Trust, as the case may be. Shareholders
shall have no preemptive or other right to subscribe to any additional Shares or
other securities issued by the Trust or any Series. The Trustees may from time
to time divide or combine the Shares of a Series into a greater or lesser number
of Shares of such Series without thereby materially changing the proportionate
beneficial interest of such Shares in the assets held with respect to that
Series or materially affecting the rights of Shares of any other Series.
Pursuant to the powers contained herein, a single initial series of shares
of beneficial interest of the Trust shall be established and designated as the
Xxxxxxx Growth Fund series and an unlimited of shares of beneficial interest are
hereby allocated to such Series.
Section 3.02. 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. No certificates
evidencing the ownership of Shares shall be issued except as the Board of
Trustees may otherwise determine from time to time. The Trustees may make such
rules as they consider appropriate for the transfer of Shares of each Series (or
class) 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 and as to the number of Shares
of each Series held from time to time by each Shareholder.
Section 3.03. 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 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 reimbursement fee upon investments in the Trust.
Section 3.04. Status of Shares and Limitation of Personal Liability.
Shares shall be deemed to be personal property giving only the rights provided
in this instrument and the By-Laws of the Trust. Every Shareholder by virtue
of having
become a Shareholder shall be held to have expressly assented and agreed to the
terms hereof. The death of a Shareholder during the existence of the Trust shall
not operate to terminate the Trust, nor entitle the representative of any
deceased Shareholder to an accounting or to take any action in court or
elsewhere against the Trust or the Trustees, but shall entitle such
representative only to the rights of said deceased Shareholder under this
Declaration of Trust. Ownership of Shares shall not entitle a 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 or joint venturers.
Neither the Trust nor the Trustees, nor any officer, employee or agent of the
Trust shall have any power to bind personally any Shareholder, or 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 agree to pay.
Section 3.05. Power of Board of Trustees to Change Provisions Relating to
Shares.
Notwithstanding any other provision of this Declaration of Trust to the
contrary, and without limiting the power of the Board of Trustees to amend the
Declaration of Trust as provided elsewhere herein, the Board of Trustees shall
have the power to amend this Declaration of Trust, at any time and from time to
time, in such manner as the Board of Trustees may determine in their sole
discretion, without the need for Shareholder action, so as to add to, delete,
replace or otherwise modify any provisions relating to the Shares contained in
this Declaration of Trust, provided that before adopting any such amendment
without Shareholder approval the Board of Trustees shall determine that it is
consistent with the fair and equitable treatment of all Shareholders and that
Shareholder approval is not required by the 1940 Act or other applicable law. If
Shares have been issued, Shareholder approval shall be required to adopt any
amendments to this Declaration of Trust which would adversely affect to a
material degree the rights and preferences of the Shares of any Series (or
class) or to increase or decrease the par value of the Shares of any Series (or
class).
Section 3.06. Establishment and Designation of Shares.
The establishment and designation of any Series (or class) of Shares
shall be effective upon the
adoption by a majority of the Trustees, of a resolution which sets forth such
establishment and designation and the relative rights and preferences of such
Series (or class). Each such resolution shall be incorporated herein by
reference upon adoption.
Shares of each Series (or class) established pursuant to this Section 6,
unless otherwise provided in the resolution establishing such Series, shall have
the following relative rights and preferences:
(a) Assets Held with Respect to a Particular Series. All consideration received
by the Trust for the issue or sale of Shares of a Series, including dividends
and distributions paid by, and reinvested in, such Series, together with all
assets in which such consideration is invested or reinvested, all income,
earnings, profits, and proceeds thereof from whatever source derived, including,
without limitation, any proceeds derived from the sale, exchange or liquidation
of such assets, and any funds or payments derived from any reinvestment of such
proceeds in whatever form the same may be, shall irrevocably be held with
respect to that Series for all purposes, subject only to the rights of
creditors, and shall be so recorded upon the books of account of the Trust. Such
consideration, assets, income, earnings, profits and proceeds thereof, from
whatever source derived, including, without limitation, any proceeds derived
from the sale, exchange or liquidation of such assets, and any funds or payments
derived from any reinvestment of such proceeds, in whatever form the same may
be, are herein referred to as "assets held with respect to" that Series. In the
event that there are any assets, income, earnings, profits and proceeds thereof,
funds or payments which are not readily identifiable as assets held with respect
to any particular Series (collectively "General Assets"), the Trustees shall
allocate such General Assets to, between or among any one or more of the Series
in such manner and on such basis as the Trustees, in their sole discretion, deem
fair and equitable, and any General Asset so allocated to a particular Series
shall be held with respect to that Series. Each such allocation by the Trustees
shall be conclusive and binding upon the Shareholders of all Series for all
purposes in absence of manifest error.
(b) Liabilities Held with Respect to a Particular Series. The assets of the
Trust held with respect to each Series shall be charged with the liabilities of
the Trust with respect to such Series and all expenses, costs, charges and
reserves attributable to such Series, and any general liabilities of the Trust
which are not readily identifiable as being held in respect of a Series shall be
allocated and charged by the Trustees to and among any one or more Series in
such manner and on such basis as the Trustees in their sole discretion deem fair
and equitable. The liabilities, expenses, costs, charges, and reserves so
charged to a Series are herein referred to as "liabilities held with respect to"
that Series. Each allocation of liabilities, expenses, costs, charges and
reserves by the Trustees shall be conclusive and binding upon the holders of all
Series for all purposes in absence of manifest error. All Persons who have
extended credit which has been allocated to a particular Series, or who have a
claim or contract which has been allocated to a Series, shall look exclusively
to the assets held with respect to such Series for payment of such credit,
claim, or contract. In the absence of an express agreement so limiting the
claims of such creditors, claimants and contracting parties, each creditor,
claimant and contracting party shall be deemed nevertheless to have agreed to
such limitation unless an express provision to the contrary has been
incorporated in the written contract or other document establishing the
contractual relationship.
(c) Dividends, Distributions, Redemptions, and Repurchases. No dividend or
distribution including, without limitation, any distribution paid upon
termination of the Trust or of any Series (or class) with respect to, or 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 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
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 in absence of manifest error.
(d) Voting. All Shares of the Trust entitled to vote on a matter shall vote
without differentiation between the separate Series on a one-vote-per-Share
basis; provided however, if a matter to be voted on affects only the interests
of not all Series (or class of a Series), then only the Shareholders of such
affected Series (or class) shall be entitled to vote on the matter.
(e) Equality. All the Shares of each Series shall represent an equal
proportionate undivided interest in the assets held with respect to such Series
(subject to the liabilities of such 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 a Series shall be equal to each other
Share of such Series.
(f) Fractions. Any fractional Share of a Series shall have proportionately all
the rights and obligations of a whole share of such Series, including rights
with respect to voting, receipt of dividends and distributions and redemption of
Shares.
(g) Exchange Privilege. The Trustees shall have the authority to provide that
the holders of Shares of any Series shall have the right to exchange such Shares
for Shares of one or more other Series in accordance with such requirements and
procedures as may be established by the Trustees.
(h) Combination of Series. The Trustees shall have the authority, without the
approval of the Shareholders of any Series unless otherwise required by
applicable law, to combine the assets and liabilities held with respect to any
two or more Series into assets and liabilities held with respect to a single
Series.
(i) Elimination of Series. At any time that there are no Shares outstanding of a
Series (or class), the Trustees may abolish such Series (or class).
ARTICLE IV.
The Board of Trustees
Section 4.01. Number, Election and Tenure.
The number of Trustees constituting the
Board of Trustees shall be fixed from time to time by a written instrument
signed, or by resolution approved at a duly constituted meeting, by a majority
of the Board of Trustees, provided, however, that the number of Trustees shall
in no event be less than one (1) nor more than fifteen (15). Subject to the
requirements of Section 16(a) of the 1940 Act, the Board of Trustees, by action
of a majority of the then Trustees at a duly constituted meeting, may fill
vacancies in the Board of Trustees and remove Trustees with or without cause.
Each Trustee shall serve during the continued lifetime of the Trust until he or
she dies, resigns, is declared bankrupt or incompetent by a court of competent
jurisdiction, or is removed. Any Trustee may resign at any time by written
instrument signed by him and delivered to any officer of the Trust or to a
meeting of the Trustees. Such resignation shall be effective upon receipt unless
specified to be effective at some other time. Except to the extent expressly
provided in a written agreement with the Trust, no Trustee resigning and no
Trustee removed shall have any right to any compensation for any period
following his or her resignation or removal, or any right to damages or other
payment on account of such removal. Any Trustee may be removed at any meeting of
Shareholders by a vote of two-thirds of the outstanding Shares of the Trust. A
meeting of Shareholders for the purpose of electing or removing one or more
Trustees may be called (i) by the Trustees upon their own vote, or (ii) upon the
demand of Shareholders owning 10% or more of the Shares of the Trust in the
aggregate.
Section 4.02. Effect of Death, Resignation, etc. of a Trustee.
The death,
declination, resignation, retirement, removal, or incapacity of one or more
Trustees, or all of them, shall not operate to annul the Trust or to revoke any
existing agency created pursuant to the terms of this Declaration of Trust.
Whenever a vacancy in the Board of Trustees shall occur, until such vacancy is
filled as provided in Article IV, Section 1, 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.
Section 4.03. 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 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, documents and instruments that they may consider desirable,
necessary or appropriate in connection with the administration of the Trust.
Without limiting the foregoing, the Trustees may: adopt, amend and repeal
By-Laws not inconsistent with this Declaration of Trust providing for the
regulation and management of the affairs of the Trust; elect and remove such
officers and appoint and terminate such agents as they consider appropriate;
appoint from their own number and establish and terminate one or more committees
consisting of two or more Trustees who may exercise the powers and authority of
the Board of Trustees to the extent that the Trustees determine; employ one or
more custodians of the assets of the Trust and may authorize such custodians to
employ subcustodians and to deposit all or any part of such assets in a system
or systems for the central handling of securities or with a Federal Reserve
Bank, retain a transfer agent or a shareholder servicing agent, or both; provide
for the issuance and distribution of Shares by the Trust directly or through one
or more Principal Underwriters or otherwise; redeem, repurchase and transfer
Shares pursuant to applicable law; set record dates for the determination of
Shareholders with respect to various matters; declare and pay dividends and
distributions to Shareholders of each Series from the assets of such Series;
establish from time to time, in accordance with the provisions of Article III,
Section 6 hereof, any Series of Shares, each such Series to operate as a
separate and distinct investment medium and with separately defined investment
objectives and policies and distinct investment purpose; 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, Investment Manager 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 and unless otherwise specified herein or required
by the 1940 Act or other applicable 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 or a majority of any duly constituted committee of Trustees. 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 if all
members of the Board of Trustees or committee (as the case may be) consent
thereto in writing, 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.
Without limiting the foregoing, the Trust shall have power and authority:
(a) To invest and reinvest cash and cash items, 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 all types of securities, futures contracts and options thereon, and forward
currency contracts 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, 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 organization, 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, futures contracts and options
thereon, and forward currency contracts, to change the investments of the assets
of the Trust; and to exercise any and all rights, powers, and privileges of
ownership or interest in respect of any and all such investments of every kind
and description, including, without limitation, the right to consent and
otherwise act with respect thereto, with power to designate one or more Persons,
to exercise any of said rights, powers, and privileges in respect of any of said
instruments;
(b) To sell, exchange, lend, pledge, mortgage, hypothecate, lease, or write
options with respect to or otherwise deal in any property rights relating to any
or all of the assets of the Trust or any Series;
(c) To vote or give assent, or exercise any rights of ownership, with respect to
stock or other securities or property; and to execute and deliver proxies or
powers of attorney to such person or persons as the Trustees shall deem proper,
granting to such person or persons such power and discretion with relation to
securities or property as the Trustees shall deem proper;
(d) To exercise powers and right of subscription or otherwise which in any
manner arise out of ownership of securities;
(e) To hold any security or property in a form not indicating 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, subject in each case to
the applicable provisions of the 1940 Act;
(f) To consent to, or participate in, any plan for the reorganization,
consolidation or merger of any corporation or issuer of any security which is
held in the Trust; to consent to any contract, lease, mortgage, purchase
or sale of property by such corporation or issuer; and to pay calls or
subscriptions with respect to any security held in the Trust;
(g) To join with other security holders in acting through a committee,
depositary, voting trustee or otherwise, and in that connection to deposit any
security with, or transfer any security to, any such committee, depositary or
trustee, and to delegate to them such power and authority with relation to any
security (whether or not so deposited or transferred) as the Trustees shall deem
proper, and to agree to pay, and to pay, such portion of the expenses and
compensation of such committee, depositary or trustee as the Trustees shall deem
proper;
(h) To 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;
(i) To borrow funds or other property in the name of the Trust or Series
exclusively for Trust purposes;
(j) 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;
(k) To purchase and pay for entirely out of Trust
Property such insurance as the Trustees may deem necessary, desirable or
appropriate for the conduct of the business, including, without limitation,
insurance policies insuring the assets of the Trust or payment of distributions
and principal on its portfolio investments, and insurance policies insuring the
Shareholders, Trustees, officers, employees, agents, Investment Manager,
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; and
(l) To adopt, establish and carry out pension, profit-sharing, share bonus,
share purchase, savings,
thrift and other retirement, incentive and benefit plans, trusts and provisions,
including the purchasing of life insurance and annuity contracts as a means of
providing such retirement and other benefits, for any or all of the Trustees,
officers, employees and agents of the Trust.
The Trust shall not be limited to investing in obligations maturing before
the possible termination of the Trust or one or more of its Series. The Trust
shall not in any way be bound or limited by any present or future law or custom
in regard to investment by fiduciaries. The Trust shall not be required to
obtain any court order to deal with any assets of the Trust or take any other
action hereunder.
Section 4.04. Payment of Expenses by the Trust.
Subject to the provisions of Article
III, Section 6(b), the Trustees are authorized to pay or cause to be paid out of
the principal or income of the Trust or Series, or partly out of the principal
and partly out of income, and to charge or allocate the same to, between or
among such one or more of the Series that may be established or designated
pursuant to Article III, Section 6, all expenses, fees, charges, taxes and
liabilities incurred or arising in connection with the Trust or Series, or in
connection with the management thereof, including, but not limited to, the
Trustees' compensation and such expenses and charges for the services of the
Trust's officers, employees, Investment 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 4.05. 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. Upon the resignation, incompetency, bankruptcy, removal,
or death of a Trustee he or she shall automatically cease to have any such title
in any of the Trust Property, and the title 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. The Trustees may determine that the Trust or the
Trustees, acting for and on behalf of the Trust, shall be deemed to hold
beneficial ownership of any income earned on the securities owned by the Trust,
whether domestic or foreign.
Section 4.06. Service Contracts.
(a) The Trustees may, at any time and from time
to time, contract for exclusive or nonexclusive advisory, management and/or
administrative services for the Trust or for any Series with any Person; and any
such contract may contain such other terms as the Trustees may determine,
including without limitation, authority for the Investment Manager 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, and such other responsibilities as may specifically be
delegated to such Person.
(b) The Trustees may also, at any time and from time to time, contract with any
Persons, appointing such Persons exclusive or nonexclusive distributor or
Principal Underwriter for the Shares of one or more of the Series or other
securities to be issued by the Trust. Every 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) to serve as custodian(s), transfer agent and/or shareholder servicing
agent for the Trust or one or more of its Series. Every such contract shall
comply with such terms as may be required by the Trustees.
(d) The Trustees are further empowered, at any time and from time to time,
to contract with any Persons 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 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 be made, 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 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
applicable requirements of the 1940 Act.
ARTICLE V.
Shareholders' Voting Powers and Meetings
Sectio 5.01. Voting Powers.
Subject to the provisions of Article III, Sections 5
and 6(d), the Shareholders shall have right 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 the
applicable provisions of the 1940 Act, including Section 16(a) thereof, and
(iii) on such other matters 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. There shall be no cumulative voting in the election of
Trustees. Shares may be voted in person or by proxy. A proxy purporting to be
executed by or on behalf of a Shareholder shall be deemed valid unless
challenged at or prior to its exercise and the burden of proving invalidity
shall rest on the challenger.
Section 5.02. Voting Power and Meetings.
Meetings of the Shareholders may be
called by the Trustees for the purposes described in Section 1 of this Article
V. A meeting of Shareholders may be held at any place designated by the
Trustees. Written notice of any meeting of Shareholders shall be given or caused
to be given by the Trustees by delivering personally or mailing such notice not
more than ninety (90), nor less than ten (10) days before such meeting, postage
prepaid, stating the time and place of the meeting, to each Shareholder at the
Shareholder's address as it appears on the records of the Trust. Whenever notice
of a meeting is required to be given to a Shareholder under this Declaration of
Trust, 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 5.03. Quorum and Required Vote.
Except when a larger quorum is required by the
applicable provisions of the 1940 Act, the presence in person or by proxy of a
majority of the Shares entitled to vote on a matter shall constitute a quorum at
a Shareholders' meeting. Any meeting of Shareholders may be adjourned from time
to time by a majority of the votes properly cast upon the question of adjourning
a meeting to another date and time, whether or not a quorum is present, and the
meeting may be held as adjourned within a reasonable time after the date set for
the original meeting without further notice. Subject to the provisions of
Article III, Section 6(d) and the applicable provisions of the 1940 Act, when a
quorum is present at any meeting, a majority of the Shares voted shall decide
any questions except only a plurality vote shall be necessary to elect Trustees.
Section 5.04. Action by Written Consent.
Any action taken by Shareholders may be
taken without a meeting if all the holders of Shares entitled to vote on the
matter are provided with not less than 7 days written notice thereof and written
consent to the action is filed with the records of the meetings of Shareholders
by the holders of the number of shares that would be required to approve the
matter as provided in Article V, Section 3. Such consent shall be treated for
all purposes as a vote taken at a meeting of Shareholders.
Section 5.05. Record Dates.
For the purpose of determining the Shareholders who are entitled to vote
or act at any meeting or any adjournment thereof, the Trustees may fix a time,
which shall be not more than ninety (90) nor less than ten (10) days before the
date of any meeting of Shareholders, as the record date for determining the
Shareholders 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 who are entitled to receive payment of any dividend or of any other
distribution, the Trustees may fix a date, which shall be before the date for
the payment of such dividend or distribution, as the record date for determining
the Shareholders having the right to receive such dividend or distribution.
Nothing in this Section shall be construed as precluding the Trustees from
setting different record dates for different Series.
ARTICLE VI.
Net Asset Value, Distributions, and Redemptions
Section 6.01. Determination of Net Asset Value, Net Income, and Distributions.
Subject
to Article III, Section 6 hereof, the Trustees, in their absolute discretion,
may prescribe and shall set forth in the By-laws or in a duly adopted resolution
of the Trustees such bases and time for determining the per Share net asset
value of the Shares of any Series and the declaration and payment of dividends
and distributions on the Shares of any Series, as they may deem necessary or
desirable.
Section 6.02. Redemptions and Repurchases.
The Trust shall purchase such Shares
as are offered by any Shareholder for redemption, upon receipt by the Trust or a
Person designated by the Trust that the Trust redeem such Shares or in
accordance with such 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 the applicable provisions of the 1940 Act.
Payment for said Shares shall be made by the Trust to the Shareholder within
seven days after the date on which the request for redemption is received in
proper form. The obligation set forth in this Section 2 is subject to the
provision that in the event that any time the New York Stock Exchange (the
"Exchange") is closed for other than weekends or holidays, or if permitted by
the Rules of the Commission during periods when trading on the Exchange is
restricted or during any emergency which makes it impracticable for the Trust to
dispose of the investments of the applicable Series or to determine fairly the
value of the net assets held with respect to such Series or during any other
period permitted by order of the Commission for the protection of investors,
such obligations may be suspended or postponed by the Trustees.
The redemption price may in any case or cases be paid in cash or wholly or
partly in kind in accordance with Rule 18f-1 under the 1940 Act if the Trustees
determine that such payment is advisable in the interest of the remaining
Shareholders of the Series of which the Shares are being redeemed. Subject to
the foregoing, the selection and quantity of securities or other property so
paid or delivered as all or part of the redemption price shall 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 6.03. Redemptions at the Option of the Trust.
The Trust shall have the right,
at its option, upon 60 days notice to the affected Shareholder at any time to
redeem Shares of any Shareholder at the net asset value thereof as described in
Section 1 of this Article VI: (i) if at such time such Shareholder owns Shares
of any Series having an aggregate net asset value of less than a minimum value
determined from time to time by the Trustees; or (ii) to the extent that such
Shareholder owns Shares of a Series equal to or in excess of a maximum
percentage of the outstanding Shares of such Series determined from time to time
by the Trustees; or (iii) to the extent that such Shareholder owns Shares equal
to or in excess of a maximum percentage, determined from time to time by the
Trustees, of the outstanding Shares of the Trust.
Section 6.04. Transfer of Shares.
The Trust shall transfer shares held of record
by any Person to any other Person upon receipt by the Trust or a Person
designated by the Trust of a written request therefore in such form and pursuant
to such procedures as may be approved by the Trustees.
ARTICLE VII.
Compensation and Limitation of Liability
Section 7.01. Compensation of Trustees.
The Trustees as such shall be entitled to
reasonable compensation from the Trust, and they may fix the amount of such
compensation from time to time. Nothing herein shall in any way prevent the
employment of any Trustee to provide advisory, management, legal, accounting,
investment banking or other services to the Trust and to be specially
compensated for such services by the Trust.
Section 7.02. Indemnification and Limitation of Liability.
The Trustees shall
not be responsible or liable in any event for any neglect or wrong-doing of any
officer, agent, employee, Manager or Principal Underwriter of the Trust, nor
shall any Trustee be responsible for the act or omission of any other Trustee,
and, subject to the provisions of the Bylaws, the Trust out of its assets may
indemnify and hold harmless each and every Trustee and officer of the Trust from
and against any and all claims, demands, costs, losses, expenses, and damages
whatsoever arising out of or related to such Trustee's performance of his or her
duties as a Trustee or officer of the Trust; provided that nothing herein
contained shall indemnify, hold harmless or protect any Trustee or officer from
or against any liability to the Trust or any Shareholder to which he or she
would otherwise be subject by reason of wilful misfeasance, bad faith, gross
negligence or reckless disregard of the duties involved in the conduct of his or
her office.
Every note, bond, contract, instrument, certificate or undertaking and every
other act or thing whatsoever issued, executed or done by or on behalf of the
Trust or the Trustees or any of them in connection with the Trust shall be
conclusively deemed to have been issued, executed or done only in or with
respect to their or his or her capacity as Trustees or Trustee, and such
Trustees or Trustee shall not be personally liable thereon.
Section 7.03. Trustee's Good Faith Action, Expert Advice, No Bond or Surety.
The exercise by the Trustees of their powers hereunder shall be binding upon
everyone interested in or dealing with the Trust. A Trustee shall be liable to
the Trust and to any Shareholder solely for his or her own wilful misfeasance,
bad faith, gross negligence or reckless disregard of the duties involved in the
conduct of the office of Trustee, and shall not be liable for errors of judgment
or mistakes of fact or law. The Trustees may take advice of counsel or other
experts with respect to the meaning and operation of this Declaration of Trust,
and shall be under no liability for any act or omission in accordance with such
advice nor for failing to follow such advice. The Trustees shall not be required
to give any bond as such, nor any surety if a bond is required.
Section 7.04. Insurance.
The Trustees shall be entitled and empowered to the
fullest extent permitted by law to purchase with Trust assets insurance for
liability and for all expenses reasonably incurred or paid or expected to be
paid by a Trustee or officer in connection with any claim, action, suit or
proceeding in which he or she becomes involved by virtue of his or her capacity
or former capacity with the Trust, 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 8.01. 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 8.02. Termination of Trust or Series.
Unless terminated as provided
herein, the Trust shall continue without limitation of time. The Trust may be
terminated at any time by the Trustees upon 60 days prior written notice to the
Shareholders. Any Series may be terminated at any time by the Trustees upon 60
days prior written notice to the Shareholders of that Series.
Upon termination of the Trust (or any Series, as the case may be), after
paying or otherwise providing for all charges, taxes, expenses and liabilities
held, severally, with respect to each Series (or the applicable Series, as the
case may be), whether due or accrued or anticipated as may be determined by the
Trustees, the Trust shall, in accordance with such procedures as the Trustees
consider appropriate, reduce the remaining assets held, severally, with respect
to each Series (or the applicable Series, as the case may be), to distributable
form in cash or shares or other securities, and any combination thereof, and
distribute the proceeds held with respect to each Series (or the applicable
Series, as the case may be), to the Shareholders of that Series, as a Series,
ratably according to the number of Shares of that Series held by the several
Shareholders on the date of termination.
Section 8.03. Merger and Consolidation.
The Trustees may cause (i) the Trust or one or
more of its Series to the extent consistent with applicable law to be merged
into or consolidated with another Trust, series or Person, (ii) the Shares of
the Trust or any Series to be converted into beneficial interests in another
business trust (or series thereof), (iii) the Shares to be exchanged for assets
or property under or pursuant to any state or federal statute to the extent
permitted by law or (iv) a sale of assets of the Trust or one or more of its
Series. Such merger or consolidation, Share conversion, Share exchange or sale
of assets must be authorized by vote as provided in Article V, Section 3 herein;
provided that in all respects not governed by statute or applicable law, the
Trustees shall have power to prescribe the procedure necessary or appropriate to
accomplish a sale of assets, Share exchange, merger or consolidation including
the power to create one or more separate business trusts to which all or any
part of the assets, liabilities, profits or losses of the Trust may be
transferred and to provide for the conversion of Shares of the Trust or any
Series into beneficial interests in such separate business trust or trusts (or
series thereof).
Section 8.04. Amendments.
This Declaration of Trust may be restated and/or
amended at any time by an instrument in writing signed by a majority of the
Trustees then holding office. Any such restatement and/or amendment hereto shall
be effective immediately upon execution and approval. The Certificate of Trust
of the Trust may be restated and/or amended by a similar procedure, and any such
restatement and/or amendment shall be effective immediately upon filing with the
Office of the Secretary of State of the State of Delaware or upon such future
date as may be stated therein.
Section 8.05. Filing of Copies, References, Headings.
The original or a copy of this instrument and of each restatement
and/or amendment hereto shall be kept at the office of the Trust where it may be
inspected by any Shareholder. Anyone dealing with the Trust may rely on a
certificate by an officer of the Trust as to whether or not any such
restatements and/or amendments have been made and as to any matters in
connection with the Trust hereunder; and, with the same effect as if it were the
original, may rely on a copy certified by an officer of the Trust to be a copy
of this instrument or of any such restatements and/or amendments. In this
instrument and in any such restatements and/or amendment, references to this
instrument, and all expressions like "herein," "hereof" and "hereunder," shall
be deemed to refer to this instrument as amended or affected by any such
restatements and/or amendments. Headings are placed herein for convenience of
reference only and shall not be taken as a part hereof or control or affect the
meaning, construction or effect of this instrument. Whenever the singular number
is used herein, the same shall include the plural; and the neuter, masculine and
feminine genders shall include each other, as applicable. This instrument may be
executed in any number of counterparts each of which shall be deemed an
original.
Section 8.06. Applicable Law.
This Agreement and Declaration of Trust
is created under and is to be governed by and construed and administered
according to the laws of the State of Delaware and the Delaware Business Trust
Act, as amended from time to time (the "Act"). The Trust shall be a Delaware
business trust pursuant to such Act, and without limiting the provisions hereof,
the Trust may exercise all powers which are ordinarily exercised by such a
business trust.
Section 8.07. Provisions in Conflict with Law or Regulations.
(a) The provisions of the Declaration of Trust are severable, and if the
Trustees shall determine, with the advice of counsel, that any of such
provisions is in conflict with the 1940 Act, the regulated investment company
provisions of the Internal Revenue Code or with other applicable laws and
regulations, the conflicting provision shall be deemed never to have constituted
a part of the Declaration of Trust; provided, however, that such determination
shall not affect any of the remaining provisions of the Declaration of Trust or
render invalid or improper any action taken or omitted prior to such
determination.
(b) If any provision of the Declaration of Trust shall be held invalid or
unenforceable in any jurisdiction, such invalidity or unenforceability shall
attach only to such provision in such jurisdiction and shall not in any manner
affect such provision in any other jurisdiction or any other provision of the
Declaration of Trust in any jurisdiction.
Section 8.08. Business Trust Only.
It is the
intention of the Trustees to create a business trust pursuant to the Act, and
thereby to create only the relationship of trustee and beneficial owners within
the meaning of such 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, joint venture, or any form of
legal relationship other than a business trust pursuant to such Act. Nothing in
this Declaration of Trust shall be construed to make the Shareholders, either by
themselves or with the Trustees, partners or members of a joint stock
association.
Section 8.09. Use of the Name "Xxxxxxx".
The name "Xxxxxxx" and all rights to
the use of the name "Xxxxxxx" belong to Xxxxxxx Associates, Inc. ("Xxxxxxx
Associates"), the Manager of the Trust. Xxxxxxx Associates has consented to the
use by the Trust of the identifying word "Xxxxxxx" and has granted to the Trust
a non-exclusive license to use the name "Xxxxxxx" as part of the name of the
Trust and the name of any Series of Shares. In the event Xxxxxxx Associates or
an affiliate of Xxxxxxx Associates is not appointed as Manager or ceases to be
the Manager of the Trust or of any Series using such name, the non-exclusive
license granted herein may be revoked by Xxxxxxx Associates. Upon receipt of
such a written revocation from Xxxxxxx Associates or any successor to its
interests in such name, the Trustees agreed to execute such amendment to the
Trust's Certificate of Trust and this Declaration of Trust as may be required to
effect a change in the name of Trust or any Series of Shares of the Trust, and
the Trust promptly shall cease using the name "Xxxxxxx" as part of its name or
the name of any Series of Shares.
IN WITNESS WHEREOF, the Trustees named below do hereby
make and enter into this Declaration of Trust as of the 29th day
of September, 1998.
Xxxx X. Xxxxxxx, XX
000 Xxxxx Xxxxxx
Xxx Xxxx, XX 00000
Xxxxxx X. Xxxxxx
000 Xxxxx Xxxxxx
Xxx Xxxx, XX 00000
Xxxxx X. Xxxxxxxxxx
000 Xxxxx Xxxxxx
Xxx Xxxx, XX 00000
THE PRINCIPAL PLACE OF BUSINESS OF THE TRUST IS
000 Xxxxx Xxxxxx
Xxx Xxxx, XX 00000
