AMENDED AND RESTATED
AGREEMENT AND DECLARATION OF TRUST
OF
VALIC COMPANY II
OCTOBER 26, 2010
AMENDED AND RESTATED
AGREEMENT AND DECLARATION OF TRUST
Index
ARTICLE 1 THE TRUST 1
Section 1.1 Name 1
Section 1.2 Location 1
Section 1.3 Name of Trust 1
Section 1.4 Definitions 2
Section 1.5 Real Property to be Converted into Personal Property 5
ARTICLE 2 PURPOSE OF THE TRUST 5
ARTICLE 3 POWERS OF THE TRUSTEES 5
Section 3.1 Powers in General 5
(a) Investments 6
(b) Disposition of Assets 6
(c) Ownership Powers 6
(d) Form of Holding 7
(e) Reorganizations, etc 7
(f) Voting Trusts, etc 7
(g) Contracts, etc 7
(h) Guarantees, etc 7
(i) Partnerships, etc 7
(j) Insurance 7
(k) Pensions, etc 8
(l) Power of Collection and Litigation 8
(m) Issuance and Repurchase of Shares 8
(n) Offices 8
(o) Expenses 8
(p) Agents, etc 8
(q) Accounts 9
(r) Valuation 9
(s) Indemnification 9
(t) General 9
Section 3.2 Borrowings; Financings; Issuance of Securities 9
Section 3.3 Deposits 9
Section 3.4 Allocations 10
Section 3.5 Further Powers; Limitations 10
ARTICLE 4 TRUSTEES AND OFFICERS 10
Section 4.1 Number, Designation, Election, Term 10
(a) Current Trustees 10
(b) Number 10
(c) Election and Term 11
(d) Resignation and Retirement 11
(e) Removal 11
(f) Vacancies 11
(g) Acceptance of Trust 11
(h) Effect of Death, Resignation, etc 12
(i) Conveyance 12
(j) No Accounting 12
Section 4.2 Trustees' Meetings; Participation by Telephone, etc 12
Section 4.3 Committees; Delegation 12
Section 4.4 Officers 13
Section 4.5 Compensation of Trustees and Officers 13
Section 4.6 Ownership of Shares and Securities of the Trust 13
Section 4.7 Right of Trustees and Officers to Own Property or to Engage in
Business; Authority of Trustees to Permit Others to Do Likewise 13
Section 4.8 Reliance on Experts 14
Section 4.9 Surety Bonds 14
Section 4.10 Apparent Authority of Trustees and Officers 14
Section 4.11 Other Relationships Not Prohibited 14
Section 4.12 Payment of Trust Expenses 15
Section 4.13 Ownership of the Trust Property 15
Section 4.14 By-Laws 15
ARTICLE 5 DELEGATION OF MANAGERIAL RESPONSIBILITIES 15
Section 5.1 Appointment Action by Less than All Trustees 15
Section 5.2 Certain Contracts 16
(a) Advisory 16
(b) Administration 16
(c) Underwriting 17
(d) Custodian 17
(e) Transfer and Dividend Disbursing Agent 17
(f) Shareholder Servicing 17
(g) Accounting 17
Section 5.3 Distribution Arrangements 17
Section 5.4 Service Arrangements 18
ARTICLE 6 Series and Shares 18
Section 6.1 Description of Series and Shares 18
(a) General 18
(b) Establishment, etc 18
(c) Character of Separate Series and Shares Thereof 18
(d) Consideration for Shares 19
(e) Assets Belonging to Series 19
(f) Liabilities of Series 19
(g) Dividends 20
(h) Liquidation 20
(i) Voting 21
(j) Redemption by Shareholder 21
(k) Redemption at the Option of the Trust 21
(l) Net Asset Value 21
(m) Transfer 22
(n) Equality 22
(o) Rights of Fractional Shares 22
(p) Conversion Rights 22
Section 6.2 Ownership of Shares 23
Section 6.3 Investments in the Trust 23
Section 6.4 No Preemptive Rights 24
Section 6.5 Status of Shares 24
ARTICLE 7 shareholders' voting powers and meetingS 24
Section 7.1 Voting Powers 24
Section 7.2 Number of Votes and Manner of Voting; Proxies 25
Section 7.3 Meetings 25
Section 7.4 Record Dates 25
Section 7.5 Quorum and Required Vote 26
Section 7.6 Action By Written Consent 26
Section 7.7 Inspection of Records 26
Section 7.8 Additional Provisions 26
Section 7.9 Electronic Transmission 26
ARTICLE 8 LIMITATION OF LIABILITY; INDEMNIFICATION 27
Section 8.1 Trustees, Shareholders, etc 27
Section 8.2 Trustees' Good Faith Action; Expert Advice; No Bond or Surety 27
Section 8.3 Indemnification of Shareholders 28
Section 8.4 Indemnification of Trustees, Officers, etc 28
Section 8.5 Compromise Payment 29
Section 8.6 Indemnification Not Exclusive, etc 29
Section 8.7 Liability of Third Persons Dealing with Trustees 29
ARTICLE 9 DURATION; REORGANIZATION; INCORPORATION; AMENDMENTS 30
Section 9.1 Duration of Trust 30
Section 9.2 Termination of Trust 30
Section 9.3 Reorganization 30
Section 9.4 Incorporation 31
Section 9.5 Amendments; etc 31
Section 9.6 Filing of Copies of Declaration and Amendments 32
ARTICLE 10 MISCELLANEOUS 32
Section 10.1 Notices 23
Section 10.2 Governing Law 32
Section 10.3 Counterparts 32
Section 10.4 Reliance by Third Parties 32
Section 10.5 References; Headings 32
Section 10.6 Provisions in Conflict With Law or Regulation 32
AGREEMENT AND DECLARATION OF TRUST
OF
AMENDED AND RESTATED
AGREEMENT AND DECLARATION OF TRUST
OF
VALIC COMPANY II
This AGREEMENT AND DECLARATION OF
TRUST, made at this 26th day of October, 2010, by and among the
Trustees whose signatures are set forth below and amends and restates
in its entirety that certain Agreement and Declaration, dated as of May
6, 1998, of VALIC Company II (originally known as American
General Series Portfolio Company 3),
ARTICLE 1
THE TRUST
SECTION 1.1 Name. The name of the Trust shall be
"VALIC COMPANY II"
and so far as may be practicable, the Trustees shall conduct the Trust's
activities, execute all documents and sue or be sued under that name,
which name (and the word "Trust" wherever used in this Amended and
Restated Agreement and Declaration of Trust, except where the context
otherwise requires) shall refer to the Trustees in their capacity as
Trustees, and not individually or personally, and shall not refer to the
officers, agents or employees of the Trust or of such Trustees, or to the
holders of the Shares of the Trust or any Series. If the Trustees
determine that the use of such name is not practicable, legal or
convenient at any time or in any jurisdiction, or if the Trust is required
to discontinue the use of such name pursuant to Section 10.7 hereof,
then subject to that Section, the Trustees may use such other
designation, or they may adopt such other name for the Trust as they
deem proper, and the Trust may hold property and conduct its activities
under such designation or name.
SECTION 1.2 Location. The Trust shall maintain a registered
office in the State of Delaware and may have such other offices or
places of business as the Trustees may from time to time determine to
be necessary or expedient.
SECTION 1.3 Name of Trust. The Trust shall be a trust with
transferable shares under the laws of The State of Delaware, of the type
defined in Title 12, Chapter 38, Section 3801 of the Delaware Code
(the "Delaware Act") as a statutory trust. The Trust is not intended to
be, shall not be deemed to be, and shall not be treated as, a general
partnership, limited partnership, joint venture, corporation or joint stock
company. The Shareholders shall be beneficiaries and their
relationship to the Trustees shall be solely in that capacity in
accordance with the rights conferred upon them hereunder.
SECTION 1.4 Definitions. As used in this Agreement and
Declaration of Trust, the following terms shall have the meanings set
forth below unless the context thereof otherwise requires:
"Accounting Agent" shall have the meaning designated in
Section 5.2(g) hereof.
"Administrator" shall have the meaning designated in Section
5.2(b) hereof.
"Affiliated Person" shall have the meaning assigned to it in the
1940 Act.
"By-Laws" shall mean the By-Laws of the Trust, as amended
from time to time.
"Certificate of Designation" shall have the meaning designated
in Section 6.1 hereof.
"Certificate of Termination" shall have the meaning designated
in Section 6.1 hereof.
"Class" or "Classes" shall mean, with respect to the Trust (or
any Series thereof), any unissued Shares of the Trust (or such Series) in
respect of which the Trustees shall from time to time fix and determine
any special provisions relating to sales charges, any rights of
redemption and the price, terms and manner of redemption, special and
relative rights as to dividends and other distributions and on
liquidation, sinking or purchase fund provisions, conversion rights, and
conditions under which the Shareholders of such Class shall have
separate voting rights or no voting rights.
"Commission" shall have the same meaning as in the 1940 Act.
"Contracting Party" shall have the meaning designated in the
preamble to Section 5.2 hereof
"Conversion Date" shall mean with respect to Shares of any
Class that are convertible automatically into Shares of any other Class
of the Trust (or Series thereof) the date fixed by the Trustees for such
conversion.
"Covered Person" shall have the meaning designated in Section
8.4 hereof "Custodian" shall have the meaning designated in Section
5.2(d) hereof.
"Declaration" and "Declaration of Trust" shall mean this
Agreement and Declaration of Trust and all amendments or
modifications thereof as from time to time in effect. This Amended
and Restated Agreement and Declaration of Trust, together with the
By-laws, is the "governing instrument" of the Trust within the meaning
of the laws of the State of Delaware with respect to Delaware Statutory
Trusts. References in this Agreement and Declaration of Trust to
"hereof", "herein" and "hereunder" shall be deemed to refer to the
Declaration of Trust generally, and shall not be limited to the particular
text, Article or Section in which such words appear.
"Disabling Conduct" shall have the meaning designated in
Section 8.4 hereof. "Distributor" shall have the meaning designated in
Section 5.2(e) hereof.
"Dividend Disbursing Agent" shall have the meaning
designated in Section 5.2(e) hereof.
"General Items" shall have the meaning defined in Section
6.2(a) hereof. "Initial Trustee" shall have the meaning defined in the
preamble hereto. "Investment Adviser" shall have the meaning defined
in Section 5.2(a) hereof.
"Initial Advisor" shall mean a majority of the Trustees in office
at the time in question. At any time at which there shall be only one (1)
Trustee in office, such term shall mean such Trustee.
"Majority Shareholder Vote" as used with respect to (a) the
election of any Trustee at a meeting of Shareholders, shall mean the
vote for the election of such Trustee of a plurality of all outstanding
Shares of the Trust, without regard to Series, represented in person or
by proxy and entitled to vote thereon, provided that a quorum (as
determined in accordance with the Declaration and By-Laws) is
present, (b) any other action required or permitted to be taken by
Shareholders, shall mean the vote for such action of the holders of that
majority of all outstanding Shares (or, where a separate vote of Shares
of any particular Series is to be taken, the affirmative vote of that
majority of the outstanding Shares of that Series) of the Trust which
consists of: (i) a majority of all Shares (or of Shares of the particular
Series) represented in person or by proxy and entitled to vote on such
action at the meeting of Shareholders at which such action is to be
taken, provided that a quorum (as determined in accordance with the
By-Laws) is present; or (ii) if such action is to be taken by written
consent of Shareholders, a majority of all Shares (or of Shares of the
particular Series) issued and outstanding and entitled to vote on such
action; provided that (iii) as used with respect to any action requiring
the affirmative vote of "a majority of the outstanding voting securities,"
as the quoted phrase is defined in the t 940 Act, of the Trust or of any
Series, "Majority Shareholder Vote" means the vote for such action at a
meeting of Shareholders of the smallest majority of all outstanding
Shares of the Trust (or of Shares of the particular Series) entitled to
vote on such action which satisfies such 1940 Act voting requirement.
"1940 Act" shall mean the provisions of the Investment
Company Act of 1940 and the rules and regulations thereunder, both as
amended from time to time, and any order or orders thereunder which
may from time to time be applicable to the Trust.
"Person" shall mean and include individuals, as well as
corporations, limited partnerships, general partnerships, joint stock
companies, joint ventures, associations, banks, trust companies, land
trusts, business trusts or other organizations established under the laws
of any jurisdiction, whether or not considered to be legal entities, and
governments and agencies and political subdivisions thereof.
"Principal Underwriter" shall have the meaning designated in
Section 5.2(c) hereof,
"Prospectus" as used with respect to the Trust (or the Shares of
a particular Series), shall mean the prospectus relating to the Trust (or
such Series) which constitutes part of the currently effective
Registration Statement of the Trust under the Securities Act of 1933, as
such prospectus may be amended or supplemented from time to time.
"Securities" shall have the same meaning ascribed to that term
in the Securities Act of 1993.
"Series" shall mean one or more of the series of Shares
authorized by the Trustees to represent the beneficial interest in one or
more separate components of the assets of the Trust which are now or
hereafter established and designated under or in accordance with the
provisions of Article 6 hereof.
"Shareholder" shall mean as of any particular time any Person
shown of record at such time on the books of the Trust as a holder of
outstanding Shares of any Series, and shall include a pledgee into
whose name any such Shares are transferred in pledge.
"Shareholder Servicing Agent" shall have the meaning
designated in Section 5.2(f) hereof
"Shares" shall mean the transferable units into which the
beneficial interest in the Trust and each Series of the Trust (as the
context may require) shall be divided from time to time, and includes
fractions of Shares as well as whole Shares. All references herein to
"Shares" which are not accompanied by a reference to any particular
Series or Class shall be deemed to apply to outstanding Shares without
regard to Series or Class.
"Single Class Voting" as used with respect to any matter to be
acted upon at a meeting or by written consent of Shareholders, shall
mean a style of voting in which each holder of one or more Shares shall
be entitled to one vote on the matter in question for each Share standing
in his/her name on the records of the Trust, irrespective of Series or
Class of a Series, and all outstanding Shares of all Series vote as a
single class.
"Statement of Additional Information" as used with respect to
the Trust (or any Series), shall mean the statement of additional
information relating to the Trust (or such Series) which constitutes part
of the currently effective Registration Statement of the Trust under the
Securities Act of 1933, as such statement of additional information may
be amended or supplemented from time to time.
"Transfer Agent" shall have the meaning defined in Section
5.2(e) hereof.
"Trust" shall mean the trust named in Section 1.1 hereof.
"Trust Property" shall mean, as of any particular time, any and
all property which shall have been transferred, conveyed or paid to the
Trust or the Trustees, and all interest, dividends, income, earnings,
profits and gains therefrom, and proceeds thereof, including any
proceeds derived from the sale, exchange or liquidation thereof, and
any funds or payments derived from any reinvestment of such proceeds
in whatever form the same may be, and which at such time is owned or
held by, or for the account of, the Trust or the Trustees, without regard
to the Series to which such property is allocated.
"Trustees" shall mean, collectively, the Initial Trustee, so long
as he/she shall continue in office, and all other individuals who at the
time in question have been duly elected or appointed as Trustees of the
Trust in accordance with the provisions hereof and who have qualified
and are then in office. At any time at which there shall be only one (I)
Trustee in office, such term shall mean such single Trustee.
SECTION 1.5 Real Property to be Converted into Personal
Property. Notwithstanding any other provision hereof, any real property
at any time forming part of the Trust Property shall be held in trust for
sale and conversion into personal property at such time or times and in
such manner and upon such terms as the Trustees shall approve, but the
Trustees shall have power until the termination of this Trust to
postpone such conversion as long as they in their uncontrolled
discretion shall think fit, and for the purpose of determining the nature
of the interest of the Shareholders therein, all such real property shall at
all times be considered as personal property.
ARTICLE 2
PURPOSE OF THE TRUST
The purpose of the Trust shall be to (a) manage, conduct,
operate and carry on the business of an investment company; (b)
subscribe for, invest in, reinvest in, purchase or otherwise acquire, hold,
pledge, sell, assign, transfer, exchange, distribute or otherwise deal in
or dispose of any and all sorts of property, tangible or intangible,
including but not limited to Securities of any type whatsoever, whether
equity or nonequity, of any issuer, evidences of indebtedness of any
person and any other rights, interest, instruments or property of any sort
to exercise any and all rights, powers and privileges of ownership or
interest in respect of any and all such investment 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 investments. The Trustees shall not be Limited by any
law limiting the investments which may be made by fiduciaries.
ARTICLE 3
POWERS OF THE TRUSTEES.
SECTION 3.1 Powers in General. The Trustees shall have,
without other or further authorization, full, entire, exclusive and
absolute power, control and authority over, and management of, the
business of the Trust and over the Trust Property, to the same extent as
if the Trustees were the sole owners of the business and property of the
Trust in their own right, and with such powers of delegation as may be
permitted by this Declaration, subject only to such limitations as may
be expressly imposed by this Declaration of Trust or by applicable law.
The enumeration of any specific power or authority herein shall not be
construed as limiting the aforesaid power or authority or any specific
power or authority. Without limiting the foregoing; they may select,
and from time to time change, the fiscal year of the Trust; they may
adopt and use a seal for the Trust, provided that unless otherwise
required by the Trustees, it shall not be necessary to place the seal
upon, and its absence shall not impair the validity of, any document,
instrument or other paper executed and delivered by or on behalf of the
Trust; they may from time to time in accordance with the provisions of
Section 6.1 hereof establish one or more Series to which they may
allocate such of the Trust Property, subject to such liabilities, as they
shall deem appropriate, each such Series to be operated by the Trustees
as a separate and distinct investment medium and with separately
defined investment objectives and policies and distinct investment
purposes, all as established by the Trustees, or from time to time
changed by them; they may as they consider appropriate elect and
remove officers and appoint and terminate agents and consultants and
hire and terminate employees, any one or more of the foregoing of
whom may be a Trustee; they may appoint from their own number, and
terminate, any one or more committees consisting of one or more
Trustees, including without implied limitation an Executive
Committee, which may, when the Trustees are not in session and
subject to the 1940 Act, exercise some or all of the power and authority
of the Trustees as the Trustees may determine; in accordance with
Section 5.2 they may employ one or more Investment Advisers,
Administrators and Custodians and may authorize any such service
provider to employ one or more other or service providers and to
deposit all or any part of such assets in a system or systems for the
central handling of Securities, retain Transfer, Dividend Disbursing,
Accounting or Shareholder Servicing Agents or any of the foregoing,
provide for the distribution of Shares by the Trust through one or more
Distributors, Principal Underwriters or otherwise, set record dates or
times for the determination of Shareholders entitled to participate in,
benefit from or act with respect to various matters; and in general they
may delegate to any officer of the Trust, to any Committee of the
Trustees and to any employee, Investment Adviser, Administrator,
Distributor, Custodian, Transfer Agent, Dividend Disbursing Agent, or
any other agent or consultant of the Trust, such authority, powers,
functions and duties as they consider desirable or appropriate for the
conduct of the business and affairs of the Trust, including without
implied limitation the power and authority to act in the name of the
Trust and of the Trustees, to sign documents and to act as attorney-in-
fact for the Trustees. Without limiting the foregoing and to the extent
not inconsistent with the 1940 Act or other applicable law, the Trustees
shall have power and authority:
(a) Investments. To subscribe for, invest in, reinvest in,
purchase or otherwise acquire, hold, pledge, sell, assign, transfer,
exchange, distribute or otherwise deal in or dispose of any and all sorts
of property, tangible or intangible, including but not limited to
Securities of any type whatsoever, whether equity or nonequity, of any
issuer, evidences of indebtedness of any person and any other rights,
interest, instruments or property of any sort, 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 investments,
in every case without being limited by any law limiting the investments
which may be made by fiduciaries;
(b) Disposition of Assets. Upon such terms and conditions
as they deem best, to lend, sell, exchange, mortgage, pledge,
hypothecate, grant security interests in, encumber, negotiate, convey,
transfer or otherwise dispose of, and to trade in, any and all of the Trust
Property, free and clear of all trusts, for cash or on terms, with or
without advertisement, and on such terms as to payment, security or
otherwise, all as they shall deem necessary or expedient;
(c) Ownership Powers. To vote or give assent, or exercise
any and all other rights, powers and privileges of ownership with
respect to, and to perform any and all duties and obligations as owners
of, any Securities or other property forming part of the Trust Property,
the same as any individual might do; to exercise powers and rights of
subscription or otherwise which in any manner arise out of ownership
of Securities, and to receive powers of attorney from, and to execute
and deliver proxies or powers of attorney to, such Person or Persons as
the Trustees shall deem proper, receiving from or granting to such
Person or Persons such power and discretion with relation to Securities
or other property of the Trust, all as the Trustees shall deem proper;
(d) Form of Holding. To hold any Security or other property
in a form not indicating any trust, whether in bearer, unregistered or
other negotiable form, or in the name of the Trustees or of the Trust, or
of the Series to which such Securities or property belong, or in the
name of a Custodian, subcustodian or other nominee or nominees, or
otherwise, upon such terms, in such manner or with such powers, as the
Trustees may determine, and with or without indicating any trust or the
interest of the Trustees therein;
(e) Reorganizations, etc. To consent to or participate in any
plan for the reorganization, consolidation or merger of any corporation
or issuer, any Security of which is or was held in the Trust or any
Series; 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 forming part of the Trust Property;
(f) Voting Trusts, etc. To join with other holders of any
Securities in acting through a committee, depository, voting trustee or
otherwise, and in that connection to deposit any Security with, or
transfer any Security to, any such committee, depository or trustee, and
to delegate to them such power and authority with relation to any
Security (whether or not so deposited or transferred) as the Trustees
shall deem proper, and to agree to pay, and to pay, such portion of the
expenses and compensation of such committee, depository or trustee as
the Trustees shall deem proper;
(g) Contracts, etc. To enter into, make and perform all such
obligations, contracts, agreements and undertakings of every kind and
description, with any Person or Persons, as the Trustees shall in their
discretion deem expedient in the conduct of the business of the Trust,
for such terms as they shall see fit, whether or not extending beyond the
term of office of the Trustees, or beyond the possible expiration of the
Trust; to amend, extend, release or cancel any such obligations,
contracts, agreements or understandings; and to execute, acknowledge,
deliver and record all written instruments which they may deem
necessary or expedient in the exercise of their powers;
(h) Guarantees, etc. To endorse or guarantee the payment of
any notes or other obligations of any Person; to make contracts of
guaranty or suretyship, or otherwise assume liability for payment
thereof; and to mortgage and pledge the Trust Property or any part
thereof to secure any of or all such obligations;
(i) Partnerships, etc. To enter into joint ventures, general or
limited partnerships and any other combinations or association;
(j) Insurance. To purchase and pay for entirely out of Trust
Property such insurance as they may deem necessary or appropriate for
the conduct of the business, including, without limitation, insurance
policies insuring the assets of the Trust and payment of distributions
and principal on its portfolio investments, and insurance policies
insuring the Shareholders, Trustees, officers, employees, agents,
consultants, Investment Advisers, managers, Administrators,
Distributors, Principal Underwriters, or other independent contractors,
or any thereof (or any Person connected therewith), of the Trust,
individually, against all claims and liabilities of every nature arising by
reason of 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 in any such capacity, whether or not the Trust would have
the power to indemnify such Person against such liability;
(k) Pensions, etc. To pay pensions for faithful service, as
deemed appropriate by the Trustees, and to adopt, establish and carry
out pension, profit sharing, share bonus, share purchase, savings, thrift,
deferred compensation 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;
(l) Power of Collection and Litigation. To collect, sue for
and receive all sums of money coming due to the Trust, to employ
counsel, and to commence, engage in, prosecute, intervene in, join,
defend, compound, compromise, adjust or abandon, in the name of the
Trust, any and all actions, suits, proceedings, disputes, claims,
controversies, demands or other litigation or legal proceedings relating
to the Trust, the business of the Trust, the Trust Property, or the
Trustees, officers, employees, agents and other independent contractors
of the Trust, in their capacity as such, at law or in equity, or before any
other bodies or tribunals, and to compromise, arbitrate or otherwise
adjust any dispute to which the Trust may be a party, whether or not
any suit is commenced or any claim shall have been made or asserted.
Except to the extent required for a Delaware Business Trust, the
Shareholders shall have no power to vote as to whether or not a court
action, legal proceeding or claim should or should not be brought or
maintained derivatively or as a class action on behalf of the Trust or the
Shareholders.
(m) Issuance and Repurchase of Shares. To authorize, issue,
sell, repurchase, redeem, retire, cancel, acquire, hold, resell, reissue,
dispose of, transfer, and otherwise deal in Shares of any Series, and,
subject to Article 6 hereof, to apply to any such repurchase,
redemption, retirement, cancellation or acquisition of Shares of any
Series, any of the assets belonging to the Series to which such Shares
relate, whether constituting capital or surplus or otherwise, to the full
extent now or hereafter permitted by applicable law; provided that any
Shares belonging to the Trust shall not be voted, directly or indirectly;
(n) Offices. To have one or more offices, and to carry on all
or any of the operations and business of the Trust, in any of the States,
Districts or Territories of the United States, and in any and all foreign
countries, subject to the laws of such State, District, Territory or
country;
(o) Expenses. To incur and pay any and all such expenses
and charges as they may deem advisable (including without limitation
appropriate fees to themselves as Trustees), and to pay all such sums of
money for which they may be held liable by way of damages, penalty,
fine or otherwise;
(p) Agents, etc. To retain and employ any and all such
servants, agents, employees, attorneys, brokers, Investment Advisers,
accountants, architects, engineers, builders, escrow agents,
depositories, consultants, ancillary trustees, custodians, agents for
collection, insurers, banks and officers, as they think best for the
business of the Trust or any Series, to supervise and direct the acts of
any of the same, and to fix and pay their compensation and define their
duties;
(q) Accounts. To determine, and from time to tune change,
the method or form in which the accounts of the Trust or any Series
shall be kept;
(r) Valuation. Subject to the requirements of the 1940 Act,
to determine from time to time the value of all or any part of the Trust
Property and of any services, Securities, property or other consideration
to be furnished to or acquired by the Trust, and from time to time to
revalue all or any part of the Trust Property in accordance with such
appraisals or other information as is, in the Trustees' sole judgment,
necessary and satisfactory;
(s) Indemnification. In addition to the mandatory
indemnification provided for in Article 8 hereof and to the extent
permitted by law, to indemnify or enter into agreements with respect to
indemnification with any Person with whom this Trust has dealings,
including, without limitation, any independent contractor, to such
extent as the Trustees shall determine; and
(t) General. Subject to the fundamental policies in effect
from time to time with respect to the Trust, to do all such other acts and
things and to conduct, operate, carry on and engage in such other awful
businesses or business activities as they shall in their sole and absolute
discretion consider to be incidental to the business of the Trust or any
Series as an investment company, and to exercise all powers which
they shall in their discretion consider necessary, useful or appropriate to
carry on the business of the Trust or any Series, to promote any of the
purposes for which the Trust is formed, whether or not such things are
specifically mentioned herein, in order to protect or promote the
interests of the Trust or any Series, or otherwise to carry out the
provisions of this Declaration.
SECTION 3.2 Borrowings; Financings; Issuance of Securities.
The Trustees have power, subject to the fundamental policies in effect
from time to time with respect to the Trust, to borrow or in any other
manner raise such sum or sums of money, and to incur such other
indebtedness for goods or services, or for or in connection with the
purchase or other acquisition of property, as they shall deem advisable
for the purposes of the Trust, in any manner and on any terms, and to
evidence the same by negotiable or nonnegotiable Securities which
may mature at any time or times, even beyond the possible date of
termination of the Trust; to issue Securities of any type for such cash,
property, services or other considerations, and at such time or times and
upon such terms, as they may deem advisable; and to reacquire any
such Securities. Any such Securities of the Trust may, at the discretion
of the Trustees, be made convertible into Shares of any Series, or may
evidence the right to purchase, subscribe for or otherwise acquire
Shares of any Series, at such times and on such terms as the Trustees
may prescribe.
SECTION 3.3 Deposits. Subject to the requirements of the 1940
Act, the Trustees shall have power to deposit any moneys or Securities
included in the Trust Property with any one or more banks, trust
companies or other banking institutions, whether or not such deposits
will draw interest. Such deposits are to be subject to withdrawal in
such manner as the Trustees may determine, and the Trustees shall
have no responsibility for any loss which may occur by reason of the
failure of the bank, trust company or other banking institution with
which any such moneys or Securities have been deposited, except as
provided in Section 8.2 hereof.
SECTION 3.4 Allocations. The Trustees shall have power to
determine whether moneys or other assets received by the Trust shall
be charged or credited to income or capital, or allocated between
income and capital, including the power to amortize or fail to amortize
any part or all of any premium or discount, to treat any part or all of the
profit resulting from the maturity or sale of any asset, whether
purchased at a premium or at a discount, as income or capital, or to
apportion the same between income and capital, to apportion the sale
price of any asset between income and capital, and to determine in what
manner any expenses or disbursements are to be borne as between
income and capital, whether or not in the absence of the power and
authority conferred by this Section 3.4 such assets would be regarded
as income or as capital or such expense or disbursement would be
charged to income or to capital; to treat any dividend or other
distribution on any investment as income or capital, or to apportion the
same between income and capital; to provide or fail to provide
reserves, including reserves for depreciation, amortization or
obsolescence in respect of any Trust Property in such amounts and by
such methods as they shall determine; to allocate less than all of the
consideration paid for Shares of any Series to surplus with respect to
the Series to which such Shares relate and to allocate the balance
thereof to paid-in capital of that Series, and to reallocate such amounts
from time to time; all as the Trustees may reasonably deem proper.
SECTION 3.5 Further Powers; Limitations. The Trustees shall
have power to do all such other matters and things, and to execute all
such instruments, as they deem necessary, proper or desirable in order
to carry out, promote or advance the interests of the Trust, although
such matters or things are not herein specifically mentioned. 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 Trustees shall not be required to obtain
any court order to deal with the Trust Property. The Trustees may limit
their right to exercise any of their powers through express restrictive
provisions in the instruments evidencing or providing the terms for any
Securities of the Trust or in other contractual instruments adopted on
behalf of the Trust.
ARTICLE 4
TRUSTEES AND OFFICERS
SECTION 4.1 Number, Designation, Election, Term. etc.
(a) Current Trustees. As of the date of this Declaration, the
trustees of the Trust are Xxxxxx X. Xxxxx, Xx. Xxxxxx X. Xxxxxx,
Xxxxxxx X. Xxxxx, Xx. Xxxxxxx X. Xxxxx, The Xxxxxxxxx Xxxxxxx X.
Xxxxxxxx, Xx., Xxxxx X. Xxxxxxx, Dr. Xxxx Xx. Xxxxxxxxx, Xxxxxxx X.
Xxxxxx and Xx. Xxxx X. Xxxxxx, Xx.
(b) Number. The Trustees serving as such, whether
signatories hereto or hereafter becoming Trustees, may increase (to not
more than twelve (12)) or decrease the number of Trustees to a number
other than the number theretofore determined by a written instrument
signed by a Majority of the Trustees (or by an officer of the Trust
pursuant to the vote of a Majority of the Trustees). No decrease in the
number of Trustees shall have the effect of removing any Trustee from
office prior to the expiration of his or her term, but the number of
Trustees may be decreased in conjunction with the removal of a Trustee
pursuant to Section (e) of this Section 4.1.
(c) Election and Term. The current Trustees shall be the
signatories hereof. Subject to Section 16(a) of the 1940 Act and to the
preceding sentence of this subsection (c) and to any requirements
specified in the By-Laws, the Trustees shall have the power to set and
alter the terms of office of the Trustees, and at any time to lengthen or
shorten their own terms or make their terms of unlimited duration, to
elect their own successors and, pursuant to subsection (f) of this
Section 4.1, to appoint Trustees to fill vacancies; provided that Trustees
shall be elected by a Majority Shareholder Vote at any such time or
times as the Trustees shall determine that such action is required under
Section 16(a) of the 1940 Act or, if not so required, that such action is
advisable; and further provided that, after the initial election of Trustees
by the Shareholders, the term of office of any incumbent Trustee shall
continue until the termination of this Trust or his/her earlier death,
resignation, retirement, bankruptcy, adjudicated incompetency or other
incapacity or removal, or if not so terminated, until the election of such
Trustee's successor in office has become effective in accordance with
this subsection (c).
(d) Resignation and Retirement. Any Trustee may resign
his/her trust or retire as a Trustee, by a written instrument signed by
him/her and delivered to the other Trustees or to any officer of the
Trust, and such resignation or retirement shall take effect upon such
delivery or upon such later date as is specified in such instrument.
(e) Removal. Any Trustee may be removed: (i) by vote of
Shareholders holding a majority of the Shares of the Trust then
outstanding, cast in person or by proxy at any meeting called for the
purpose; or (ii) by a written declaration signed by Shareholders holding
not less than a majority of the Shares of the Trust then outstanding.
(f) Vacancies. Any vacancy or anticipated vacancy
resulting from any reason, including an increase in the number of
Trustees, may (but need not unless required by the 1940 Act) be filled
by a Majority (or a supermajority if required by the By-Laws) of the
Trustees, subject to the provisions of Section 16(a) of the 1940 Act,
through the appointment in writing of such other individual as such
remaining Trustees in their discretion shall determine; provided that if
there shall be no Trustees in office, such vacancy or vacancies shall be
filled by Majority Shareholders Vote. Any such appointment or
election shall be effective upon such individual's written acceptance of
his/her appointment as a Trustee and his/her agreement to be bound by
the provisions of this Declaration of Trust, except that any such
appointment in anticipation of a vacancy to occur by reason of
retirement, resignation or increase in the number of Trustees to be
effective at a later date shall become effective only at or after the
effective date of said retirement, resignation or increase in the number
of Trustees.
(g) Acceptance of Trust. Whenever any conditions to the
appointment or election of any individual as a Trustee hereunder who
was not, immediately prior to such appointment or election, acting as a
Trustee shall have been satisfied, such individual shall become a
Trustee. Such new Trustee shall accept such appointment or election in
writing and agree in such writing to be bound by the provisions hereof,
but the execution of such writing shall not be requisite to the
effectiveness of the appointment or election of a new Trustee.
(h) Effect of Death, Resignation, etc. No vacancy, whether
resulting from the death, resignation, retirement, bankruptcy,
adjudicated incompetency, incapacity, or removal of any Trustee, an
increase in the number of Trustees or otherwise, shall operate to annul
or terminate the Trust hereunder or to revoke or terminate any existing
agency or contract created or entered into pursuant to the terms of this
Declaration of Trust. Until such vacancy is filled as provided in this
Section 4.1, the Trustees in office (if any), 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. Upon
incapacity or death of any Trustee, his/her legal representative shall
execute and deliver on his/her behalf such documents as the remaining
Trustees shall require in order to effect the purpose of this Paragraph.
(i) Conveyance. In the event of the resignation or removal
of a Trustee or his/her otherwise ceasing to be a Trustee, such former
Trustee or his/her legal representative shall, upon request of the
continuing Trustees, execute and deliver such documents as may be
required for the purpose of consummating or evidencing the
conveyance to the Trust or the remaining Trustees of any Trust
Property held in such former Trustee's name.
(j) No Accounting. Except to the extent required by the
1940 Act or under circumstances which would justify his/her removal
for cause, no Person ceasing to be a Trustee (nor the estate of any such
Person) shall be required to make an accounting to the Shareholders or
remaining Trustees upon such cessation.
SECTION 4.2 Trustees' Meetings; Participation by Telephone,
etc. Annual and special meetings may be held from time to time, in
each case, upon the call of such officers as may be thereunto authorized
by the By-Laws or vote of the Trustees, or by any three (3) Trustees, or
pursuant to a vote of the Trustees adopted at a duly constituted meeting
of the Trustees, and upon such notice as shall be provided in the By-
Laws. Any such meeting may be held within or without the state of
Delaware. The Trustees may act with or without a meeting, and a
written consent to any matter, signed by all of the Trustees, shall be
equivalent to action duly taken at a meeting of the Trustees, duly called
and held. Except as otherwise provided by the 1940 Act or other
applicable law, or by this Declaration of Trust or the By-Laws, any
action to be taken by the Trustees may be taken by a majority of the
Trustees present at a meeting of Trustees (a quorum, consisting of at
least a Majority of the Trustees, being present), within or without
Delaware. If authorized by the By-Laws, all or any one or more
Trustees may participate in a meeting of the Trustees or any Committee
thereof by means of conference telephone or other means of
communication by means of which all Persons participating in the
meeting can hear each other, and participation in a meeting pursuant to
such means of communication shall constitute presence in person at
such meeting. The minutes of any meeting thus held shall be prepared
in the same manner as a meeting at which all participants were present
in person.
SECTION 4.3 Committees; Delegation. The Trustees shall have
power, consistent with their ultimate responsibility to supervise the
affairs of the Trust, to delegate from time to time to one or more other
Committees, or to any single Trustee, the doing of such things and the
execution of such deeds or other instruments, either in the name of the
Trust or the names of the Trustees or as their attorney or attorneys in
fact, or otherwise as the Trustees may from time to time deem
expedient, and any agreement, deed, mortgage, lease or other
instrument or writing executed by the Trustee or Trustees or other
Person to whom such delegation was made shall be valid and binding
upon the Trustees and upon the Trust.
SECTION 4.4 Officers. The Trustees shall annually elect such
officers or agents, who shall have such powers, duties and
responsibilities as the Trustees may deem to be advisable, and as they
shall specify by resolution or in the By-Laws. Except as may be
provided in the By-Laws, any officer elected by the Trustees may be
removed at any time with or without cause. Any two (2) or more
offices may be held by the same individual.
SECTION 4.5 Compensation of Trustees and Officers. The
Trustees shall fix the compensation of all officers and Trustees.
Without limiting the generality of any of the provisions hereof, the
Trustees shall be entitled to receive reasonable compensation for their
general services as such, and to fix the amount of such compensation,
and to pay themselves or any one or more of themselves such
compensation for special services, including legal, accounting, or other
professional services, as they in good faith may deem reasonable. No
Trustee or officer resigning (except where a right to receive
compensation for a definite future period shall be expressly provided in
a written agreement with the Trust, duly approved by the Trustees) and
no Trustee or officer removed shall have any right to any compensation
as such Trustee or officer for any period following his/her resignation
or removal, or any right to damages on account of his/her removal,
whether his/her compensation be by the month, or the year or
otherwise.
SECTION 4.6 Ownership of Shares and Securities of the Trust.
Any Trustee, and any officer, employee or agent of the Trust, and any
organization in which any such Person is interested, may acquire, own,
hold and dispose of Shares of any Series and other Securities of the
Trust for his/her or its individual account, and may exercise all rights of
a holder of such Shares or Securities to the same extent and in the same
mariner as if such Person were not such a Trustee, officer, employee or
agent of the Trust; subject, in the case of Trustees and officers, to the
same limitations as directors or officers (as the case may be) of a
Delaware business corporation; and the Trust may issue and sell or
cause to be issued and sold and may purchase any such Shares or other
Securities from any such Person or any such organization, subject only
to the general limitations, restrictions or other provisions applicable to
the sale or purchase of Shares of such Series or other Securities of the
Trust generally.
SECTION 4.7 Right of Trustees and Officers to Own Property
or to Engage in Business; Authority of Trustees to Permit Others to Do
Likewise. The Trustees, in their capacity as Trustees, and (unless
otherwise specifically directed by vote of the Trustees) the officers of
the Trust in their capacity as such, shall not be required to devote their
entire time to the business and affairs of the Trust. Except as otherwise
specifically provided by vote of the Trustees, or by agreement in any
particular case, any Trustee or officer of the Trust may acquire, own,
hold and dispose of, for his/her own individual account, any property,
and acquire, own, hold, carry on and dispose of, for his/her own
individual account, any business entity or business activity, whether
similar or dissimilar to any property or business entity or business
activity invested in or carried on by the Trust, and without first offering
the same as an investment opportunity to the Trust, and may exercise
all rights in respect thereof as if he/she were not a Trustee or officer of
the Trust. The Trustees shall also have power, generally or in specific
cases, to permit employees or agents of the Trust to have the same
rights (or lesser rights) to acquire, hold, own and dispose of property
and businesses, to carry on businesses, and to accept investment
opportunities without offering them to the Trust, as the Trustees have
by virtue of this Section 4.7.
SECTION 4.8 Reliance on Experts. The Trustees and officers
may consult with counsel, engineers, brokers, appraisers, auctioneers,
accountants, investment bankers, securities analysts or other Persons
(any of which may be a firm in which one or more of the Trustees or
officers is or are members or otherwise interested) whose profession
gives authority to a statement made by them on the subject in question,
and who are reasonably deemed by the Trustees or officers in question
to be competent, and the advice or opinion of such Persons shall be full
and complete personal protection to all of the Trustees and officers in
respect of any action taken or suffered by them in good faith and in
reliance on or in accordance with such advice or opinion. In
discharging their duties, Trustees and officers, when acting in good
faith, may rely upon financial statements of the Trust represented to
them to be correct by any officer of the Trust having charge of its
books of account, or stated in a written report by an independent
certified public accountant fairly to present the financial position of the
Trust. The Trustees and officers may rely, and shall be personally
protected in acting, upon any instrument or other document believed by
them to be genuine.
SECTION 4.9 Surety Bonds. No Trustee, officer, employee or
agent of the Trust shall, as such, be obligated to give any bond or surety
or other security for the performance of any of his/her duties, unless
required by applicable law or regulation, or finless the Trustees shall
otherwise determine in any particular case.
SECTION 4.10 Apparent Authority of Trustees and
Officers. No purchaser, lender, transfer agent or other Person dealing
with the Trustees or any officer of the Trust shall be bound to make any
inquiry concerning the validity of any transaction purporting to be
made by the Trustees or by such officer, or to make inquiry concerning
or be liable for the application of money or property paid, loaned or
delivered to or on the order of the Trustees or of such officer.
SECTION 4.11 Other Relationships Not Prohibited. 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 or distributor or agent of or for any
Contracting Party (as defined in Section 5.2 hereof), or of or for any
parent or affiliate of any Contracting Party, or that the Contracting
Party or any parent or affiliate thereof is a Shareholder or has an
interest in the Trust or any Series, or that
(ii) any Contracting Party may have a contract providing for
the rendering of any similar services to one or more other corporations,
trusts, associations, partnerships, limited partnerships or other
organizations, or have other business or interests, shall not affect the
validity of any contract for the performance and assumption of services,
duties and responsibilities to, for or of the Trust and/or the Trustees 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 to the holders of Shares of any Series; provided that, in the
case of any relationship or interest referred to in the preceding clause
(i) on the part of any Trustee or officer of the Trust, either (x) the
material facts as to such relationship or interest have been disclosed to
or are known by the Trustees not having any such relationship or
interest and the contract involved is approved in good faith by a
majority of such Trustees not having any such relationship or interest
(even though such unrelated or disinterested Trustees are less than a
quorum of all of the Trustees), (y) the material facts as to such
relationship or interest and as to the contract have been disclosed to or
are known by the Shareholders entitled to vote thereon and the contract
involved is specifically approved in good faith by vote of the
Shareholders, or (z) the specific contract involved is fair to the Trust as
of the time it is authorized, approved or ratified by the Trustees or by
the Shareholders.
SECTION 4.12 Payment of Trust Expenses. The
Trustees are authorized to pay or to cause to be paid out of the principal
or income of the Trust, or partly out of principal and partly out of
income, and according to any allocation to a particular Series and Class
made by them pursuant to Section 6.1(f) hereof, all expenses, fees,
charges, taxes and liabilities incurred or arising in connection with the
business and affairs of the Trust or in connection with the management
thereof, including, but not limited to, the Trustees' compensation and
such expenses and charges for the services of the Trust's officers,
employees, Investment Adviser, Administrator, Distributor, Principal
Underwriter, auditor, counsel, Custodian, Transfer Agent, Dividend
Disbursing Agent, Accounting Agent, Shareholder Servicing Agent,
and such other agents, consultants, and independent contractors and
such other expenses and charges as the Trustees may deem necessary or
proper to incur.
SECTION 4.13 Ownership of the Trust Property. Legal
title to all the Trust Property shall be vested in the Trust as a separate
legal entity, 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 of any particular Series,
or in the name of any other Person as nominee, on such terms as the
Trustees may determine; provided that the interest of the Trust and of
the respective Series therein is appropriately protected.
SECTION 4.14 By-Laws. The Trustees may adopt and
from time to time amend or repeal By-Laws for the conduct of the business
of the Trust. In the event of any inconsistency between the
provisions of this Declaration and the By-Laws, the provisions of this
Declaration shall govern.
ARTICLE 5
DELEGATION OF MANAGERIAL RESPONSIBILITIES
SECTION 5.1 Appointment Action by Less than All Trustees.
The Trustees shall be responsible for the general operating policy of the
Trust and for the general supervision of the business of the Trust
conducted by officers, agents, employees or advisers of the Trust or by
independent contractors, but the Trustees shall not be required
personally to conduct all the business of the Trust and, consistent with
their ultimate responsibility as stated herein, the Trustees may appoint,
employ or contract with one or more officers, employees and agents to
conduct, manage and/or supervise the operations of the Trust, and may
grant or delegate such authority to such officers, employees and/or
agents as the Trustees may, in their sole discretion, deem to be
necessary or desirable, without regard to whether such authority is
normally granted or delegated by trustees. With respect to those
matters of the operation and business of the Trust which they shall elect
to conduct themselves, except as otherwise provided by this
Declaration or the By-Laws, if any, the Trustees may authorize any
single Trustee or defined group of Trustees, or any committee
consisting of a number of Trustees less than the whole number of
Trustees then in office without specification of the particular Trustees
required to be included therein, to act for and to bind the Trust, to the
same extent as the whole number of Trustees could do, either with
respect to one or more particular matters or classes of matters, or
generally.
SECTION 5.2 Certain Contracts. Subject to compliance with
the provisions of the 1940 Act, but notwithstanding any limitations of
present and future law or custom in regard to delegation of powers by
trustees generally, the Trustees may, at any time and from time to time
in their discretion and without limiting the generality of their powers
and authority otherwise set forth herein, enter into one or more
contracts with any one or more corporations, trusts, associations,
partnerships, limited partnerships or other types of organizations, or
individuals ("Contracting Party"), to provide for the performance and
assumption of some or all of the following services, duties and
responsibilities to, for or on behalf of the Trust and/or any Series,
and/or the Trustees, and to provide for the performance and assumption
of such other services, duties and responsibilities in addition to those
set forth below, as the Trustees may deem appropriate:
(a) Advisory. An investment advisory or management
agreement whereby the agent shall undertake to furnish the Trust (or
any Series thereof) such management, investment advisory or
supervisory, statistical and research facilities and services, and such
other facilities and services, if any, as the Trustees shall from time to
time consider desirable, all upon such terms and conditions as the
Trustees may in their discretion determine to be not inconsistent with
this Declaration, the applicable provisions of the 1940 Act or any
applicable provisions of the By-Laws (any such agent being herein
referred to as an "Investment Adviser"). To the extent required by the
1940 Act, regulations or exemptions thereunder, any such advisory or
management agreement and any amendment thereto shall be subject to
approval by a Majority Shareholder Vote at a meeting of the
Shareholders of the Trust (or applicable Series). Notwithstanding any
provisions of this Declaration, the Trustees may authorize the
Investment Adviser (subject to such general or specific instructions as
the Trustees may from time to time adopt) to effect purchases, sales,
loans or exchanges of securities of the Trust on behalf of the Trustees
or may authorize any officer or employee of the Trust or any Trustee to
effect such purchases, sales, loans or exchanges pursuant to
recommendations of the Investment Adviser (and all without further
action by the Trustees). Any such purchases, sales, loans and
exchanges shall be deemed to have been authorized by all of the
Trustees. The Trustees may, in their sole discretion, call a meeting of
Shareholders in order to submit to a vote of Shareholders of the Trust
(or applicable Series) at such meeting the approval of continuance of
any such investment advisory or management agreement.
(b) Administration. An agreement whereby the agent,
subject to the general supervision of the Trustees and in conformity
with any policies of the Trustees with respect to the operations of the
Trust and each Series thereof, will supervise all or any part of the
operations of the Trust (or any Series thereof), and will provide all or
any pan of the administrative and clerical personnel, office space and
office equipment and services appropriate for the efficient
administration and operations of the Trust (or any Series thereof) (any
such agent being herein referred to as an "Administrator").
(c) Underwriting. An agreement providing for the sale of
Shares of the Trust (or any Series thereof) to net the Trust not less than
the net asset value per Share (as described in Section 6.1(1) hereof) and
pursuant to which the Trust may appoint the other party to such
agreement as its principal underwriter or sales agent for the distribution
of such Shares. The agreement shall contain such terms and conditions
as the Trustees may in their discretion determine to be not inconsistent
with this Declaration, the applicable provisions of the 1940 Act and any
applicable provisions of the By-Laws (any such agent being herein
referred to as a "Distributor" or a "Principal Underwriter," as the case
may be).
(d) Custodian. The appointment of an agent meeting the
requirements for a custodian for the assets of Investment Companies
contained in the 1940 Act as custodian of the Securities and cash of the
Trust (or any Series thereof) and of the accounting records in
connection therewith (any such agent being herein referred to as a
"Custodian").
(e) Transfer and Dividend Disbursing Agent. An agreement
with an agent to maintain records of the ownership of outstanding
Shares, the issuance and redemption and the transfer thereof (any such
agent being herein referred to as a "Transfer Agent"), and to disburse
any dividends declared by the Trustees and in accordance with the
policies of the Trustees and/or the instructions of any particular
Shareholder to reinvest any such dividends (any such agent being
herein referred to as a "Dividend Disbursing Agent").
(f) Shareholder Servicing. An agreement with an agent to
provide service with respect to the relationship of the Trust and its
Shareholders, records with respect to Shareholders and their Shares,
and similar matters (any such agent being herein referred to as a
"Shareholder Servicing Agent").
(g) Accounting. An agreement with an agent to handle all or
any part of the accounting responsibilities, whether with respect to the
Trust's properties, Shareholders or otherwise (any such agent being
herein referred to as an "Accounting Agent").
In addition, the Trustees may from time to time cause the Trust (or any
Series thereof) to enter into agreements with respect to such other
services and upon such other terms and conditions as they may deem
necessary, appropriate or desirable. The same Person may be the
Contracting Party for some or all of the services, duties and
responsibilities to, for and of the Trust and/or the Trustees, and the
contracts with respect thereto may contain such terms interpretive of or
in addition to the delineation of the services, duties and responsibilities
provided for, including provisions that are not inconsistent with the
1940 Act relating to the standard of duty of and the rights to
indemnification of the Contracting Party and others, as the Trustees
may determine. Nothing herein shall preclude, prevent or limit the
Trust or a Contracting Party from entering into subcontractual
arrangements relative to any of the matters referred to in subsections (a)
through (g) of this Section 5.2.
SECTION 5.3 Distribution Arrangements. Subject to
compliance with the 1940 Act, the Trustees may adopt and amend or
repeal from time to time and implement one or more plans of
distribution pursuant to Rule 12b-1 of the 1940 Act which plan(s) will
provide for the payment of specified marketing, distribution and
shareholder relations expenses of the Trust and any or all Series and
their agents and the agents of such agents.
SECTION 5.4 Service Arrangements. Subject to compliance
with the 1940 Act, the Trustees may adopt and amend or repeal from
time to time and implement one or more service plans which plans will
provide for the payment of ongoing services to holders of the shares of
such Trust (or any Series thereof) and in connection with the
maintenance of such shareholders' accounts.
ARTICLE 6
SERIES AND SHARES
SECTION 6.1 Description of Series and Shares.
(a) General. The beneficial interest in the Trust shall be
divided into Shares (either full or fractional) with $.01 par value per
Share, of which an unlimited number may be issued. The Trustees
shall have the authority from time to time to establish and designate
one or more separate, distinct and independent Series of Shares (each
of which Series shall represent interests only in the asset attributed by
the Trustees to such Series), and to authorize separate Classes of Shares
of the Trust (or any such Series), as they deem necessary or desirable.
All Shares shall be of one class, provided that the Trustees shall have
the power to classify or reclassify any unissued Shares of any Series
into any number of additional Classes of such Series.
(b) Establishment, etc. of Series and Classes; Authorization
of Shares. The establishment and designation of any Series and the
authorization of the Shares thereof shall be effective upon the execution
by a Majority of the Trustees (or by an officer of the Trust pursuant to
the vote of a Majority of the Trustees) of an instrument setting forth
such establishment and designation and the relative rights and
preferences of the Shares of such Series or Class and the manner in
which the same may be amended (a "Certificate of Designation"), and
may provide that the number of Shares of such Series or Class which
may be issued is unlimited, or may limit the number issuable. At any
time that there are no Shares outstanding of any particular Series or
Class previously established and designated, the Trustees may by an
instrument executed by a Majority of the Trustees (or by an officer of
the Trust pursuant to the vote of a Majority of the Trustees) terminate
such Series or Class and the establishment and designation thereof and
the authorization of its Shares (a "Certificate of Termination"), Each
Certificate of Designation, Certificate of Termination and any
instrument amending a Certificate of Designation shall have the status
of an amendment to this Declaration of Trust.
(c) Character of Separate Series and Shares Thereof. Each
Series established hereunder shall represent beneficial interests in a
separate component of the assets of the Trust. Holders of Shares of a
Series shall be considered Shareholders of such Series, but such
Shareholders shall also be considered Shareholders of the Trust for
purposes of receiving reports and notices and, except as otherwise
provided herein or in the Certificate of Designation of a particular
Series, or as required by the 1940 Act or other applicable law, the right
to vote, all without distinction by Series. The Trustees shall have
exclusive power without the requirement of Shareholder approval to
establish and designate such separate and distinct Series, and to fix and
determine the relative rights and preferences as between the shares of
the respective Series, and as between the Classes of the Trust (or any
Series thereof), as to rights of redemption and the price, terms and
manner of redemption, special and relative rights as to dividends and
other distributions and on liquidation, sinking or purchase fund
provisions, conversion rights, and conditions under which the
Shareholders of the several Series or the several Classes of any Series
of Shares shall have separate voting rights or no voting rights. Except
as otherwise provided as to a particular Series herein, or in the
Certificate of Designation therefor, the Trustees shall have all the rights
and powers, and be subject to all the duties and obligations, with
respect to each such Series and the assets and affairs thereof as they
have under this Declaration with respect to the Trust and the Trust
Property in general. Separate and distinct records shall be maintained
for each Series of Shares and the assets and liabilities attributable
thereto.
(d) Consideration for Shares. The Trustees may issue Shares
of the Trust (or any Series thereof) for such consideration (which may
include property subject to, or acquired in connection with the assumption
of, liabilities) and on such terms as they may determine (or
for no consideration if pursuant to a Share dividend or split-up), all
without action or approval of the Shareholders. All Shares when so
issued on the terms determined by the Trustees shall be fully paid and
nonassessable (but may be subject to mandatory contribution back to
the Trust (or applicable Series) as provided in Section 6.1(1) hereof.
The Trustees may classify or reclassify any unissued Shares, or any
Shares of the Trust (or any Series thereof) previously issued and
reacquired by the Trust, into Shares of the Trust or one or more other
Series that may be established and designated from time to time.
(e) Assets Belonging to Series. Any portion of the Trust
Property allocated to a particular Series, and all consideration received
by the Trust for the issue or sale of Shares of such Series, together with
all assets in which such consideration is invested or reinvested, all
interest, dividends, income, earnings, profits and gains therefrom, and
proceeds thereof, including any proceeds derived from the sale,
exchange or liquidation of such assets, and any funds or payments
derived from any reinvestment of such proceeds in whatever form the
same may be, shall be held by the Trustees in separate and distinct
records (directly or indirectly, including through a nominee or
otherwise) in trust for the benefit of the holders of Shares of that Series
and shall irrevocably belong to that Series for all purposes, and shall be
so recorded upon the books of account of the Trust through separate
and distinct records for each series, and the Shareholders of such Series
shall not have, and shall be conclusively deemed to have waived, any
claims to the assets of any Series of which they are not Shareholders.
Such consideration, assets, interest, dividends, income, earnings,
profits, gains and proceeds, together with any General Items allocated
to that Series as provided in the following sentence, are herein referred
to collectively as assets "belonging 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 belonging to
any particular Series (collectively, "General Items"), the Trustees shall
allocate such General Items to and among any one or more of the Series
established and designated from time to time in such manner and on
such basis as they, in their sole discretion, deem fair and equitable; and
any General Items so allocated to a particular Series shall belong to and
be part of the assets belonging to that Series. Each such allocation by
the Trustees shall be conclusive and binding upon the Shareholders of
all Series for all purposes.
(f) Liabilities of Series. The assets belonging to each
particular Series shall be charged with the liabilities in respect of that
Series and all expenses, costs, charges and reserves attributable to that
Series, and any general liabilities, expenses, costs, charges or reserves
of the Trust which are not readily identifiable as pertaining to any
particular Series shall be allocated and charged by the Trustees to and
among any one or more of the Series established and designated from
time to time in such manner and on such basis as the Trustees in their
sole discretion deem fair and equitable. The indebtedness, expenses,
costs, charges and reserves allocated and so charged to a particular
Series are herein referred to as "liabilities of' 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. The debts, liabilities, obligations and expenses
incurred, contracted for or otherwise existing with respect to a
particular Series shall be enforceable against the assets of such Series
only, and not against the assets of the Trust generally or any other
Series and none of the debt, liabilities, obligations and expenses
incurred of the Trust generally or any other Series shall be enforceable
against the assets of such Series.
(g) Dividends. Dividends and distributions on Shares of a
particular Series may be paid with such frequency as the Trustees may
determine, which may be daily or otherwise pursuant to a standing
resolution or resolutions adopted only once or with such frequency as
the Trustees may determine, to the Shareholders of that Series, from
such of the income, accrued or realized, and capital gains, realized or
unrealized, and out of the assets belonging to that Series, as the
Trustees may determine, after providing for actual and accrued
liabilities of that Series. All dividends and distributions on Shares of a
particular Series shall be distributed pro rata to the Shareholders of that
Series in proportion to the number of such Shares held by such holders
at the date and time of record established for the payment of such
dividends or distributions, except that the dividends and distributions of
investment income and capital gains with respect to each Class of
Shares of a particular Series shall be in such amount as may be declared
from time to time by the Trustees, and such dividends and distributions
may vary as between such Classes to reflect differing allocations of the
expenses of the Series between the Shareholders of such several
Classes and any resultant differences between the net asset value of
such several Classes to such extent and for such purposes as the
Trustees may deem appropriate and further except that, in connection
with any dividend or distribution program or procedure, the Trustees
may determine that no dividend or distribution shall be payable on
Shares as to which the Shareholder's purchase order and/or payment
have not been received by the time or times established by the Trustees
under such program or procedure, or that dividends or distributions
shall be payable on Shares which have been tendered by the holder
thereof for redemption or repurchase, but the redemption or repurchase
proceeds of which have not yet been paid to such Shareholder. Such
dividends and distributions may be made in cash, property or Shares of
any Class of that Series or a combination thereof as determined by the
Trustees, or pursuant to any program that the Trustees may have in
effect at the time for the election by each Shareholder of the mode of
the making of such dividend or distribution to that Shareholder. Any
such dividend or distribution paid in Shares will be paid at the net asset
value thereof as determined in accordance with subsection (I) of this
Section 6.1.
(h) Liquidation. In the event of the liquidation or dissolution
of the Trust (or any particular Series), the Shareholders of the Trust (or
that Series) shall be entitled to receive, when and as declared by the
Trustees, the excess of the assets belonging to the Trust (or that Series)
over the liabilities of such Series. The assets so distributable to the
Shareholders of the Trust (or that Series) shall be distributed among
such Shareholders in proportion to the number of Shares of the Trust
(or that Series) held by them and recorded on the books of the Mist The
liquidation of the Trust (or any particular Series) may be authorized by
vote of a Majority of the Trustees, subject to the affirmative vote of "a
majority of the outstanding voting securities" of that Series, as the
quoted phrase is defined in the 1940 Act, determined in accordance
with clause (iii) of the definition of "Majority Shareholder Vote" in
Section 1.4 hereof
(i) Voting. The Shareholders shall have the voting rights set
forth in or determined under Article 7 hereof.
(j) Redemption by Shareholder. Each holder of Shares of
the Trust (or a particular Series thereof) shall have the right at such
times as may be permitted by the Trust, but no less frequently than
required by the 1940 Act, to require the Trust (or such Series) to
redeem all or any part of his Shares of the Trust (or such Series) at a
redemption price equal to the net asset value per Share of the Trust (or
Series) next determined in accordance with subsection (1) of this
Section 6.1 after the Shares are properly tendered for redemption;
provided, that the Trustees may from time to time, in their discretion,
determine and impose a fee for such redemption and that the proceeds
of the redemption of Shares (including a fractional Share) of any Class
of the Trust (or any Series thereof) shall be reduced by the amount of
any applicable contingent deferred sales charge or other sales charge, if
any, payable on such redemption to the distributor of Shares of such
Class pursuant to the terms of the initial issuance of the Shares of such
Class (to the extent consistent with the 1940 Act or regulations or
exemptions thereunder) and the Trust shall promptly pay to such
distributor the amount of such deferred sales charge. Payment of the
redemption price shall be in cash; provided, however, that if the
Trustees determine, which determination shall be conclusive, that
conditions exist which make payment wholly in cash unwise or
undesirable, the Trust may make payment wholly or partly in Securities
or other assets belonging to such Series at the value of such Securities
or assets used in such determination of net asset value.
Notwithstanding the foregoing, the Trust may postpone payment of the
redemption price and may suspend the right of the holders of Shares of
the Trust (or any Series thereof) to require the Trust to redeem Shares
of the Trust (or such Series) during any period or at any time when and
to the extent permissible under the 1940 Act.
(k) Redemption at the Option of the Trust. The Trustees
shall have the power to redeem Shares of the Trust (or any Series
thereof) at a redemption price determined in accordance with Section
6.1(j), if at any time (i) the total investment in such account does not
have a value of at least such minimum amount as may be specified in
the Prospectus for the Trust (or such Series) from time to time (ii) the
number of Shares held in such account is equal to or in excess of a
specified percentage of Shares of the Trust or any Series as set forth
from time to time in the applicable Prospectus. In the event the
Trustees determine to exercise their power to redeem Shares provided
in this Section 6.1(k), the Shareholder shall be notified that the value of
his/her account is less than the applicable minimum amount and shall
be allowed 30 days to make an appropriate investment before
redemption is processed.
(l) Net Asset Value. The net asset value per Share of the
Trust (or any Series or Class) at any time shall be the quotient obtained by
dividing the value of the net assets of the Trust (or such Series or
Class) at such time (being the current value of the assets belonging to
the Trust (or such Series or Class), less its then existing liabilities) by
the total number of Shares of the Trust (or such Series) then
outstanding, all determined in accordance with the methods and
procedures, including without limitation those with respect to rounding,
established by the Trustees from time to time in accordance with the
requirements of the 1940 Act. The net asset value of the several
Classes of the Trust (or a particular Series) shall be separately
computed, and may vary from one another. The Trustees shall
establish procedures for the allocation of investment income or capital
gains and expenses and liabilities of a particular Series between the
several Classes of the Trust (or such Series). The Trustees may
determine to maintain the net asset value per Share of the Trust or any
Series or Class at a designated constant dollar amount and in
connection therewith may adopt procedures not inconsistent with the
1940 Act for the continuing declaration of income attributable to the
Trust or such Series or Class as dividends payable in additional Shares
of the Trust or such Series or Class at the designated constant dollar
amount and for the handling of any losses attributable to the Trust or
such Series or Class. Such procedures may provide that in the event of
any loss each Shareholder shall be deemed to have contributed to the
shares of beneficial interest account of the Trust or such Series or Class
his pro rata portion of the total number of Shares required to be
canceled in order to permit the net asset value per Share of the Trust or
such Series or Class to be maintained, after reflecting such loss, at the
designated constant dollar amount. Each Shareholder of the Trust shall
be deemed to have expressly agreed, by his/her investment in the Trust
(or any Series thereof) with respect to which the Trustees shall have
adopted any such procedure, to make the contribution referred to in the
preceding sentence in the event of any such loss.
(m) Transfer. All Shares of the Trust and each Series shall be
transferable, but transfers of Shares of the Trust or a particular Series
will be recorded on the Share transfer records of the Trust applicable to
the Trust or such Series only at such times as Shareholders shall have
the right to require the Trust to redeem Shares of the Trust or such
Series and at such other times as may be permitted by the Trustees.
(n) Equality. All Shares of each particular Series shall
represent an equal proportionate interest in the assets belonging to that
Series (subject to the liabilities of that Series), and each Share of any
particular Series shall be equal to each other Share thereof; but the
provisions of this sentence shall not restrict any distinctions between
the several Classes of a Series permissible under this Section 6.1 or
under Section 7.1 hereof nor any distinctions permissible under
subsection (g) of this Section 6.1 that may exist with respect to
dividends and distributions on Shares of the same Series. The Trustees
may from time to time divide or combine the Shares of any class of
particular Series into a greater or lesser number of Shares of that class
of a Series without thereby changing the proportionate beneficial
interest in the assets belonging to that Series or in any way affecting the
rights of the holders of Shares of any other Series.
(o) Rights of Fractional Shares. Any fractional Share of the
Trust (or any Series thereof) shall carry proportionately all the rights
and obligations of a whole Share of the Trust (or such Series),
including rights and obligations with respect to voting, receipt of
dividends and distributions, redemption of Shares, and liquidation of
the Trust or of the Series to which they pertain.
(p) Conversion Rights (i) Subject to compliance with the
requirements of the 1940 Act, the Trustees shall have the authority to
provide that holders of Shares of any Series shall have the right to
convert said Shares into Shares of one or more other Series, that
holders of any Class of the Trust or a Series of Shares shall have the
right to convert said Shares of such Class into Shares of one or more
other Classes of the Trust or such Series, and that Shares of any Class
of the Trust or a Series shall be automatically converted into Shares of
another Class of the Trust or such Series, in each case in accordance
with such requirements and procedures as the Trustees may establish.
(ii) The number of Shares of into which a convertible Share
shall convert shall equal the number (including for this purpose
fractions of a Share) obtained by dividing the net asset value per Share
for purposes of sales and redemptions of the converting Share on the
Conversion Date by the net asset value per Share for purposes of sales
and redemptions of the Class of Shares into which it is converting on
the Conversion Date.
(iii) On the Conversion Date, the Share converting into
another share will cease to accrue dividends and will no longer be
deemed outstanding and the rights of the holders thereof (except the
right to receive the number of target Shares into which the converting
Shares have been converted and declared but unpaid dividends to the
Conversion Date) will cease. Certificates representing Shares resulting
from the conversion need not be issued until certificates representing
Shares converted, if issued, have been received by the Trust or its agent
duly endorsed for transfer.
(iv) The Trust will appropriately reflect the conversion of
Shares of one Class of the Trust (or a Series thereof) into Shares of
another Class of the Trust (or such Series) on the first periodic
statements of account sent to Shareholders of record affected which
provide account information with respect to a reporting period which
includes the date such conversion occurred.
SECTION 6.2 Ownership of Shares. The ownership of Shares
shall be recorded on the books of the Trust or of a Transfer Agent or
similar agent for the Trust, which books shall be maintained separately
for the Shares of each Series that has been authorized. Certificates
evidencing the ownership of Shares need not be issued except as the
Trustees may otherwise determine from time to time, and the Trustees
shall have power to call outstanding Share certificates and to replace
them with book entries. The Trustees may make such rules as they
consider appropriate for the issuance of Share certificates, the use of
facsimile signatures, the transfer of Shares and similar matters. The
record books of the Trust as kept by the Trust or any Transfer Agent or
similar agent, as the case may be, shall be conclusive as to who are the
Shareholders and as to the number of Shares of the Trust and, if
designated, each Series thereof held from time to time by each such
Shareholder.
The holders of Shares of the Trust and, if designated, each
Series thereof shall upon demand disclose to the Trustees in writing
such information with respect to their direct and indirect ownership of
Shares of the Trust or, if designated, such Series as the Trustees deem
necessary to comply with the provisions of the Internal Revenue Code,
or to comply with the requirements of any other authority.
SECTION 6.3 Investments in the Trust. The Trustees may
accept investments in any Series of the Trust from such Persons and on
such terms and for such consideration, not inconsistent with the
provisions of the 1940 Act, as they from time to time authorize. The
Trustees may authorize any Distributor, Principal Underwriter,
Custodian, Transfer Agent or other Person to accept orders for the
purchase of Shares that conform to such authorized terms and to reject
any purchase orders for Shares, whether or not conforming to such
authorized terms.
SECTION 6.4 No Preemptive Rights. No Shareholder, by virtue
of holding Shares of the Mist or, if designated, any Series thereof, shall
have any preemptive or other right to subscribe to any additional Shares
of the Trust or such Series, or to any shares of any other Series, or any
other Securities issued by the Trust.
SECTION 6.5 Status of Shares. Every Shareholder, by virtue of
having become a Shareholder, shall be held to have expressly assented
and agreed to the terms hereof and to have become a party hereto.
Shares shall be deemed to be personal property, giving only the rights
provided herein. Ownership of Shares shall not entitle the Shareholder
to any title in or to the whole or any part of the Trust Property or right
to call for a partition or division of the same or for an accounting, nor
shall the ownership of Shares constitute the Shareholders partners. The
death of a Shareholder during the continuance of the Trust shall not
operate to terminate the Trust or any Series, 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
only to the rights of said decedent under this Declaration of Trust.
ARTICLE 7
SHAREHOLDERS' VOTING POWERS AND MEETINGS
SECTION 7.1 Voting Powers. The Shareholders shall have
power to vote only (i) for the election or removal of Trustees as
provided in Sections 4,1(c) and (e) hereof, (h) with respect to the
approval or termination in accordance with the 1940 Act of any
contract with a Contracting Party as provided in Section 5.2 hereof as
to which Shareholder approval is required by the 1940 Act, (iii) with
respect to any termination or reorganization of the Trust or any Series
to the extent and as provided in Sections 9.2, 9.3 and 9.4 hereof, (iv)
with respect to any amendment of this Declaration of Trust to the
extent and as provided in Section 9.5 hereof, (v) to the same extent as
the stockholders of a Delaware business corporation as to whether or
not a court action, proceeding or claim should or should not be brought
or maintained derivatively or as a class action on behalf of the Trust or
any Series, or the Shareholders of any of them (provided, however, that
a Shareholder of a particular Series shall not in any event be entitled to
maintain a derivative or class action on behalf of any other Series or the
Shareholders thereof), and (vi) with respect to such additional matters
relating to the Trust as may be required by the 1940 Act, this
Declaration of Trust, the By-Laws or any registration of the Trust with
the Commission (or any successor agency) or any State, or as the
Trustees may consider necessary desirable. If and to the extent that the
Trustees shall determine that such action is required by law or by this
Declaration, they shall cause each matter required or permitted to be
voted upon at a meeting or by written consent of Shareholders to be
submitted to a separate vote of the outstanding Shares of each Series
entitled to vote thereon; provided, that (i) when expressly required by
the 1940 Act or by other law, actions of Shareholders shall be taken by
Single Class Voting of all outstanding Shares whose holders are
entitled to vote thereon; and (h) when the Trustees determine that any
matter to be submitted to a vote of Shareholders affects only the rights
or interests of Shareholders of one or more but not all Series or of one
or more but not all Classes of the Trust or a single Series (including
without limitation any distribution plan pursuant to Rule 12b-1 of the
1940 Act applicable to such Class), then only the Shareholders of the
Series or Classes so affected shall be entitled to vote thereon. Any
matter required to be submitted to shareholders and affecting one or
more Series shall require separate approval by the required vote of
Shareholders of the Trust or each affected Series; provided, however,
that to the extent required by the 1940 Act, there shall be no separate
Series votes on the election or removal of Trustees, the selection of
auditors for the Trust and its Series or approval of any agreement or
contract entered into by the Trust or any Series. Shareholders of a
particular Series shall not be entitled to vote on any matter that affects
only one or more other Series.
SECTION 7.2 Number of Votes and Manner of Voting;
Proxies. On each matter submitted to a vote of the Shareholders, each
holder of Shares of the Trust or, if applicable, any Series shall be
entitled to a number of votes equal to the number of Shares of the Trust
or such Series standing in his name on the books of the Trust. There
shall be no cumulative voting in the election or removal of Trustees.
Shares may be voted in person or by proxy. A proxy with respect to
Shares held in the name of two (2) 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. Until Shares are issued, the Trustees may exercise all rights
of Shareholders and may take any action required by law, this
Declaration of Trust or the By-Laws to be taken by Shareholders.
SECTION 7.3 Meetings. Meetings of Shareholders may be
called by the Trustees from time to time for the purpose of taking
action upon any matter requiring the vote or authority of the
Shareholders as herein provided, or upon any other matter deemed by
the Trustees to be necessary or desirable. Written notice of any
meeting of Shareholders shall be given or caused to be given by the
Trustees by mailing such notice at least seven (7) days before such
meeting, postage prepaid, stating the time, place and purpose of the
meeting, to each Shareholder at the Shareholder's address as it appears
on the records of the Trust. The Trustees shall promptly call and give
notice of a meeting of Shareholders for the purpose of voting upon
removal of any Trustee of the Trust when requested to do so in writing
by Shareholders holding not less than ten percent (10%) of the Shares
then outstanding. If the Trustees shall fail to call or give notice of any
meeting of Shareholders for a period of thirty (30) days after written
application by Shareholders holding at least ten percent (10%) of the
Shares then outstanding requesting that a meeting be called for any
other purpose requiring action by the Shareholders as provided herein
or in the By-Laws, then Shareholders holding at least ten percent (10%)
of the Shares then outstanding may call and give notice of such
meeting, and thereupon the meeting shall be held in the manner
provided for herein in case of call thereof by the Trustees. Any
meetings may be held within or without The State of Delaware.
Shareholders may only act with respect to matters set forth in the notice
to Shareholders.
SECTION 7.4 Record Dates. For the purpose of determining
the Shareholders who are entitled to vote or act at any meeting or any
adjournment thereof, or who are entitled to participate in any dividend
or distribution, or for the purpose of any other action, the Trustees may
from time to time close the transfer books for such period, not
exceeding thirty (30) days (except at or in connection with the
termination of the Trust), as the Trustees may determine; or without
closing the transfer books the Trustees may fix a date and time not
more than ninety (90) days prior to the date of any meeting of
Shareholders or other action as the date and time of record for the
determination of Shareholders entitled to vote at such meeting or any
adjournment thereof or to be treated as Shareholders of record for
purposes of such other action, and any Shareholder who was a
Shareholder at the date and time so fixed shall be entitled to vote at
such meeting or any adjournment thereof or to be treated as a
Shareholder of record for purposes of such other action, even though he
has since that date and time disposed of his Shares, and no Shareholder
becoming such after that date and time shall be so entitled to vote at
such meeting or any adjournment thereof or to be treated as a
Shareholder of record for purposes of such other action.
SECTION 7.5 Quorum and Required Vote. A majority of the
Shares entitled to vote shall be a quorum for the transaction of business
at a Shareholders' meeting, but any lesser number shall be sufficient for
adjournments. Any adjourned session or sessions may be held within a
reasonable time after the date set for the original meeting without the
necessity of further notice. A Majority Shareholder Vote at a meeting
of which a quorum is present shall decide any question, except when a
different vote is required or permitted by any provision of the 1940 Act
or other applicable law or by this Declaration of Trust or the By-Laws,
or when the Trustees shall in their discretion require a larger vote or the
vote of a majority or larger fraction of the Shares of one or more
particular Series.
SECTION 7.6 Action By Written Consent. Subject to the
provisions of the 1940 Act and other applicable law, any action taken
by Shareholders may be taken without a meeting if a majority of
Shareholders entitled to vote on the matter (or such larger proportion
thereof or of the Shares of any particular Series as shall be required by
the 1940 Act or by any express provision of this Declaration of Trust or
the By-Laws or as shall be permitted by the Trustees) consent to the
action in writing and if the writings in which such consent is given are
filed with the records of the meetings of Shareholders, to the same
extent and for the same period as proxies given in connection with a
Shareholders' meeting. Such consent shall be treated for all purposes
as a vote taken at a meeting of Shareholders.
SECTION 7.7 Inspection of Records. The records of the Trust
shall be open to inspection by Shareholders to the same extent as is
permitted stockholders of a Delaware business corporation under the
Delaware business corporation law.
SECTION 7.8 Additional Provisions. The By-Laws may
include further provisions for Shareholders' votes and meetings and
related matters not inconsistent with the provisions hereof.
SECTION 7.9 Electronic Transmission. Notwithstanding any
provision in this Declaration or the By-Laws to the contrary, any
notice, proxy, vote, consent, instrument or writing of any kind or any
signature referenced in, or contemplated by, this Declaration or the By-
Laws may, in the sole discretion of the Trustees, be given, granted or
otherwise delivered by electronic transmission (within the meaning of
the Delaware Act), including via the internet, or in any other manner
permitted by applicable law.
ARTICLE 8
LIMITATION OF LIABILITY; INDEMNIFICATION
SECTION 8.1 Trustees, Shareholders, etc. Not Personally
Liable; Notice. The Trustees, officers, employees and agents of the
Trust, in incurring any debts, liabilities or obligations, or in limiting or
omitting any other actions for or in connection with the Trust, are or
shall be deemed to be acting as Trustees, officers, employees or agents
of the Trust and not in their own capacities. No Shareholder shall be
subject to any personal liability whatsoever in tort, contract or
otherwise to any other Person or Persons in connection with the assets
or the affairs of the Trust or of any Series, and subject to Section 8.4
hereof, no Trustee, officer, employee or agent of the Trust shall be
subject to any personal liability whatsoever in tort, contract, or
otherwise, to any other Person or Persons in connection with the assets
or affairs of the Trust or of any Series, save only for liability to the
Shareholders or the Trust arising from his own willful misfeasance, bad
faith, gross negligence or reckless disregard of the duties involved in
the conduct of his office or the discharge of his functions. The Trust
(or if the matter relates only to a particular Series, that Series) shall be
solely liable for any and all debts, claims, demands, judgments,
decrees, liabilities or obligations of any and every kind, against or with
respect to the Trust or such Series in tort, contract or otherwise in
connection with the assets or the affairs of the Trust or such Series, and
all Persons dealing with the Trust or any Series shall be deemed to have
agreed that resort shall be had solely to the Trust Property of the Trust
or the Series Assets of such Series, as the case may be, for the payment
or performance thereof.
The Trustees shall use their best efforts to ensure that every
note, bond, contract, instrument, certificate or undertaking made or
issued by the Trustees or by any officers or officer shall give notice that
a Certificate of Trust in respect of the Trust is on file with the Secretary
of the state of Delaware and shall recite to the effect that the same was
executed or made by or on behalf of the Trust or by them as Trustees or
Trustee or as officers or officer, 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 upon the assets and
property of the Trust, or the particular Series in question, as the case
may be, but the omission thereof shall not operate to bind any Trustees
or Trustee or officers or officer or Shareholders or Shareholder
individually, or to subject the Series Assets of any Series to the
obligations of any other Series or the Trust generally.
SECTION 8.2 Trustees' Good Faith Action; Expert Advice; No
Bond or Surety. The exercise by the Trustees of their powers and
discretions hereunder shall be binding upon everyone interested.
Subject to Section 8.4 hereof, a Trustee shall be liable to the Trust and
the Shareholders for his/her own willful misfeasance, bad faith, gross
negligence or reckless disregard of the duties involved in the conduct of
the office of Trustee, and for nothing else, and shall not be liable for
errors of judgment or mistakes of fact or law. Subject to the foregoing,
(i) the Trustees shall not be responsible or liable in any event for any
neglect or wrongdoing of any officer, agent, employee, consultant,
Investment Adviser, Administrator, Distributor or Principal
Underwriter, Custodian or Transfer Agent, Dividend Disbursing Agent,
Shareholder Servicing Agent or Accounting Agent of the Trust, nor
shall any Trustee be responsible for the act or omission of any other
Trustee; (ii) the Trustees may take advice of counsel or other experts
with respect to the meaning and operation of this Declaration of Trust
and their duties as Trustees, and shall be under no liability for any act
or omission in accordance with such advice or for failing to follow such
advice; and (iii) in discharging their duties, the Trustees, when acting in
good faith, shall be entitled to rely upon the books of account of the
Trust and upon written reports made to the Trustees by any officer
appointed by them, any independent public accountant, and (with
respect to the subject matter of the contract involved) any officer,
partner or responsible employee of a Contracting Party appointed by
the Trustees pursuant to Section 5.2 hereof. The Trustees as such shall
not be required to give any bond or surety or any other security for the
performance of their duties.
SECTION 8.3 Indemnification of Shareholders. If any
Shareholder (or former Shareholder) of the Trust shall be charged or
held to be personally liable for any obligation or liability of the Trust
solely by reason of being or having been a Shareholder and not because
of such Shareholder's acts or omissions or for some other reason, the
Trust (upon proper and timely request by the Shareholder) may assume
the defense against such charge and satisfy any judgment thereon or
may reimburse the Shareholders for expenses, and the Shareholder or
former Shareholder (or the heirs, executors, administrators or other
legal representatives thereof, or in the case of a corporation or other
entity, its corporate or other general successor) shall be entitled (but
solely out of the assets of the Series of which such Shareholder or
former Shareholder is or was the holder of Shares) to be held harmless
from and indemnified against all loss and expense arising from such
liability.
SECTION 8.4 Indemnification of Trustees, Officers, etc.
Subject to the limitations, if applicable, hereinafter set forth in this
Section 8.4, the Trust shall indemnify (from the assets of one or more
Series to which the conduct in question relates) each of its Trustees,
officers, employees and agents (including Persons who serve at the
Trust's request as directors, officers or trustees of another organization
in which the Trust has any interest as a shareholder, creditor or
otherwise (hereinafter, together with such Person's heirs, executors,
administrators or personal representative, referred to as a "Covered
Person")) against all liabilities, including but not limited to amounts
paid in satisfaction of judgments, in compromise or as fines and
penalties, and expenses, including reasonable accountants' and counsel
fees, incurred by any Covered Person in connection with the defense or
disposition of any action, suit or other proceeding, whether civil or
criminal, before any court or administrative or legislative body, in
which such Covered Person may be or may have been involved as a
party or otherwise or with which such Covered Person may be or may
have been threatened, while in office or thereafter, by reason of being
or having been such a Trustee or officer, director or trustee, except with
respect to any matter as to which it has been determined that such
Covered Person (i) did not act in good faith in the reasonable belief that
such Covered Person's action was in or not opposed to the best
interests of the Trust; (ii) had acted with willful misfeasance, bad faith,
gross negligence or reckless disregard of the duties involved in the
conduct of such Covered Person's office (iii) for a criminal proceeding,
had reasonable cause to believe that his conduct was unlawful (the
conduct described in (i), (ii) and (iii) being referred to hereafter as
"Disabling Conduct"). A determination that the Covered Person is
entitled to indemnification may be made by (i) a final decision on the
merits by a court or other body before whom the proceeding was
brought that the Covered Person to be indemnified was not liable by
reason of Disabling Conduct, (ii) dismissal of a court action or an
administrative proceeding against a Covered Person for insufficiency of
evidence of Disabling Conduct, or (iii) a reasonable determination,
based upon a review of the facts, that the indemnitee was not liable by
reason of Disabling Conduct by (a) a vote of a majority of a quorum of
Trustees who are neither "interested persons" of the Trust as defined in
Section 2(a)(19) of the 1940 Act nor parties to the proceeding (the
"Disinterested Trustees"), or (b) an independent legal counsel in a
written opinion. Expenses, including accountants' and counsel fees so
incurred by any such Covered Person (but excluding amounts paid in
satisfaction of judgments, in compromise or as fines or penalties), may
be paid from time to time by one or more Series to which the conduct
in question related in advance of the final disposition of any such
action, suit or proceeding; provided that the Covered Person shall have
undertaken to repay the amounts so paid to such Series if it is
ultimately determined that indemnification of such expenses is not
authorized under this Article 8 and (i) the Covered Person shall have
provided security for such undertaking, (ii) the Trust shall be insured
against losses arising by reason of any lawful advances, or (iii) a
majority of a quorum of the Disinterested Trustees, or an independent
legal counsel in a written opinion, shall have determined, based on a
review of readily available facts (as opposed to a full trial type inquiry),
that there is reason to believe that the Covered Person ultimately will
be found entitled to indemnification.
SECTION 8.5 Compromise Payment. As to any matter
disposed of by a compromise payment by any such Covered Person
referred to in Section 8.4 hereof, pursuant to a consent decree or
otherwise, no such indemnification either for said payment or for any
other expenses shall be provided unless such indemnification shall be
approved (i) by a majority of a quorum of the Disinterested Trustees or
(ii) by an independent legal counsel in a written opinion. Approval by
the Trustees pursuant to clause (i) or by independent legal counsel
pursuant to clause (ii) shall not prevent the recovery from any Covered
Person of any amount paid to such Covered Person in accordance with
either of such clauses as indemnification if such Covered Person is
subsequently adjudicated by a court of competent jurisdiction not to
have acted in good faith in the reasonable belief that such Covered
Person's action was in or not opposed to the best interests of the Trust
or to have been liable to the Trust or its Shareholders by reason of
willful misfeasance, bad faith, gross negligence or reckless disregard of
the duties involved in the conduct of the Covered Person's office.
SECTION 8.6 Indemnification Not Exclusive, etc. The right of
indemnification provided by this Article 8 shall not be exclusive of or
affect any other rights to which any such Covered Person or
shareholder may be entitled. As used in this Article 8, a "disinterested"
Person is one against whom none of the actions, suits or other
proceedings in question, and no other action, suit or other proceeding
on the same or similar grounds is then or has been pending or
threatened. Nothing contained in this Article 8 shall affect any rights to
indemnification to which personnel of the Trust, other than Trustees
and officers, and other Persons may be entitled by contract or otherwise
under law, nor the power of the Trust to purchase and maintain liability
insurance on behalf of any such Person.
SECTION 8.7 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.
ARTICLE 9
DURATION; REORGANIZATION; INCORPORATION;
AMENDMENTS
SECTION 9.1 Duration of Trust. Unless terminated as provided
herein, the Trust shall have perpetual existence.
SECTION 9.2 Termination of Trust. The Trust or any Series
may be dissolved at any time by a Majority of the Trustees, subject to
the favorable vote of the holders of not less than a majority of the
Shares outstanding and entitled to vote of each Series of the Trust or of
the applicable Series, or by an instrument or instruments in writing
without a meeting, consented to by the holders of not less than a
majority of such Shares, or by such greater or different vote of
Shareholders of any Series as may be established by the Certificate of
Designation by which such Series was authorized. Upon dissolution,
after paying or otherwise providing for all claims and obligations of the
Trust or Series, as applicable, 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 to distributable form in cash, Securities or other
property, or any combination thereof, and distribute the proceeds to the
Shareholders, in conformity with the provisions of Section 6.1(h)
hereof and applicable law. After termination of the Trust or any Series
and distribution to the Shareholders as herein provided, a majority of
the Trustees shall, in the case of the Trust, execute and file a certificate
of cancellation with the Delaware Secretary of State in order to
terminate the Trust, or in the case of a Series, execute and lodge
among the records of the Trust an investment in writing setting forth
the fact of such termination. Upon termination of the Trust, the
Trustees shall thereupon be discharged from all further liabilities and
duties hereunder, and the rights and interests of all Shareholders shall
thereupon cease. Upon termination of any Series, the Trustees shall
thereupon be discharged from all further liabilities and duties with
respect to such Series, and the rights and interests of all Shareholders of
such Series shall thereupon cease.
SECTION 9.3 Reorganization. The Trustees may (i) sell,
convey and transfer all or substantially all of the assets of the Trust, or
the assets belonging to any one or more Series, to another trust,
partnership, association, corporation or other entity organized under the
laws of any state of the United States, or may transfer such assets to
another Series of the Trust, in exchange for cash, Shares or other
Securities (including, in the case of a transfer to another Series of the
Trust, Shares of such other Series), (ii) to the extent permitted by law
then in effect merge or consolidate the Trust or any Series with any
other Trust or any corporation, partnership, or association organized
under the laws of any state of the United States, or (iii) cause the Trust
to convert to a corporation, limited liability company or limited liability
partnership under the laws of Delaware or any other state or jurisdiction
all upon such terms and conditions and for such consideration when
and as authorized by vote or written consent of a Majority of the
Trustees and approved by the affirmative vote of the holders of not less
than a majority of the Shares outstanding and entitled to vote of each
Series whose assets are affected by such transaction, or by an
instrument or instruments in writing without a meeting, consented to by
the holders of not less than a majority of such Shares, and/or by such
other vote of any Series as may be established by the Certificate of
Designation with respect to such Series. Following such transfer, the
Trustees shall distribute the cash, Shares or other Securities or other
consideration received in such transaction (giving due effect to the
assets belonging to and indebtedness of, and any other differences
among, the various Series of which the assets have so been transferred)
among the Shareholders of the Series of which the assets have been so
transferred; and if all of the assets of the Trust have been so transferred,
the Trust shall be terminated. Nothing in this Section 9.3 shall be
construed as requiring approval of Shareholders for the Trustees to
organize or assist in organizing one or more corporations, trusts,
partnerships, associations or other organizations, and to sell, convey or
transfer less than substantially all of the Trust Property or the assets
belonging to any Series to such organizations or entities.
SECTION 9.4 Incorporation. Upon approval by Majority
Shareholder Vote, the Trustees may cause to be organized or assist in
organizing a corporation or corporations under the laws of any
jurisdiction or any other mist, partnership, association or other
organization to take over all of the Trust Property or to carry on any
business in which the Trust shall directly or indirectly have any
interest, and to sell, convey and transfer the Trust Property to any such
corporation, trust, association or organization, in exchange for the
shares or securities thereof, or otherwise, and to tend money to,
subscribe for the shares of securities of, and enter into any contracts
with any such corporation, trust, partnership, association or
organization in which the Trust holds or is about to acquire shares or
any other interests. The Trustees may also cause a merger or
consolidation between the Trust or any successor thereto and any such
corporation, trust, partnership, association or other organization if and
to the extent permitted by law, as provided under the law then in effect.
Nothing contained herein shall be construed as requiring approval of
Shareholders for the Trustees to organize or assist in organizing one or
more corporation, trusts, partnerships, associations or other
organizations and selling, conveying or transferring a portion of the
Trust Property to such organizations or entities.
SECTION 9.5 Amendments; etc. All rights granted to the
Shareholders under this Declaration of Trust are granted subject to the
reservation of the right to amend this Declaration of Trust as herein
provided, except that no amendment shall repeal the limitations on
personal liability of any Shareholder or Trustee or the prohibition of
assessment upon the Shareholders (otherwise than as permitted under
Section 6.1(1)) without the express consent of each Shareholder or
Trustee involved. Subject to the foregoing, the provisions of this
Declaration of Trust (whether or not related to the rights of
Shareholders) may be amended at any time, so long as such amendment
does not adversely affect the rights of any Shareholder with respect to
which such amendment is or purports to be applicable and so long as
such amendment is not in contravention of applicable law, including
the 1940 Act, by an instrument in writing signed by a Majority of the
Trustees (or by an officer of the Trust pursuant to the vote of a Majority
of the Trustees). Any amendment to this Declaration of Trust that
adversely affects the rights of all Shareholders may be adopted at any
time by an instrument in writing signed by a Majority of the Trustees
(or by an officer of the Trust pursuant to a vote of a Majority of the
Trustees) when authorized to do so by the vote in accordance with
Section 7.1 hereof of Shareholders holding a majority of all the Shares
outstanding and entitled to vote, without regard to Series, or if said
amendment adversely affects the rights of the Shareholders of less than
all of the Series, by the vote of the holders of a majority of all the
Shares entitled to vote of each Series so affected. Notwithstanding any
other provisions set forth in this Declaration of Trust, a provision in
this Declaration of Trust requiring shareholder approval of any action
may be amended only with like shareholder approval.
SECTION 9.6 Filing of Copies of Declaration and
Amendments. The original or a copy of this Declaration and of each
amendment hereto (including each Certificate of Designation and
Certificate of Termination) shall be kept at the office of the Trust where
it may be inspected by any Shareholder. A restated Declaration,
integrating into a single instrument all of the provisions of this
Declaration which are then in effect and operative, may be executed
from time to time by a Majority of the Trustees and shall, upon
execution, be conclusive evidence of all amendments contained therein
and may thereafter be referred to in lieu of the original Declaration and
the various amendments thereto. A Certificate of Trust shall be filed in
the office of the Secretary of State of the State of Delaware.
ARTICLE 10
MISCELLANEOUS
SECTION 10.1 Notices. Any and all notices to which any
Shareholder hereunder may be entitled and any and all communications
shall be deemed duly served or given if mailed, postage prepaid,
addressed to any Shareholder of record at his last known address as
recorded on the applicable register of the Trust.
SECTION 10.2 Governing Law. This Declaration of
Trust is, with reference to the taws thereof, and the rights of all parties
and the construction and effect of every provision hereof shall be,
subject to and construed according to the laws of said The State of
Delaware.
SECTION 10.3 Counterparts. This Declaration of Trust
and any amendment thereto-may be simultaneously executed in several
counterparts, each of which so executed shall be deemed to be an
original, and such counterparts, together, shall constitute but one and
the same instrument, which shall be sufficiently evidenced by any such
original counterpart.
SECTION 10.4 Reliance by Third Parties. Any certificate
executed by an individual who, according to the records of the Trust is
a Trustee hereunder, certifying to: (a) the number or identity of
Trustees or Shareholders, (b) the due authorization of the execution of
any instrument or writing, (c) the form of any vote passed at a meeting
of Trustees or Shareholders, (d) the fact that the number of Trustees or
Shareholders present at any meeting or executing any written
instrument satisfies the requirements of this Declaration of Trust, (e)
the form of any By-Law adopted, or the identity of any officers elected,
by the Trustees, (t) the existence or nonexistence of any fact or facts
which in any manner relate to the affairs of the Trust, or (g) the name
of the Trust or the establishment of a Series shall be conclusive
evidence as to the matters so certified in favor of any Person dealing
with the Trustees, or any of them, and the successors of such Person.
SECTION 10.5 References; Headings. The masculine
gender shall include the feminine and neuter genders. Headings are
placed herein for convenience of reference only and shall not be taken
as a part of this Declaration or control or affect the meaning,
construction or effect hereof.
SECTION 10.6 Provisions in Conflict With Law or
Regulation. (a) The provisions of this Declaration are severable, and if
the Trustees shall determine, with the advice of counsel, that any of
such provisions is in conflict with the 1940 Act, the regulated
investment company provisions of the Internal Revenue Code of 1986
or with other applicable laws and regulations, the conflicting provision
shall be deemed never to have constituted a part of this Declaration;
provided, however, that such determination shall not affect any of the
remaining provisions of this Declaration or render invalid or improper
any action taken or omitted prior to such determination.
(b) If any provision of this Declaration 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 in any jurisdiction.
[SIGNATURE PAGE FOLLOWS]
IN WITNESS WHEREOF, the undersigned, being the Trustees,
have set their hand and seal, for themselves and their assigns, unto this
Amended and Restated Declaration of Trust of the Trust, as of the day
and year first above written.
/S/ XXXXXX X. XXXXX /S/ XXXXX
X. XXXXXXX
Xxxxxx X. Xxxxx, Xxxxx X
Xxxxxxx,
as Trustee as Trustee
/S/ XXXXXX X. XXXXXX /S/ XXXX X.
XXXXXXXXX
Xx. Xxxxxx X. Xxxxxx, Dr. Xxxx
Xx. Xxxxxxxxx,
as Trustee as Trustee
/S/ XXXXXXX X. XXXXX /S/
XXXXXXX X. XXXXXX
Xxxxxxx X. Xxxxx, Xxxxxxx X.
Xxxxxx,
as Trustee as Trustee
/S/ XXXXXXX X. XXXXX /S/ XXXX X.
XXXXXX, XX.
Xx. Xxxxxxx X. Xxxxx, Xx. Xxxx X.
Xxxxxx, Xx.,
as Trustee as Trustee
/S/ XXXXXXX X. XXXXXXXX, XX.
The Xxxxxxxxx Xxxxxxx X. Xxxxxxxx, Xx.,
as Trustee
