EXHIBIT 99.a
AGREEMENT AND DECLARATION OF TRUST
of
TAMARACK FUNDS TRUST
a Delaware Statutory Trust
TABLE OF CONTENTS
ARTICLE I Name and Definitions................................................1
Section 1. Name.........................................................1
Section 2. Registered Agent and Registered Office.......................1
(a) Registered Agent and Registered Office.......................1
(b) Principal Place of Business..................................2
Section 3. Definitions..................................................2
(a) "1940 Act"...................................................2
(b) "Affiliate"..................................................2
(c) "Board of Trustees"..........................................2
(d) "By-Laws"....................................................2
(e) "Certificate of Trust".......................................2
(f) "Class"......................................................2
(g) "Code" 2
(h) "Commission".................................................2
(i) "DSTA" 2
(j) "Declaration of Trust".......................................2
(k) "General Liabilities"........................................2
(l) "Interested Person"..........................................2
(m) "Investment Adviser" or "Adviser"............................2
(n) "National Financial Emergency"...............................3
(o) "Person".....................................................3
(p) "Principal Underwriter"......................................3
(q) "Series".....................................................3
(r) "Shares".....................................................3
(s) "Shareholder"................................................3
(t) "Trust"......................................................3
(u) "Trust Property".............................................3
(v) "Trustee" or "Trustees"......................................3
ARTICLE II Purpose of Trust...................................................3
ARTICLE III Shares............................................................6
Section 1. Division of Beneficial Interest..............................6
Section 2. Ownership of Shares..........................................7
Section 3. Investments in the Trust.....................................8
Section 4. Status of Shares and Limitation of Personal Liability........8
Section 5. Power of Board of Trustees to Change Provisions
Relating to Shares...........................................8
Section 6. Establishment and Designation of Series or Class.............9
(a) Assets Held with Respect to a Particular Series..............9
(b) Liabilities Held with Respect to a Particular Series........10
(c) Dividends, Distributions, Redemptions and Repurchases.......10
(d) Voting......................................................11
(e) Equality....................................................11
(f) Fractions...................................................11
(g) Exchange Privilege..........................................11
(h) Combination of Series or Classes............................11
Section 7. Indemnification of Shareholders.............................11
ARTICLE IV The Board of Trustees.............................................12
Section 1. Number, Election and Tenure.................................12
Section 2. Effect of Death, Resignation, Removal, etc.of a Trustee.....12
Section 3. Powers......................................................12
Section 4. Payment of Expenses by the Trust............................14
Section 5. Payment of Expenses by Shareholders.........................14
Section 6. Ownership of Trust Property.................................14
Section 7. Service Contracts...........................................15
ARTICLE V Shareholders' Voting Powers and Meetings...........................16
Section 1. Voting Powers...............................................16
Section 2. Meetings....................................................16
Section 3. Quorum and Required Vote....................................16
Section 4. Shareholder Action by Written Consent without a Meeting.....16
Section 5. Record Dates................................................17
Section 6. Additional Provisions.......................................17
ARTICLE VI Net Asset Value, Distributions and Redemptions....................17
Section 1. Determination of Net Asset Value, Net Income and
Distributions...............................................17
Section 2. Redemptions at the Option of a Shareholder..................18
Section 3. Redemptions at the Option of the Trust......................19
ARTICLE VII Compensation and Limitation of Liability of Officers and
Trustees.........................................................20
Section 1. Compensation................................................20
Section 2. Indemnification and Limitation of Liability.................20
Section 3. Officers and Trustees' Good Faith Action, Expert Advice,
No Bond or Surety...........................................20
Section 4. Insurance...................................................21
ARTICLE VIII Miscellaneous...................................................21
Section 1. Liability of Third Persons Dealing with Trustees............21
Section 2. Derivative Actions..........................................21
Section 3. Dissolution of Trust or Any Series or Class.................22
Section 4. Merger and Consolidation; Conversion........................23
(a) Merger and Consolidation....................................23
(b) Conversion..................................................23
Section 5. Reorganization..............................................24
Section 6. Amendments..................................................24
Section 7. Filing of Copies, References, Headings......................25
Section 8. Applicable Law..............................................25
Section 9. Provisions in Conflict with Law or Regulations..............25
Section 10 Statutory Trust Only........................................26
Section 11 Writings....................................................26
AGREEMENT AND DECLARATION OF TRUST
OF
TAMARACK FUNDS TRUST
AGREEMENT AND DECLARATION OF TRUST made this 16th day of December,
2003, by the Trustees hereunder, and by the holders of shares of beneficial
interest to be issued hereunder as hereinafter provided. This Agreement and
Declaration of Trust shall be effective upon the filing of the Certificate of
Trust in the office of the Secretary of State of the State of Delaware.
W I T N E S S E T H:
WHEREAS this Trust has been formed to carry on the business of an
investment company; and
WHEREAS this Trust is authorized to issue its shares of beneficial
interest in separate Series, and to issue Classes of Shares of any Series or
divide Shares of any Series into two or more Classes, all in accordance with the
provisions hereinafter set forth; and
WHEREAS the Trustees have agreed to manage all property coming into
their hands as trustees of a Delaware statutory trust in accordance with the
provisions of the Delaware Statutory Trust Act (12 Del. C. ss.3801, et seq.), as
from time to time amended and including any successor statute of similar import
(the "DSTA"), and the provisions hereinafter set forth.
NOW, THEREFORE, the Trustees hereby declare that they will hold all
cash, securities and other assets which they may from time to time acquire in
any manner as Trustees hereunder IN TRUST to manage and dispose of the same upon
the following terms and conditions for the benefit of the holders from time to
time of shares of beneficial interest in this Trust and the Series created
hereunder as hereinafter set forth.
ARTICLE I
Name and Definitions
Section 1. Name. This trust shall be known as "Tamarack Funds Trust"
and the Trustees shall conduct the business of the Trust under that name, or any
other name as they may from time to time determine.
Section 2. Registered Agent and Registered Office. Principal Place of
Business.
(a) Registered Agent and Registered Office. The name of the
registered agent of the Trust and the address of the registered office of the
Trust are as set forth on the Certificate of Trust.
(b) Principal Place of Business. The principal place of business
of the Trust is 00 Xxxxx Xxxxxxx Xxxxxx, Xxxxx 0000, Xxxxxxxxxxx, XX 00000, or
such other location within or outside of the State of Delaware as the Board of
Trustees may determine from time to time.
Section 3. Definitions. Whenever used herein, unless otherwise required
by the context or specifically provided:
(a) "1940 Act" shall mean the Investment Company Act of 1940 and
the rules and regulations thereunder, all as adopted or amended from time to
time;
(b) "Affiliate" shall have the meaning given to it in Section
2(a)(3) of the 1940 Act when used with reference to a specified Person.
(c) "Board of Trustees" shall mean the governing body of the
Trust, which is comprised of the Trustees of the Trust;
(d) "By-Laws" shall mean the By-Laws of the Trust, as amended
from time to time in accordance with Article X of the By-Laws, and incorporated
herein by reference;
(e) "Certificate of Trust" shall mean the certificate of trust
filed with the Office of the Secretary of State of the State of Delaware as
required under the DSTA to form the Trust;
(f) "Class" shall mean a class of Shares of a Series of the
Trust established in accordance with the provisions of Article III hereof;
(g) "Code" shall mean the Internal Revenue Code of 1986, as
amended, and the rules and regulations thereunder;
(h) "Commission" shall have the meaning given it in Section
2(a)(7) of the 1940 Act;
(i) "DSTA" shall mean the Delaware Statutory Trust Act, (12 Del.
C.ss.3801, et seq.), as amended from time to time;
(j) "Declaration of Trust" shall mean this Agreement and
Declaration of Trust, as amended or restated from time to time;
(k) "General Liabilities" shall have the meaning given it in
Article III, Section 6(b) of this Declaration Trust;
(l) "Interested Person" shall have the meaning given it in
Section 2(a)(19) of the 1940 Act;
(m) "Investment Adviser" or "Adviser" shall mean a party
furnishing services to the Trust pursuant to any contract described in Article
IV, Section 7(a) hereof;
2
(n) "National Financial Emergency" shall mean the whole or any
part of any period set forth in Section 22(e) of the 1940 Act. The Board of
Trustees may, in its discretion, declare that the suspension relating to a
national financial emergency shall terminate, as the case may be, on the first
business day on which the New York Stock Exchange shall have reopened or the
period specified in Section 22(e) of the 1940 Act shall have expired (as to
which, in the absence of an official ruling by the Commission, the determination
of the Board of Trustees shall be conclusive);
(o) "Person" shall include a natural person, partnership,
limited partnership, trust, estate, association, corporation, custodian, nominee
or any other individual or entity in its own or any representative capacity;
(p) "Principal Underwriter" shall have the meaning given to it
in Section 2(a)(29) of the 1940 Act;
(q) "Series" shall refer to each Series of Shares established
and designated under or in accordance with the provisions of Article III and
shall mean an entity such as that described in Section 18(f)(2) of the 1940 Act,
and subject to Rule 18f-2 thereunder;
(r) "Shares" shall mean the outstanding shares of beneficial
interest into which the beneficial interest in the Trust shall be divided from
time to time, and shall include fractional and whole shares;
(s) "Shareholder" shall mean a record owner of Shares;
(t) "Trust" shall refer to the Delaware statutory trust
established by this Declaration of Trust, as amended from time to time;
(u) "Trust Property" shall mean any and all property, real or
personal, tangible or intangible, which is owned or held by or for the account
of the Trust or one or more of any Series, including, without limitation, the
rights referenced in Article VIII, Section 2 hereof;
(v) "Trustee" or "Trustees" shall refer to each signatory to
this Declaration of Trust as a trustee, so long as such signatory continues in
office in accordance with the terms hereof, and all other Persons who may, from
time to time, be duly elected or appointed, qualified and serving on the Board
of Trustees in accordance with the provisions hereof. Reference herein to a
Trustee or the Trustees shall refer to such Person or Persons in their capacity
as Trustees hereunder.
ARTICLE II
Purpose of Trust
The purpose of the Trust is to conduct, operate and carry on the
business of a registered management investment company registered under the 1940
Act through one or more Series investing primarily in securities and, in
addition to any authority given by law, to exercise all of the powers and to do
any and all of the things as fully and to the same extent as any private
corporation organized for profit under the general corporation law of the State
of Delaware, now or hereafter in force, including, without limitation, the
following powers:
3
(a) To invest and reinvest cash, to hold cash uninvested, and to
subscribe for, invest in, reinvest in, purchase or otherwise acquire, own, hold,
pledge, sell, assign, mortgage, transfer, exchange, distribute, write options
on, lend or otherwise deal in or dispose of contracts for the future acquisition
or delivery of fixed income or other securities, and securities or property of
every nature and kind, including, without limitation, all types of bonds,
debentures, stocks, preferred stocks, negotiable or non-negotiable instruments,
obligations, evidences of indebtedness, certificates of deposit or indebtedness,
commercial paper, repurchase agreements, bankers' acceptances, and other
securities of any kind, issued, created, guaranteed, or sponsored by any and all
Persons, including, without limitation, states, territories, and possessions of
the United States and the District of Columbia and any political subdivision,
agency, or instrumentality thereof, any foreign government or any political
subdivision of the U.S. Government or any foreign government, or any
international instrumentality, or by any bank or savings institution, or by any
corporation or organization organized under the laws of the United States or of
any state, territory, or possession thereof, or by any corporation or
organization organized under any foreign law, or in "when issued" contracts for
any such securities, to change the investments of the assets of the Trust;
(b) To exercise any and all rights, powers and privileges with
reference to or incident to ownership or interest, use and enjoyment of any of
such securities and other instruments or property of every kind and description,
including, but without limitation, the right, power and privilege to own, vote,
hold, purchase, sell, negotiate, assign, exchange, lend, transfer, mortgage,
hypothecate, lease, pledge or write options with respect to or otherwise deal
with, dispose of, use, exercise or enjoy any rights, title, interest, powers or
privileges under or with reference to any of such securities and other
instruments or property, the right to consent and otherwise act with respect
thereto, with power to designate one or more Persons, to exercise any of said
rights, powers, and privileges in respect of any of said instruments, and to do
any and all acts and things for the preservation, protection, improvement and
enhancement in value of any of such securities and other instruments or
property;
(c) To sell, exchange, lend, pledge, mortgage, hypothecate,
lease or write options with respect to or otherwise deal in any property rights
relating to any or all of the assets of the Trust or any Series, subject to any
requirements of the 1940 Act;
(d) To vote or give assent, or exercise any rights of ownership,
with respect to stock or other securities or property; and to execute and
deliver proxies or powers of attorney to such person or persons as the Trustees
shall deem proper, granting to such person or persons such power and discretion
with relation to securities or property as the Trustees shall deem proper;
(e) To exercise powers and right of subscription or otherwise
which in any manner arise out of ownership of securities;
(f) To hold any security or property in a form not indicating
that it is trust property, whether in bearer, unregistered or other negotiable
form, or in its own name or in the name of a custodian or subcustodian or a
nominee or nominees or otherwise or to authorize the custodian or a subcustodian
or a nominee or nominees to deposit the same in a securities
4
depository, subject in each case to proper safeguards according to the usual
practice of investment companies or any rules or regulations applicable thereto;
(g) To consent to, or participate in, any plan for the
reorganization, consolidation or merger of any corporation or issuer of any
security which is held in the Trust; to consent to any contract, lease,
mortgage, purchase or sale of property by such corporation or issuer; and to pay
calls or subscriptions with respect to any security held in the Trust;
(h) To join with other security holders in acting through a
committee, depositary, voting trustee or otherwise, and in that connection to
deposit any security with, or transfer any security to, any such committee,
depositary or trustee, and to delegate to them such power and authority with
relation to any security (whether or not so deposited or transferred) as the
Trustees shall deem proper, and to agree to pay, and to pay, such portion of the
expenses and compensation of such committee, depositary or trustee as the
Trustees shall deem proper;
(i) To compromise, arbitrate or otherwise adjust claims in favor
of or against the Trust or any matter in controversy, including but not limited
to claims for taxes;
(j) To enter into joint ventures, general or limited
partnerships and any other combinations or associations;
(k) To endorse or guarantee the payment of any notes or other
obligations of any Person; to make contracts of guaranty or suretyship, or
otherwise assume liability for payment thereof;
(l) To purchase and pay for entirely out of Trust Property such
insurance as the Trustees may deem necessary or appropriate for the conduct of
the business, including, without limitation, insurance policies insuring the
assets of the Trust or payment of distributions and principal on its portfolio
investments, and insurance policies insuring the Shareholders, Trustees,
officers, employees, agents, Investment Advisers, Principal Underwriters, or
independent contractors of the Trust, individually against all claims and
liabilities of every nature arising by reason of holding Shares, holding, being
or having held any such office or position, or by reason of any action alleged
to have been taken or omitted by any such Person as Trustee, officer, employee,
agent, Investment Adviser, Principal Underwriter, or independent contractor, to
the fullest extent permitted by this Declaration of Trust, the By-laws and by
applicable law; and
(m) To adopt, establish and carry out pension, profit-sharing,
share bonus, share purchase, savings, thrift and other retirement, incentive and
benefit plans, trusts and provisions, including the purchasing of life insurance
and annuity contracts as a means of providing such retirement and other
benefits, for any or all of the Trustees, officers, employees and agents of the
Trust.
(n) To purchase or otherwise acquire, own, hold, sell,
negotiate, exchange, assign, transfer, mortgage, pledge or otherwise deal with,
dispose of, use, exercise or enjoy, property of all kinds.
5
(o) To buy, sell, mortgage, encumber, hold, own, exchange, rent
or otherwise acquire and dispose of, and to develop, improve, manage, subdivide,
and generally to deal and trade in real property, improved and unimproved, and
wheresoever situated; and to build, erect, construct, alter and maintain
buildings, structures, and other improvements on real property.
(p) To borrow or raise moneys for any of the purposes of the
Trust, and to mortgage or pledge the whole or any part of the property and
franchises of the Trust, real, personal, and mixed, tangible or intangible, and
wheresoever situated.
(q) To enter into, make and perform contracts and undertakings
of every kind for any lawful purpose, without limit as to amount.
(r) To issue, purchase, sell and transfer, reacquire, hold,
trade and deal in Shares, bonds, debentures and other securities, instruments or
other property of the Trust, from time to time, to such extent as the Board of
Trustees shall, consistent with the provisions of this Declaration of Trust,
determine; and to repurchase, re-acquire and redeem, from time to time, its
Shares or, if any, its bonds, debentures and other securities.
The Trust shall not be limited to investing in obligations maturing
before the possible dissolution of the Trust or one or more of its Series. The
Trust shall not in any way be bound or limited by any present or future law or
custom in regard to investment by fiduciaries. Neither the Trust nor the
Trustees shall be required to obtain any court order to deal with any assets of
the Trust or take any other action hereunder.
The foregoing clauses shall each be construed as purposes, objects and
powers, and it is hereby expressly provided that the foregoing enumeration of
specific purposes, objects and powers shall not be held to limit or restrict in
any manner the powers of the Trust, and that they are in furtherance of, and in
addition to, and not in limitation of, the general powers conferred upon the
Trust by the DSTA and the other laws of the State of Delaware or otherwise; nor
shall the enumeration of one thing be deemed to exclude another, although it be
of like nature, not expressed.
ARTICLE III
Shares
Section 1. Division of Beneficial Interest. The beneficial interest in
the Trust shall at all times be divided into Shares, all without par value. The
number of Shares authorized hereunder is unlimited. The Board of Trustees may
authorize the division of Shares into separate and distinct Series and the
division of any Series into separate Classes of Shares. The different Series and
Classes shall be established and designated, and the variations in the relative
rights and preferences as between the different Series and Classes shall be
fixed and determined by the Board of Trustees without the requirement of
Shareholder approval. If no separate Series or Classes shall be established, the
Shares shall have the rights and preferences provided for herein and in Article
III, Section 6 hereof to the extent relevant and not otherwise provided for
herein, and all references to Series and Classes shall be construed (as the
context may require) to refer to the Trust. The fact that a Series shall have
initially been established and designated without any specific establishment or
designation of Classes (i.e., that all Shares of such Series are initially of
6
a single Class) shall not limit the authority of the Board of Trustees to
establish and designate separate Classes of said Series. The fact that a Series
shall have more than one established and designated Class, shall not limit the
authority of the Board of Trustees to establish and designate additional Classes
of said Series, or to establish and designate separate Classes of the previously
established and designated Classes.
The Board of Trustees shall have the power to issue Shares of the
Trust, or any Series or Class thereof, from time to time for such consideration
(but not less than the net asset value thereof) and in such form as may be fixed
from time to time pursuant to the direction of the Board of Trustees.
Shares of any Series or Class reacquired by the Trust shall be deemed
cancelled unless the Board of Trustees determines, consistent with the 1940 Act,
that such Shares shall be held as treasury shares. Any such treasury shares may
be reissued for such consideration and on such terms as the Board of Trustees
may determine. The Board of Trustees may classify or reclassify any unissued
Shares or any Shares previously issued and reacquired of any Series or Class
into one or more Series or Classes that may be established and designated from
time to time. Notwithstanding the foregoing, the Trust and any Series thereof
may acquire, hold, sell and otherwise deal in, for purposes of investment or
otherwise, the Shares of any other Series of the Trust or Shares of the Trust,
and such Shares shall not be deemed treasury shares or cancelled.
Subject to the provisions of Section 6 of this Article III, each Share
shall have voting rights as provided in Article V hereof, and the Shareholders
of any Series shall be entitled to receive dividends and distributions, when, if
and as declared with respect thereto in the manner provided in Article IV,
Section 3 hereof. No Share shall have any priority or preference over any other
Share of the same Series or Class with respect to dividends or distributions
paid in the ordinary course of business or distributions upon dissolution of the
Trust or of such Series or Class made pursuant to Article VIII, Section 2
hereof. All dividends and distributions shall be made ratably among all
Shareholders of a particular Class of Series from the Trust Property held with
respect to such Series according to the number of Shares of such Class of such
Series held of record by such Shareholders on the record date for any dividend
or distribution. Shareholders shall have no preemptive or other right to
subscribe to new or additional Shares or other securities issued by the Trust or
any Series and shall have no appraisal or dissenters' rights. The Trustees may
from time to time divide or combine the Shares of any particular Series into a
greater or lesser number of Shares of that Series. Such division or combination
may not materially change the proportionate beneficial interests of the Shares
of that Series in the Trust Property held with respect to that Series or
materially affect the rights of Shares of any other Series.
Any Trustee, officer or other agent of the Trust, and any organization
in which any such Person is interested, may acquire, own, hold and dispose of
Shares of the Trust to the same extent as if such Person were not a Trustee,
officer or other agent of the Trust; and the Trust may issue and sell or cause
to be issued and sold and may purchase Shares 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 such Shares generally.
7
Section 2. Ownership of Shares. The ownership of Shares shall be
recorded on the books of the Trust kept by the Trust or by a transfer or similar
agent for the Trust, which books shall be maintained separately for the Shares
of each Series and Class thereof that has been established and designated. No
certificates certifying the ownership of Shares shall be issued except as the
Board of Trustees may otherwise determine from time to time. The Board of
Trustees may make such rules not inconsistent with the provisions of the 1940
Act as they consider appropriate for the issuance of Share certificates, the
transfer of Shares of each Series or Class and similar matters. The record books
of the Trust as kept by the Trust or any transfer or similar agent, as the case
may be, shall be conclusive as to who are the Shareholders of each Series or
Class thereof and as to the number of Shares of each Series or Class thereof
held from time to time by each such Shareholder.
Section 3. Investments in the Trust. Investments may be accepted by the
Trust from such Persons, at such times, on such terms, and for such
consideration as the Board of Trustees may, from time to time, authorize. Each
investment shall be credited to the individual Shareholder's account in the form
of full and fractional Shares of the Trust, in such Series or Class as the
purchaser may select, at the net asset value per Share next determined for such
Series or Class after receipt of the investment; provided, however, that the
Principal Underwriter may, pursuant to its agreement with the Trust, impose a
sales charge upon investments in the Trust.
Section 4. Status of Shares and Limitation of Personal Liability.
Shares shall be deemed to be personal property giving to Shareholders only the
rights provided in this Declaration of Trust and under applicable law. Every
Shareholder by virtue of having become a Shareholder shall be held to have
expressly assented and agreed to the terms hereof and to have become a party
hereto. The death of a Shareholder during the existence of the Trust shall not
operate to dissolve 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 or any Series, but entitles such
representative only to the rights of said deceased Shareholder under this
Declaration of Trust. Ownership of Shares shall not entitle the Shareholder to
any title in or to the whole or any part of the Trust Property or right to call
for a partition or division of the same or for an accounting, nor shall the
ownership of Shares constitute the Shareholders as partners. Neither the Trust
nor the Trustees, nor any officer, employee or agent of the Trust, shall have
any power to bind personally any Shareholder, nor, except as specifically
provided herein, to call upon any Shareholder for the payment of any sum of
money or assessment whatsoever other than such as the Shareholder may at any
time personally agree to pay. All Shares when issued on the terms determined by
the Board of Trustees shall be fully paid and nonassessable. As provided in the
DSTA, Shareholders of the Trust shall be entitled to the same limitation of
personal liability extended to stockholders of a private corporation organized
for profit under the general corporation law of the State of Delaware.
Section 5. Power of Board of Trustees to Change Provisions Relating to
Shares. Notwithstanding any other provisions of this Declaration of Trust and
without limiting the power of the Board of Trustees to amend this Declaration of
Trust or the Certificate of Trust as provided elsewhere herein, the Board of
Trustees shall have the power to amend this Declaration of Trust, or the
Certificate of Trust, at any time and from time to time, in such manner as the
8
Board of Trustees may determine in its sole discretion, without the need for
Shareholder action, so as to add to, delete, replace or otherwise modify any
provisions relating to the Shares contained in this Declaration of Trust,
provided that before adopting any such amendment without Shareholder approval,
the Board of Trustees shall determine that it is consistent with the fair and
equitable treatment of all Shareholders and that Shareholder approval is not
otherwise required by the 1940 Act or other applicable law. If Shares have been
issued, Shareholder approval shall be required to adopt any amendments to this
Declaration of Trust which would adversely affect to a material degree the
rights and preferences of the Shares of any Series or Class already issued;
provided, however, that in the event that the Board of Trustees determines that
the Trust shall no longer be operated as an investment company in accordance
with the provisions of the 1940 Act, the Board of Trustees may adopt such
amendments to this Declaration of Trust to delete those terms the Board of
Trustees identifies as being required by the 1940 Act.
Subject to the foregoing Paragraph, the Board of Trustees may amend the
Declaration of Trust to amend any of the provisions set forth in paragraphs (a)
through (i) of Section 6 of this Article III.
The Board of Trustees shall have the power, in its discretion, to make
such elections as to the tax status of the Trust as may be permitted or required
under the Code as presently in effect or as amended, without the vote of any
Shareholder.
Section 6. Establishment and Designation of Series or Class. The
establishment and designation of any Series or Class of Shares shall be
effective upon the resolution by a majority of the then Board of Trustees,
adopting a resolution which sets forth such establishment and designation and
the relative rights and preferences of such Series or Class. Each such
resolution shall be incorporated herein by reference upon adoption.
Each Series shall be separate and distinct from any other Series and
shall maintain separate and distinct records on the books of the Trust, and the
assets and liabilities belonging to any such Series shall be held and accounted
for separately from the assets and liabilities of the Trust or any other Series.
Shares of each Series or Class established pursuant to this Section 6,
unless otherwise provided in the resolution establishing such Series or Class,
shall have the following relative rights and preferences:
(a) Assets Held with Respect to a Particular Series. All
consideration received by the Trust for the issue or sale of Shares of a
particular Series, together with all assets in which such consideration is
invested or reinvested, all income, earnings, profits, and proceeds thereof from
whatever source derived, including, without limitation, any proceeds derived
from the sale, exchange or liquidation of such assets, and any funds or payments
derived from any reinvestment of such proceeds in whatever form the same may be,
shall irrevocably be held with respect to that Series for all purposes, subject
only to the rights of creditors with respect to that Series, and shall be so
recorded upon the books of account of the Trust. Such consideration, assets,
income, earnings, profits and proceeds thereof, from whatever source derived,
including, without limitation, any proceeds derived from the sale, exchange or
liquidation of such assets,
9
and any funds or payments derived from any reinvestment of such proceeds, in
whatever form the same may be, are herein referred to as "assets held with
respect to" that Series. In the event that there are any assets, income,
earnings, profits and proceeds thereof, funds or payments which are not readily
identifiable as assets held with respect to any particular Series (collectively
"General Assets"), the Board of Trustees shall allocate such General Assets to,
between or among any one or more of the Series in such manner and on such basis
as the Board of Trustees, in its sole discretion, deems fair and equitable, and
any General Asset so allocated to a particular Series shall be held with respect
to that Series. Each such allocation by the Board of Trustees shall be
conclusive and binding upon the Shareholders of all Series for all purposes.
(b) Liabilities Held with Respect to a Particular Series. The
assets of the Trust held with respect to each particular Series shall be charged
against the liabilities of the Trust held with respect to that Series and all
expenses, costs, charges and reserves attributable to that Series, and any
liabilities, expenses, costs, charges and reserves of the Trust which are not
readily identifiable as being held with respect to any particular Series
(collectively "General Liabilities") shall be allocated and charged by the Board
of Trustees to and among any one or more of the Series in such manner and on
such basis as the Board of Trustees in its sole discretion deems fair and
equitable. The liabilities, expenses, costs, charges, and reserves so charged to
a Series are herein referred to as "liabilities held with respect to" that
Series. Each allocation of liabilities, expenses, costs, charges and reserves by
the Board of Trustees shall be conclusive and binding upon the Shareholders of
all Series for all purposes. All Persons who have extended credit which has been
allocated to a particular Series, or who have a claim or contract which has been
allocated to any particular Series, shall look, and shall be required by
contract to look exclusively, to the assets of that particular Series for
payment of such credit, claim, or contract. In the absence of an express
contractual agreement so limiting the claims of such creditors, claimants and
contract providers, each creditor, claimant and contract provider will be deemed
nevertheless to have impliedly agreed to such limitation.
Subject to the right of the Board of Trustees in its discretion to
allocate General Liabilities as provided herein, the debts, liabilities,
obligations and expenses incurred, contracted for or otherwise existing with
respect to a particular Series, whether such Series is now authorized and
existing pursuant to this Declaration of Trust or is hereafter authorized and
existing pursuant to this Declaration of Trust, shall be enforceable against the
assets held with respect to that Series only, and not against the assets of any
other Series or the Trust generally and none of the debts, liabilities,
obligations and expenses incurred, contracted for or otherwise existing with
respect to the Trust generally or any other Series thereof shall be enforceable
against the assets held with respect to such Series. Notice of this limitation
on liabilities between and among Series shall be set forth in the Certificate of
Trust of the Trust (whether originally or by amendment) as filed or to be filed
in the Office of the Secretary of State of the State of Delaware pursuant to the
DSTA, and upon the giving of such notice in the Certificate of Trust, the
statutory provisions of Section 3804 of the DSTA relating to limitations on
liabilities between and among Series (and the statutory effect under Section
3804 of setting forth such notice in the Certificate of Trust) shall become
applicable to the Trust and each Series.
(c) Dividends, Distributions, Redemptions and Repurchases.
Notwithstanding any other provisions of this Declaration of Trust, including,
without limitation, Article VI, no dividend or distribution including, without
limitation, any distribution paid upon
10
dissolution of the Trust or of any Series with respect to, nor any redemption or
repurchase of, the Shares of any Series or Class shall be effected by the Trust
other than from the assets held with respect to such Series, nor, except as
specifically provided in Section 7 of this Article III, shall any Shareholder of
any particular Series otherwise have any right or claim against the assets held
with respect to any other Series or the Trust generally except to the extent
that such Shareholder has such a right or claim hereunder as a Shareholder of
such other Series. The Board of Trustees shall have full discretion, to the
extent not inconsistent with the 1940 Act, to determine which items shall be
treated as income and which items as capital; and each such determination and
allocation shall be conclusive and binding upon the Shareholders.
(d) Voting. All Shares of the Trust entitled to vote on a matter
shall vote on the matter, separately by Series and, if applicable, by Class,
subject to: (1) where the 1940 Act requires all Shares of the Trust to be voted
in the aggregate without differentiation between the separate Series or Classes,
then all of the Trust's Shares shall vote in the aggregate; and (2) if any
matter affects only the interests of some but not all Series or Classes, then
only the Shareholders of such affected Series or Classes shall be entitled to
vote on the matter.
(e) Equality. All Shares of each particular Series shall
represent an equal proportionate undivided beneficial interest in the assets
held with respect to that Series (subject to the liabilities held with respect
to that Series and such rights and preferences as may have been established and
designated with respect to Classes of Shares within such Series), and each Share
of any particular Series shall be equal to each other Share of that Series
(subject to the rights and preferences with respect to separate Classes of such
Series).
(f) Fractions. Any fractional Share of a Series shall carry
proportionately all the rights and obligations of a whole Share of that Series,
including rights with respect to voting, receipt of dividends and distributions,
redemption of Shares and dissolution of the Trust or that Series.
(g) Exchange Privilege. The Board of Trustees shall have the
authority to provide that the holders of Shares of any Series or Class shall
have the right to exchange said Shares for Shares of one or more other Series or
Class of the Trust or of other investment companies registered under the 1940
Act in accordance with such requirements and procedures as may be established by
the Board of Trustees.
(h) Combination of Series or Classes. The Board of Trustees
shall have the authority, without the approval of the Shareholders of any Series
or Class unless otherwise required by applicable law, to combine the assets and
liabilities held with respect to any two or more Series or Classes into assets
and liabilities held with respect to a single Series or Class.
Section 7. Indemnification of Shareholders. If any Shareholder or
former Shareholder shall be exposed to liability by reason of a claim or demand
relating solely to his or her being or having been a Shareholder of the Trust
(or by having been a Shareholder of a particular Series), and not because of
such Person's acts or omissions, the Shareholder or former Shareholder (or, in
the case of a natural person, his or her heirs, executors, administrators, or
other legal representatives or, in the case of a corporation or other entity,
its corporate or other general successor) shall be entitled to be held harmless
from and indemnified out of the assets of
11
the Trust or out of the assets of the applicable Series (as the case may be)
against all loss and expense arising from such claim or demand; provided,
however, there shall be no liability or obligation of the Trust (or any
particular Series) arising hereunder to reimburse any Shareholder for taxes paid
by reason of such Shareholder's ownership of any Shares.
ARTICLE IV
The Board of Trustees
Section 1. Number, Election and Tenure. The number of Trustees
constituting the Board of Trustees may be fixed from time to time by a written
instrument signed, or by resolution approved at a duly constituted meeting, by a
majority of the Board of Trustees, provided, however, that the number of
Trustees shall in no event be less than one (1) nor more than fifteen (15). The
Board of Trustees, by action of a majority of the then Trustees at a duly
constituted meeting, may fill vacancies in the Board of Trustees or remove any
Trustee with or without cause. The Shareholders may elect Trustees, including
filling any vacancies in the Board of Trustees, at any meeting of Shareholders
called by the Board of Trustees for that purpose. A meeting of Shareholders for
the purpose of electing one or more Trustees may be called by the Board of
Trustees or, to the extent provided by the 1940 Act and the rules and
regulations thereunder, by the Shareholders. Shareholders shall have the power
to remove a Trustee only to the extent provided by the 1940 Act and the rules
and regulations thereunder.
Each Trustee shall serve during the continued lifetime of the Trust
until he or she dies, resigns, is declared bankrupt or incompetent by a court of
appropriate jurisdiction, or is removed, or, if sooner than any of such events,
until the next meeting of Shareholders called for the purpose of electing
Trustees and until the election and qualification of his or her successor. Any
Trustee may resign at any time by written instrument signed by him or her and
delivered to any officer of the Trust or to a meeting of the Board of Trustees.
Such resignation shall be effective upon receipt unless specified to be
effective at some later time. Except to the extent expressly provided in a
written agreement with the Trust, no Trustee resigning and no Trustee removed
shall have any right to any compensation for any period following any such event
or any right to damages on account of such events or any actions taken in
connection therewith following his or her resignation or removal.
Section 2. Effect of Death, Resignation, Removal, etc. of a Trustee.
The death, declination, resignation, retirement, removal, declaration as
bankrupt or incapacity of one or more Trustees, or of all of them, shall not
operate to dissolve the Trust or any Series or to revoke any existing agency
created pursuant to the terms of this Declaration of Trust. Whenever a vacancy
in the Board of Trustees shall occur, until such vacancy is filled as provided
in this Article IV, Section 1, the Trustee(s) in office, regardless of the
number, shall have all the powers granted to the Board of Trustees and shall
discharge all the duties imposed upon the Board of Trustees by this Declaration
of Trust. In the event of the death, declination, resignation, retirement,
removal, declaration as bankrupt or incapacity of all of the then Trustees, the
Trust's Investment Adviser(s) is (are) empowered to appoint new Trustees subject
to the provisions of Section 16(a) of the 1940 Act.
Section 3. Powers. Subject to the provisions of this Declaration of
Trust, the business of the Trust shall be managed by the Board of Trustees, and
such Board of Trustees
12
shall have all powers necessary or convenient to carry out that responsibility,
including, without limitation, the power to engage in securities or other
transactions of all kinds on behalf of the Trust. The Board of Trustees shall
have full power and authority to do any and all acts and to make and execute any
and all contracts and instruments that it may consider necessary or appropriate
in connection with the administration of the Trust. The Trustees shall not be
bound or limited by present or future laws or customs with regard to investment
by trustees or fiduciaries, but shall have full authority and absolute power and
control over the assets of the Trust and the business of the Trust to the same
extent as if the Trustees were the sole owners of the assets of the Trust and
the business in their own right, including such authority, power and control to
do all acts and things as they, in their sole discretion, shall deem proper to
accomplish the purposes of this Trust. Without limiting the foregoing, the
Trustees may: (1) adopt, amend and repeal By-Laws not inconsistent with this
Declaration of Trust providing for the regulation and management of the affairs
of the Trust; (2) fill vacancies in or remove from their number in accordance
with this Declaration of Trust or the By-Laws, and may elect and remove such
officers and appoint and terminate such agents as they consider appropriate; (3)
appoint from their own number and establish and terminate one or more committees
consisting of two or more Trustees which may exercise the powers and authority
of the Board of Trustees to the extent that the Board of Trustees determine; (4)
employ one or more custodians of the Trust Property and may authorize such
custodians to employ subcustodians and to deposit all or any part of such Trust
Property in a system or systems for the central handling of securities or with a
Federal Reserve Bank; (5) retain a transfer agent, dividend disbursing agent, a
shareholder servicing agent or administrative services agent, or all of them;
(6) provide for the issuance and distribution of Shares by the Trust directly or
through one or more Principal Underwriters or otherwise; (7) retain one or more
Investment Adviser(s); (8) redeem, repurchase and transfer Shares pursuant to
applicable law; (9) set record dates for the determination of Shareholders with
respect to various matters, in the manner provided in Article V, Section 5 of
this Declaration of Trust; (10) declare and pay dividends and distributions to
Shareholders from the Trust Property; (11) establish from time to time, in
accordance with the provisions of Article III, Section 6 hereof, any Series or
Class of Shares, each such Series to operate as a separate and distinct
investment medium and with separately defined investment objectives and policies
and distinct investment purposes; and (12) in general delegate such authority as
they consider desirable to any officer of the Trust, to any committee of the
Board of Trustees and to any agent or employee of the Trust or to any such
custodian, transfer, dividend disbursing or shareholder servicing agent,
Principal Underwriter or Investment Adviser. Any determination as to what is in
the best interests of the Trust made by the Board of Trustees in good faith
shall be conclusive.
In construing the provisions of this Declaration of Trust, the
presumption shall be in favor of a grant of power to the Trustees. Unless
otherwise specified herein or required by law, any action by the Board of
Trustees shall be deemed effective if approved or taken by a majority of the
Trustees then in office.
Any action required or permitted to be taken by the Board of Trustees,
or a committee thereof, may be taken without a meeting if a majority of the
members of the Board of Trustees, or committee thereof, as the case may be,
shall individually or collectively consent in writing to that action. Such
action by written consent shall have the same force and effect as a majority
vote of the Board of Trustees, or committee thereof, as the case may be. Such
written consent or
13
consents shall be filed with the minutes of the proceedings of the Board of
Trustees, or committee thereof, as the case may be.
The Trustees shall devote to the affairs of the Trust such time as may
reasonably be necessary for the proper performance of their duties hereunder,
but neither the Trustees nor the officers, directors, shareholders or partners
of the Trustees, shall be expected to devote their full time to the performance
of such duties. The Trustees, or any Affiliate shareholder, officer, director,
partner or employee thereof, or any Person owning a legal or beneficial interest
therein, may engage in or possess an interest in any other business or venture
of any nature and description, independently or with or for the account of
others.
Section 4. Payment of Expenses by the Trust. The Board of Trustees is
authorized to pay or cause to be paid out of the principal or income of the
Trust or any particular Series or Class, or partly out of the principal and
partly out of the income of the Trust or any particular Series or Class, and to
charge or allocate the same to, between or among such one or more of the Series
or Classes that may be established or designated pursuant to Article III,
Section 6, as it deems fair, all expenses, fees, charges, taxes and liabilities
incurred by or arising in connection with the maintenance or operation of the
Trust or a particular Series or Class, or in connection with the management
thereof, including, but not limited to, the Trustees' compensation and such
expenses, fees, charges, taxes and liabilities for the services of the Trust's
officers, employees, Investment Adviser, Principal Underwriter, auditors,
counsel, custodian, sub-custodian (if any), transfer agent, dividend disbursing
agent, shareholder servicing agent, and such other agents or independent
contractors and such other expenses, fees, charges, taxes and liabilities as the
Board of Trustees may deem necessary or proper to incur.
Section 5. Payment of Expenses by Shareholders. The Board of Trustees
shall have the power, as frequently as it may determine, to cause each
Shareholder of the Trust, or each Shareholder of any particular Series, to pay
directly, in advance or arrears, for charges of the Trust's custodian or
transfer, dividend disbursing, shareholder servicing or similar agent, or for
other expenses that may properly be borne by Shareholders, an amount fixed from
time to time by the Board of Trustees, by setting off such charges due from such
Shareholder from declared but unpaid dividends or distributions owed such
Shareholder and/or by reducing the number of Shares in the account of such
Shareholder by that number of full and/or fractional Shares which represents the
outstanding amount of such charges due from such Shareholder.
Section 6. Ownership of Trust Property. Legal title to all of the Trust
Property shall at all times be considered to be vested in the Trust, except that
the Board of Trustees shall have the power to cause legal title to any Trust
Property to be held by or in the name of any Person as nominee, on such terms as
the Board of Trustees may determine, in accordance with applicable law.
Section 7. Service Contracts.
(a) Subject to such requirements and restrictions as may be set
forth in the By-Laws and/or the 1940 Act, the Board of Trustees may, at any time
and from time to time, contract for exclusive or nonexclusive advisory,
management and/or administrative services for the Trust or for any Series with
any corporation, trust, association or other organization,
14
including any Affiliate; and any such contract may contain such other terms as
the Board of Trustees may determine, including without limitation, authority for
the Investment Adviser or administrator to determine from time to time without
prior consultation with the Board of Trustees what securities and other
instruments or property shall be purchased or otherwise acquired, owned, held,
invested or reinvested in, sold, exchanged, transferred, mortgaged, pledged,
assigned, negotiated, or otherwise dealt with or disposed of, and what portion,
if any, of the Trust Property shall be held uninvested and to make changes in
the Trust's or a particular Series' investments, or such other activities as may
specifically be delegated to such party.
(b) The Board of Trustees may also, at any time and from time to
time, contract with any corporation, trust, association or other organization,
including any Affiliate, appointing it or them as the exclusive or nonexclusive
distributor or Principal Underwriter for the Shares of the Trust or one or more
of the Series or Classes thereof or for other securities to be issued by the
Trust, or appointing it or them to act as the custodian, transfer agent,
dividend disbursing agent and/or shareholder servicing agent for the Trust or
one or more of the Series or Classes thereof.
(c) The Board of Trustees is further empowered, at any time and
from time to time, to contract with any Persons to provide such other services
to the Trust or one or more of its Series, as the Board of Trustees determines
to be in the best interests of the Trust or one or more of its Series.
(d) The fact that:
(i) any of the Shareholders, Trustees, employees or officers
of the Trust is a shareholder, director, officer, partner, trustee, employee,
manager, Adviser, Principal Underwriter, distributor, or Affiliate or agent of
or for any corporation, trust, association, or other organization, or for any
parent or Affiliate of any organization with which an Adviser's, management or
administration contract, or Principal Underwriter's or distributor's contract,
or custodian, transfer, dividend disbursing, shareholder servicing or other type
of service contract may have been or may hereafter be made, or that any such
organization, or any parent or Affiliate thereof, is a Shareholder or has an
interest in the Trust, or that
(ii) any corporation, trust, association or other
organization with which an Adviser's, management or administration contract or
Principal Underwriter's or distributor's contract, or custodian, transfer,
dividend disbursing, shareholder servicing or other type of service contract may
have been or may hereafter be made also has an Adviser's, management or
administration contract, or Principal Underwriter's or distributor's contract,
or custodian, transfer, dividend disbursing, shareholder servicing or other
service contract with one or more other corporations, trusts, associations, or
other organizations, or has other business or interests, shall not affect the
validity of any such contract or disqualify any Shareholder, Trustee, employee
or officer of the Trust from voting upon or executing the same, or create any
liability or accountability to the Trust or its Shareholders, provided that the
establishment of and performance under each such contract is permissible under
the provisions of the 1940 Act.
(e) Every contract referred to in this Section 7 shall comply
with such requirements and restrictions as may be set forth in the By-Laws, the
1940 Act or stipulated by
15
resolution of the Board of Trustees; and any such contract may contain such
other terms as the Board of Trustees may determine.
ARTICLE V
Shareholders' Voting Powers and Meetings
Section 1. Voting Powers. Subject to the provisions of Article III,
Section 6(d), the Shareholders shall have power to vote only (i) for the
election of Trustees, including the filling of any vacancies in the Board of
Trustees, as provided in Article IV, Section 1; (ii) with respect to such
additional matters relating to the Trust as may be required by this Declaration
of Trust, the By-Laws, the 1940 Act or any registration statement of the Trust
filed with the Commission; and (iii) on such other matters as the Board of
Trustees may consider necessary or desirable. The Shareholder of record (as of
the record date established pursuant to Section 5 of this Article V) of each
Share shall be entitled to one vote for each full Share, and a fractional vote
for each fractional Share. Shareholders shall not be entitled to cumulative
voting in the election of Trustees or on any other matter. Shares may be voted
in person or by proxy.
Section 2. Meetings. Meetings of the Shareholders may be called by the
Board of Trustees for the purpose of electing Trustees as provided in Article
IV, Section 1 and for such other purposes as may be prescribed by law, by this
Declaration of Trust or by the By-Laws. Meetings of the Shareholders may also be
called by the Board of Trustees from time to time for the purpose of taking
action upon any other matter deemed by the Board of Trustees to be necessary or
desirable. The Trust is not required to hold annual meetings of the
Shareholders.
Section 3. Quorum and Required Vote. Except when a larger quorum is
required by applicable law, by the By-Laws or by this Declaration of Trust,
thirty-three and one-third percent (33-1/3%) of the Shares present in person or
represented by proxy and entitled to vote at a Shareholders' meeting shall
constitute a quorum at such meeting. When a separate vote by one or more Series
or Classes is required, thirty-three and one-third percent (33-1/3%) of the
Shares of each such Series or Class present in person or represented by proxy
and entitled to vote shall constitute a quorum at a Shareholders' meeting of
such Series or Class. Subject to the provisions of Article III, Section 6(d),
Article VIII, Section 4 and any other provision of this Declaration of Trust,
the By-Laws or applicable law which requires a different vote: (1) in all
matters other than the election of Trustees, the affirmative vote of the
majority of votes cast at a Shareholders' meeting at which a quorum is present
shall be the act of the Shareholders; (2) Trustees shall be elected by a
plurality of the votes cast at a Shareholders' meeting at which a quorum is
present.
Section 4. Shareholder Action by Written Consent without a Meeting. Any
action which may be taken at any meeting of Shareholders may be taken without a
meeting and without prior notice if a consent in writing setting forth the
action so taken is signed by the holders of Shares having not less than the
minimum number of votes that would be necessary to authorize or take that action
at a meeting at which all Shares entitled to vote on that action were present
and voted. All such consents shall be filed with the secretary of the Trust and
shall be maintained in the Trust's records. Any Shareholder giving a written
consent or the Shareholder's proxy holders or a transferee of the Shares or a
personal representative of the Shareholder or its respective proxy-holder may
revoke the consent by a writing received by the
16
secretary of the Trust before written consents of the number of Shares required
to authorize the proposed action have been filed with the secretary.
If the consents of all Shareholders entitled to vote have not been
solicited in writing and if the unanimous written consent of all such
Shareholders shall not have been received, the secretary shall give prompt
notice of the action taken without a meeting to such Shareholders. This notice
shall be given in the manner specified in the By-Laws.
Section 5. Record Dates. For purposes of determining the Shareholders
entitled to notice of any meeting or to vote or entitled to give consent to
action without a meeting, the Board of Trustees may fix a record date which
shall not be more than one hundred eighty (180) days nor less than seven (7)
days before the date of any such meeting.
If the Board of Trustees does not so fix a record date:
(a) The record date for determining Shareholders entitled to
notice of or to vote at a meeting of Shareholders shall be at the close of
business on the business day next preceding the day on which notice is given or,
if notice is waived, at the close of business on the business day which is five
(5) business days next preceding to the day on which the meeting is held.
(b) The record date for determining Shareholders entitled to
give consent to action in writing without a meeting, (i) when no prior action by
the Board of Trustees has been taken, shall be the day on which the first
written consent is given, or (ii) when prior action of the Board of Trustees has
been taken, shall be at the close of business on the day on which the Board of
Trustees adopts the resolution taking such prior action or the seventy-fifth
(75th) day before the date of such other action, whichever is later.
For the purpose of determining the Shareholders of any Series or Class
who are entitled to receive payment of any dividend or of any other
distribution, the Board of Trustees may from time to time fix a date, which
shall be before the date for the payment of such dividend or such other
distribution, as the record date for determining the Shareholders of such Series
or Class having the right to receive such dividend or distribution. Nothing in
this Section shall be construed as precluding the Board of Trustees from setting
different record dates for different Series or Classes.
Section 6. Additional Provisions. The By-Laws may include further
provisions for Shareholders' votes, meetings and related matters.
ARTICLE VI
Net Asset Value, Distributions and Redemptions
Section 1. Determination of Net Asset Value, Net Income and
Distributions. Subject to Article III, Section 6 hereof, the Board of Trustees
shall have the power to fix an initial offering price for the Shares of any
Series or Class thereof which shall yield to such Series or Class not less than
the net asset value thereof, at which price the Shares of such Series or Class
shall be offered initially for sale, and to determine from time to time
thereafter the offering price which shall yield to such Series or Class not less
than the net asset value thereof from sales of the
17
Shares of such Series or Class; provided, however, that no Shares of a Series or
Class thereof shall be issued or sold for consideration which shall yield to
such Series or Class less than the net asset value of the Shares of such Series
or Class next determined after the receipt of the order (or at such other times
set by the Board of Trustees), except in the case of Shares of such Series or
Class issued in payment of a dividend properly declared and payable. Nothing in
the foregoing shall prevent the Principal Underwriter from, pursuant to its
agreement with the Trust, imposing a sales charge upon investments in the Trust.
Subject to Article III, Section 6 hereof, the Board of Trustees, in
their absolute discretion, may prescribe and shall set forth in the By-laws or
in a duly adopted vote of the Board of Trustees such bases and time for
determining the per Share or net asset value of the Shares of any Series or net
income attributable to the Shares of any Series, or the declaration and payment
of dividends and distributions on the Shares of any Series, as they may deem
necessary or desirable.
Section 2. Redemptions at the Option of a Shareholder. Unless otherwise
provided in the prospectus of the Trust relating to the Shares, as such
prospectus may be amended from time to time ("Prospectus"):
(a) The Trust shall purchase such Shares as are offered by any
Shareholder for redemption, upon the presentation of a proper instrument of
transfer together with a request directed to the Trust or a Person designated by
the Trust that the Trust purchase such Shares or in accordance with such other
procedures for redemption as the Board of Trustees may from time to time
authorize; and the Trust will pay therefor the net asset value thereof, subject
to any contingent deferred sales charge or redemption fee in effect at the time
of redemption, in accordance with the By-Laws and applicable law. Payment for
said Shares shall be made by the Trust to the Shareholder within seven days
after the date on which the request is received in proper form. The obligation
set forth in this Section 2 is subject to the provision that in the event that
any time the New York Stock Exchange (the "Exchange") is closed for other than
weekends or holidays, or if permitted by the Rules of the Commission during
periods when trading on the Exchange is restricted or during any National
Financial Emergency which makes it impracticable for the Trust to dispose of the
investments of the applicable Series or to determine fairly the value of the net
assets held with respect to such Series or during any other period permitted by
order of the Commission for the protection of investors, such obligations may be
suspended or postponed by the Board of Trustees. If certificates have been
issued to a Shareholder, any such request by such Shareholder must be
accompanied by surrender of any outstanding certificate or certificates for such
Shares in form for transfer, together with such proof of the authenticity of
signatures as may reasonably be required on such Shares and accompanied by
proper stock transfer stamps, if applicable.
(b) Payments for Shares so redeemed by the Trust shall be made
in cash, except payment for such Shares may, at the option of the Board of
Trustees, or such officer or officers as it may duly authorize in its complete
discretion, be made in kind or partially in cash and partially in kind. In case
of any payment in kind, the Board of Trustees, or its delegate, shall have
absolute discretion as to what security or securities of the Trust shall be
distributed in kind and the amount of the same; and the securities shall be
valued for purposes of distribution at the value at which they were appraised in
computing the then current net asset value of the Shares,
18
provided that any Shareholder who cannot legally acquire securities so
distributed in kind by reason of the prohibitions of the 1940 Act or the
provisions of the Employee Retirement Income Security Act ("ERISA") shall
receive cash. Shareholders shall bear the expenses of in-kind transactions,
including, but not limited to, transfer agency fees, custodian fees and costs of
disposition of such securities.
(c) Payment for Shares so redeemed by the Trust shall be made
by the Trust as provided above within seven days after the date on which the
redemption request is received in good order; provided, however, that if payment
shall be made other than exclusively in cash, any securities to be delivered as
part of such payment shall be delivered as promptly as any necessary transfers
of such securities on the books of the several corporations whose securities are
to be delivered practicably can be made, which may not necessarily occur within
such seven day period. Moreover, redemptions may be suspended in the event of a
National Financial Emergency. In no case shall the Trust be liable for any delay
of any corporation or other Person in transferring securities selected for
delivery as all or part of any payment in kind.
(d) The right of Shareholders to receive dividends or other
distributions on Shares may be set forth in a Plan adopted by the Board of
Trustees and amended from time to time pursuant to Rule 18f-3 of the 1940 Act.
The right of any Shareholder of the Trust to receive dividends or other
distributions on Shares redeemed and all other rights of such Shareholder with
respect to the Shares so redeemed by the Trust, except the right of such
Shareholder to receive payment for such Shares, shall cease at the time as of
which the purchase price of such Shares shall have been fixed, as provided
above.
Section 3. Redemptions at the Option of the Trust. The Trust shall, to
the extent permitted by applicable law, have the right to redeem the Shares
owned by any holder thereof at any time, without the vote or consent of the
Shareholders, for reasons including, but not limited to, the following:
(i) in connection with the termination of any Series or
Class of Shares;
(ii) because the value of such Shares in the account or
accounts maintained by the Trust or its transfer agent for such Series or Class
of Shares is less than the value determined from time to time by the Board of
Trustees as the minimum required for an account or accounts of such Series or
Class; provided that the Trust shall provide a Shareholder with written notice
prior to effecting a redemption of Shares as a result of not satisfying such
requirement;
(iii) because the Shareholder fails to pay when due the full
purchase price of Shares issued to him;
(iv) because the Shareholder fails to disclose to the Trust
in writing upon demand such information with respect to direct and indirect
ownership of Shares and the beneficial owner(s) thereof as the Trust deems
necessary or appropriate to comply with the provisions of the Code, or to comply
with the requirements of any governmental authority or applicable law or
regulation; or
19
(v) pursuant to any other policy, procedure or plan
established by the Board of Trustees that contemplates the redemption of Shares
or the closing of any Shareholder account.
ARTICLE VII
Compensation and Limitation of Liability of Officers and Trustees
Section 1. Compensation. Except as set forth in the last sentence of
this Section 1, the Board of Trustees may, from time to time, fix the amount of
compensation to be paid by the Trust to the Trustees and officers of the Trust.
Nothing herein shall in any way prevent the employment of any Trustee for
advisory, management, legal, accounting, investment banking or other services
and payment for the same by the Trust.
Section 2. Indemnification and Limitation of Liability.
(a) To the fullest extent that limitations on the liability of
Trustees and officers are permitted by the DSTA, the officers and Trustees shall
not be responsible or liable in any event for any act or omission of: any agent
or employee of the Trust; any Investment Adviser or Principal Underwriter of the
Trust; or with respect to each Trustee and officer, the act or omission of any
other Trustee or officer, respectively. The Trust, out of the Trust Property,
shall indemnify and hold harmless each and every officer and Trustee from and
against any and all claims and demands whatsoever arising out of or related to
such officer's or Trustee's performance of his or her duties as an officer or
Trustee of the Trust. This limitation on liability applies to events occurring
at the time a Person serves as a Trustee or officer of the Trust whether or not
such Person is a Trustee or officer at the time of any proceeding in which
liability is asserted. Nothing herein contained shall indemnify, hold harmless
or protect any officer or Trustee from or against any liability to the Trust or
any Shareholder to which such Person would otherwise be subject by reason of
willful misfeasance, bad faith, gross negligence or reckless disregard of the
duties involved in the conduct of such Person's office.
(b) Every note, bond, contract, instrument, certificate or
undertaking and every other act or document whatsoever issued, executed or done
by or on behalf of the Trust, the officers or the Trustees or any of them in
connection with the Trust shall be conclusively deemed to have been issued,
executed or done only in such Person's capacity as Trustee and/or as officer,
and such Trustee or officer, as applicable, shall not be personally liable
therefore, except as described in the last sentence of the first paragraph of
this Section 2 of this Article VII.
Section 3. Officers and 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. An officer or Trustee shall
be liable to the Trust and to any Shareholder solely for such officer's or
Trustee's own willful misfeasance, bad faith, gross negligence or reckless
disregard of the duties involved in the conduct of the office of such officer or
Trustee, and for nothing else, and shall not be liable for errors of judgment or
mistakes of fact or law. The officers and Trustees may obtain the advice of
counsel or other experts with respect to the meaning and operation of this
Declaration of Trust and their duties as officers or Trustees. No such officer
or Trustee shall be liable for any act or omission in accordance with such
advice and no inference concerning liability shall arise from a failure to
follow such advice. The
20
officers and Trustees shall not be required to give any bond as such, nor any
surety if a bond is required.
Section 4. Insurance. To the fullest extent permitted by applicable
law, the officers and Trustees shall be entitled and have the authority to
purchase with Trust Property, insurance for liability and for all expenses
reasonably incurred or paid or expected to be paid by a Trustee or officer in
connection with any claim, action, suit or proceeding in which such Person
becomes involved by virtue of such Person's capacity or former capacity with the
Trust, whether or not the Trust would have the power to indemnify such Person
against such liability under the provisions of this Article.
ARTICLE VIII
Miscellaneous
Section 1. Liability of Third Persons Dealing with Trustees. No person
dealing with the Trustees shall be bound to make any inquiry concerning the
validity of any actions made or to be made by the Trustees.
Section 2. Derivative Actions.
(a) Shareholders of the Trust or any Series may not bring a
derivative action to enforce the right of the Trust or an affected Series, as
applicable, unless each of the following conditions is met:
(i) Each complaining Shareholder was a Shareholder of the
Trust or the affected Series, as applicable, at the time of the action or
failure to act complained of, or acquired the Shares afterwards by operation of
law from a Person who was a Shareholder at that time;
(ii) Each complaining Shareholder was a Shareholder of the
Trust or the affected Series, as applicable, as of the time the demand required
by subparagraph (iii) below was made;
(iii) Prior to the commencement of such derivative action,
the complaining Shareholders have made a written demand to the Board of Trustees
requesting that they cause the Trust or affected Series, as applicable, to file
the action itself. In order to warrant consideration, any such written demand
must include at least the following:
(1) a detailed description of the action or
failure to act complained of and the facts upon which each such allegation is
made;
(2) a statement to the effect that the complaining
Shareholders believe that they will fairly and adequately represent the
interests of similarly situated Shareholders in enforcing the right of the Trust
or the affected Series, as applicable and a explanation of why the complaining
Shareholders believe that to be the case;
21
(3) a certification that the requirements of
sub-paragraphs (i) and (ii) have been met, as well as information reasonably
designed to allow the Trustees to verify that certification; and
(4) a certification that each complaining
Shareholder will be a Shareholder of the Trust or the affected Series, as
applicable as of the commencement of the derivative action;
(iv) At least 10% of the Shareholders of the Trust or the
affected Series, as applicable, must join in bringing the derivative action; and
(v) A copy of the derivative complaint must be served on the
Trust, assuming the requirements of sub-paragraphs (i)-(iv) above have already
been met and the derivative action has not been barred in accordance with
paragraph (b)(ii) below.
(b) Demands for derivative action submitted in accordance with
the requirements above will be considered by those Trustees who are not deemed
to be Interested Persons of the Trust. Within 30 calendar days of the receipt of
such demand by the Board of Trustees, those Trustees who are not deemed to be
Interested Persons of the Trust will consider the merits of the claim and
determine whether maintaining a suit would be in the best interests of the Trust
or the affected Series, as applicable. Trustees that are not deemed to be
Interested Persons of the Trust are deemed independent for all purposes,
including for the purpose of approving or dismissing a derivative action.
(i) If the demand for derivative action has not been
considered within 30 calendar days of the receipt of such demand by the Board of
Trustees, a decision communicated to the complaining Shareholder within the time
permitted by sub-paragraph (ii) below, and sub-paragraphs (i)-(iv) of paragraph
(a) above have been met, the complaining Shareholders shall not be barred by
this Declaration of Trust from commencing a derivative action.
(ii) If the demand for derivative action has been considered
by the Board of Trustees, and a majority of those Trustees who are not deemed to
be Interested Persons of the Trust, after considering the merits of the claim,
has determined that maintaining a suit would not be in the best interests of the
Trust or the affected Series, as applicable, the complaining Shareholders shall
be barred from commencing the derivative action. If upon such consideration the
appropriate members of the Board determine that such a suit should be
maintained, then the appropriate officers of the Trust shall commence initiation
of that suit and such suit shall proceed directly rather than derivatively. The
Board of Trustees, or the appropriate officers of the Trust, shall inform the
complaining Shareholders of any decision reached under this sub-paragraph (ii)
in writing within five business days of such decision having been reached.
(c) A Shareholder of a particular Series of the Trust shall not
be entitled to participate in a derivative action on behalf of any other Series
of the Trust.
Section 3. Dissolution of Trust or Any Series or Class. Unless
dissolved as provided herein, the Trust shall have perpetual existence. The
Trust may be dissolved at any time by vote
22
of a majority of the Shares of the Trust entitled to vote or by the Board of
Trustees by written notice to the Shareholders. Any Series or Class may be
dissolved at any time by vote of a majority of the Shares of that Series or
Class, or by the Board of Trustees without such Shareholder approval by written
notice to the Shareholders of that Series or Class.
Upon dissolution of the Trust (or a particular Series or Class, as the
case may be), the Trustees shall (in accordance with ss. 3808 of the DSTA) pay
or make reasonable provision to pay all claims and obligations of each Series or
Class (or the particular Series or Class, as the case may be), including all
contingent, conditional or unmatured claims and obligations known to the Trust,
and all claims and obligations which are known to the Trust but for which the
identity of the claimant is unknown. If there are sufficient assets held with
respect to each Series or Class of the Trust (or the particular Series or Class,
as the case may be), such claims and obligations shall be paid in full and any
such provisions for payment shall be made in full. If there are insufficient
assets held with respect to each Series or Class of the Trust (or the particular
Series or Class, as the case may be), such claims and obligations shall be paid
or provided for according to their priority and, among claims and obligations of
equal priority, ratably to the extent of assets available therefor. Any
remaining assets (including without limitation, cash, securities or any
combination thereof) held with respect to each Series or Class of the Trust (or
the particular Series or Class, as the case may be) shall be distributed to the
Shareholders of such Series or Class, ratably according to the number of Shares
of such Series or Class held by the several Shareholders on the record date for
such dissolution distribution.
Section 4. Merger and Consolidation; Conversion.
(a) Merger and Consolidation. Pursuant to an agreement of merger
or consolidation, the Trust, or any one or more Series, may, by act of a
majority of the Board of Trustees, merge or consolidate with or into one or more
statutory trusts or other business entities formed or organized or existing
under the laws of the State of Delaware or any other state or the United States
or any foreign country or other foreign jurisdiction. Any such merger or
consolidation shall not require the vote of the Shareholders affected thereby,
unless such vote is required by the 1940 Act, or unless such merger or
consolidation would result in an amendment of this Declaration of Trust which
would otherwise require the approval of such Shareholders. In accordance with
Section 3815(f) of the DSTA, an agreement of merger or consolidation may affect
any amendment to this Declaration of Trust or the By-Laws or affect the adoption
of a new declaration of trust or by-laws of the Trust if the Trust is the
surviving or resulting statutory trust. Upon completion of the merger or
consolidation, the Trustees shall file a certificate of merger or consolidation
in accordance with Section 3810 of the DSTA.
(b) Conversion. A majority of the Board of Trustees may, without
the vote or consent of the Shareholders, cause (i) the Trust to convert to a
common-law trust, a general partnership, limited partnership or a limited
liability company organized, formed or created under the laws of the State of
Delaware as permitted pursuant to Section 3821 of the DSTA; (ii) the Shares of
the Trust or any Series to be converted into beneficial interests in another
statutory trust (or series thereof) created pursuant to this Section 3 of this
Article VIII, or (iii) the Shares to be exchanged under or pursuant to any state
or federal statute to the extent permitted by law; provided, however, that if
required by the 1940 Act, no such statutory conversion, Share conversion or
Share exchange shall be effective unless the terms of such transaction shall
first
23
have been approved at a meeting called for that purpose by the "vote of a
majority of the outstanding voting securities," as such phrase is defined in the
1940 Act, of the Trust or Series, as applicable; provided, further, that in all
respects not governed by statute or applicable law, the Board of Trustees shall
have the power to prescribe the procedure necessary or appropriate to accomplish
a sale of assets, merger or consolidation including the power to create one or
more separate statutory trusts to which all or any part of the assets,
liabilities, profits or losses of the Trust may be transferred and to provide
for the conversion of Shares of the Trust or any Series into beneficial
interests in such separate statutory trust or trusts (or series thereof).
(c) No Appraisal or Dissenters' Rights. Shareholders shall have
no rights of dissenting shareholders in the event the Trust participates in any
transaction that would give rise to appraisal or dissenters' rights by a
shareholder of a corporation organized under the laws of the State of Delaware,
or otherwise. Section 5. Reorganization. A majority of the Board of Trustees may
cause the Trust to sell, convey and transfer all or substantially all of the
assets of the Trust, or all or substantially all of the assets associated with
any one or more Series, to another trust, statutory trust, partnership, limited
partnership, limited liability company, association or corporation organized
under the laws of any state, or to one or more separate series thereof, or to
the Trust to be held as assets associated with one or more other Series of the
Trust, in exchange for cash, shares or other securities (including, without
limitation, in the case of a transfer to another Series of the Trust, Shares of
such other Series) with such transfer either (a) being made subject to, or with
the assumption by the transferee of, the liabilities associated with each Series
the assets of which are so transferred, or (b) not being made subject to, or not
with the assumption of, such liabilities; provided, however, that, if required
by the 1940 Act, no assets associated with any particular Series shall be so
sold, conveyed or transferred unless the terms of such transaction shall first
have been approved at a meeting called for that purpose by the "vote of a
majority of the outstanding voting securities," as such phrase is defined in the
1940 Act, of that Series. Following such sale, conveyance and transfer, the
Board of Trustees shall distribute such cash, shares or other securities (giving
due effect to the assets and liabilities associated with and any other
differences among the various Series the assets associated with which have so
been sold, conveyed and transferred) ratably among the Shareholders of the
Series the assets associated with which have been so sold, conveyed and
transferred (giving due effect to the differences among the various Classes
within each such Series); and if all of the assets of the Trust have been so
sold, conveyed and transferred, the Trust shall be dissolved.
Section 6. Amendments. Subject to the provisions of the second
paragraph of this Section 5 of this Article VIII, this Declaration of Trust may
be restated and/or amended at any time by an instrument in writing signed by a
majority of the then Board of Trustees and, if required, by approval of such
amendment by Shareholders in accordance with Article V, Section 3 hereof. Any
such restatement and/or amendment hereto shall be effective immediately upon
execution and approval or upon such future date and time as may be stated
therein. The Certificate of Trust of the Trust may be restated and/or amended by
a similar procedure, and any such restatement and/or amendment shall be
effective immediately upon filing with the Office of the Secretary of State of
the State of Delaware or upon such future date as may be stated therein.
24
Notwithstanding the above, the Board of Trustees expressly reserves the
right to amend or repeal any provisions contained in this Declaration of Trust
or the Certificate of Trust, in accordance with the provisions of Section 5 of
Article III hereof, and all rights, contractual and otherwise, conferred upon
Shareholders are granted subject to such reservation. The Board of Trustees
further expressly reserves the right to amend or repeal any provision of the
By-Laws pursuant to Article IX of the By-Laws.
Section 7. Filing of Copies, References, Headings. The original or a
copy of this Declaration of Trust and of each restatement and/or amendment
hereto shall be kept at the principal executive office of the Trust where it may
be inspected by any Shareholder. Anyone dealing with the Trust may rely on a
certificate by an officer of the Trust as to whether or not any such
restatements and/or amendments have been made and as to any matters in
connection with the Trust hereunder; and, with the same effect as if it were the
original, may rely on a copy certified by an officer of the Trust to be a copy
of this instrument or of any such restatements and/or amendments. In this
Declaration of Trust and in any such restatements and/or amendments, references
to this instrument, and all expressions of similar effect to "herein," "hereof"
and "hereunder," shall be deemed to refer to this instrument as amended or
affected by any such restatements and/or amendments. Headings are placed herein
for convenience of reference only and shall not be taken as a part hereof or
control or affect the meaning, construction or effect of this instrument.
Whenever the singular number is used herein, the same shall include the plural;
and the neuter, masculine and feminine genders shall include each other, as
applicable. This instrument may be executed in any number of counterparts, each
of which shall be deemed an original.
Section 8. Applicable Law. This Declaration of Trust is created under
and is to be governed by and construed and administered according to the laws of
the State of Delaware and the applicable provisions of the 1940 Act and the
Code. The Trust shall be a Delaware statutory trust pursuant to the DSTA, and
without limiting the provisions hereof, the Trust may exercise all powers which
are ordinarily exercised by such a statutory trust.
Section 9. Provisions in Conflict with Law or Regulations.
(a) The provisions of this Declaration of Trust are severable,
and if the Board of Trustees shall determine, with the advice of counsel, that
any of such provisions is in conflict with the 1940 Act, the Code, the DSTA, or
with other applicable laws and regulations, the conflicting provision shall be
deemed not to have constituted a part of this Declaration of Trust from the time
when such provisions became inconsistent with such laws or regulations;
provided, however, that such determination shall not affect any of the remaining
provisions of this Declaration of Trust or render invalid or improper any action
taken or omitted prior to such determination.
(b) If any provision of this Declaration of Trust shall be held
invalid or unenforceable in any jurisdiction, such invalidity or
unenforceability shall attach only to such provision in such jurisdiction and
shall not in any manner affect such provision in any other jurisdiction or any
other provision of this Declaration of Trust in any jurisdiction.
25
Section 10. Statutory Trust Only. It is the intention of the Trustees
to create a statutory trust pursuant to the DSTA, and thereby to create the
relationship of trustee and beneficial owners within the meaning of the DSTA
between the Trustees and each Shareholder. It is not the intention of the
Trustees to create a general or limited partnership, limited liability company,
joint stock association, corporation, bailment, or any form of legal
relationship other than a statutory trust pursuant to the DSTA. Nothing in this
Declaration of Trust shall be construed to make the Shareholders, either by
themselves or with the Trustees, partners or members of a joint stock
association.
Section 11. Writings.
To the fullest extent permitted by applicable laws and regulations:
(a) all requirements in this Declaration of Trust or in the
By-Laws that any action be taken by means of any writing, including, without
limitation, any written instrument, any written consent or any written
agreement, shall be deemed to be satisfied by means of any electronic record in
such form that is acceptable to the Trustees; and
(b) all requirements in this Declaration of Trust or in the
By-Laws that any writing be signed shall be deemed to be satisfied by any
electronic signature in such form that is acceptable to the Trustees.
IN WITNESS WHEREOF, the Trustee named below does hereby make and enter
into this
Declaration of Trust as of the date first above written.
26
