Exhibit 23(a)
THE GABELLI BLUE CHIP VALUE FUND
AGREEMENT
AND DECLARATION OF TRUST
MAY 19, 1999
TABLE OF CONTENTS
ARTICLE I
The Trust
Section 1.1 Name . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
Section 1.2 Definitions . . . . . . . . . . . . . . . . . . . . . . . 2
Section 1.3 Purpose and Powers of Trust . . . . . . . . . . . . . . . 4
ARTICLE II
Trustees
Section 2.1 Number and Qualification . . . . . . . . . . . . . . . . 4
Section 2.2 Term and Election . . . . . . . . . . . . . . . . . . . . 4
Section 2.3 Resignation and Removal . . . . . . . . . . . . . . . . . 5
Section 2.4 Vacancies . . . . . . . . . . . . . . . . . . . . . . . . 5
Section 2.5 Meetings . . . . . . . . . . . . . . . . . . . . . . . . . 6
Section 2.6 Officers . . . . . . . . . . . . . . . . . . . . . . . . . 7
ARTICLE III
Powers and Duties of Trustees
Section 3.1 General . . . . . . . . . . . . . . . . . . . . . . . . . 7
Section 3.2 Investments . . . . . . . . . . . . . . . . . . . . . . . 8
Section 3.3 Legal Title . . . . . . . . . . . . . . . . . . . . . . . 8
Section 3.4 Issuance and Repurchase of Shares . . . . . . . . . . . . 8
Section 3.5 Borrow Money or Utilize Leverage . . . . . . . . . . . . . 9
Section 3.6 Delegation; Committees. . . . . . . . . . . . . . . . . 9
Section 3.7 Collection and Payment. . . . . . . . . . . . . . . . . 9
Section 3.8 Expenses . . . . . . . . . . . . . . . . . . . . . . . . 10
Section 3.9 By-Laws . . . . . . . . . . . . . . . . . . . . . . . . 10
Section 3.10 Miscellaneous Powers . . . . . . . . . . . . . . . . . . 10
Section 3.11 Further Powers . . . . . . . . . . . . . . . . . . . . . 11
ARTICLE IV
Limitations of Liability
and Indemnification
Section 4.1 No Personal Liability of Shareholders, Trustees, etc. . 12
Section 4.2 Mandatory Indemnification . . . . . . . . . . . . . . . 12
Section 4.3 No Duty of Investigation; Notice in Trust
Instruments, etc. . . . . . . . . . . . . . . . . . . 14
Section 4.4 Reliance on Experts, etc . . . . . . . . . . . . . . . . 14
ARTICLE V
Shares of Beneficial Interest
Section 5.1 Beneficial Interest . . . . . . . . . . . . . . . . . . 15
Section 5.2 Series Designation. . . . . . . . . . . . . . . . . . 15
Section 5.3 Class Designation. . . . . . . . . . . . . . . . . . . 15
Section 5.4 Description of Shares . . . . . . . . . . . . . . . . . 16
Section 5.5 Rights of Shareholders. . . . . . . . . . . . . . . . 18
Section 5.6 Trust Only . . . . . . . . . . . . . . . . . . . . . . . 19
Section 5.7 Issuance of Shares . . . . . . . . . . . . . . . . . . . 19
Section 5.8 Register of Shares. . . . . . . . . . . . . . . . . . 19
Section 5.9 Transfer of Shares . . . . . . . . . . . . . . . . . . . 20
Section 5.10 Notices . . . . . . . . . . . . . . . . . . . . . . . . 20
Section 5.11 Net Asset Value . . . . . . . . . . . . . . . . . . . . 20
Section 5.12 Distributions to Shareholders. . . . . . . . . . . . . . 21
ARTICLE VI
Shareholders
Section 6.1 Meetings of Shareholders . . . . . . . . . . . . . . . . 21
Section 6.2 Voting . . . . . . . . . . . . . . . . . . . . . . . . . 22
Section 6.3 Notice of Meeting, Shareholder Proposals and Record
Date . . . . . . . . . . . . . . . . . . . . . . . . . 22
Section 6.4 Quorum and Required Vote . . . . . . . . . . . . . . . . 23
Section 6.5 Proxies, etc. . . . . . . . . . . . . . . . . . . . . . 23
Section 6.6 Reports . . . . . . . . . . . . . . . . . . . . . . . . 24
Section 6.7 Inspection of Records . . . . . . . . . . . . . . . . . 24
Section 6.8 Shareholder Action by Written Consent . . . . . . . . . 24
ARTICLE VII
Redemption
Section 7.1 Redemptions . . . . . . . . . . . . . . . . . . . . . . 25
Section 7.2 Disclosure of Holding . . . . . . . . . . . . . . . . . 25
Section 7.3 Redemptions of Small Accounts . . . . . . . . . . . . . 25
ARTICLE VIII
Duration: Termination of Trust;
Amendment; Mergers, Etc.
Section 8.1 Duration . . . . . . . . . . . . . . . . . . . . . . . . 26
Section 8.2 Termination. . . . . . . . . . . . . . . . . . . . . . . 26
Section 8.3 Amendment Procedure. . . . . . . . . . . . . . . . . . . 27
Section 8.4 Merger, Consolidation and Sale of Assets . . . . . . . . 28
ARTICLE IX
Miscellaneous
Section 9.1 Filing . . . . . . . . . . . . . . . . . . . . . . . . . 29
Section 9.2 Resident Agent . . . . . . . . . . . . . . . . . . . . . 29
Section 9.3 Governing Law . . . . . . . . . . . . . . . . . . . . . 29
Section 9.4 Counterparts . . . . . . . . . . . . . . . . . . . . . . 29
Section 9.5 Reliance by Third Parties . . . . . . . . . . . . . . . 30
Section 9.6 Provisions in Conflict with Law or Regulation . . . . . 30
THE GABELLI BLUE CHIP VALUE FUND
AGREEMENT
AND
DECLARATION OF TRUST
AGREEMENT AND DECLARATION OF TRUST made as of the 19th day of
May, 1999, by the Trustees hereunder, and by the holders of shares of
beneficial interest issued hereunder as hereinafter provided.
WHEREAS, this Trust has been formed to carry on business as set
forth more particularly hereinafter;
WHEREAS, this Trust is authorized to issue an unlimited number of
its shares of beneficial interest in separate series and classes of each
such series, each separate series to be a sub-trust hereunder, all in
accordance with the provisions hereinafter set forth;
WHEREAS, the Trustees have agreed to manage all property coming
into their hands as Trustees of a Delaware business trust in accordance
with the provisions hereinafter set forth; and
WHEREAS, the parties hereto intend that the Trust created by this
Declaration and the Certificate of Trust filed with the Secretary of State
of the State of Delaware on May 13, 1999 shall constitute a business trust
under the Delaware Business Trust Statute and that this Declaration shall
constitute the governing instrument of such business trust.
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 or sub-
trusts created hereunder as hereinafter set forth.
ARTICLE I
The Trust
Section 1.1 Name. This Trust shall be known as "The Gabelli
Blue-Chip Value Fund" and the Trustees shall conduct the business of the
Trust under that name or any other name or names as they may from time to
time determine.
Section 1.2 Definitions. As used in this Declaration, the
following terms shall have the following meanings:
"By-Laws" shall mean the By-Laws of the Trust as amended from time
to time by the Trustees.
"Class" shall mean a portion of Shares of a Series of the Trust
established in accordance with Section 5.3 hereof.
"Code" shall mean the Internal Revenue Code of 1986, as amended,
and the regulations promulgated thereunder.
"Commission" shall mean the Securities and Exchange Commission.
"Declaration" shall mean this Agreement and Declaration of Trust,
as amended or amended and restated from time to time, including by way of
any classifying or reclassifying Shares of any Series or any Class of any
such Series or determining any designations, powers, preferences, voting,
conversion and other rights, limitations, qualifications and terms and
conditions thereof.
"Delaware Business Trust Statute" shall mean the provisions of the
Delaware Business Trust Act, 12 Del. C. section3801, et. seq., as such Act
may be amended from time to time.
"Fundamental Policies" shall mean the investment policies and
restrictions set forth from time to time in any Prospectus of the Trust or
any Series that are expressly designated therein as fundamental policies of
such Series.
"Interested Person" shall have the meaning ascribed thereto in the
1940 Act.
"Majority Shareholder Vote" shall mean a vote of a "majority of the
outstanding voting securities" (as such term is defined in the 0000 Xxx) of
the Trust, any Series of the Trust or any Class thereof, as applicable.
The "1940 Act" refers to the Investment Company Act of 1940 and the
rules and regulations promulgated thereunder and applicable exemptions
therefrom, as amended from time to time.
The "1933 Act" refers to the Securities Act of 1933, and the rules
and regulations promulgated thereunder and applicable exemptions therefrom,
as amended from time to time.
"Person" shall mean and include natural persons, corporations,
partnerships, trusts, limited liability companies, associations, joint
ventures and other entities, whether or not legal entities, and governments
and agencies and political subdivisions thereof.
"Prospectus" shall mean the current Prospectus of the Trust or of
any Series thereof or of any Class of any such Series, as applicable.
"Series" shall mean the separate sub-trusts that may be established
and designated as series pursuant to Section 5.2 hereof or any one of such
sub-trusts, as applicable.
"Shareholders" shall mean as of any particular time the holders of
record of outstanding Shares of the Trust, any Series of the Trust or any
Class of any Series, as applicable, at such time.
"Shares" shall mean the transferable units of beneficial interest
into which the beneficial interest in the Trust or in a Series of the Trust
shall be divided from time to time and includes fractions of Shares as well
as whole Shares, which Shares may be divided into Series and Classes. All
references to Shares shall be deemed to be Shares of any or all Series or
Classes as the context may require.
"Trust" shall mean the trust established by this Declaration, as
amended from time to time, inclusive of each such amendment and every sub-
trust established as a Series hereunder.
"Trustees" shall mean the signatory to this Declaration, so long as
such signatory shall continue in office in accordance with the terms
hereof, and all other persons who at the time in question have been duly
elected or appointed and have qualified as trustees in accordance with the
provisions hereof and are then in office.
"Trust Property" shall mean as of any particular time any and all
property, real or personal, tangible or intangible, which at such time is
owned or held by or for the account of the Trust or the Trustees in such
capacity.
Section 1.3 Purpose and Powers of Trust. The Trust is
established for the purpose of engaging in any activity not prohibited by
Delaware law and shall have the power to engage in any such activity and in
any activity incidental or related to any such activity.
ARTICLE II
Trustees
Section 2.1 Number and Qualification. Prior to any offering of
Shares, there may be a sole Trustee and thereafter the number of Trustees
shall be such number, not less than three or more than fifteen, as shall be
set forth in a written instrument signed or adopted by a majority of the
Trustees then in office. No reduction in the number of Trustees shall have
the effect of removing any Trustee from office prior to the expiration of
his or her term. An individual nominated as a Trustee shall be at least 21
years of age and not older than such age as may be set forth in a written
instrument signed or adopted by not less than a majority of the Trustees
then in office and shall not be under legal disability. Trustees need not
own Shares and may succeed themselves in office.
Section 2.2 Term and Election. Except for the Trustees
appointed to fill vacancies pursuant to Section 2.4 hereof, each Trustee
shall be elected to serve until death, resignation, removal, reelection by
written ballot at the annual meeting, if one is held, or at any special
meeting. Subject to Section 2.4 hereof, each Trustee named herein or
elected or appointed pursuant to the terms hereof shall hold office until
such Trustee's successor has been elected at such meetings and has
qualified to serve as Trustee. Election of Trustees at a meeting shall be
by the affirmative vote of the holders of a plurality of the Shares present
in person or by proxy. Each individual elected or appointed as a Trustee
of the Trust shall, unless otherwise provided by such election or
appointment, by such election or appointment also thereby be elected or
appointed, as the case may be, as a Trustee of each Series of the Trust
then in existence. The election or appointment of any Trustee (other than
an individual who was serving as a Trustee immediately prior thereto) shall
not become effective unless and until such person shall have in writing
accepted his election and agreed to be bound by the terms of this
Declaration.
Section 2.3 Resignation and Removal. Any Trustee may resign his
trust (without need for prior or subsequent accounting) by an instrument in
writing signed by him and delivered or mailed to the Chairman, if any, the
President or the Secretary and such resignation shall be effective upon
such delivery, or at a later date according to the terms of the instrument.
Any Trustee may be removed (provided the aggregate number of Trustees after
such removal shall not be less than the number required by Section 2.1
hereof) for cause at any time by written instrument, signed by two-thirds
of the remaining Trustees, specifying the date when such removal shall
become effective. Any Trustee may be removed (provided the aggregate
number of Trustees after such removal shall not be less than the minimum
number required by Section 2.1 hereof) without cause at any time by a
written instrument, signed or adopted by two-thirds of the remaining
Trustees or by vote of Shares having not less than two-thirds of the
aggregate number of Shares entitled to vote in the election of such
Trustee, specifying the date when such removal shall become effective.
Upon the resignation or removal of a Trustee, or such persons otherwise
ceasing to be a Trustee, such persons shall execute and deliver such
documents as the remaining Trustees shall require for the purpose of
conveying to the Trust or the remaining Trustees any Trust Property held in
the name of the resigning or removed Trustee. Upon the incapacity or death
of any Trustee, such Trustee's legal representative shall execute and
deliver on such Trustee's behalf such documents as the remaining Trustees
shall require as provided in the preceding sentence.
Section 2.4 Vacancies. The term of office of a Trustee shall
terminate and a vacancy shall occur in the event of the death, resignation,
bankruptcy, adjudicated incompetence or other incapacity to perform the
duties of the office, or removal, of a Trustee. Whenever a vacancy in the
Board of Trustees shall occur, the remaining Trustees may fill such vacancy
by appointing an individual having the qualifications described in this
Article by a written instrument signed or adopted by a majority of the
Trustees then in office or by election by the Shareholders, or may leave
such vacancy unfilled or may reduce the number of Trustees (provided the
aggregate number of Trustees after such reduction shall not be less than
the minimum number required by Section 2.1 hereof). Any vacancy created by
an increase in Trustees may be filled by the appointment of an individual
having the qualifications described in this Article made by a written
instrument signed by a majority of the Trustees then in office or by
election by the Shareholders. No vacancy shall operate to annul this
Declaration or to revoke any existing agency created pursuant to the terms
of this Declaration. Whenever a vacancy in the number of Trustees shall
occur, until such vacancy is filled as provided herein, the Trustees in
office, regardless of their number, shall have all the powers granted to
the Trustees and shall discharge all the duties imposed upon the Trustees
by this Declaration.
Section 2.5 Meetings. Meetings of the Trustees shall be held
from time to time upon the call of the Chairman, if any, the President, the
Secretary or any two Trustees. Regular meetings of the Trustees may be
held without call or notice at a time and place fixed by the By-Laws or by
the Trustees. Notice of any other meeting shall be mailed not less than 48
hours before the meeting or otherwise actually delivered orally or in
writing not less than 24 hours before the meeting, but may be waived in
writing by any Trustee either before or after such meeting. The attendance
of a Trustee at a meeting shall constitute a waiver of notice of such
meeting except where a Trustee attends a meeting for the express purpose of
objecting to the transaction of any business on the ground that the meeting
has not been lawfully called or convened. The Trustees may act with or
without a meeting. A quorum for all meetings of the Trustees shall be one-
third of the Trustees. Unless provided otherwise in this Declaration of
Trust, any action of the Trustees may be taken at a meeting by vote of a
majority of the Trustees present (a quorum being present) or without a
meeting by written consent of a majority of the Trustees or such other
proportion as shall be specified herein for action at a meeting at which
all Trustees then in office are present.
Any committee of the Trustees, including an executive committee, if
any, may act with or without a meeting. A quorum for all meetings of any
such committee shall be a majority of the members thereof. Unless provided
otherwise in this Declaration, any action of any such committee may be
taken at a meeting by vote of a majority of the members present (a quorum
being present) or without a meeting by written consent of a majority of the
members or such other proportion as shall be specified herein for action at
a meeting at which all committee members are present.
With respect to actions of the Trustees and any committee of the
Trustees, Trustees who are Interested Persons in any action to be taken may
be counted for quorum purposes under this Section and shall be entitled to
vote to the extent not prohibited by the 1940 Act.
All or any one or more Trustees may participate in a meeting of the
Trustees or any committee thereof by means of a conference telephone,
internet connection or similar communications equipment by means of which
all persons participating in the meeting can hear or otherwise communicate
with each other; participation in a meeting pursuant to any such
communications system shall constitute presence in person at such meeting
except as otherwise provided by the 1940 Act.
Section 2.6 Officers. The Trustees shall elect a President, a
Secretary and a Treasurer and may elect a Chairman who shall serve at the
pleasure of the Trustees or until their successors are elected. The
Trustees may elect or appoint or may authorize the Chairman, if any, or
President to appoint such other officers or agents with such other titles
and powers as the Trustees may deem to be advisable. A Chairman shall, and
the President, Secretary and Treasurer may, but need not, be a Trustee.
ARTICLE III
Powers and Duties of Trustees
Section 3.1 General. The Trustees shall owe to the Trust and
its Shareholders the same fiduciary duties as owed by directors of
corporations to such corporations and their stockholders under the general
corporation law of the State of Delaware. The Trustees shall have
exclusive and absolute control over the Trust Property and over the
business of the Trust or any Series thereof to the same extent as if the
Trustees were the sole owners of the Trust Property and business in their
own right, but with such powers of delegation as may be permitted by this
Declaration. The Trustees shall have power to engage in any activity not
prohibited by Delaware law. The enumeration of any specific power herein
shall not be construed as limiting the aforesaid power. The Trustees may
perform such acts as in their sole discretion are proper for conducting the
business of the Trust. The powers of the Trustees may be exercised without
order of or resort to any court. No Trustee shall be obligated to give any
bond or other security for the performance of any of his duties or powers
hereunder.
Section 3.2 Investments. The Trustees shall have power to:
(a) manage, conduct, operate and carry on the business of an
investment company;
(b) subscribe for, invest in, reinvest in, purchase or
otherwise acquire, hold, pledge, sell, assign, transfer, exchange,
distribute or otherwise deal in or dispose of any and all sorts of
property, tangible or intangible, including but not limited to securities
of any type whatsoever, whether equity or non-equity, of any issuer,
evidences of indebtedness of any person and any other rights, interests,
instruments or property of any sort and to exercise any and all rights,
powers and privileges of ownership or interest in respect of any and all
such investments of every kind and description, including, without
limitation, the right to consent and otherwise act with respect thereto,
with power to designate one or more Persons to exercise any of said rights,
powers and privileges in respect of any of said investments. The Trustees
shall not be limited by any law limiting the investments which may be made
by fiduciaries.
Section 3.3 Legal Title. Legal title to all the Trust Property
shall be vested in the Trustees as joint tenants except that the Trustees
shall have power to cause legal title to any Trust Property to be held by
or in the name of one or more of the Trustees, or in the name of the Trust,
or any Series thereof, or in the name of any other Person as nominee,
custodian or pledgee, on such terms as the Trustees may determine, provided
that the interest of the Trust or any Series thereof therein is
appropriately protected.
The right, title and interest of the Trustees in the Trust Property
shall vest automatically in each person who may hereafter become a Trustee
upon his due election and qualification. Upon the ceasing of any person to
be a Trustee for any reason, such person shall automatically cease to have
any right, title or interest in any of the Trust Property, and the right,
title and interest of such Trustee in the Trust Property shall vest
automatically in the remaining Trustees. Such vesting and cessation of
title shall be effective whether or not conveyancing documents have been
executed and delivered.
Section 3.4 Issuance and Repurchase of Shares. Subject to the
provisions of this Declaration and applicable law, the Trustees shall have
the power to issue, sell, repurchase, redeem, retire, cancel, acquire,
hold, resell, reissue, dispose of, transfer, and otherwise deal in, Shares,
including Shares in fractional denominations, shall have the power to
establish from time to time in accordance with the provisions of Section
5.2 and 5.3 hereof Series and Classes representing interests in the Trust
or a Series thereof and, subject to the more detailed provisions set forth
in Article VII, to apply to any such repurchase, redemption, retirement,
cancellation or acquisition of Shares any funds or property of the
applicable Series of the Trust whether capital or surplus or otherwise, to
the full extent now or hereafter permitted by the laws of the State of
Delaware governing business corporations.
Section 3.5 Borrow Money or Utilize Leverage. The Trustees
shall have the power to borrow money or otherwise obtain credit or utilize
leverage in connection with the activities of the Trust to the maximum
extent permitted by law, regulation or order and the Fundamental Policies
of any Series and to secure the same by mortgaging, pledging or otherwise
subjecting as security the assets of the Trust or any Series thereof,
including the lending of portfolio securities, and to endorse, guarantee,
or undertake the performance of any obligation, contract or engagement of
any other person, firm, association or corporation; provided, however, that
the assets of any particular Series shall not be used as security for any
credit extended solely to one or more other Series.
Section 3.6 Delegation; Committees. The Trustees shall have
power, consistent with their continuing exclusive authority over the
management of the Trust and the Trust Property, to delegate from time to
time to such of their number or to officers, employees or agents of the
Trust the doing of such things and the execution of such instruments either
in the name of the Trust or the names of the Trustees or otherwise as the
Trustees may deem expedient, to at least the same extent as such delegation
is permitted to directors of a Delaware business corporation and is
permitted by the 1940 Act, as well as any further delegations the Trustees
may determine to be desirable, expedient or necessary in order to effect
the purpose hereof. The Trustees may designate one or more committees
which shall have all or such lesser portion of the authority of the entire
Board of Trustees as the Trustees shall determine from time to time except
to the extent action by the entire Board of Trustees or particular Trustees
is required by the 1940 Act.
Section 3.7 Collection and Payment. The Trustees shall have
power to collect all property due to the Trust or any Series of the Trust
or any Class thereof; to pay all claims, including taxes, against the Trust
Property, the Trust or any Series of the Trust or any Class thereof, the
Trustees or any officer, employee or agent of the Trust; to prosecute,
defend, compromise or abandon any claims relating to the Trust Property,
the Trust or any Series of the Trust or any Class thereof, or the Trustees
or any officer, employee or agent of the Trust; to foreclose any security
interest securing any obligations, by virtue of which any property is owed
to the Trust or any Series of the Trust or any Class thereof; and to enter
into releases, agreements and other instruments. Except to the extent
required for a Delaware business corporation, the Shareholders shall have
no power to vote as to whether or not a court action, legal proceeding or
claim should or should not be brought or maintained derivatively or as a
class action on behalf of the Trust or the Shareholders.
Section 3.8 Expenses. The Trustees shall have power to incur
and pay out of the assets or income of the Trust or any Series of the Trust
or any Class thereof, any expenses which in the opinion of the Trustees are
necessary or appropriate to carry out any of the purposes of this
Declaration, and the business of the Trust or any Series of the Trust or
any Class thereof, and to pay reasonable compensation from the funds of the
Trust to themselves as Trustees. The Trustees shall fix the compensation
of all officers, employees and Trustees. The Trustees may pay themselves
such compensation for special services, including legal, underwriting,
syndicating and brokerage services, as they in good faith may deem
reasonable and reimbursement for expenses reasonably incurred by themselves
on behalf of the Trust. The Trustees shall have the power, as frequently
as they may determine, to cause each Shareholder, or each Shareholder of
any particular Series or Class thereof, to pay directly, in advance or
arrears, for charges of distribution, of the custodian or transfer,
shareholder servicing or similar agent of such Series or Class, a pro rata
amount as defined from time to time by the 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 3.9 By-Laws. The Trustees may adopt and from time to
time amend or repeal By-Laws for the conduct of the business of the Trust.
Such By-Laws shall be binding on the Trust and the Shareholders unless
inconsistent with the provisions of this Declaration. The Shareholders
shall not have authority to adopt or amend By-Laws.
Section 3.10 Miscellaneous Powers. The Trustees shall have the
power to: (a) employ or contract with such Persons as the Trustees may
deem desirable for the transaction of the business of the Trust or any
Series thereof, including investment advisors, administrators, custodians,
transfer agents, shareholder services providers, accountants, counsel,
brokers, dealers and others; (b) enter into joint ventures, partnerships
and any other combinations or associations; (c) purchase, and pay for out
of Trust Property, insurance policies insuring the Shareholders, Trustees,
officers, employees, agents, investment advisors, distributors, selected
dealers or independent contractors of the Trust or any Series thereof
against all claims arising by reason of holding any such position or by
reason of any action taken or omitted by any such Person in such capacity,
whether or not constituting negligence, or whether or not the Trust would
have the power to indemnify such Person against such liability; (d)
establish pension, profit-sharing, share purchase, and other retirement,
incentive and benefit plans for any Trustees, officers, employees and
agents of the Trust; (e) make donations, irrespective of benefit to the
Trust, for charitable, religious, educational, scientific, civic or similar
purposes; (f) to the extent permitted by applicable law, indemnify any
Person with whom the Trust or any Series thereof has dealings, including
without limitation any investment advisor, administrator, manager, transfer
agent, custodian, distributor or selected dealer, or any other person as
the Trustees may see fit to such extent as the Trustees shall determine;
(g) guarantee indebtedness or contractual obligations of others; (h)
determine and change the fiscal year of the Trust and the method in which
its accounts shall be kept; and (i) adopt a seal for the Trust but the
absence of such seal shall not impair the validity of any instrument
executed on behalf of the Trust.
Section 3.11 Further Powers. The Trustees shall have the power
to conduct the business of the Trust or any Series of the Trust or any
Class thereof and carry on its operations in any and all of its branches
and maintain offices both within and without the State of Delaware, in any
and all states of the United States of America, in the District of
Columbia, and in any and all commonwealths, territories, dependencies,
colonies, possessions, agencies or instrumentalities of the United States
of America and of foreign governments, and to do all such other things and
execute all such instruments as they deem necessary, proper or desirable in
order to promote the interests of the Trust or any Series of the Trust or
any Class thereof although such things are not herein specifically
mentioned. Any determination as to what is in the interests of the Trust
or any Series of the Trust or any Class thereof made by the Trustees in
good faith shall be conclusive. In construing the provisions of this
Declaration, the presumption shall be in favor of a grant of power to the
Trustees.
ARTICLE IV
Limitations of Liability
and Indemnification
Section 4.1 No Personal Liability of Shareholders, Trustees,
etc. No Shareholder of the Trust shall be subject in such capacity to any
personal liability whatsoever to any Person in connection with Trust
Property or the acts, obligations or affairs of the Trust. Shareholders
shall have the same limitation of personal liability as is extended to
stockholders of a private corporation for profit incorporated under the
general corporation law of the State of Delaware. No Trustee, officer,
employee or agent of the Trust or any Series of the Trust shall be subject
in such capacity to any personal liability whatsoever to any Person, other
than the Trust or the respective Series or the Shareholders, in connection
with Trust Property or the affairs of the Trust or the respective Series,
save only liability to the Trust or its Shareholders arising from bad
faith, willful misfeasance, gross negligence or reckless disregard for his
duty to such Person; and, subject to the foregoing exception, all such
Persons shall look solely to the Trust Property for satisfaction of claims
of any nature arising in connection with the affairs of the Trust. If any
Shareholder, Trustee or officer, as such, of the Trust, is made a party to
any suit or proceeding to enforce any such liability, subject to the
foregoing exception, he shall not, on account thereof, be held to any
personal liability.
Section 4.2 Mandatory Indemnification. (a) The Trust shall
indemnify the Trustees and officers of the Trust (each such person being an
"indemnitee") against any liabilities and expenses, including amounts paid
in satisfaction of judgments, in compromise or as fines and penalties, and
reasonable counsel fees reasonably incurred by such indemnitee in
connection with the defense or disposition of any action, suit or other
proceeding, whether civil or criminal, before any court or administrative
or investigative body in which he may be or may have been involved as a
party or otherwise (other than, except as authorized by the Trustees, as
the plaintiff or complainant) or with which he may be or may have been
threatened, while acting in any capacity set forth above in this Section
4.2 by reason of his having acted in any such capacity, except with respect
to any matter as to which he shall not have acted in good faith in the
reasonable belief that his action was in the best interest of the Trust or
the respective Series of the Trust or Class thereof and furthermore, in the
case of any criminal proceeding, as to which he shall have had reasonable
cause to believe that the conduct was unlawful, provided, however, that no
indemnitee shall be indemnified hereunder against any liability to any
person or any expense of such indemnitee arising by reason of (i) willful
misfeasance, (ii) bad faith, (iii) gross negligence (negligence in the case
of indemnitees that are affiliates of the Trust), or (iv) reckless
disregard of the duties involved in the conduct of his position.
Notwithstanding the foregoing, with respect to any action, suit or other
proceeding voluntarily prosecuted by any indemnitee as plaintiff,
indemnification shall be mandatory only if the prosecution of such action,
suit or other proceeding by such indemnitee was authorized by a majority of
the Trustees.
(b) Notwithstanding the foregoing, no indemnification shall
be made hereunder unless there has been a determination (1) by a final
decision on the merits by a court or other body of competent jurisdiction
before whom the issue of entitlement to indemnification hereunder was
brought that such indemnitee is entitled to indemnification hereunder or,
(2) in the absence of such a decision, by (i) a majority vote of a quorum
of those Trustees who are neither Interested Persons of the Trust nor
parties to the proceeding ("Disinterested Non-Party Trustees"), that the
indemnitee is entitled to indemnification hereunder, or (ii) if such quorum
is not obtainable or even if obtainable, if such majority so directs,
independent legal counsel in a written opinion conclude that the indemnitee
should be entitled to indemnification hereunder. All determinations to
make advance payments in connection with the expense of defending any
proceeding shall be authorized and made in accordance with the immediately
succeeding paragraph (c) below.
(c) The Trust shall make advance payments in connection with
the expenses of defending any action with respect to which indemnification
might be sought hereunder if the Trust receives a written affirmation by
the indemnitee of the indemnitee's good faith belief that the standards of
conduct necessary for indemnification have been met and a written
undertaking to reimburse the Trust unless it is subsequently determined
that he is entitled to such indemnification and if a majority of the
Trustees determine that the applicable standards of conduct necessary for
indemnification appear to have been met. In addition, at least one of the
following conditions must be met: (1) the indemnitee shall provide
adequate security for his undertaking, (2) the Trust shall be insured
against losses arising by reason of any lawful advances, or (3) a majority
of a quorum of the Disinterested Non-Party Trustees, or if a majority vote
of such quorum so direct, independent legal counsel in a written opinion,
shall conclude, based on a review of readily available facts (as opposed to
a full trial-type inquiry), that there is substantial reason to believe
that the indemnitee ultimately will be found entitled to indemnification.
(d) The rights accruing to any indemnitee under these
provisions shall not exclude any other right to which he may be lawfully
entitled.
(e) Notwithstanding the foregoing, subject to any limitations
provided by the 1940 Act and this Declaration, the Trust shall have the
power and authority to indemnify Persons providing services to the Trust to
the full extent provided by law as if the Trust were a corporation
organized under the Delaware General Corporation Law provided that such
indemnification has been approved by a majority of the Trustees.
Section 4.3 No Duty of Investigation; Notice in Trust
Instruments, etc. No purchaser, lender, transfer agent or other person
dealing with the Trustees or with any officer, employee or agent of the
Trust or any Series of the Trust or Class thereof shall be bound to make
any inquiry concerning the validity of any transaction purporting to be
made by the Trustees or by said officer, employee or agent or be liable for
the application of money or property paid, loaned, or delivered to or on
the order of the Trustees or of said officer, employee or agent. Every
obligation, contract, undertaking, instrument, certificate, Share, other
security of the Trust or any Series of the Trust or any Class thereof, and
every other act or thing whatsoever executed in connection with the Trust
or any Series of the Trust or Class thereof shall be conclusively taken to
have been executed or done by the executors thereof only in their capacity
as Trustees under this Declaration or in their capacity as officers,
employees or agents of the Trust. The Trustees may maintain insurance for
the protection of the Trust Property, its Shareholders, Trustees, officers,
employees and agents in such amount as the Trustees shall deem adequate to
cover possible liability, and such other insurance as the Trustees in their
sole judgment shall deem advisable or is required by the 1940 Act.
Section 4.4 Reliance on Experts, etc. Each Trustee and officer
or employee of the Trust or any Series of the Trust shall, in the
performance of its duties, be fully and completely justified and protected
with regard to any act or any failure to act resulting from reliance in
good faith upon the books of account or other records of the Trust or any
Series of the Trust or Class thereof, upon an opinion of counsel, or upon
reports made to the Trust or any Series thereof by any of the Trust's
officers or employees or by any advisor, administrator, manager,
distributor, selected dealer, accountant, appraiser or other expert or
consultant selected with reasonable care by the Trustees, officers or
employees of the Trust, regardless of whether such counsel or other person
may also be a Trustee.
ARTICLE V
Shares of Beneficial Interest
Section 5.1 Beneficial Interest. The interest of the
beneficiaries hereunder shall be divided into an unlimited number of shares
of beneficial interest, par value $.001 per share. All Shares issued in
accordance with the terms hereof, including, without limitation, Shares
issued in connection with a dividend in Shares or a split of Shares, shall
be fully paid and nonassessable when the consideration determined by the
Trustees (if any) therefor shall have been received by the Trust.
Section 5.2 Series Designation. The Trustees, in their
discretion from time to time, may authorize the division of Shares into two
or more Series, each Series relating to a separate portfolio of investments
and each of which Series shall be a separate and distinct subtrust of the
Trust. Each Series so established hereunder shall be deemed to be a
separate trust under the provisions of Delaware law. The Trustees shall
have exclusive power without the requirement of Shareholder approval to
establish and designate such separate and distinct Series and to fix and
determine the relative rights and preferences as between the different
Series. The establishment and designation of any Series shall be effective
upon the execution by a majority of the Trustees of an instrument setting
forth the establishment and designation of such Series. Such instrument
shall also set forth any rights and preferences of such Series which are in
addition to the rights and preferences of Shares set forth in this
Declaration. At any time that there are no Shares outstanding of any
particular Series previously established and designated, the Trustees may
by an instrument executed by a majority of their number abolish or alter
that Series and the establishment and designation thereof. Each instrument
referred to in this paragraph shall have the status of an amendment to this
Declaration.
Section 5.3 Class Designation. The Trustees, in their
discretion from time to time, may authorize the division of Shares of the
Trust or any Series into two or more Classes of Shares all the assets of
which shall be commingled with the other Classes of such Series. The
Trustees shall have exclusive power without the requirement of Shareholder
approval to establish and designate such separate and distinct Classes and
to fix and determine the relative rights, terms, conditions and expenses
applicable to each Class of Shares to the maximum extent permitted by the
0000 Xxx. The establishment and designation of any Class of Shares shall
be effective upon the affirmative vote of a majority of the Trustees of the
Trust, including the Trustees who are not interested persons of the Trust.
At any time that there are no Shares outstanding of any particular Class
previously established and designated, the Trustees may, by the affirmative
vote of a majority of the Trustees, including a majority of the Trustees
who are not interested persons of the Trust, abolish or alter that Class
and the establishment and designation thereof.
Section 5.4 Description of Shares. If the Trustees shall
create sub-trusts and divide the Shares into one or more Series or create
Classes of Shares, the following provisions shall be applicable:
(a) Number of Shares. The number of Shares of each Series or
Class that may be issued shall be unlimited. The 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. The Trustees may hold
as treasury Shares (of the same or some other Series or Class), reissue for
such consideration and on such terms as they may determine, or cancel any
Shares of any Series or Class reacquired by the Trust at their discretion
from time to time.
(b) Investment of Property. The power of the Trustees to
invest and reinvest the Trust Property of each Series that may be
established shall be governed by Section 3.2 of this Declaration.
(c) Allocation of Assets. All consideration received by the
Trust for the issue or sale of Shares of a particular Series or Class,
together with all assets in which such consideration is invested or
reinvested, all income, earnings, profits, and proceeds thereof, including
any proceeds derived from the sale, exchange or liquidation of such assets,
and any funds or payment derived from any reinvestment of such proceeds in
whatever form the same may be, together with such Series' or Class' share
of any assets of the Trust not otherwise allocated to any particular Series
or Class, shall be held by the Trustees and Trust for the benefit of the
Shareholders of such Series and, subject to the rights of creditors of such
Series only, shall irrevocably belong to that Series for all purposes, and
shall be so recorded upon the books of account of the Trust. In the event
that there are any assets, income, earnings, profits, and proceeds thereof,
funds or payments which are not readily identifiable as belonging to any
particular Series, the Trustees shall allocate them among any one or more
of the Series established and designated from time to time in such manner
and on such basis as they, in their sole discretion, deem fair and
equitable, and anything so allocated to a Series shall belong to such
Series. Each such allocation by the Trustees shall be conclusive and
binding upon the Shareholders of all Series for all purposes.
(d) Allocation of Expenses. The assets belonging to each
particular Series or attributable to each particular Class shall be charged
with the liabilities of the Trust in respect of that Series or Class and
all expenses, costs, charges and reserves attributable to that Series or
Class, and any general liabilities, expenses, costs, charges or reserves of
the Trust which are not readily identifiable as belonging to any particular
Series or attributable to any particular Class shall be allocated and
charged by the Trustees to and among any one or more of the Series or
Classes established and designated from time to time in such manner and on
such basis as the Trustees in their sole discretion deem fair and
equitable; provided that any incremental expenses allocated to one or more
Classes of Shares on a basis other than the relative net asset values of
the respective Classes shall be allocated in a manner consistent with the
1940 Act. Each allocation of liabilities, expenses, costs, charges and
reserves by the Trustees shall be conclusive and binding upon the
Shareholders of all Series and Classes for all purposes. The Trustees
shall have full discretion, to the extent not inconsistent with the 1940
Act, to determine which items shall be treated as income and which items as
capital, and each such determination and allocation shall be conclusive and
binding upon the Shareholders. Under no circumstances shall the assets
allocated or belonging to a particular Series or attributable to a
particular Class be charged with any liabilities attributable to another
Series or Class. Any creditor may look only to the assets of the
particular Series with respect to which such person is a creditor for
satisfaction of such creditor's debt.
(e) Dividends. The power of the Trustees to pay dividends
and make distributions with respect to any one or more Series shall be
governed by Section 5.12 of this Trust. Dividends and distributions on
Shares of a particular Series may be paid with such frequency as the
Trustees may determine, which may be daily or otherwise, pursuant to a
standing resolution or resolutions adopted only once or with such frequency
as the Trustees may determine, to the holders of Shares of that Series,
from such of the income and capital gains, accrued or realized, from the
assets belonging to that Series, as the Trustees may determine, after
providing for actual and accrued liabilities belonging to that Series. All
dividends and distributions on each Class of a Series shall be distributed
pro rata to the holders of Shares of that Class in proportion to the number
of Shares of that Class held by such holders at the date and time of record
established for the payment of such dividends or distributions, and such
dividends and distributions need not be pro rata with respect to dividends
and distributions paid to Shares of any other Class of such Series.
Dividends and distributions shall be paid with respect to Shares of a given
Class only out of lawfully available assets attributable to such Class.
Section 5.5 Rights of Shareholders. The Shares shall be
personal property giving only the rights in this Declaration specifically
set forth. The ownership of the Trust Property of every description and
the right to conduct any business herein before described are vested
exclusively in the Trustees, and the Shareholders shall have no interest
therein other than the beneficial interest conferred by their Shares, with
respect to a particular Series of Class and they shall have no right to
call for any partition or division of any property, profits, rights or
interests of the Trust nor can they be called upon to share or assume any
losses of the Trust or, subject to the right of the Trustees to charge
certain expenses directly to Shareholders, as provided in the last sentence
of Section 3.8, suffer an assessment of any kind by virtue of their
ownership of Shares. The Shares shall not entitle the holder to
preference, preemptive, appraisal, conversion or exchange rights (except as
specified in this Section 5.5 or in Section 8.4 or as specified by the
Trustees in the designation or redesignation of any Series or Class
thereof). Notwithstanding anything to the contrary contained herein:
(i) Any Class of shares denominated as being convertible
automatically, and without any action or choice on the part of the
holder thereof, or shares denominated as being convertible based on an
election of the holder thereof, into any other Class of Shares (or
fractions thereof) pursuant to such terms, conditions and restrictions
as may be established by the Board of Trustees and set forth from time
to time in the applicable Prospectus with respect to such Shares shall
be convertible on such terms as are described in such Prospectus.
(ii) The number of Shares into which each such
convertible Share shall convert pursuant to the foregoing paragraph
shall equal the number (including for this purpose fractions of a Share)
obtained by dividing the net asset value per share of the convertible
Shares for purposes of sales and redemptions thereof on the date of such
conversion (the "Conversion Date") by the net asset value per share of
the Class of Shares being converted into for purposes of sales and
redemptions thereof on the Conversion Date.
(iii) On the Conversion Date, those Shares which are
converted into another Class of Shares shall cease to accrue dividends
and will no longer be deemed outstanding and the rights of the holders
thereof (except the right to receive dividends declared prior to the
Conversion Date but unpaid as of the Conversion Date) will cease.
Certificates representing Shares resulting from conversion may be issued
pursuant to such terms and conditions as may be established from time to
time by the Board of Trustees.
Section 5.6 Trust Only. It is the intention of the Trustees to
create only the relationship of Trustee and beneficiary between the
Trustees and each Shareholder from time to time. It is not the intention
of the Trustees to create a general partnership, limited partnership, joint
stock association, corporation, bailment or any form of legal relationship
other than a trust. Nothing in this Declaration shall be construed to make
the Shareholders, either by themselves or with the Trustees, partners or
members of a joint stock association.
Section 5.7 Issuance of Shares. The Trustees, in their
discretion, may from time to time without vote of the Shareholders issue
Shares with respect to any Series that may have been established pursuant
to Section 5.2, in addition to the then issued and outstanding Shares and
Shares held in the treasury, to such party or parties and for such amount
and type of consideration, including cash or property, at such time or
times, and on such terms as the Trustees may determine, and may in such
manner acquire other assets (including the acquisition of assets subject
to, and in connection with the assumption of, liabilities) and businesses.
The Trustees may from time to time divide or combine the Shares of any
Series into a greater or lesser number without thereby changing the
proportionate beneficial interest in such Series of the Trust. Issuances
and redemptions of Shares may be made in whole Shares and/or l/l,000ths of
a Share or multiples thereof as the Trustees may determine in such
fractions thereof.
Section 5.8 Register of Shares. A register shall be kept at the
Trust or any transfer agent duly appointed by the Trustees under the
direction of the Trustees which shall contain the names and addresses of
the Shareholders and the number of Shares held by them respectively and a
record of all transfers thereof. Separate registers shall be established
and maintained for each Series of the Trust and each Class thereof. Each
such register shall be conclusive as to who are the holders of the Shares
of the applicable Series and Classes thereof and who shall be entitled to
receive dividends or distributions or otherwise to exercise or enjoy the
rights of Shareholders. No Shareholder shall be entitled to receive
payment of any dividend or distribution, nor to have notice given to him as
herein provided, until he or she has given his or her address to a transfer
agent or such other officer or agent of the Trustees as shall keep the
register for entry thereon. It is not contemplated that certificates will
be issued for the Shares; however, the Trustees, in their discretion, may
authorize the issuance of share certificates and promulgate appropriate
fees therefore and rules and regulations as to their use.
Section 5.9 Transfer of Shares. Shares shall be transferable on
the records of the Trust only by the record holder thereof or by its agent
thereto duly authorized in writing, upon delivery to the Trustees or a
transfer agent of the Trust of a duly executed instrument of transfer,
together with such evidence of the genuineness of each such execution and
authorization and of other matters as may reasonably be required. Upon
such delivery the transfer shall be recorded on the applicable register of
the Trust. Until such record is made, the Shareholder of record shall be
deemed to be the holder of such Shares for all purposes hereof and neither
the Trustees nor any transfer agent or registrar nor any officer, employee
or agent of the Trust shall be affected by any notice of the proposed
transfer.
Any person becoming entitled to any Shares in consequence of the
death, bankruptcy, or incompetence of any Shareholder, or otherwise by
operation of law, shall be recorded on the applicable register of Shares as
the holder of such Shares upon production of the proper evidence thereof to
the Trustees or a transfer agent of the Trust, but until such record is
made, the Shareholder of record shall be deemed to be the holder of such
for all purposes hereof, and neither the Trustees nor any transfer agent or
registrar nor any officer or agent of the Trust shall be affected by any
notice of such death, bankruptcy or incompetence, or other operation of
law.
Section 5.10 Notices. Any and all notices to which any
Shareholder hereunder may be entitled and any and all communications to any
Shareholder shall be deemed duly served or given if mailed, postage
prepaid, addressed to any Shareholder of record at his or her last known
address as recorded on the applicable register of the Trust and may be sent
together with any such notice or other communication to another Shareholder
at the same address.
Section 5.11 Net Asset Value. The value of the assets of the
Trust or any Series thereof, the amount of liabilities of the Trust or any
Series thereof and the net asset value of each outstanding Share of the
Trust or any Series or Class shall be determined at such time or times and
on such days as the Trustees may determine in accordance with the 1940 Act.
The method of determination of net asset value shall be determined by the
Trustees. The power and duty to value the assets and liabilities of the
Trust and make net asset value determinations and calculations may be
delegated by the Trustees.
Section 5.12 Distributions to Shareholders.
(a) The Trustees shall from time to time distribute among the
Shares such proportion of the net profits, surplus (including paid-in
surplus), capital, or assets held by the Trustees as they may deem proper
or as may otherwise be determined in the instrument setting forth the terms
of such Shares such Class or Series of Shares, which need not be ratable
with respect to distributions in respect of Shares of any other class or
series thereof of the Trust. Such distributions may be made in cash or
property (including without limitation any type of obligations of the Trust
or any assets thereof) or any combination thereof.
(b) Distributions may be made to the Shareholders of record
entitled to such distribution at the time such distribution is declared or
at such later date as shall be determined by the Trust prior to the date of
payment.
(c) The Trustees may always retain from any source such
amount as they may deem necessary to pay the debts or expenses of the Trust
or to meet obligations of the Trust, or as they otherwise may deem
desirable to use in the conduct of its affairs or to retain for future
requirements or extensions of the business of the Trust.
ARTICLE VI
Shareholders
Section 6.1 Meetings of Shareholders. The Trust may, but shall
not be required to, hold annual meetings of the holders of any class or
series of Shares. An annual or special meeting of Shareholders may be
called at any time only by the Trustees; provided, however, that if May 31
of any year shall have passed and the Trustees shall not have called an
annual meeting of Shareholders for such year, the Trustees shall call a
meeting for the purpose of voting on the removal of one or more Trustees or
the termination of any investment advisory agreement, upon written request
of holders of Shares of the Trust or a Series having in the aggregate not
less than a majority of the votes of the outstanding Shares of the Trust
entitled to vote on the matter or matters in question, such request
specifying the purpose or purposes for which such meeting is to be called.
Any meeting of Shareholders shall be held within or without the State of
Delaware on such day and at such time as the Trustees shall designate.
Section 6.2 Voting. Shareholders shall have no power to vote on
any matter except matters on which a vote of Shares is required by
applicable law, this Declaration or resolution of the Trustees. Any matter
required to be submitted for approval of any of the Shares and affecting
one or more Series or Classes shall require approval by the required vote
of Shares of the affected Series or Class voting together as a single
Series or Class and, if such matter affects one or more Series or Class
thereof differently from one or more other Series or Class, approval by the
required vote of Shares of such other Series or Class voting as a separate
Series or Class shall be required in order to be approved with respect to
such other Series or Class; provided, however, that except to the extent
required by the 1940 Act, there shall be no separate class votes on the
election or removal of Trustees or the selection of auditors for the Trust.
Shareholders of a particular Series shall not be entitled to vote on any
matter that affects the rights or interests of only one or more other
Series. There shall be no cumulative voting in the election or removal of
Trustees.
Section 6.3 Notice of Meeting, Shareholder Proposals and Record
Date. Notice of all meetings of Shareholders, stating the time, place and
purposes of the meeting, shall be given by the Trustees by mail to each
Shareholder of record entitled to vote thereat at its registered address,
mailed at least 10 days before the meeting or otherwise in compliance with
applicable law. Except with respect to an annual meeting, at which any
business required by the 1940 Act may be conducted, only the business
stated in the notice of the meeting shall be considered at such meeting.
Subject to the provisions of applicable law, any Shareholder wishing to
include a proposal to be considered at an annual meeting must submit such
proposal to the Trust at least 30 days in advance of such meeting. Any
adjourned meeting may be held as adjourned one or more times without
further notice not later than 130 days after the record date. For the
purposes of determining the Shareholders who are entitled to notice of and
to vote at any meeting the Trustees may, without closing the transfer
books, fix a date not more than 100 days prior to the date of such meeting
of Shareholders as a record date for the determination of the Persons to be
treated as Shareholders of record for such purposes.
Section 6.4 Quorum and Required Vote.
(a) The holders of one-third of the outstanding Shares of the
Trust on the record date present in person or by proxy shall constitute a
quorum at any meeting of the Shareholders for purposes of conducting
business on which a vote of all Shareholders of the Trust is being taken.
The holders of one-third of the outstanding Shares of one or more Series or
one or more Classes on the record date present in person or by proxy shall
constitute a quorum at any meeting of the Shareholders for purposes of
conducting business on which a vote of Shareholders of such Series or
Series or Class or Classes is being taken. Shares underlying a proxy as to
which a broker or other intermediary states its absence of authority to
vote with respect to one or more matters shall be treated as present for
purposes of establishing a quorum for taking action on any such matter only
to the extent so determined by the Trustees at or prior to the meeting of
Shareholders at which such matter is to be considered.
(b) Subject to any provision of applicable law, this
Declaration or a resolution of the Trustees specifying or requiring a
greater or lesser vote requirement for the transaction of any matter of
business at any meeting of Shareholders, (i) the affirmative vote of a
plurality of the Shares entitled to vote for the election of any Trustee or
Trustees shall be the act of such Shareholders with respect to the election
of such Trustee or Trustees, (ii) the affirmative vote of a majority of the
Shares present in person or represented by proxy and entitled to vote on
any other matter shall be the act of the Shareholders with respect to such
matter, and (iii) where a separate vote of any Series is required on any
matter, the affirmative vote of a majority of the Shares of such Series
present in person or represented by proxy and entitled to vote on such
matter shall be the act of the Shareholders of such Series with respect to
such matter.
Section 6.5 Proxies, etc. At any meeting of Shareholders, any
holder of Shares entitled to vote thereat may vote by proxy, provided that
no proxy shall be voted at any meeting unless it shall have been placed on
file with the Secretary, or with such other officer or agent of the Trust
as the Secretary may direct, for verification prior to the time at which
such vote shall be taken. Pursuant to a resolution of a majority of the
Trustees, proxies may be solicited in the name of one or more Trustees or
one or more of the officers or employees of the Trust. Only Shareholders
of record shall be entitled to vote. Each full Share shall be entitled to
one vote and each fractional Share shall be entitled to a vote equal to its
fraction of a full Share. When any Share is held jointly by several
persons, any one of them may vote at any meeting in person or by proxy in
respect of such Share, but if more than one of them shall be present at
such meeting in person or by proxy, and such joint owners or their proxies
so present disagree as to any vote to be cast, such vote shall not be
received in respect of such Share. A proxy purporting to be given by or on
behalf of a Shareholder of record on the record date for a meeting shall be
deemed valid unless challenged at or prior to its exercise, and the burden
of proving invalidity shall rest on the challenger. If the holder of any
such Share is a minor or a person of unsound mind, and subject to
guardianship or to the legal control of any other person as regards the
charge or management of such Share, he or she may vote by his or her
guardian or such other person appointed or having such control, and such
vote may be given in person or by proxy. The Trustees shall have the
authority to make and modify from time to time regulations regarding the
validity of proxies. In addition to signed proxies, such regulations may
authorize facsimile, telephonic, internet and other methods of appointing a
proxy that are subject to such supervision by or under the direction of the
Trustees as the Trustees shall determine.
Section 6.6 Reports. The Trustees shall cause to be prepared
and sent to Shareholders at least annually and more frequently to the
extent and in the form required by law, regulation or any exchange on which
Shares are listed a report of operations containing financial statements
of the Trust prepared in conformity with generally accepted accounting
principles and applicable law. It is contemplated that separate reports
may be prepared for the various Series. Copies of such reports shall be
mailed to all Shareholders of record of the applicable Series within the
time required by the 1940 Act, and in any event within a reasonable period
preceding the meeting of Shareholders.
Section 6.7 Inspection of Records. The records of the Trust
shall be open to inspection by Persons who have been holders of record of
at least $25,000 in net asset value or liquidation preference of Shares for
a continuous period of not less than six months to the same extent and for
the same purposes as is permitted under the Delaware General Business
Corporation Law to shareholders of a Delaware business corporation.
Section 6.8 Shareholder Action by Written Consent. Any action
which may be taken by Shareholders by vote may be taken without a meeting
if the holders of all of the Shares entitled to vote thereon consent to the
action in writing and the written consents are filed with the records of
the meetings of Shareholders. Such consent shall be treated for all
purposes as a vote taken at a meeting of Shareholders.
ARTICLE VII
Redemption
Section 7.1 Redemptions. All outstanding Shares of any Series
of the Trust may be redeemed at the option of the holders thereof, upon and
subject to the terms and conditions provided in this Article VII. The
Trust shall, upon application by any Shareholder or pursuant to
authorization from any Shareholder of a particular Series or Class, redeem
or repurchase from such Shareholder outstanding Shares of such Series or
Class for an amount per share determined by the application of a formula
adopted for such purpose by the Trustees with respect to such Series (which
formula shall be consistent with the 1940 Act); provided that (a) such
amount per share shall not exceed any limitations imposed under applicable
law and (b) if so authorized by the Trustees, the Trust may, at any time
and from time to time, charge fees for effecting such redemption, at such
rates as the Trustees may establish, as and to the extent permitted under
the 1940 Act, and may, at any time and from time to time, pursuant to such
Act, suspend such right of redemption. The procedures for effecting
redemption shall be as set forth in the Prospectus with respect to the
applicable Series or Class from time to time. The proceeds of the
redemption of Shares shall be paid in cash or property (tangible of
intangible) or any combination thereof in the sole discretion of the
Trust's investment advisor. The proceeds of the redemption of Shares
subject to a contingent deferred sales charge (including fractional shares)
shall be reduced by the amount of any applicable contingent deferred sales
charge payable on such redemption with respect to the respective Class of
such Shares as set forth in the applicable Prospectus (to the extent
consistent with the 1940 Act) or such other charges, fees or expenses as
may be applicable thereto.
Section 7.2 Disclosure of Holding. The holders of Shares or
other securities of the Trust shall upon demand disclose to the Trustees in
writing such information with respect to direct and indirect ownership of
Shares or other securities of the Trust as the Trustees deem necessary to
comply with the provisions of the Code or any other applicable laws.
Section 7.3 Redemptions of Small Accounts. The Trustees shall
have the power to redeem shares of any Series at a redemption price
determined in accordance with Section 7.1 above, (a) if at any time the
total investment in such account does not have a value of at least such
minimum amount as may be specified in the Prospectus for such Series from
time to time, (b) as provided by Section 3.8, or (c) to the extent a
Shareholder or other person beneficially owns Shares equal to or in excess
of a percentage of Shares of the Trust or any Series or Class determined
from time to time by the Trustees and specified in the applicable
Prospectus. In the event the Trustees determine to exercise their power to
redeem Shares provided in subsection (a) of this Section 7.3, the
Shareholder shall be notified that the value of his account is less than
the applicable minimum amount and shall be allowed 30 days to make an
appropriate investment before redemption is processed.
ARTICLE VIII
Duration: Termination of Trust;
Amendment; Mergers, Etc.
Section 8.1 Duration. Subject to termination in accordance with
the provisions of Section 8.2 hereof, the Trust created hereby shall have
perpetual existence.
Section 8.2 Termination.
(a) The Trust or any Series may be dissolved by the
affirmative vote of a majority of the Trustees, and without any vote of the
Shareholders thereof, except as may be required by the 1940 Act. Upon the
dissolution of the Trust or any Series:
(1) The Trust or such Series shall carry on
no business except for the purpose of winding up its affairs.
(2) The Trustees shall proceed to wind up
the affairs of the Trust or such Series and all of the powers of the
Trustees under this Declaration shall continue until the affairs of
the Trust or such Series shall have been wound up, including the power
to fulfill or discharge the contracts of the Trust or such Series,
collect its assets, sell, convey, assign, exchange, merger where the
Trust is not the survivor, transfer or otherwise dispose of all or any
part of the remaining Trust Property to one or more Persons at public
or private sale for consideration which may consist in whole or in
part in cash, securities or other property of any kind, discharge or
pay its liabilities, and do all other acts appropriate to liquidate
its business; provided that any sale, conveyance, assignment,
exchange, merger in which the Trust is not the survivor, transfer or
other disposition of all or substantially all the Trust Property of
the Trust or any Series shall require approval of the principal terms
of the transaction and the nature and amount of the consideration with
the same vote as required for dissolution pursuant to paragraph (a)
above.
(3) After paying or adequately providing for
the payment of all liabilities, and upon receipt of such releases,
indemnities and refunding agreements, as they deem necessary for their
protection, the Trustees may distribute the remaining Trust Property
of the Trust or any Series, in cash or in kind or partly each, among
the Shareholders of such Series according to their respective rights.
(b) After the winding up and termination of the Trust or any
Series and distribution to the Shareholders as herein provided, a majority
of the Trustees shall execute and lodge among the records of the Trust an
instrument in writing setting forth the fact of such termination and shall
execute and file a certificate of cancellation with the Secretary of State
of the State of Delaware. Upon termination of the Trust, the Trustees
shall thereupon be discharged from all further liabilities and duties
hereunder, and the rights and interests of all Shareholders shall thereupon
cease.
Upon termination of any Series, the Trustees shall thereunder be
discharged from all further liabilities and duties with respect to such
Series, and the rights and interests of all Shareholders of such Series
shall thereupon cease.
Section 8.3 Amendment Procedure.
(a) Subject to Section 8.3(b), this Declaration may be
amended in any respect by the affirmative vote of two-thirds of the
Trustees and without any vote of the Shareholders of the Trust or any
Series or Class except as may be required by the 1940 Act.
(b) Nothing contained in this Declaration shall permit the
amendment of this Declaration to impair the exemption from personal
liability of the Shareholders, Trustees, officers, employees and agents of
the Trust or to permit assessments upon Shareholders. Expenses of the
Trust charged directly to Shareholders pursuant to Section 3.8 hereof or
fees or sales charges payable upon or in connection with redemptions of
Shares pursuant to Section 7.1 hereof shall not constitute "assessments"
for purposes of this Section 8.3(b).
(c) An amendment duly adopted by the requisite vote of the
Board of Trustees and, if required, Shareholders as aforesaid, shall become
effective at the time of such adoption or at such other time as may be
designated by the Board of Trustees or Shareholders, as the case may be. A
certification signed by a majority of the Trustees setting forth an
amendment and reciting that it was duly adopted by the Trustees and, if
required, Shareholders as aforesaid, or a copy of the Declaration, as
amended, and executed by a majority of the Trustees, shall be conclusive
evidence of such amendment when lodged among the records of the Trust or at
such other time designated by the Board.
Notwithstanding any other provision hereof, until such time as
Shares are issued and outstanding, this Declaration may be terminated or
amended in any respect by the affirmative vote of a majority of the
Trustees or by an instrument signed by a majority of the Trustees.
Section 8.4 Merger, Consolidation and Sale of Assets. The Trust
or any Series may merge or consolidate with any other corporation,
association, trust or other organization or any Series, sub-trust or other
designated portion thereof or may sell, lease or exchange all or
substantially all of the Trust Property or the property of any Series
including its good will or may acquire all or substantially all of the
property of any other corporation, association, trust or other organization
or any series, sub-trust or other designated portion thereof, upon such
terms and conditions and for such consideration when and as authorized by
two-thirds of the Trustees and without any vote by the Shareholders of the
Trust or any Series or Class except as may be required by the 1940 Act, and
any such merger, consolidation, sale, lease, exchange or purchase shall be
determined for all purposes to have been accomplished under and pursuant to
the statutes of the State of Delaware.
ARTICLE IX
Miscellaneous
Section 9.1 Filing. This Declaration and any amendment
(including any supplement) hereto shall be filed in such places as may be
required or as the Trustees deem appropriate. Each amendment shall be
accompanied by a certificate signed and acknowledged by a Trustee stating
that such action was duly taken in a manner provided herein, and shall,
upon insertion in the Trust's minute book, be conclusive evidence of all
amendments contained therein. A restated Declaration, containing the
original Declaration and all amendments theretofore made, may be executed
from time to time by a majority of the Trustees and shall, upon insertion
in the Trust's minute book, be conclusive evidence of all amendments
contained therein and may thereafter be referred to in lieu of the original
Declaration and the various amendments thereto.
Section 9.2 Resident Agent. The Trust shall maintain a resident
agent in the State of Delaware, which agent shall initially be The
Corporation Trust Company, 0000 Xxxxxx Xxxxxx, Xxxxxxxxxx, Xxxxxxxx 00000.
The Trustees may designate a successor resident agent, provided, however,
that such appointment shall not become effective until written notice
thereof is delivered to the office of the Secretary of the State.
Section 9.3 Governing Law. This Declaration is executed and
delivered in the State of Delaware and with reference to the laws thereof,
and the rights of all parties and the validity and construction of every
provision hereof shall be subject to and construed according to the laws of
said State and reference shall be specifically made to the business
corporation law of the State of Delaware as to the construction of matters
not specifically covered herein or as to which an ambiguity exists,
although such law shall not be viewed as limiting the powers otherwise
granted to the Trustees hereunder and any ambiguity shall be viewed in
favor of such powers.
Section 9.4 Counterparts. This Declaration may be
simultaneously executed in several counterparts, each of which shall be
deemed to be an original, and such counterparts, together, shall constitute
one and the same instrument, which shall be sufficiently evidenced by any
such original counterpart.
Section 9.5 Reliance by Third Parties. Any certificate executed
by an individual who, according to the records of the Trust, or of any
recording office in which this Declaration may be recorded, appears to be a
Trustee hereunder, certifying to the existence of any fact or facts which
in any manner relate to the affairs of the Trust shall be conclusive
evidence as to the matters so certified in favor of any person dealing with
the Trust.
Section 9.6 Provisions in Conflict with Law or Regulation.
(a) The provisions of this Declaration are severable, and if
the Trustees shall determine, with the advice of counsel, that any of such
provisions is in conflict with the 1940 Act, the regulated investment
company provisions of the Code or with other applicable laws and
regulations, the conflicting provision shall be deemed never to have
constituted a part of this Declaration to the extent of such conflict;
provided, however, that such determination shall not affect any of the
remaining provisions of this Declaration or render invalid or improper any
action taken or omitted prior to such determination.
(b) If any provision of this Declaration shall be held
invalid or unenforceable in any jurisdiction, such invalidity or
unenforceability shall attach only to such provision in such jurisdiction
and shall not in any manner affect such provision in any other jurisdiction
or any other provision of this Declaration in any jurisdiction.
IN WITNESS WHEREOF, the undersigned has caused these presents to be
executed as of the day and year first above written.
By: /s/ Xxxxx Xxxxxx
___________________________________
Name: Xxxxx Xxxxxx
Title: Vice President and Treasurer
