EX-99.a.1.
AGREEMENT AND DECLARATION OF TRUST
of
UMB Scout Funds
a Delaware Business Trust
TABLE OF CONTENTS
Page
ARTICLE I. Name and Definitions 1
Section 1. Name 1
Section 2. Registered Agent and Registered
Office; Principal Place of Business 2
(a) Registered Agent and Registered Office 2
(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) "Code" 2
(g) "Commission" 2
(h) "DBTA" 2
(i) "Declaration of Trust" 2
(j) "General Liabilities" 2
(k) "Interested Person" 3
(l) "Investment Adviser" or "Adviser" 3
(m) "National Financial Emergency" 3
(n) "Person" 3
(o) "Principal Underwriter" 3
(p) "Series" 3
(q) "Shares" 3
(r) "Shareholder" 3
(s) "Trust" 3
(t) "Trust Property" 3
(u) "Trustee" or "Trustees" 3
ARTICLE II. Purpose of Trust 4
ARTICLE III. Shares 7
Section 1. Division of Beneficial Interest 7
Section 2. Ownership of Shares 8
Section 3. Investments in the Trust 9
Section 4. Status of Shares and Limitation of
Personal Liability 9
Section 5. Power of Board of Trustees to Change
Provisions Relating to Shares 9
Section 6. Establishment and Designation of
Series 10
(a) Assets Held with Respect to a Particular
Series 11
(b) Liabilities Held with Respect to a
Particular Series 11
(c) Dividends, Distributions, Redemptions
and Xxxxxxxxxxx 00
(x) Voting 12
(e) Equality 12
(f) Fractions 13
(g) Exchange Privilege 13
(h) Combination of Series 13
(i) Elimination of Series 13
Section 7. Indemnification of Shareholders 13
ARTICLE IV. 14
The Board of Trustees 14
Section 1. Number, Election and Tenure 14
Section 2. Effect of Death, Resignation, Removal,
etc. of a Trustee 14
Section 3. Powers 14
Section 4. Payment of Expenses by the Trust 16
Section 5. Payment of Expenses by Shareholders 16
Section 6. Ownership of Trust Property 17
Section 7. Service Contracts 17
ARTICLE V. Shareholders' Voting Powers and Meetings 18
Section 1. Voting Powers 18
Section 2. Meetings 19
Section 3. Quorum and Required Vote 19
Section 4. Shareholder Action by Written Consent
without a Meeting 19
Section 5. Record Dates 20
Section 6. Additional Provisions 20
ARTICLE VI. Net Asset Value, Distributions and
Redemptions 21
Section 1. Determination of Net Asset Value, Net
Income and Distributions 21
Section 2. Redemptions at the Option of a
Shareholder 21
Section 3. Redemptions at the Option of the Trust 22
ARTICLE VII. Compensation and Limitation of Liability
of Officers and Trustees 23
Section 1. Compensation 23
Section 2. Indemnification and Limitation of
Liability 23
Section 3. Officers and Trustees' Good Faith
Action, Expert Advice, No Bond or Surety 23
Section 4. Insurance 24
ARTICLE VIII. Miscellaneous 24
Section 1. Liability of Third Persons Dealing
with Trustees 24
Section 2. Dissolution of Trust or Series 24
Section 3. Merger and Consolidation; Conversion 25
(a) Merger and Consolidation. 25
(b) Conversion 25
Section 4. Reorganization 26
Section 5. Amendments 26
Section 6. Filing of Copies, References, Headings 27
Section 7. Applicable Law 27
Section 8. Provisions in Conflict with Law or
Regulations 27
Section 9. Business Trust Only 28
Section 10. Use of the Names "Scout" 28
AGREEMENT AND DECLARATION OF TRUST
OF
UMB SCOUT FUNDS
AGREEMENT AND DECLARATION OF TRUST made this 26th day
of January, 2000, by the Trustees hereunder, and by the
holders of shares of beneficial interest to be issued
hereunder as hereinafter provided.
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 business
trust in accordance with the provisions of the Delaware
Business Trust Act (12 Del. C. 3801, et seq.), as from time
to time amended and including any successor statute of
similar import (the "DBTA"), 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 "UMB
Scout Funds" and the Trustees shall conduct the business of
the Trust under that name, or any other name as they may
from time to time determine.
Section 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 0000 Xxxxx Xxxxxxxxx, Xxxxxx
Xxxx, Xxxxxxxx, 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 DBTA to form the
Trust;
(f) "Code" shall mean the Internal Revenue Code of
1986, as amended, and the rules and regulations thereunder;
(g) "Commission" shall have the meaning given it in
Section 2(a)(7) of the 1940 Act;
(h) "DBTA" shall mean the Delaware Business Trust Act,
(12 Del. C. 3801, et seq.), as amended from time to time;
(i) "Declaration of Trust" shall mean this Agreement
and Declaration of Trust, as amended or restated from time
to time;
(j) "General Liabilities" shall have the meaning given
it in Article III, Section 6(b) of this Declaration Trust;
(k) "Interested Person" shall have the meaning given
it in Section 2(a)(19) of the 1940 Act;
(l) "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;
(m) "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);
(n) "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;
(o) "Principal Underwriter" shall have the meaning
given to it in Section 2(a)(29) of the 1940 Act;
(p) "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;
(q) "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;
(r) "Shareholder" shall mean a record owner of Shares;
(s) "Trust" shall refer to the Delaware business trust
established by this Declaration of Trust, as amended from
time to time;
(t) "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;
(u) "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:
(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 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 Bylaws 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.
(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 DBTA 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 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.
The Board of Trustees may hold as treasury shares,
reissue for such consideration and on such terms as they may
determine, or cancel, at their discretion from time to time,
any Shares of any Series reacquired by the Trust. 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. 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.
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, in its sole discretion,
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 DBTA,
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 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.
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, 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, 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
unless an express provision to the contrary has been
incorporated in the written contract or other document
establishing the claimant relationship.
Subject to the right of the Board of Trustees in its
discretion to allocate General Liabilities as provided
herein, the debts, liabilities, obligations and expenses
incurred, contracted for or otherwise existing with respect
to a particular Series, whether such Series is now
authorized and existing pursuant to this Declaration of
Trust or is hereafter authorized and existing pursuant to
this Declaration of Trust, shall be enforceable against the
assets held with respect to 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
DBTA, and upon the giving of such notice in the Certificate
of Trust, the statutory provisions of Section 3804 of the
DBTA 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 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 shall have the right to exchange said Shares for
Shares of one or more other Series in accordance with such
requirements and procedures as may be established by the
Board of Trustees, and in accordance with the 1940 Act and
the rules and regulations thereunder.
(h) Combination of Series. The Board of Trustees
shall have the authority, without the approval of the
Shareholders of any Series unless otherwise required by
applicable law, to combine the assets and liabilities held
with respect to any two or more Series into assets and
liabilities held with respect to a single Series.
(i) Elimination of Series. At any time that there are
no Shares outstanding of any particular Series or class
previously established and designated, the Board of Trustees
may by resolution of a majority of the then Board of
Trustees abolish that Series or class and rescind the
establishment and designation thereof.
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 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
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 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 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, 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, 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
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.
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 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 in advance 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 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.
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, 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, 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 Board of Trustees may, from time to time, without the
vote or consent of the Shareholders, and subject to the 1940
Act, redeem Shares or authorize the closing of any
Shareholder account, subject to such conditions as may be
established by the Board of Trustees.
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 a reasonable 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
DBTA, 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 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. Dissolution of Trust or Series. Unless
dissolved as provided herein, the Trust shall have perpetual
existence. The Trust may be dissolved at any time by vote
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 may be dissolved at any time by
vote of a majority of the Shares of that Series or by the
Board of Trustees by written notice to the Shareholders of
that Series.
Upon dissolution of the Trust (or a particular Series,
as the case may be), the Trustees shall (in accordance with
3808 of the DBTA) pay or make reasonable provision to pay
all claims and obligations of each Series (or the particular
Series, 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 of the Trust (or the particular Series, 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 of the Trust (or the particular Series, 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 of the Trust (or
the particular Series, as the case may be) shall be
distributed to the Shareholders of such Series, ratably
according to the number of Shares of such Series held by the
several Shareholders on the record date for such dissolution
distribution.
Section 3. 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 business 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
DBTA, an agreement of merger or consolidation may effect any
amendment to this Declaration of Trust or the By-Laws or
effect the adoption of a new declaration of trust or by-laws
of the Trust if the Trust is the surviving or resulting
business 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 DBTA.
(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 DBTA; (ii) the Shares of the Trust or any Series to be
converted into beneficial interests in another business
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 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 business trusts to which all or any part of the
assets, liabilities, profits or losses of the Trust may be
transferred and to provide for the conversion of Shares of
the Trust or any Series into beneficial interests in such
separate business trust or trusts (or series thereof).
Section 4. 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, business 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 5. 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.
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 X of the By-
Laws.
Section 6. 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 7. 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 business trust pursuant to the
DBTA, and without limiting the provisions hereof, the Trust
may exercise all powers which are ordinarily exercised by
such a business trust.
Section 8. 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 DBTA, 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.
Section 9. Business Trust Only. It is the intention
of the Trustees to create a business trust pursuant to the
DBTA, and thereby to create the relationship of trustee and
beneficial owners within the meaning of the DBTA 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 business trust pursuant to the DBTA. 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 10. Use of the Names "UMB" and "Scout". The
Trust expressly agrees and acknowledges that the names "UMB"
and "Scout" are the sole property of UMB Bank, n.a. ("UMB
Bank"). UMB Bank has consented to the use by the Trust of
the identifying words "UMB" and "Scout" and has granted to
the Trust a nonexclusive license to use such names as part
of the name of the Trust and the name of any Series of
Shares. The Trust further expressly agrees and acknowledges
that the non-exclusive license granted herein may be
terminated by UMB Bank if the Trust ceases to use an
Affiliate of UMB Bank as Investment Adviser or Principal
Underwriter (or to use other Affiliates or successors of UMB
Bank for such purposes). In such event, the non-exclusive
license granted herein may be revoked by UMB Bank and the
Trust shall cease using the names "UMB" and "Scout" and as
part of its name or the name of any Series of Shares, unless
otherwise consented to by UMB Bank or any successor to its
interests in such names.
The Trust further understands and agrees that so long
as UMB Bank and/or its advisory Affiliates shall continue to
serve as the Trust's Investment Adviser, other mutual funds
as may be sponsored or advised by UMB Bank or its Affiliates
shall have the right permanently to adopt and to use the
words "UMB" and "Scout" in their names and in the names of
any Series or class of Shares of such funds.
IN WITNESS WHEREOF, the Trustees named below do hereby
make and enter into this Declaration of Trust as of the 26th
day of January, 2000.
/s/ Xxxxxxx X. Xxxxx
Xxxxxxx X. Xxxxx
President and Chairman of the
Board
/s/ Xxxx X. Xxxxx
Xxxx X. Xxxxx
Trustee
/s/ Xxxxxxx X. Xxxxxxx
Xxxxxxx X. Xxxxxxx
Trustee
/s/ Xxxxxxx X. Xxxx
Xxxxxxx X. Xxxx
Trustee
/s/ Xxxxxx X. Xxxx
Xxxxxx X. Xxxx
Trustee
280303.01
