EXHIBIT a(1)
AMENDED AND RESTATED
AGREEMENT AND DECLARATION OF TRUST
OF
AIM VARIABLE INSURANCE FUNDS
WHEREAS, THIS AGREEMENT AND DECLARATION OF TRUST of AIM
Variable Insurance Funds, dated December 6,1999, as previously amended, is
hereby amended and restated as of May 15, 2002, among Xxxxx X. Xxxxxx, Xxxxx X.
Xxxxxxxx, Xxxxxx X. Xxxxxx, Xxxxxx X. Xxxx, Xx., Xxxx X. Xxxxxx, Xxxx
Xxxxxxxxxx, Xxxxxx X. Xxxxxx, Xxxxx Xxxxxx-Xxxxx, Xxxxx X. Xxxxxxx, Xxxx X.
Xxxxxxx and Xxxxx X. Xxxxx, as the Trustees, and each person who becomes a
Shareholder in accordance with the terms hereinafter set forth.
NOW, THEREFORE, the Trustees do hereby declare that all money
and property contributed to the trust hereunder shall be held and managed in
trust under this Agreement for the benefit of the Shareholders as herein set
forth below.
ARTICLE I
NAME, DEFINITIONS, PURPOSE AND CERTIFICATE OF TRUST
Section 1.1 Name. The name of the business trust established hereby is
AIM Variable Insurance Funds, and the Trustees may transact the Trust's affairs
in that name. The Trust shall constitute a Delaware business trust in accordance
with the Delaware Act.
Section 1.2 Definitions. Whenever used herein, unless otherwise
required by the context or specifically provided:
(a) "Affiliated Person," "Company," "Person," and "Principal
Underwriter" shall have the meanings given them in the 1940 Act,
as modified by or interpreted by any applicable order or orders
of the Commission or any rules or regulations adopted or
interpretive releases of the Commission thereunder. The term
"Commission" shall have the meaning given it in the 1940 Act;
(b) "Agreement" means this Agreement and Declaration of Trust, as it
may be amended from time to time;
(c) "allocable" has the meaning specified in Section 2.5(d);
(d) "allocated" has the meaning specified in Section 2.5(d);
(e) "Bylaws" means the Bylaws referred to in Section 4.1(e), as from
time to time amended;
(f) "Class" means a portion of Shares of a Portfolio of the Trust
established in accordance with the provisions of Section 2.3(b);
(g) "Class Expenses" means expenses incurred by a particular Class in
connection with a shareholder services arrangement or a
distribution plan that is specific to such Class or any other
differing share of expenses or differing fees, in each case
pursuant to a plan adopted by the Trust pursuant to Rule 18f-3
under the 1940 Act, as such plan or Rule may be amended from
time to time;
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(h) "Covered Person" means a person who is or was a Trustee, officer,
employee or agent of the Trust, or is or was serving at the
request of the Trustees as a director, trustee, partner, officer,
employee or agent of a corporation, trust, partnership, joint
venture or other enterprise;
(i) The "Delaware Act" refers to the Delaware Business Trust Act, 12
Del. C. Section 3801 et seq., as such Act may be amended from
time to time;
(j) "fund complex" has the meaning specified in Regulation 14A under
the Securities Exchange Act of 1934, as amended from time to
time;
(k) "Governing Instrument" means collectively this Agreement, the
Bylaws, all amendments to this Agreement and the Bylaws and every
resolution of the Trustees or any committee of the Trustees that
by its terms is incorporated by reference into this Agreement or
stated to constitute part of the Trust's Governing Instrument or
that is incorporated herein by Section 2.3 of this Agreement;
(l) "Majority Shareholder Vote" means "the vote of a majority of the
outstanding voting securities" (as defined in the 0000 Xxx) of
the Trust, Portfolio, or Class, as applicable;
(m) "Majority Trustee Vote" means the vote of a majority of the
Trustees;
(n) "New Class A Shares" has the meaning specified in Section 2.6(c);
(o) "New Class B Shares" has the meaning specified in Section 2.6(c);
(p) The "1940 Act" means the Investment Company Act of 1940, as
amended from time to time;
(q) "Outstanding Shares" means Shares shown on the books of the Trust
or its transfer agent as then issued and outstanding, and
includes Shares of one Portfolio that the Trust has purchased on
behalf of another Portfolio, but excludes Shares of a Portfolio
that the Trust has redeemed or repurchased;
(r) "Portfolio" means a series of Shares of the Trust within the
meaning of Section 3804(a) of the Delaware Act, established in
accordance with the provisions of Section 2.3(a);
(s) "Proportionate Interest" has the meaning specified in Section
2.5(d);
(t) "Purchasing Portfolio" has the meaning specified in Section 2.10;
(u) "Schedule A" has the meaning specified in Section 2.3(a);
(v) "Selling Portfolio" has the meaning specified in Section 2.10;
(w) "Shareholder" means a record owner of Outstanding Shares of the
Trust;
(x) "Shares" means, as to a Portfolio or any Class thereof, the equal
proportionate
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transferable units of beneficial interest into which the
beneficial interest of such Portfolio or such Class thereof shall
be divided and may include fractions of Shares in 1/1000th of a
Share or integral multiples thereof as well as whole Shares;
(y) The "Trust" means AIM Variable Insurance Funds, the Delaware
business trust established hereby, and reference to the Trust,
when applicable to one or more Portfolios, shall refer to each
such Portfolio;
(z) The "Trustees" means the Persons who have signed this Agreement
as trustees so long as they shall continue to serve as trustees
of the Trust in accordance with the terms hereof, and all other
Persons who may from time to time be duly appointed as Trustee in
accordance with the provisions of Section 3.4, or elected as
Trustee by the Shareholders, and reference herein to a Trustee or
to the Trustees shall refer to such Persons in their capacity as
Trustees hereunder; and
(aa) "Trust Property" means any and all property, real or personal,
tangible or intangible, which is owned or held by or for the
account of the Trust or any Portfolio, or by the Trustees on
behalf of the Trust or any Portfolio.
Section 1.3 Purpose. The purpose of the Trust is to conduct, operate
and carry on the business of an open-end management investment company
registered under the 1940 Act through one or more Portfolios investing primarily
in securities and to carry on such other business as the Trustees may from time
to time determine pursuant to their authority under this Agreement.
Section 1.4 Certificate of Trust. Immediately upon the execution of
this Agreement, the Trustees shall file a Certificate of Trust with respect to
the Trust in the Office of the Secretary of State of the State of Delaware
pursuant to the Delaware Act. From time to time, the Trustees shall cause such
Certificate of Trust to be amended to reflect changes in the composition of the
Board of Trustees.
ARTICLE II
BENEFICIAL INTEREST
Section 2.1 Shares of Beneficial Interest. The Trust is authorized (A)
to issue one or more series of beneficial interests within the meaning of
Section 3804(a) of the Delaware Act, which shall constitute the Trust's
Portfolio(s), and (B) to divide the shares of any Portfolio into one or more
separate and distinct Classes. The beneficial interests of the Trust shall be
divided into an unlimited number of Shares, with par value of $0.001 per Share.
All Shares issued hereunder, including without limitation, Shares issued in
connection with a dividend or other distribution in Shares or a split or reverse
split of Shares, shall be fully paid and nonassessable.
Section 2.2 Issuance of Shares. The Trustees in their discretion may,
from time to time, without vote of the Shareholders, issue Shares, in addition
to the then issued and Outstanding Shares, to such party or parties and for such
amount and type of consideration, subject to applicable law, including cash or
securities, at such time or times and on such terms as the Trustees may deem
appropriate, 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. In connection with any issuance of Shares, the
Trustees may issue fractional Shares. The Trustees may from time to time divide
or combine the Shares into a greater or lesser number without thereby changing
the proportionate beneficial interests in the Trust. Contributions to the Trust
may be accepted for, and Shares shall be redeemed as, whole Shares and/or
1/1000th of a Share or integral multiples thereof.
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Section 2.3 Establishment of Portfolios and Classes.
(a) The Trust shall consist of one or more separate and distinct
Portfolios, each with an unlimited number of Shares unless
otherwise specified. The Trustees hereby establish and designate
the Portfolios listed on Schedule A attached hereto and made a
part hereof ("Schedule A"). Each additional Portfolio shall be
established by the adoption of one or more resolutions by the
Trustees. Each such resolution is hereby incorporated herein by
this reference and made a part of the Governing Instrument
whether or not expressly stated in such resolution, and shall be
effective upon the occurrence of both (i) the date stated therein
(or, if no such date is stated, upon the date of such adoption)
and (ii) the execution of an amendment either to this Agreement
or to Schedule A hereto establishing and designating such
additional Portfolio or Portfolios. The Shares of each Portfolio
shall have the relative rights and preferences provided for
herein and such rights and preferences as may be designated by
the Trustees in any amendment or modification to the Trust's
Governing Instrument. The Trust shall maintain separate and
distinct records of each Portfolio and shall hold and account for
the assets belonging thereto separately from the other Trust
Property and the assets belonging to any other Portfolio. Each
Share of a Portfolio shall represent an equal beneficial interest
in the net assets belonging to that Portfolio, except to the
extent of Class Expenses and other expenses separately allocated
to Classes thereof (if any Classes have been established) as
permitted herein.
(b) The Trustees may establish one or more Classes of Shares of any
Portfolio, each with an unlimited number of Shares unless
otherwise specified. Each Class so established and designated
shall represent a Proportionate Interest (as defined in Section
2.5(d)) in the net assets belonging to that Portfolio and shall
have identical voting, dividend, liquidation, and other rights
and be subject to the same terms and conditions, except that (1)
Class Expenses allocated to a Class for which such expenses were
incurred shall be borne solely by that Class, (2) other expenses,
costs, charges, and reserves allocated to a Class in accordance
with Section 2.5(e) may be borne solely by that Class, provided
that the allocation of such other expenses, costs, charges, and
reserves is not specifically required to be set forth in a plan
adopted by the Trust pursuant to Rule 18f-3 under the Act, (3)
dividends declared and payable to a Class pursuant to Section 7.1
shall reflect the items separately allocated thereto pursuant to
the preceding clauses, (4) each Class may have separate rights to
convert to another Class, exchange rights, and similar rights,
each as determined by the Trustees, and (5) subject to Section
2.6(c), each Class may have exclusive voting rights with respect
to matters affecting only that Class. The Trustees hereby
establish for each Portfolio listed on Schedule A the Classes
listed thereon. Each additional Class for any or all Portfolios
shall be established by the adoption of one or more resolutions
by the Trustees. Each such resolution is hereby incorporated
herein by this reference and made a part of the Governing
Instrument whether or not expressly stated in such resolution,
and shall be effective upon the occurrence of both (i) the date
stated therein (or, if no such date is stated, upon the date of
such adoption) and (ii) the execution of an amendment to this
Agreement establishing and designating such additional Class or
Classes.
Section 2.4 Actions Affecting Portfolios and Classes. Subject to the
right of Shareholders, if any, to vote pursuant to Section 6.1,the Trustees
shall have full power and authority, in their sole
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discretion without obtaining any prior authorization or vote of the Shareholders
of any Portfolio, or Class thereof, to establish and designate and to change in
any manner any Portfolio of Shares, or any Class or Classes thereof; to fix or
change such preferences, voting powers, rights, and privileges of any Portfolio,
or Classes thereof, as the Trustees may from time to time determine, including
any change that may adversely affect a Shareholder; to divide or combine the
Shares of any Portfolio, or Classes thereof, into a greater or lesser number; to
classify or reclassify or convert any issued Shares of any Portfolio, or Classes
thereof, into one or more Portfolios or Classes of Shares of a Portfolio; and to
take such other action with respect to the Shares as the Trustees may deem
desirable. A Portfolio and any Class thereof may issue any number of Shares but
need not issue any Shares. At any time that there are no Outstanding Shares of
any particular Portfolio or Class previously established and designated, the
Trustees may abolish that Portfolio or Class and the establishment and
designation thereof.
Section 2.5 Relative Rights and Preferences. Unless the establishing
resolution or any other resolution adopted pursuant to Section 2.3 otherwise
provides, Shares of each Portfolio or Class thereof established hereunder shall
have the following relative rights and preferences;
(a) Except as set forth in paragraph (e) of this Section 2.5, each
Share of a Portfolio, regardless of Class, shall represent an
equal pro rata interest in the assets belonging to such Portfolio
and shall have identical voting, dividend, liquidation and other
rights, preferences, powers, restrictions, limitations,
qualifications and designations and terms and conditions with
each other Share of such Portfolio.
(b) Shareholders shall have no preemptive or other right to subscribe
to any additional Shares or other securities issued by the Trust
or the Trustees, whether of the same or other Portfolio (or
Class).
(c) All consideration received by the Trust for the issue or sale of
Shares of a particular Portfolio, 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 payments derived from any reinvestment of such
proceeds in whatever form the same may be, shall be held and
accounted for separately from the other assets of the Trust and
of every other Portfolio and may be referred to herein as "assets
belonging to" that Portfolio. The assets belonging to a
particular Portfolio shall belong to that Portfolio for all
purposes, and to no other Portfolio, subject only to the rights
of creditors of that Portfolio. In addition, any assets, income,
earnings, profits or funds, or payments and proceeds with respect
thereto, which are not readily identifiable as belonging to any
particular Portfolio shall be allocated by the Trustees between
and among one or more of the Portfolios in such manner as the
Trustees, in their sole discretion, deem fair and equitable. Each
such allocation shall be conclusive and binding upon the
Shareholders of all Portfolios thereof for all purposes, and such
assets, income, earnings, profits, or funds, or payments and
proceeds with respect thereto shall be assets belonging to that
Portfolio.
(d) Each Class of a Portfolio shall have a proportionate undivided
interest (as determined by or at the direction of, or pursuant to
authority granted by, the Trustees, consistent with industry
practice) ("Proportionate Interest") in the net assets belonging
to that Portfolio. References herein to assets, expenses,
charges, costs, and reserves "allocable" or "allocated" to a
particular Class of a Portfolio shall mean the aggregate amount
of such item(s) of the Portfolio multiplied by the Class's
Proportionate Interest.
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(e) A particular Portfolio shall be charged with the liabilities of
that Portfolio, and all expenses, costs, charges and reserves
attributable to any particular Portfolio shall be borne by such
Portfolio; provided that the Trustees may, in their sole
discretion, allocate or authorize the allocation of particular
expenses, costs, charges, and/or reserves of a Portfolio to fewer
than all the Classes thereof. Class Expenses shall, in all cases,
be allocated to the Class for which such Class Expenses were
incurred. Any general liabilities, expenses, costs, charges or
reserves of the Trust (or any Portfolio) that are not readily
identifiable as chargeable to or bearable by any particular
Portfolio (or any particular Class) shall be allocated and
charged by the Trustees between or among any one or more of the
Portfolios (or Classes) in such manner as the Trustees in their
sole discretion deem fair and equitable. Each such allocation
shall be conclusive and binding upon the Shareholders of all
Portfolios (or Classes) for all purposes. Without limitation of
the foregoing provisions of this Section 2.5(e), (i) the debts,
liabilities, obligations and expenses incurred, contracted for or
otherwise existing with respect to a particular Portfolio shall
be enforceable against the assets of such Portfolio only, and not
against the assets of the Trust generally or assets belonging to
any other Portfolio, and (ii) none of the debts, liabilities,
obligations and expenses incurred, contracted for or otherwise
existing with respect to the Trust generally that have not been
allocated to a specified Portfolio, or with respect to any other
Portfolio, shall be enforceable against the assets of such
specified Portfolio. Notice of this contractual limitation on
inter-Portfolio liabilities shall be set forth in the Trust's
Certificate of Trust described in Section 1.4, and upon the
giving of such notice in the Certificate of Trust, the statutory
provisions of Section 3804 of the Delaware Act relating to
limitations on inter-Portfolio liabilities (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 Portfolio.
(f) Except as provided for in Section 2.10, shares redeemed or
repurchased by a Portfolio or the Trust shall be deemed to be
canceled.
(g) The Trust may issue Shares in fractional denominations of
1/1000th of a Share or integral multiples thereof to the same
extent as its whole Shares, and Shares in fractional
denominations shall be Shares having proportionately to the
respective fractions represented thereby all the rights of whole
Shares of the same Portfolio (or Class), including without
limitation, the right to vote, the right to receive dividends and
distributions and the right to participate upon termination of
the Trust or any Portfolio, but excluding the right to receive a
certificate representing fractional Shares.
All references to Shares in this Agreement shall be deemed to be
shares of any or all Portfolios, or Classes thereof, as the context may require.
All provisions herein relating to the Trust shall apply equally to each
Portfolio of the Trust, and each Class thereof, except as the context otherwise
requires.
Section 2.6 Additional Rights and Preferences of Class B Shares. In
addition to the relative rights and preferences set forth in Section 2.5 and all
other provisions of this Agreement relating to Shares of the Trust generally,
any Class of any Portfolio designated as Class B Shares shall have the following
rights and preferences:
(a) Subject to the provisions of paragraph (c) below, all Class B
Shares other than those purchased through the reinvestment of
dividends and distributions shall automatically convert to Class
A Shares at the end of the month which is eight (8) years after
the date on which a Shareholder's order to purchase such shares
was accepted.
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(b) Subject to the provisions of paragraph (c) below, Class B Shares
purchased through the reinvestment of dividends and distributions
paid in respect of Class B Shares will be considered held in a
separate sub-account, and will automatically convert to Class A
Shares in the same proportion as any Class B Shares (other than
those in the sub-account) convert to Class A Shares. Other than
this conversion feature, the Class B Shares purchased through the
reinvestment of dividends and distributions paid in respect of
Class B Shares shall have all the rights and preferences,
restrictions, limitations as to dividends, qualifications and
terms and conditions of redemption of Class B Shares generally.
(c) If (1) the Class A Shareholders of a Portfolio approve any
increase in expenses allocated to the Class A Shares of that
Portfolio in connection with (A) a Plan of Distribution adopted
pursuant to Rule 12b-1 under the 1940 Act, (B) a non-Rule 12b-1
shareholder services plan or (C) any other plan or arrangement
whereby Classes of that Portfolio pay a different share of other
expenses, not including advisory or custodial fees or other
expenses related to the management of the Trust's assets, then
(2) the Class B Shares of that Portfolio will stop converting to
the Class A Shares unless the Class B Shareholders of that
Portfolio, voting separately, approve the increase in expenses.
The Trustees shall have sole discretion in determining whether
such increase in expenses is submitted to a vote of the Class B
Shareholders. Should such increase in expenses not be submitted
to a vote of the Class B Shareholders or, if submitted, should
the Class B Shareholders fail to approve such increase in
expenses, the Trustees shall take such action as is necessary to:
(1) create a new class of that Portfolio (the "New Class A
Shares") which shall be identical in all material respects to the
Class A Shares of that Portfolio as they existed prior to the
implementation of the increase in expenses; and (2) ensure that
the existing Class B Shares of that Portfolio will be exchanged
or converted into New Class A Shares no later than the date such
Class B Shares were scheduled to convert to Class A Shares. If
deemed advisable by the Trustees to implement the foregoing, and
at the sole discretion of the Trustees, such action may include
the exchange of all Class B Shares of that Portfolio for a new
class of that Portfolio (the "New Class B Shares"), identical in
all material respects to the Class B Shares of that Portfolio
except that the New Class B Shares will automatically convert
into the New Class A Shares. Such exchanges or conversions shall
be effected in a manner that the Trustees reasonably believe will
not be subject to federal taxation.
Section 2.7 Investment in the Trust. Investments may be accepted by
the Trust from such Persons, at such times, on such terms, and for such
consideration, which may consist of cash or tangible or intangible property or a
combination thereof, as the Trustees from time to time may authorize. At the
Trustees' sole discretion, such investments, subject to applicable law, may be
in the form of cash or securities in which the affected Portfolio is authorized
to invest, valued as provided in applicable law. Each such investment shall be
recorded in the individual Shareholder's account in the form of full and
fractional Shares of the Trust, in such Portfolio (or Class) as the Shareholder
shall select.
Section 2.8 Personal Liability of Shareholders. As provided by
applicable law, no Shareholder of the Trust shall be personally liable for the
debts, liabilities, obligations and expenses incurred by, contracted for, or
otherwise existing with respect to, the Trust or any Portfolio (or Class)
thereof. Neither the Trust nor the Trustees, nor any officer, employee, or agent
of the Trust shall have any power to bind personally any Shareholder or to call
upon any Shareholder for the payment of any sum of
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money or assessment whatsoever other than such as the Shareholder may at any
time personally agree to pay by way of subscription for any Shares or otherwise.
The Shareholders shall be entitled, to the fullest extent permitted by
applicable law, to the same limitation of personal liability as is extended
under the Delaware General Corporation Law to stockholders of private
corporations for profit. Every note, bond, contract or other undertaking issued
by or on behalf of the Trust or the Trustees relating to the Trust or to any
Portfolio shall include a recitation limiting the obligation represented thereby
to the Trust and its assets or to one or more Portfolios and the assets
belonging thereto (but the omission of such a recitation shall not operate to
bind any Shareholder or Trustee of the Trust or otherwise limit any benefits set
forth in the Delaware Act that may be applicable to such Persons).
Section 2.9 Assent to Agreement. Every Shareholder, by virtue of
having purchased a Share, shall be held to have expressly assented to, and
agreed to be bound by, the terms hereof. The death of a Shareholder during the
continuance of the Trust shall not operate to terminate the same nor entitle the
representative of any deceased Shareholder to an accounting or to take any
action in court or elsewhere against the Trust or the Trustees, but only to
rights of said decedent under the Governing Instrument.
Section 2.10 Purchases of Shares Among Portfolios. The Trust may
purchase, on behalf of any Portfolio (the "Purchasing Portfolio"), Shares of
another Portfolio (the "Selling Portfolio") or any Class thereof. Shares of the
Selling Portfolio so purchased on behalf of the Purchasing Portfolio shall be
Outstanding Shares, and shall have all preferences, voting powers, rights and
privileges established for such Shares.
ARTICLE ILL
THE TRUSTEES
Section 3.1 Management of the Trust. The Trustees shall have exclusive
and absolute control over the Trust Property and over the business of the Trust
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 Agreement. The Trustees shall have power to conduct the
business of the Trust 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, in any
and all commonwealths, territories, dependencies, colonies, or possessions of
the United States of America, and in any and all foreign jurisdictions 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 although such
things are not herein specifically mentioned. Any determination as to what is in
the interests of the Trust made by the Trustees in good faith shall be
conclusive. In construing the provisions of this Agreement, the presumption
shall be in favor of a grant of power to the Trustees.
The enumeration of any specific power in this Agreement shall
not be construed as limiting the aforesaid power. The powers of the Trustees may
be exercised without order of or resort to any court or other authority.
Section 3.2 Trustees. The number of Trustees shall be such number as
shall be fixed from time to time by a majority of the Trustees; provided,
however, that the number of Trustees shall in no event be less than two (2) nor
more than fifteen (15). The initial Trustees are those first identified above.
Section 3.3 Terms of Office of Trustees. The Trustees shall hold
office during the lifetime of this Trust, and until its termination as herein
provided; except that (A) any Trustee may resign his trusteeship or may retire
by written instrument signed by him and delivered to the other Trustees, which
shall take effect upon such delivery or upon such later date as is specified
therein; (B) any Trustee may
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be removed at any time by written instrument, signed by at least two-thirds of
the number of Trustees prior to such removal, specifying the date when such
removal shall become effective; (C) any Trustee who has died, become physically
or mentally incapacitated by reason of disease or otherwise, or is otherwise
unable to serve, may be retired by written instrument signed by a majority of
the other Trustees, specifying the date of his retirement; and (D) a Trustee may
be removed at any meeting of the Shareholders by a vote of the Shareholders
owning at least two-thirds of the Outstanding Shares.
Section 3.4 Vacancies and Appointment of Trustees. In case of the
declination to serve, death, resignation, retirement or removal of a Trustee, or
a Trustee is otherwise unable to serve, or an increase in the number of
Trustees, a vacancy shall occur. Whenever a vacancy in the Board of Trustees
shall occur, until such vacancy is filled, the other Trustees shall have all the
powers hereunder and the certification of the other Trustees of such vacancy
shall be conclusive. In the case of an existing vacancy, the remaining Trustees
may fill such vacancy by appointing such other person as they in their
discretion shall see fit, or may leave such vacancy unfilled or may reduce the
number of Trustees to not less than two (2) Trustees. Such appointment shall be
evidenced by a written instrument signed by a majority of the Trustees in office
or by resolution of the Trustees, duly adopted, which shall be recorded in the
minutes of a meeting of the Trustees, whereupon the appointment shall take
effect.
An appointment of a Trustee may be made by the Trustees then
in office in anticipation of a vacancy to occur by reason of retirement,
resignation, or removal of a Trustee, or an increase in number of Trustees
effective at a later date, provided that said appointment shall become effective
only at the time or after the expected vacancy occurs. As soon as any Trustee
appointed pursuant to this Section 3.4 or elected by the Shareholders shall have
accepted the Trust and agreed in writing to be bound by the terms of the
Agreement, the Trust estate shall vest in the new Trustee or Trustees, together
with the continuing Trustees, without any further act or conveyance, and he
shall be deemed a Trustee hereunder.
Section 3.5 Temporary Absence of Trustee. Any Trustee may, by power of
attorney, delegate his power for a period not exceeding six months at any one
time to any other Trustee or Trustees, provided that in no case shall less than
two Trustees personally exercise the other powers hereunder except as herein
otherwise expressly provided.
Section 3.6 Effect of Death, Resignation, etc. of a Trustee. The
declination to serve, death, resignation1 retirement, removal, incapacity, or
inability of the Trustees, or any one of them, shall not operate to terminate
the Trust or to revoke any existing agency created pursuant to the terms of this
Agreement.
Section 3.7 Ownership of Assets of the Trust. The assets of the Trust
and of each Portfolio thereof shall be held separate and apart from any assets
now or hereafter held in any capacity other than as Trustee hereunder by the
Trustees or any successor Trustees. Legal title in all of the assets of the
Trust and the right to conduct any business shall at all times be considered as
vested in the Trustees on behalf of the Trust, except that the Trustees may
cause legal title to any Trust Property to be held by or in the name of the
Trust, or in the name of any Person as nominee. No Shareholder shall be deemed
to have a severable ownership in any individual asset of the Trust, or belonging
to any Portfolio, or allocable to any Class thereof, or any right of partition
or possession thereof, but each Shareholder shall have, except as otherwise
provided for herein, a proportionate undivided beneficial interest in the Trust
or in assets belonging to the Portfolio (or allocable to the Class) in which the
Shareholder holds Shares. The Shares shall be personal property giving only the
rights specifically set forth in this Agreement or the Delaware Act.
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ARTICLE IV
POWERS OF THE TRUSTEES
Section 4.1 Powers. The Trustees in all instances shall act as
principals, and are and shall be free from the control of the Shareholders. The
Trustees shall have full power and authority to do any and all acts and to make
and execute any and all contracts and instruments that they may consider
necessary or appropriate in connection with the management of the Trust. Without
limiting the foregoing and subject to any applicable limitation in this
Agreement or the Bylaws of the Trust, the Trustees shall have power and
authority:
(a) To invest and reinvest cash and other property, and to hold cash
or other property uninvested, without in any event being bound or
limited by any present or future law or custom in regard to
investments by Trustees, and to sell, exchange, lend, pledge,
mortgage, hypothecate, write options on and lease any or all of
the assets of the Trust;
(b) To operate as, and to carry on the business of, an investment
company, and to exercise all the powers necessary and appropriate
to the conduct of such operations;
(c) To borrow money and in this connection issue notes or other
evidence of indebtedness; to secure borrowings by mortgaging,
pledging or otherwise subjecting as security the Trust Property;
to endorse, guarantee, or undertake the performance of an
obligation or engagement of any other Person and to lend Trust
Property;
(d) To provide for the distribution of Shares either through a
principal underwriter in the manner hereafter provided for or by
the Trust itself, or both, or otherwise pursuant to a plan of
distribution of any kind;
(e) To adopt Bylaws not inconsistent with this Agreement providing
for the conduct of the business of the Trust and to amend and
repeal them to the extent that they do not reserve such right to
the Shareholders; such Bylaws shall be deemed incorporated and
included in this Agreement;
(f) To elect and remove such officers and appoint and terminate such
agents as they consider appropriate;
(g) To employ one or more banks, trust companies or companies that
are members of a national securities exchange or such other
domestic or foreign entities as custodians of any assets of the
Trust subject to any conditions set forth in this Agreement or in
the Bylaws;
(h) To retain one or more transfer agents and shareholder servicing
agents;
(i) To set record dates in the manner provided herein or in the
Bylaws;
(j) To delegate such authority as they consider desirable to any
officers of the Trust and to any investment adviser, manager,
administrator, custodian, underwriter or other agent or
independent contractor;
(k) To sell or exchange any or all of the assets of the Trust,
subject to the right of Shareholders, if any, to vote on such
transaction pursuant to Section 6.1;
10
(l) 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 and 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 Trustee shall deem proper;
(m) To exercise powers and rights of subscription or otherwise which
in any manner arise out of ownership of securities;
(n) To hold any security or property in a form not indicating any
trust, whether in bearer, book entry, unregistered or other
negotiable form; or either in the name of the Trust or of a
Portfolio or a custodian or a nominee or nominees, subject in
either case to proper safeguards according to the usual practice
of Delaware business trusts or investment companies;
(o) To establish separate and distinct Portfolios with separately
defined investment objectives and policies and distinct
investment purposes in accordance with the provisions of Article
II hereof and to establish Classes of such Portfolios having
relative rights, powers and duties as they may provide consistent
with this Agreement and applicable law;
(p) Subject to the provisions of Section 3804 of the Delaware Act, to
allocate assets, liabilities and expenses of the Trust to a
particular Portfolio or to apportion the same between or among
two or more Portfolios, provided that any liabilities or expenses
incurred by a particular Portfolio shall be payable solely out of
the assets belonging to that Portfolio as provided for in Article
II hereof;
(q) To consent to or participate in any plan for the reorganization,
consolidation or merger of any corporation or concern, any
security of which is held in the Trust; to consent to any
contract, lease, mortgage, purchase, or sale of property by such
corporation or concern, and to pay calls or subscriptions with
respect to any security held in the Trust;
(r) 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;
(s) To declare and pay dividends and make distributions of income and
of capital gains and capital to Shareholders in the manner
hereinafter provided;
(t) To establish, from time to time, a minimum investment for
Shareholders in the Trust or in one or more Portfolios or
Classes, and to require the redemption of the Shares of any
Shareholder whose investment is less than such minimum upon
giving notice to such Shareholder;
(u) To redeem or repurchase Shares as provided for in this Agreement,
upon such terms and conditions as the Trustees shall establish;
(v) To establish one or more committees, to delegate any of the
powers of the Trustees to said committees and to adopt a
committee charter providing for such responsibilities, membership
(including Trustees, officers or other agents of the Trust
therein) and any
11
other characteristics of said committees as the Trustees may deem
proper, each of which committees may consist of less than the
whole number of Trustees then in office, and may be empowered to
act for and bind the Trustees and the Trust, as if the acts of
such committee were the acts of all the Trustees then in office;
(w) To interpret the investment policies, practices or limitations of
any Portfolios;
(x) To establish a registered office and have a registered agent in
the State of Delaware; and
(y) In general, to carry on any other business in connection with or
incidental to any of the foregoing powers, to do everything
necessary, suitable or proper for the accomplishment of any
purpose or the attainment of any object or the furtherance of any
power hereinbefore set forth, either alone or in association with
others, and to do every other act or thing incidental or
appurtenant to or growing out of or connected with the aforesaid
business or purposes, objects or powers.
The foregoing clauses shall be construed both as objects and
powers, and the foregoing enumeration of specific powers shall not be held to
limit or restrict in any manner the general powers of the Trustees. Any action
by one or more of the Trustees in their capacity as such hereunder shall be
deemed an action on behalf of the Trust or the applicable Portfolio, and not an
action in an individual capacity.
The Trustees shall not be limited to investing in obligations
maturing before the possible termination of the Trust.
No one dealing with the Trustees shall be under any obligation to
make any inquiry concerning the authority of the Trustees, or to see to the
application of any payments made or property transferred to the Trustees or upon
their order.
Section 4.2 Issuance, Redemption and Repurchase of Shares. The
Trustees shall have the power to issue, sell, repurchase, redeem, retire,
cancel, acquire, hold, resell, reissue, dispose of, and otherwise deal in Shares
and, subject to the provisions set forth in Articles II and VII hereof, to apply
to any such repurchase, redemption, retirement, cancellation or acquisition of
Shares any funds or property of the Trust, or any assets belonging to the
particular Portfolio or any assets allocable to the particular Class, with
respect to which such Shares are issued.
Section 4.3 Action by the Trustees. The Board of Trustees or any
committee thereof shall act by majority vote of those present at a meeting duly
called (including a meeting by telephonic or other electronic means, unless the
1940 Act requires that a particular action be taken only at a meeting of the
Trustees in person) at which a quorum required by the Bylaws is present. Any
action that may be taken by the Board of Trustees or any committee thereof by
majority vote at a meeting duly called and at which a quorum required by the
Bylaws is present, may also be taken by written consent of at least seventy-five
percent (75%) of the Trustees or members of the committee, as the case may be,
without a meeting, provided that the writing or writings are filed with the
minutes of proceedings of the Board or committee. Written consents or waivers of
the Trustees may be executed in one or more counterparts. Any written consent or
waiver may be provided and delivered to the Trust by any means by which notice
may be given to a Trustee. Subject to the requirements of this Agreement and the
1940 Act, the Trustees by Majority Trustee Vote may delegate to any Trustee or
Trustees authority to approve particular matters or take particular actions on
behalf of the Trust.
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Section 4.4 Principal Transactions. The Trustees may, on behalf of the
Trust, buy any securities from or sell any securities to, or lend any assets of
the Trust to, any Trustee or officer of the Trust or any firm of which any such
Trustee or officer is a member acting as principal, or have any such dealings
with any investment adviser, distributor, or transfer agent for the Trust or
with any Affiliated Person of such Person; and the Trust may employ any such
Person, or firm or Company in which such Person is an Affiliated Person, as
broker, legal counsel, registrar, investment adviser, distributor,
administrator, transfer agent, dividend disbursing agent, custodian, or in any
capacity upon customary terms, subject in all cases to applicable laws, rules,
and regulations and orders of regulatory authorities.
Section 4.5 Payment of Expenses by the Trust. The Trustees are
authorized to pay or cause to be paid out of the principal or income of the
Trust or any Portfolio, or partly out of the principal and partly out of income,
and to charge or allocate to, between or among such one or more of the
Portfolios (or Classes), as they deem fair, all expenses, fees, charges, taxes
and liabilities incurred or arising in connection with the Trust or Portfolio
(or Class), or in connection with the management thereof, including, but not
limited to, the Trustees' compensation and such expenses and charges for the
services of the Trust's officers, employees, investment adviser and manager,
administrator, principal underwriter, auditors, counsel, custodian, transfer
agent, Shareholder servicing agent, and such other agents or independent
contractors and such other expenses and charges as the Trustees may deem
necessary or proper to incur.
Section 4.6 Trustee Compensation. The Trustees as such shall be
entitled to reasonable compensation from the Trust. They may fix the amount of
their compensation. Nothing herein shall in any way prevent the employment of
any Trustee for advisory, management, administrative, legal, accounting,
investment banking, underwriting, brokerage, or investment dealer or other
services and the payment for the same by the Trust.
Section 4.7 Independent Trustee. A Trustee who is an "Independent
Trustee," as that term is defined in the Delaware Act, shall be deemed to be an
Independent Trustee when making any determinations or taking any action as a
Trustee.
ARTICLE V
INVESTMENT ADVISER, PRINCIPAL UNDERWRITER AND
TRANSFER AGENT
Section 5.1 Investment Adviser. The Trustees may in their discretion,
from time to time, enter into an investment advisory or management contract or
contracts with respect to the Trust or any Portfolio whereby the other party or
parties to such contract or contracts shall undertake to furnish the Trustees
with such management, investment advisory, statistical and research facilities
and services and such other facilities and services, if any, and all upon such
terms and conditions, as the Trustees may in their discretion determine.
The Trustees may authorize the investment adviser to employ, from
time to time, one or more sub-advisers to perform such of the acts and services
of the investment adviser, and upon such terms and conditions, as may be agreed
upon among the Trustees, the investment adviser and sub-adviser. Any references
in this Agreement to the investment adviser shall be deemed to include such
sub-advisers, unless the context otherwise requires.
Section 5.2 Other Service Contracts. The Trustees may authorize the
engagement of a principal underwriter, transfer agent, administrator, custodian,
and similar service providers.
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Section 5.3 Parties to Contract. Any contract of the character
described in Sections 5.1 and 5.2 may be entered into with any corporation,
firm, partnership, trust or association, although one or more of the Trustees or
officers of the Trust may be an officer, director, trustee, shareholder, or
member of such other party to the contract.
Section 5.4 Miscellaneous. The fact that (i) any of the Shareholders,
Trustees or officers of the Trust is a shareholder, director, officer, partner,
trustee, employee, manager, adviser, principal underwriter or distributor or
agent of or for any Company or of or for any parent or affiliate of any Company,
with which an advisory or administration contract, or principal underwriter's or
distributor's contract, or transfer, shareholder servicing, custodian or other
agency contract may have been or may hereafter be made, or that any such
Company, or any parent or affiliate thereof, is a Shareholder or has an interest
in the Trust, or that (ii) any Company with which an advisory or administration
contract or principal underwriter's or distributor's contract, or transfer,
shareholder servicing, custodian, or other agency contract may have been or may
hereafter be made also has an advisory or administration contract, or principal
underwriter's or distributor's contract, or transfer, shareholder servicing,
custodian or other agency contract with one or more other companies, or has
other business or interests shall not affect the validity of any such contract
or disqualify any Shareholder, Trustee or officer of the Trust from voting upon
or executing the same or create any liability or accountability to the Trust or
its Shareholders.
ARTICLE VI
SHAREHOLDERS' VOTING POWERS AND MEETING
Section 6.1 Voting Powers. The Shareholders shall have power to vote
only to: (i) elect Trustees, provided that a meeting of Shareholders has been
called for that purpose; (ii) remove Trustees, provided that a meeting of
Shareholders has been called for that purpose; (iii) approve the termination of
the Trust or any Portfolio or Class, provided that the Trustees have called a
meeting of the Shareholders for the purpose of approving any such termination,
unless, as of the date on which the Trustees have determined to so terminate the
Trust or such Portfolio or Class, there are fewer than 100 holders of record of
the Trust or of such terminating Portfolio or Class; (iv) approve the sale of
all or substantially all the assets of the Trust or any Portfolio or Class,
unless the primary purpose of such sale is to change the Trust's domicile or
form of organization or form of business trust; (v) approve the merger or
consolidation of the Trust or any Portfolio or Class with and into another
Company or with and into any Portfolio or Class of the Trust, unless (A) the
primary purpose of such merger or consolidation is to change the Trust's
domicile or form of organization or form of business trust, or (B) after giving
effect to such merger or consolidation, based on the number of Outstanding
Shares as of a date selected by the Trustees, the Shareholders of the Trust or
such Portfolio or Class will have a majority of the outstanding shares of the
surviving Company or Portfolio or Class thereof, as the case may be; (vi)
approve any amendment to this Article VI, Section 6.1; and (vii) approve such
additional matters as may be required by law or as the Trustees, in their sole
discretion, shall determine.
Until Shares are issued, the Trustees may exercise all rights of
Shareholders and may take any action required or permitted by law, this
Agreement or any of the Bylaws of the Trust to be taken by Shareholders.
On any matter submitted to a vote of the Shareholders, all Shares
shall be voted together, except when required by applicable law or when the
Trustees have determined that the matter affects the interests of one or more
Portfolios (or Classes), then only the Shareholders of all such affected
Portfolios (or Classes) shall be entitled to vote thereon. Each whole Share
shall be entitled to one vote as to any matter on which it is entitled to vote,
and each fractional Share shall be entitled to a proportionate fractional vote.
The vote necessary to approve any such matter shall be set forth in the Bylaws.
14
Section 6.2 Additional Voting Powers and Voting Requirements for
Certain Actions. Notwithstanding any other provision of this Agreement, the
Shareholders shall have power to vote to approve any amendment to Article VIII
of this Agreement that would have the effect of reducing the indemnification
provided thereby to Covered Persons or to Shareholders or former Shareholders,
and any repeal or amendment of this sentence, and any such action shall require
the affirmative vote or consent of Shareholders owning at least sixty-six and
two-thirds percent (66 2/3%) of the Outstanding Shares entitled to vote thereon.
In addition, the removal of one or more Trustees by the Shareholders shall
require the affirmative vote or consent of Shareholders owning at least
sixty-six and two-thirds percent (66 2/3%) of the Outstanding Shares entitled to
vote thereon.
The voting requirements set forth in this Section 6.2 shall be in
addition to, and not in lieu of, any vote or consent of the Shareholders
otherwise required by applicable law (including, without limitation, any
separate vote by Portfolio (or Class) that may be required by the 1940 Act or by
other applicable law) or by this Agreement.
ARTICLE VII
DISTRIBUTIONS AND REDEMPTIONS
Section 7.1 Distributions. The Trustees may from time to time declare
and pay dividends and make other distributions with respect to any Portfolio, or
Class thereof, which may be from income, capital gains or capital. The amount of
such dividends or distributions and the payment of them and whether they are in
cash or any other Trust Property shall be wholly in the discretion of the
Trustees. Dividends and other distributions may be paid pursuant to a standing
resolution adopted once or more often as the Trustees determine. All dividends
and other distributions on Shares of a particular Portfolio or Class shall be
distributed pro rata to the Shareholders of that Portfolio or Class, as the case
may be, in proportion to the number of Shares of that Portfolio or Class they
held on the record date established for such payment, provided that such
dividends and other distributions on Shares of a Class shall appropriately
reflect Class Expenses and other expenses allocated to that Class. The Trustees
may adopt and offer to Shareholders such dividend reinvestment plans, cash
distribution payment plans, or similar plans as the Trustees deem appropriate.
Section 7.2 Redemptions. Any holder of record of Shares of a
particular Portfolio, or Class thereof, shall have the right to require the
Trust to redeem his Shares, or any portion thereof, subject to such terms and
conditions as are set forth in the registration statement of the Trust in effect
from time to time. The redemption price may in any case or cases be paid wholly
or partly in kind if the Trustees determine that such payment is advisable in
the interest of the remaining Shareholders of the Portfolio or Class thereof for
which the Shares are being redeemed. Subject to the foregoing, the fair value,
selection and quantity of securities or other property so paid or delivered as
all or part of the redemption price may be determined by or under authority of
the Trustees. In no case shall the Trust be liable for any delay of any Person
in transferring securities selected for delivery as all or part of any payment
in kind.
Section 7.3 Redemption of Shares by Trustees. The Trustees may, at
their option, call for the redemption of the Shares of any Person or may refuse
to transfer or issue Shares to any Person to the extent that the same is
necessary to comply with applicable law or advisable to further the purposes for
which the Trust is formed. To the extent permitted by law, the Trustees may
retain the proceeds of any redemption of Shares required by them for payment of
amounts due and owing by a Shareholder to the Trust or any Portfolio.
15
Section 7.4 Redemption of De Minimis Accounts. If, at any time when a
request for transferor redemption of Shares of any Portfolio is received by the
Trust or its agent, the value of the Shares of such Portfolio in a Shareholder's
account is less than Five Hundred Dollars ($500.00), or such greater amount as
the Trustees in their discretion shall have determined in accordance with
Section 4.1(t), after giving effect to such transfer or redemption and upon
giving thirty (30) days' notice to the Shareholder, the Trust may cause the
remaining Shares of such Portfolio in such Shareholder's account to be redeemed,
subject to such terms and conditions as are set forth in the registration
statement of the Trust in effect from time to time.
ARTICLE VIII
LIMITATION OF LIABILITY AND INDEMNIFICATION
Section 8.1 Limitation of Liability. A Trustee or officer, when acting
in such capacity, shall not be personally liable to any person for any act,
omission or obligation of the Trust or any Trustee or officer; provided,
however, that nothing contained herein or in the Delaware Act shall protect any
Trustee or officer against any liability to the Trust or to Shareholders to
which he would otherwise be subject by reason of willful misfeasance, bad faith,
gross negligence or reckless disregard of the duties involved in the conduct of
his office with the Trust.
Section 8.2 Indemnification of Covered Persons. Every Covered Person
shall be indemnified by the Trust to the fullest extent permitted by the
Delaware Act, the Bylaws and other applicable law.
Section 8.3 Indemnification of Shareholders. In case any Shareholder
or former Shareholder of the Trust shall be held to be personally liable solely
by reason of his being or having been a Shareholder of the Trust or any
Portfolio or Class and not because of his acts or omissions or for some other
reason, the Shareholder or former Shareholder (or his heirs, executors,
administrators or other legal representatives, or, in the case of a corporation
or other entity, its corporate or general successor) shall be entitled, out of
the assets belonging to the applicable Portfolio (or allocable to the applicable
Class), to be held harmless from and indemnified against all loss and expense
arising from such liability in accordance with the Bylaws and applicable law.
The Trust, on behalf of the affected Portfolio (or Class), shall upon request by
the Shareholder, assume the defense of any such claim made against the
Shareholder for any act or obligation of that Portfolio (or Class).
ARTICLE IX
MISCELLANEOUS
Section 9.1 Trust Not a Partnership; Taxation. It is hereby expressly
declared that a trust and not a partnership is created hereby. No Trustee
hereunder shall have any power to bind personally either the Trust's officers or
any Shareholder. All persons extending credit to, contracting with or having any
claim against the Trust or the Trustees shall look only to the assets of the
appropriate Portfolio or, until the Trustees shall have established any separate
Portfolio, of the Trust for payment under such credit, contract or claim; and
neither the Shareholders, the Trustees, nor the Trust's officers nor any of the
agents of the Trustees whether past, present or future, shall be personally
liable therefor.
It is intended that the Trust, or each Portfolio if there is more
than one Portfolio, be classified for income tax purposes as an association
taxable as a corporation, and the Trustees shall do all things that they, in
their sole discretion, determine are necessary to achieve that objective,
including (if they so determine), electing such classifications on Internal
Revenue Form 8832. The Trustees, in their sole discretion and without the vote
or consent of the Shareholders, may amend this Agreement to ensure that this
objective is achieved.
16
Section 9.2 Trustee's Good Faith Action, Expert Advice, No Bond or
Surety. The exercise by the Trustees of their powers and discretion hereunder in
good faith and with reasonable care under the circumstances then prevailing
shall be binding upon everyone interested. Subject to the provisions of Article
VIII and to Section 9.1, the Trustees shall not be liable for errors of judgment
or mistakes of fact or law. The Trustees may take advice of counsel or other
experts with respect to the meaning and operation of this Agreement, and subject
to the provisions of Article VIII and Section 9.1, shall be under no liability
for any act or omission in accordance with such advice or for failing to follow
such advice. The Trustees shall not be required to give any bond as such, nor
any surety if a bond is obtained.
Section 9.3 Termination of Trust or Portfolio or Class.
(a) Unless terminated as provided herein, the Trust shall continue
without limitation of time. The Trust may be terminated at any
time by the Trustees by written notice to the Shareholders,
subject to the right of Shareholders, if any, to vote pursuant to
Section 6.1. Any Portfolio or Class may be terminated at any time
by the Trustees by written notice to the Shareholders of that
Portfolio or Class, subject to the right of Shareholders, if any,
to vote pursuant to Section 6.1.
(b) On termination of the Trust or any Portfolio pursuant to
paragraph (a) above,
(1) the Trust or that Portfolio thereafter shall carry on no
business except for the purpose of winding up its affairs,
(2) the Trustees shall (i) proceed to wind up the affairs of the
Trust or that Portfolio, and all powers of the Trustees
under this Agreement with respect thereto shall continue
until such affairs have been wound up, including the powers
to fulfill or discharge the contracts of the Trust or that
Portfolio, (ii) collect its assets or the assets belonging
thereto, (iii) sell, convey, assign, exchange, or otherwise
dispose of all or any part of those assets to one or more
persons at public or private sale for consideration that may
consist in whole or in part of cash, securities, or other
property of any kind, (iv) discharge or pay its liabilities,
and (v) do all other acts appropriate to liquidate its
business, and
(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 shall distribute the remaining
assets ratably among the Shareholders of the Trust or that
Portfolio.
(c) On termination of any Class pursuant to paragraph (a) above,
(1) the Trust thereafter shall no longer issue Shares of that
Class,
(2) the Trustees shall do all other acts appropriate to
terminate the Class, and
(3) the Trustees shall distribute ratably among the Shareholders
of that Class, in cash or in kind, an amount equal to the
Proportionate Interest of that Class in the net assets of
the Portfolio (after taking into account any Class Expenses
or other
17
fees, expenses, or charges allocable thereto), and in
connection with any such distribution in cash the Trustees
are authorized to sell, convey, assign, exchange or
otherwise dispose of such assets of the Portfolio of which
that Class is a part as they deem necessary.
(d) On completion of distribution of the remaining assets pursuant to
paragraph (b)(3) above (or the Proportionate Interest of the
Class in the net assets of the Portfolio pursuant to paragraph
(c)(3) above), the Trust or the affected Portfolio (or Class)
shall terminate and the Trustees and the Trust shall be
discharged from all further liabilities and duties hereunder with
respect thereto and the rights and interests of all parties
therein shall be cancelled and discharged. On termination of the
Trust, following completion of winding up of its business, the
Trustees shall cause a Certificate of Cancellation of the Trust's
Certificate of Trust to be filed in accordance with the Delaware
Act, which Certificate may be signed by any one Trustee.
Section 9.4 Sale of Assets; Merger and Consolidation. Subject to right
of Shareholders, if any, to vote pursuant to Section 6.1, the Trustees may cause
(i) the Trust or one or more of its Portfolios to the extent consistent with
applicable law to sell all or substantially all of its assets to, or be merged
into or consolidated with, another Portfolio, business trust (or series thereof)
or Company (or series thereof), (ii) the Shares of the Trust or any Portfolio
(or Class) to be converted into beneficial interests in another business trust
(or series thereof) created pursuant to this Section 9.4, (iii) the Shares of
any Class to be converted into another Class of the same Portfolio, or (iv) the
Shares to be exchanged under or pursuant to any state or federal statute to the
extent permitted by law. In all respects not governed by statute or applicable
law, the Trustees shall have power to prescribe the procedure necessary or
appropriate to accomplish a sale of assets, 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
Portfolio (or Class) into beneficial interests in such separate business trust
or trusts (or series or class thereof).
Section 9.5 Filing of Copies, References, Headings. The original or a
copy of this Agreement or any amendment hereto or any supplemental agreement
shall be kept at the office of the Trust where it may be inspected by any
Shareholder. In this Agreement or in any such amendment or supplemental
agreement, references to this Agreement, and all expressions like "herein,"
"hereof," and "hereunder," shall be deemed to refer to this Agreement as amended
or affected by any such supplemental agreement. All expressions like "his,"
"he," and "him," shall be deemed to include the feminine and neuter, as well as
masculine, genders. Headings are placed herein for convenience of reference only
and in case of any conflict, the text of this Agreement, rather than the
headings, shall control. This Agreement may be executed in any number of
counterparts each of which shall be deemed an original.
Section 9.6 Governing Law. The Trust and this Agreement, and the
rights, obligations and remedies of the Trustees and Shareholders hereunder, are
to be governed by and construed and administered according to the Delaware Act
and the other laws of the State of Delaware; provided, however, that there shall
not be applicable to the Trust, the Trustees, the Shareholders or this Trust
Agreement (A) the provisions of Section 3540 of Title 12 of the Delaware Code or
(B) any provisions of the laws (statutory or common) of the State of Delaware
(other than the Delaware Act) pertaining to trusts which relate to or regulate
(i) the filing with any court or governmental body or agency of trustee accounts
or schedules of trustee fees and charges, (ii) affirmative requirements to post
bonds for trustees, officers, agents or employees of a trust, (iii) the
necessity for obtaining court or other governmental approval concerning the
acquisition, holding or disposition of real or personal property, (iv) fees or
other sums payable to trustees, officers, agents or employees of a trust, (v)
the allocation of receipts and expenditures to income or principal, (vi)
restrictions or limitations on the permissible nature, amount or
18
concentration of trust investments or requirements relating to the titling,
storage or other manner of holding of trust assets, or (vii) the establishment
of fiduciary or other standards or responsibilities or limitations on the
indemnification, acts or powers of trustees or other Persons, which are
inconsistent with the limitations of liabilities or authorities and powers of
the Trustees or officers of the Trust set forth or referenced in this Agreement.
The Trust shall be of the type commonly called a "business
trust," and without limiting the provisions hereof, the Trust may exercise all
powers which are ordinarily exercised by such a trust under Delaware law. The
Trust specifically reserves the right to exercise any of the powers or
privileges afforded to trusts or actions that may be engaged in by trusts under
the Delaware Act, and the absence of a specific reference herein to any such
power, privilege or action shall not imply that the Trust may not exercise such
power or privilege or take such actions; provided, however, that the exercise of
any such power, privilege or action shall not otherwise violate applicable law.
Section 9.7 Amendments. Except as specifically provided in Section
6.1,the Trustees may, without any Shareholder vote, amend this Agreement by
making an amendment to this Agreement or to Schedule A, an agreement
supplemental hereto, or an amended and restated trust instrument. Any such
amendment, having been approved by a Majority Trustee Vote, shall become
effective, unless otherwise provided by such Trustees, upon being executed by a
duly authorized officer of the Trust. A certification signed by a duly
authorized officer of the Trust setting forth an amendment to this Agreement and
reciting that it was duly adopted by the Shareholders or by the Trustees as
aforesaid, or a copy of this Agreement, as amended, executed by a majority of
the Trustees, or a duly authorized officer of the Trust, shall be conclusive
evidence of such amendment when lodged among the records of the Trust.
Section 9.8 Provisions in Conflict with Law. The provisions of this
Agreement are severable, and if the Trustees shall determine, with the advice of
counsel, that any of such provisions is in conflict with applicable law, the
conflicting provision shall be deemed never to have constituted a part of this
Agreement; provided, however, that such determination shall not affect any of
the remaining provisions of this Agreement or render invalid or improper any
action taken or omitted prior to such determination. If any provision of this
Agreement 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 provisions in any other
jurisdiction or any other provision of this Agreement in any jurisdiction.
Section 9.9 Shareholders' Right to Inspect Shareholder List. One or
more Persons who together and for at least six months have been Shareholders of
at least five percent (5%) of the Outstanding Shares of any Class may present to
any officer or resident agent of the Trust a written request for a list of its
Shareholders. Within twenty (20) days after such request is made, the Trust
shall prepare and have available on file at its principal office a list verified
under oath by one of its officers or its transfer agent or registrar which sets
forth the name and address of each Shareholder and the number of Shares of each
Portfolio and Class which the Shareholder holds. The rights provided for herein
shall not extend to any Person who is a beneficial owner but not also a record
owner of Shares of the Trust.
19
IN WITNESS WHEREOF, the undersigned, being all of the Trustees of the
Trust, have executed this instrument this 15th day of May, 2002.
/s/ XXXXX X. XXXXXX
-----------------------------
Xxxxx X. Xxxxxx
/s/ XXXXX X. XXXXXXXX
-----------------------------
Xxxxx X. Xxxxxxxx
/s/ XXXXXX X. XXXXXX
-----------------------------
Xxxxxx X. Xxxxxx
/s/ XXXXXX X. XXXX, XX.
-----------------------------
Xxxxxx X. Xxxx, Xx.
/s/ XXXX X. XXXXXX
-----------------------------
Xxxx X. Xxxxxx
/s/ XXXX XXXXXXXXXX
-----------------------------
Xxxx Xxxxxxxxxx
/s/ XXXXXX X. XXXXXX
-----------------------------
Xxxxxx X. Xxxxxx
/s/ XXXXX XXXXXX-XXXXX
-----------------------------
Xxxxx Xxxxxx-Xxxxx
/s/ XXXXX X. XXXXXXX
-----------------------------
Xxxxx X. Xxxxxxx
/s/ XXXX X. XXXXXXX
-----------------------------
Xxxx X. Xxxxxxx
/s/ XXXXX X. XXXXX
-----------------------------
Xxxxx X. Xxxxx
20
SCHEDULE A
AIM VARIABLE INSURANCE FUNDS
PORTFOLIOS AND CLASSES THEREOF
PORTFOLIO CLASSES OF EACH PORTFOLIO
--------- -------------------------
AIM V.I. Aggressive Growth Fund Series I Shares
Series II Shares
AIM V.I. Balanced Fund Series I Shares
Series II Shares
AIM V.I. Basic Value Fund Series I Shares
Series II Shares
AIM V.I. Blue Chip Fund Series I Shares
Series II Shares
AIM V.I. Capital Appreciation Fund Series I Shares
Series II Shares
AIM V.I. Capital Development Fund Series I Shares
Series II Shares
AIM V.I. Core Equity Fund Series I Shares
Series II Shares
AIM V.I. Dent Demographic Trends Fund Series I Shares
Series II Shares
AIM V.I. Diversified Income Fund Series I Shares
Series II Shares
AIM V.I. Global Utilities Fund Series I Shares
Series II Shares
AIM V.I. Government Securities Fund Series I Shares
Series II Shares
AIM V.I. Growth Fund Series I Shares
Series II Shares
AIM V.I. High Yield Fund Series I Shares
Series II Shares
AIM V.I International Growth Fund Series I Shares
Series II Shares
21
PORTFOLIO CLASSES OF EACH PORTFOLIO
--------- -------------------------
AIM V.I. Mid Cap Core Equity Fund Series I Shares
Series II Shares
AIM V.I. Money Market Fund Series I Shares
Series II Shares
AIM V.I. New Technology Fund Series I Shares
Series II Shares
AIM V.I. Premier Equity Fund Series I Shares
Series II Shares
22
