AMENDED AND RESTATED
AGREEMENT AND DECLARATION OF TRUST
of
EVERGREEN UTILITIES AND HIGH INCOME FUND
a Delaware Statutory Trust
Principal Place of Business:
000 Xxxxxxxx Xxxxxx
Xxxxxx, Xxxxxxxxxxxxx 00000
Agent for Service of
Process in Delaware:
The Corporation Trust Company
The Corporation Trust Center
0000 Xxxxxx Xxxxxx
Xxxxxxxxxx, Xxxxxxxx 00000
TABLE OF CONTENTS
AMENDED AND RESTATED
AGREEMENT AND DECLARATION OF TRUST
ARTICLE I Names and Definitions.......................................................................1
Section 1. Name........................................................................................1
Section 2. Definitions.................................................................................1
ARTICLE II Purpose of Trust............................................................................2
ARTICLE III Shares......................................................................................3
Section 1. Division of Beneficial Interest.............................................................3
Section 2. Ownership of Shares.........................................................................4
Section 3. Transfer of Shares..........................................................................4
Section 4. Investments in the Trust....................................................................4
Section 5. Status of Shares and Limitation of Personal Liability.......................................4
Section 6. Establishment, Designation, Abolition or Termination etc. of Series or Class................5
ARTICLE IV Trustees....................................................................................7
Section 1. Number of Trustees; Initial Trustees........................................................7
Section 2. Term of Office of Trustees; Classes.........................................................7
Section 3. Effect of Death, Resignation, etc. of a Trustee.............................................8
Section 4. Powers......................................................................................8
Section 5. Payment of Expenses by the Trust...........................................................12
Section 6. Payment of Expenses by Shareholders........................................................12
Section 7. Ownership of Assets of the Trust...........................................................12
Section 8. Service Contracts..........................................................................12
Section 9. Trustees and Officers as Shareholders......................................................13
Section 10. Compensation...............................................................................13
ARTICLE V Shareholders' Voting Powers and Meetings...................................................14
Section 1. Voting Powers, Meetings, Notice, and Record Dates..........................................14
Section 2. Quorum and Required Vote...................................................................14
Section 3. Record Dates...............................................................................14
Section 4. Additional Provisions......................................................................15
ARTICLE VI Net Asset Value, Distributions and Redemptions.............................................15
Section 1. Determination of Net Asset Value, Net Income and Distributions.............................15
Section 2. Redemptions................................................................................15
ARTICLE VII Limitation of Liability; Indemnification...................................................15
Section 1. Trustees, Shareholders, etc. Not Personally Liable; Notice.................................15
Section 2. Trustees' Good Faith Action; Expert Advice; No Bond or Surety..............................16
Section 3. Indemnification of Shareholders............................................................16
Section 4. Indemnification of Trustees, Officers, etc.................................................17
Section 5. Compromise Payment.........................................................................18
Section 6. Indemnification Not Exclusive, etc.........................................................18
Section 7. Liability of Third Persons Dealing with Trustees...........................................18
Section 8. Insurance..................................................................................18
ARTICLE VIII Miscellaneous..............................................................................18
Section 1. Termination of the Trust...................................................................18
Section 2. Conversion to an Open-End Investment Company...............................................19
Section 3. Reorganization.............................................................................20
Section 4. Certain Transactions.......................................................................20
Section 5. Amendments.................................................................................22
Section 6. Filing of Copies; References; Headings.....................................................23
Section 7. Applicable Law.............................................................................23
Section 8. Provisions in Conflict with Law or Regulations.............................................23
Section 9. Statutory Trust Only.......................................................................24
AMENDED AND RESTATED
AGREEMENT AND DECLARATION OF TRUST
EVERGREEN UTILITIES AND HIGH INCOME FUND
THIS AMENDED AND RESTATEMENT AGREEMENT AND DECLARATION OF TRUST is made and
entered into as of the date set forth below by the Trustees named hereunder for
the purpose of forming a Delaware statutory trust in accordance with the
provisions hereinafter set forth.
NOW, THEREFORE, the Trustees hereby direct that the Certificate of Trust be
filed with the Office of the Secretary of State of the State of Delaware and do
hereby declare that the Trustees will hold IN TRUST all cash, securities, and
other assets which the Trust now possesses or may hereafter acquire from time to
time in any manner and manage and dispose of the same upon the following terms
and conditions for the benefit of the holders of Shares of this Trust.
ARTICLE I
Names and Definitions
Section 1. Name. This Trust shall be known as Evergreen Utilities and High
Income Fund 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. Definitions. Whenever used herein, unless otherwise required by
the context or specifically provided:
(a) "Adviser(s)" means a party or parties furnishing services to the
Trust pursuant to any investment advisory or investment management contract
described in Article IV, Section 8(a) hereof;
(b) "By-Laws" shall mean the By-Laws of the Trust as amended from time
to time, which By-Laws are expressly herein incorporated by reference as
part of the "governing instrument" within the meaning of the Delaware Act;
(c) "Certificate of Trust" means the certificate of trust, as amended
or restated from time to time, filed by the Trustees in the Office of the
Secretary of State of the State of Delaware in accordance with the Delaware
Act;
(d) "Class" means a class of Shares of a Series of the Trust
established in accordance with the provisions of Article III hereof;
(e) "Commission" shall have the meaning given such term in the 1940
Act;
(f) "Declaration of Trust" means this Amended and Restated Agreement
and Declaration of Trust, as amended or restated from time to time;
(g) "Delaware Act" means the Delaware Statutory Trust Act, 12 Del.
Code Xxx. xx.xx. 3801 et seq., as amended from time to time;
(h) "Interested Person" shall have the meaning given it in Section
2(a)(19) of the 1940 Act;
(i) "1940 Act" means the Investment Company Act of 1940 and the rules
and regulations thereunder, all as amended from time to time;
(j) "Person" means and includes individuals, corporations,
partnerships, trusts, associations, joint ventures, estates, and other
entities, whether or not legal entities, and governments and agencies and
political subdivisions thereof, whether domestic or foreign;
(k) "Principal Underwriter" shall have the meaning given such term in
the 1940 Act;
(l) "Series" means each Series of Shares established and designated
under or in accordance with the provisions of Article III hereof; and where
the context requires or where appropriate, shall be deemed to include
"Class" or "Classes";
(m) "Shareholder" means a record owner of outstanding Shares;
(n) "Shares" means the shares of beneficial interest into which the
beneficial interest in the Trust shall be divided from time to time and
includes fractions of Shares, whole Shares as well as any preferred shares
or preferred units of beneficial interest which may be issued from time to
time;
(o) "Trust" means the Delaware Statutory Trust established under the
Delaware Act by this Declaration of Trust and the filing of the Certificate
of Trust in the Office of the Secretary of State of the State of Delaware;
(p) "Trust Property" means any and all property, real or personal,
tangible or intangible, which is from time to time owned or held by or for
the account of the Trust; and
(q) "Trustees" means the Person or Persons who have signed this
Declaration of Trust and all other Persons who may from time to time be
duly elected or appointed to serve as Trustees in accordance with the
provisions hereof, in each case so long as such Person shall continue in
office in accordance with the terms of this Declaration of Trust, and
reference herein to a Trustee or the Trustees shall refer to such Person or
Persons in his or her or 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 an investment company registered under the 1940 Act through one or more
Series and to carry on such other business as the Trustees may from time to time
determine. The Trustees shall not be limited by any law limiting the investments
which may be made by fiduciaries.
ARTICLE III
Shares
Section 1. Division of Beneficial Interest. The beneficial interest in the
Trust shall be divided into one or more Series. The Trustees may divide each
Series into Classes. Subject to the further provisions of this Article III and
any applicable requirements of the 1940 Act, the Trustees shall have full power
and authority, in their sole discretion, and without obtaining any authorization
or vote of the Shareholders of any Series or Class thereof, (i) to divide the
beneficial interest in each Series or Class thereof into Shares, with or without
par value as the Trustees shall determine, (ii) to issue Shares without
limitation as to number (including fractional Shares) to such Persons and for
such amount and type of consideration, including cash or securities, subject to
any restriction set forth in the By-Laws, at such time or times and on such
terms as the Trustees may deem appropriate, (iii) to establish and designate and
to change in any manner any Series or Class thereof and to fix such preferences,
voting powers, rights, duties and privileges and business purpose of each Series
or Class thereof as the Trustees may from time to time determine, which
preferences, voting powers, rights, duties and privileges may be senior or
subordinate to (or in the case of business purpose, different from) any existing
Series or Class thereof and may be limited to specified property or obligations
of the Trust or profits and losses associated with specified property or
obligations of the Trust, (iv) to divide or combine the Shares of any Series or
Class thereof into a greater or lesser number without thereby materially
changing the proportionate beneficial interest of the Shares of such Series or
Class thereof in the assets held with respect to that Series, (v) to classify or
reclassify any issued Shares of any Series or Class thereof into shares of one
or more Series or Classes thereof; (vi) to change the name of any Series or
Class thereof; (vii) to abolish or terminate any one or more Series or Classes
thereof; (viii) to refuse to issue Shares to any Person or class of Persons; and
(ix) to take such other action with respect to the Shares as the Trustees may
deem desirable.
To the extent that the Trustees authorize and issue preferred shares of any
Class or Series, they are hereby authorized and empowered to amend or supplement
this Declaration of Trust, including an amendment or modification to the rights
of any outstanding Shares at the time of such amendment or supplement, as they
deem necessary or appropriate, including to comply with the requirements of the
1940 Act or requirements imposed by the rating agencies or other Persons, all
without the approval of Shareholders. Any such supplement or amendment shall be
filed as is necessary. The Trustees are also authorized to take such actions and
retain such persons as they see fit to offer and sell such securities.
Subject to the distinctions permitted among Classes of the same Series as
established by the Trustees, consistent with the requirements of the 1940 Act,
each Share of a Series of the Trust shall represent an equal beneficial interest
in the net assets of such Series, and each holder of Shares of a Series shall be
entitled to receive such Shareholder's pro rata share of distributions of income
and capital gains, if any, made with respect to such Series and upon redemption
of the Shares of any Series, such Shareholder shall be paid solely out of the
funds and property of such Series of the Trust.
All references to Shares in this Declaration of Trust shall be deemed to be
Shares of any or all Series or Classes thereof, as the context may require. All
provisions herein relating to the Trust shall apply equally to each Series of
the Trust and each Class thereof, except as the context otherwise requires.
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. Except as
otherwise provided by the Trustees, Shareholders shall have no preemptive or
other right to subscribe to any additional Shares or other securities issued by
the Trust.
Section 2. Ownership of Shares. The ownership of Shares shall be recorded
on the books of the Trust or those of a transfer or similar agent for the Trust,
which books shall be maintained separately for the Shares of each Series or
Class of the Trust. No certificates certifying the ownership of Shares shall be
issued except as the Trustees may otherwise determine from time to time. The
Trustees may make such rules as they consider appropriate for the issuance of
Share certificates, the transfer of Shares of each Series or Class of the Trust
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 the
identity of the Shareholders of each Series or Class of the Trust and as to the
number of Shares of each Series or Class of the Trust held from time to time by
each Shareholder.
Section 3. Transfer of Shares. Except as otherwise provided by the
Trustees, Shares shall be transferable on the books of the Trust only by the
record holder thereof or by his or her duly authorized agent upon delivery to
the Trustees or the Trust's transfer agent of a duly executed instrument of
transfer, together with a Share certificate if one is outstanding, and such
evidence of the genuineness of each such execution and authorization and of such
other matters as may be required by the Trustees. Upon such delivery, and
subject to any further requirements specified by the Trustees or contained in
the By-Laws, the transfer shall be recorded on the books of the Trust. Until a
transfer is so recorded, the holder of record of Shares shall be deemed to be
the holder of such Shares for all purposes hereunder and neither the Trustees
nor the Trust, nor any transfer agent or registrar or any officer, employee, or
agent of the Trust, shall be affected by any notice of a proposed transfer.
Section 4. Investments in the Trust. Investments may be accepted by the
Trust from Persons, at such times, on such terms, and for such consideration as
the Trustees from time to time may authorize.
Section 5. Status of Shares and Limitation of Personal Liability. Shares
shall be deemed to be personal property giving only the rights provided in this
instrument. Every Shareholder by virtue of having become a Shareholder shall be
held to have expressly assented and agreed to the terms hereof. The death,
incapacity, dissolution, termination, or bankruptcy of a Shareholder during the
existence of the Trust shall not operate to terminate the Trust, nor entitle the
representative of any such Shareholder to an accounting or to take any action in
court or elsewhere against the Trust or the Trustees, but shall entitle such
representative only to the rights of such Shareholder under this 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 any right to call for a participation
or division of the same or for an accounting, nor shall the ownership of Shares
constitute the Shareholders as partners. No Shareholder 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 Series.
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.
Section 6. Establishment, Designation, Abolition or Termination etc. of
Series or Class. The establishment and designation of any Series or Class of
Shares of the Trust shall be effective upon the adoption by a majority of the
Trustees then in office of a resolution that sets forth such establishment and
designation and the relative rights and preferences of such Series or Class of
the Trust, whether directly in such resolution or by reference to another
document including, without limitation, any registration statement of the Trust,
or as otherwise provided in such resolution. The abolition or termination of any
Series or Class of Shares of the Trust shall be effective upon the adoption by a
majority of the Trustees then in office of a resolution that abolishes or
terminates such Series or Class.
Shares of each Series or Class of the Trust established pursuant to this
Article III, unless otherwise provided in the resolution establishing such
Series or Class, shall have the following relative rights and preferences:
(a) Assets Held with Respect to a Particular Series. All consideration
received by the Trust for the issue or sale of Shares of a particular
Series, together with all assets in which such consideration is invested or
reinvested, all income, earnings, profits, and proceeds thereof from
whatever source derived (including, without limitation, any proceeds
derived from the sale, exchange or liquidation of such assets and any funds
or payments derived from any reinvestment of such proceeds in whatever form
the same may be) shall irrevocably be held separate with respect to that
Series for all purposes, 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 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 Trustees, in their sole
discretion, deem fair and equitable, and any General Assets so allocated to
a particular Series shall be held with respect to that Series. Each such
allocation by the Trustees shall be conclusive and binding upon the
Shareholders of all Series for all purposes. Separate and distinct records
shall be maintained for each Series, and the assets held with respect to
each Series shall be held and accounted for separately from the assets held
with respect to all other Series and the General Assets of the Trust not
allocated to such Series.
(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,
except that liabilities and expenses allocated solely to a particular Class
shall be borne by that Class. Any general liabilities of the Trust which
are not readily identifiable as being held with respect to any particular
Series or Class shall be allocated and charged by the Trustees to and among
any one or more of the Series or Classes in such manner and on such basis
as the Trustees in their sole discretion deem fair and equitable. All
liabilities, expenses, costs, charges, and reserves so charged to a Series
or Class are herein referred to as "liabilities held with respect to" that
Series or Class. Each allocation of liabilities, expenses, costs, charges,
and reserves by the Trustees shall be conclusive and binding upon the
Shareholders of all Series or Classes for all purposes. Without limiting
the foregoing, but subject to the right of the Trustees to allocate general
liabilities, expenses, costs, charges or reserves as herein provided, the
debts, liabilities, obligations and expenses incurred, contracted for or
otherwise existing with respect to a particular Series shall be enforceable
against the assets held with respect to such Series only and not against
the assets of the Trust generally or against the assets held with respect
to any other Series. Notice of this contractual limitation on liabilities
among Series may, in the Trustees' discretion, be set forth in the
Certificate of Trust 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 liabilities 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. Any person
extending credit to, contracting with or having any claim against any
Series may look only to the assets of that Series to satisfy or enforce any
debt, with respect to that Series. No Shareholder or former Shareholder of
any Series shall have a claim on or any right to any assets allocated or
belonging to any other 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 termination of
the Trust or of any Series or Class 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
shall any Shareholder or any particular Series or Class otherwise have any
right or claim against the assets held with respect to any other Series
except to the extent that such Shareholder has such a right or claim
hereunder as a Shareholder of such other Series. The Trustees shall have
full discretion, to the extent not inconsistent with the 1940 Act, to
determine which items shall be treated as income and which items as
capital, and each such determination and allocation shall be conclusive and
binding upon the Shareholders.
(d) Equality. All the Shares of each particular Series shall represent
an equal proportionate interest in the assets held with respect to that
Series (subject to the liabilities held with respect to that Series or
Class thereof and such rights and preferences as may have been established
and designated with respect to any Class within such Series), and each
Share of any particular Series shall be equal to each other Share of that
Series. With respect to any Class of a Series, each such Class shall
represent interests in the assets held with respect to that Series and
shall have identical voting, dividend, liquidation and other rights and the
same terms and conditions, except that expenses allocated to a Class may be
borne solely by such Class as determined by the Trustees and a Class may
have exclusive voting rights with respect to matters affecting only that
Class.
(e) Fractions. Any fractional Share of a Series or Class thereof shall
carry proportionately all the rights and obligations of a whole Share of
that Series or Class, including rights with respect to voting, receipt of
dividends and distributions, redemption of Shares and termination of the
Trust.
(f) Exchange Privilege. The Trustees shall have the authority to
provide that the holders of Shares of any Series or Class shall have the
right to exchange said Shares for Shares of one or more other Series of
Shares or Class of Shares of the Trust or of other investment companies
registered under the 1940 Act in accordance with such requirements and
procedures as may be established by the Trustees.
(g) Combination of Series. The Trustees shall have the authority,
without the approval of the Shareholders of any Series or Class unless
otherwise required by applicable law, to combine the assets and liabilities
held with respect to any two or more Series or Classes into assets and
liabilities held with respect to a single Series or Class.
ARTICLE IV
Trustees
Section 1. Number of Trustees; Initial Trustees. The number of Trustees
shall initially be 1 who shall be Xxxxxxx X. Xxxxxx. Thereafter, the number of
Trustees shall at all times be at least one and no more than such number as
determined, from time to time, by the Trustees pursuant to Section 4 of this
Article IV.
Section 2. Term of Office of Trustees; Classes.
(a) Subject to the voting rights established with respect to a
particular Series or Class, each Trustee shall hold office for life or
until his successor is elected or the Trust terminates. Notwithstanding the
foregoing but subject to the voting rights established with respect to a
particular Series or Class, (1) any Trustee may resign at any time by
delivering to any officer of the Trust or to a meeting of the Trustees a
written instrument signed by him or her effective upon such delivery unless
specified to be effective at some other time; (2) any Trustee may be
removed with cause at any time by a written instrument signed by at least
three-quarters of the then Trustees, specifying the effective date of
removal; (3) any Trustee who requests to be retired, or who is declared
bankrupt or has become physically or mentally incapacitated or is otherwise
unable to serve, may be retired by a written instrument signed by a
majority of the other Trustees, specifying the effective date of
retirement; and (4) any Trustee may be removed, with or without cause, by a
vote of at least a majority of the then Trustees if such removal is
approved by the holders of at least three-quarters of the outstanding
Shares entitled to vote with respect to the election of such Trustee and
present in person or by proxy at a meeting of the Shareholders called for
such purpose. In the event that less than a majority of the Trustees
holding office have been elected by the Shareholders, the Trustees then in
office shall take such actions as may be necessary under applicable law for
the election of Trustees. 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
his or her resignation or removal, or any right to damages on account of
such removal.
(b) The Board of Trustees shall be divided into three classes,
designated Class I, Class II and Class III. Each class shall consist, as
nearly as may be possible, of one-third of the total number of trustees
constituting the entire Board of Trustees. Within the limits above
specified, the number of the Trustees in each class shall be determined by
resolution of the Board of Trustees. The Trustees may also determine by
resolution those Trustees in each Class that shall be elected by
Shareholders of a particular class of Shares (e.g., by a class of preferred
Shares). The term of office of the 1st class shall expire on the date of
the 1st annual meeting of Shareholders or special meeting in lieu thereof
following the effective date of the Registration Statement relating to the
Shares under the Securities Act of 1933 (the "1933 Act"). The term of the
2nd class shall expire on the date of the 2nd annual meeting of
Shareholders or special meeting in lieu thereof following the effective
date of the Registration Statement relating to the Shares under the 1933
Act. The term of the 3rd class shall expire on the date of the 3rd annual
meeting of Shareholders or special meeting in lieu thereof following the
effective date of the Registration Statement relating to the Shares under
the 1933 Act. Upon expiration of the term of office of each class as set
forth above, the number of Trustees in such class, as determined by the
Board of Trustees, shall be elected for a term expiring on the date of the
3rd annual meeting of Shareholders or special meeting in lieu thereof
following such expiration to succeed the Trustees whose terms of office
expire. The Trustees shall be elected at an annual meeting of the
Shareholders or special meeting in lieu thereof called for that purpose.
Section 3. Effect of Death, Resignation, etc. of a Trustee. The death,
declination to serve, resignation, retirement, removal or incapacity of one or
more Trustees, or all of them, shall not operate to annul the Trust or to revoke
any existing agency created pursuant to the terms of this Declaration of Trust.
Whenever there shall be fewer than the designated number of Trustees, until
additional Trustees are elected or appointed as provided herein to bring the
total number of Trustees equal to the designated number, the Trustees in office,
regardless of their number, shall have all the powers granted to the Trustees
and shall discharge all the duties imposed upon the Trustees by this Declaration
of Trust. As conclusive evidence of such vacancy, a written instrument
certifying the existence of such vacancy may be executed by an officer of the
Trust or by a majority of the Trustees. In the event of the death, declination,
resignation, retirement, removal, or incapacity of all the then Trustees within
a short period of time and without the opportunity for at least one Trustee
being able to appoint additional Trustees to replace those no longer serving,
the Trust's Adviser(s) are empowered to appoint new Trustees subject to the
provisions of the 1940 Act.
Section 4. Powers. Subject to the provisions of this Declaration of Trust,
the business of the Trust shall be managed by the Trustees, and the Trustees
shall have all powers necessary or convenient to carry out that responsibility
including the power to engage in transactions of all kinds on behalf of the
Trust as described in this Declaration of Trust. Without limiting the foregoing,
the Trustees may: adopt By-Laws not inconsistent with this Declaration of Trust
providing for the management of the affairs of the Trust and may amend and
repeal such By-Laws to the extent that such By-Laws do not reserve that right to
the Shareholders; enlarge or reduce the number of Trustees; remove any Trustee
with cause at any time by written instrument signed by at least three-quarters
of the then Trustees prior to such removal, specifying the date when such
removal shall become effective, and fill vacancies caused by enlargement of
their number or by the death, resignation, retirement or removal of a Trustee;
elect and remove, with or without cause, such officers and appoint and terminate
such agents as they consider appropriate; appoint from their own number and
establish and terminate one or more committees, consisting of two or more
Trustees, that may exercise the powers and authority of the Board of Trustees to
the extent that the Trustees so determine; employ one or more custodians of the
assets of the Trust and may authorize such custodians to employ subcustodians
and to deposit all or any part of such assets in a system or systems for the
central handling of securities or with a Federal Reserve Bank; employ an
administrator for the Trust and may authorize such administrator to employ
subadministrators; employ an investment adviser or investment advisers to the
Trust and may authorize such Advisers to employ subadvisers; retain a transfer
agent or a shareholder servicing agent, or both; provide for the issuance and
distribution of Shares by the Trust directly or through one or more Principal
Underwriters or otherwise; redeem, repurchase and transfer Shares pursuant to
applicable law; set record dates for the determination of Shareholders with
respect to various matters; declare and pay dividends and distributions to
Shareholders of each Series from the assets of such Series; and in general
delegate such authority as they consider desirable to any officer of the Trust,
to any committee of the Trustees and to any agent or employee of the Trust or to
any such custodian, transfer or shareholder servicing agent, or Principal
Underwriter. Any determination as to what is in the interests of the Trust made
by the Trustees in good faith shall be conclusive. In construing the provisions
of this Declaration of Trust, the presumption shall be in favor of a grant of
power to the Trustees. Unless otherwise specified herein or in the By-Laws or
required by law, any action by the Trustees shall be deemed effective if
approved or taken by a majority of the Trustees present at a meeting of Trustees
at which a quorum of Trustees is present, within or without the State of
Delaware.
Without limiting the foregoing, the Trustees shall have the power and
authority to cause the Trust (or to act on behalf of the Trust):
(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, 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
of every nature and kind, including, without limitation, all types of
bonds, debentures, stocks, negotiable or non-negotiable instruments,
obligations, evidences of indebtedness, certificates of deposit or
indebtedness, commercial papers, 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 United States
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; and to
exercise any and all rights, powers, and privileges of ownership or
interest in respect of any and all such investments of every kind and
description, including, without limitation, the right to consent and
otherwise act with respect thereto, with power to designate one or more
Persons to exercise any of said rights, powers, and privileges in respect
of any of said instruments;
(b) To sell, exchange, lend, pledge, mortgage, hypothecate, lease, or
write options (including, options on futures contracts) with respect to or
otherwise deal in any property rights relating to any or all of the assets
of the Trust or any Series;
(c) 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;
(d) To exercise powers and rights of subscription or otherwise which
in any manner arise out of ownership of securities;
(e) To hold any security or property in a form not indicating any
trust, 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;
(f) 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;
(g) 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;
(h) 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;
(i) To enter into joint ventures, general or limited partnerships and
any other combinations or associations;
(j) To borrow funds or other property in the name of the Trust
exclusively for Trust purposes and in connection therewith to issue notes
or other evidences of indebtedness; and to mortgage and pledge the Trust
Property or any part thereof to secure any or all of such indebtedness;
(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; and to mortgage and pledge
the Trust Property or any part thereof to secure any of or all of such
obligations;
(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 polices 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,
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, including any action taken or omitted that may be
determined to constitute negligence, whether or not the Trust would have
the power to indemnify such Person against liability;
(m) To adopt, establish and carry out pension, profit-sharing, share
bonus, share purchase, savings, thrift and other retirement, incentive and
benefit plans and trusts, 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 operate as and carry out the business of an investment company,
and exercise all the powers necessary or appropriate to the conduct of such
operations;
(o) To enter into contracts of any kind and description;
(p) To employ as custodian of any assets of the Trust one or more
banks, trust companies or companies that are members of a national
securities exchange or such other entities as the Commission may permit as
custodians of the Trust, subject to any conditions set forth in this
Declaration of Trust or in the By-Laws;
(q) To employ auditors, counsel or other agents of the Trust, subject
to any conditions set forth in this Declaration of Trust or in the By-Laws;
(r) To interpret the investment policies, practices, or limitations of
any Series or Class;
(s) To establish separate and distinct Series with separately defined
investment objectives and policies and distinct investment purposes, and
with separate Shares representing beneficial interests in such Series, and
to establish separate Classes, all in accordance with the provisions of
Article III;
(t) To the full extent permitted by the Delaware Act, to allocate
assets, liabilities and expenses of the Trust to a particular Series and
Class or to apportion the same between or among two or more Series or
Classes, provided that any liabilities or expenses incurred by a particular
Series or Class shall be payable solely out of the assets belonging to that
Series or Class as provided for in Article III;
(u) To invest all of the assets of the Trust, or any Series or any
Class thereof in a single investment company;
(v) Subject to the 1940 Act, to engage in any other lawful act or
activity in which a statutory trust organized under the Delaware Act may
engage.
The Trust shall not be limited to investing in obligations maturing before
the possible termination 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. The Trust shall not be required to
obtain any court order to deal with any assets of the Trust or take any other
action hereunder.
Section 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 partly
out of the principal and partly out of income, as they deem fair, all expenses,
fees, charges, taxes and liabilities incurred or arising in connection with the
Trust, or in connection with the management thereof, including, but not limited
to, the Trustees' compensation and such expenses and charges for the services of
the Trust's officers, employees, Advisers, 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, which expenses, fees, charges,
taxes and liabilities shall be allocated in accordance with Article III, Section
6 hereof.
Section 6. Payment of Expenses by Shareholders. The Trustees shall have the
power, as frequently as they may determine, to cause each Shareholder, or each
Shareholder of any particular Series, to pay directly, in advance or arrears,
expenses of the Trust as described in Section 5 of this Article IV ("Expenses"),
in an amount fixed from time to time by the Trustees, by setting off such
Expenses due from such Shareholder from declared but unpaid dividends 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 Expenses due from such Shareholder, provided that the
direct payment of such Expenses by Shareholders is permitted under applicable
law.
Section 7. Ownership of Assets of the Trust. Title to all of the assets of
the Trust shall at all times be considered as vested in the Trust, except that
the Trustees shall have power to cause legal title to any Trust Property to be
held by or in the name of one or more of the Trustees, or in the name of the
Trust, or in the name of any other Person as nominee, on such terms as the
Trustees may determine. The right, title and interest of the Trustees in the
Trust Property shall vest automatically in each Person who may hereafter become
a Trustee. Upon the resignation, removal or death of a Trustee, he or she shall
automatically cease to have any right, title or interest in any of the Trust
Property, and the right, title and interest of such Trustee in the Trust
property shall vest automatically in the remaining Trustees. Such vesting and
cessation of title shall be effective whether or not conveyancing documents have
been executed and delivered.
Section 8. Service Contracts.
(a) Subject to such requirements and restrictions as may be set forth
under federal and/or state law and in the By-Laws, including, without
limitation, the requirements of Section 15 of the 1940 Act, the 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 (or Class thereof) with any Person and any such
contract may contain such other terms as the Trustees may determine,
including, without limitation, authority for the Adviser(s) or
administrator to delegate certain or all of its duties under such contracts
to other qualified investment advisers and administrators and to determine
from time to time without prior consultation with the Trustees what
investments shall be purchased, held sold or exchanged and what portion, if
any, of the assets of the Trust shall be held uninvested and to make
changes in the Trust's investments, or such other activities as may
specifically be delegated to such party.
(b) The Trustees may also, at any time and from time to time, contract
with any Person, appointing such Person exclusive or nonexclusive
distributor or Principal Underwriter for the Shares of one or more of the
Series (or Classes) or other securities to be issued by the Trust.
(c) The Trustees are also empowered, at any time and from time to
time, to contract with any Person, appointing such Person or Persons the
custodian, transfer agent and/or shareholder servicing agent for the Trust
or one or more of its Series.
(d) The Trustees are further empowered, at any time and from time to
time, to contract with any Person to provide such other services to the
Trust or one or more of the Series, as the Trustees determine to be in the
best interests of the Trust and the applicable Series.
(e) The fact that:
(i) any of the Shareholders, Trustees, or officers of the Trust
is a shareholder, director, officer, partner, trustee, employee,
Adviser, Principal Underwriter, distributor, or affiliate or agent of
or for any Person, or for any parent or affiliate of any Person with
which an advisory, management, or administration contract, or
Principal Underwriter's or distributor's contract, or transfer agent,
shareholder servicing agent 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 Person with which an advisory, management, or
administration contract or Principal Underwriter's or distributor's
contract, or transfer agent or shareholder servicing agent contract
may have been or may hereafter be made also has an advisory,
management, or administration contract, or Principal Underwriter's or
distributor's or other service contract with one or more other
Persons, 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.
Section 9. Trustees and Officers as Shareholders. Any Trustee, officer or
agent of the Trust may acquire, own and dispose of Shares to the same extent as
if he or she were not a Trustee, officer or agent; and the Trustees may issue
and sell and cause to be issued and sold Shares to, and redeem such Shares from,
any such Person or any firm or company in which such Person is interested,
subject only to the general limitations contained herein or in the By-Laws
relating to the sale and redemption of such Shares.
Section 10. Compensation. The Trustees in such capacity shall be entitled
to reasonable compensation from the Trust and they may fix the amount of such
compensation. 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 such services by the Trust.
ARTICLE V
Shareholders' Voting Powers and Meetings
Section 1. Voting Powers, Meetings, Notice, and Record Dates. The
Shareholders shall have power to vote only: (i) for the election or removal of
Trustees as provided in Article IV, Section 2 hereof, and (ii) with respect to
such additional matters relating to the Trust as may be required by applicable
law, this Declaration of Trust, the By-Laws or any registration statement of the
Trust with the Commission (or any successor agency) or as the Trustees may
consider necessary or desirable. Shareholders shall be entitled to one vote for
each dollar, and a fractional vote for each fraction of a dollar, of net asset
value per Share for each Share held, as to any matter on which the Share is
entitled to vote. Notwithstanding any other provision of this Declaration of
Trust, on any matters submitted to a vote of the Shareholders, all shares of the
Trust then entitled to vote shall be voted in aggregate, except: (i) when
required by the 1940 Act, Shares shall be voted by individual Series; (ii) when
the matter involves any action that the Trustees have determined will affect
only the interests of one or more Series, then only Shareholders of such Series
shall be entitled to vote thereon; and (iii) when the matter involves any action
that the Trustees have determined will affect only the interests of one or more
Classes, then only the Shareholders of such Class or Classes shall be entitled
to vote thereon. There shall be no cumulative voting in the election of
Trustees. Shares may be voted in person or by proxy. A proxy may be given in
writing. The By-Laws may provide that proxies may also, or may instead, be given
by an electronic or telecommunications device or in any other manner. Until
Shares are issued, the Trustees may exercise all rights of Shareholders and may
take any action required by law, this Declaration of Trust or the By-Laws to be
taken by the Shareholders. Meetings of the Shareholders shall be called and
notice thereof and record dates therefor shall be given and set as provided in
the By-Laws.
Section 2. 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 a third percent (33 1/3%) of the Shares issued and outstanding
shall constitute a quorum at a Shareholders' meeting but any lesser number shall
be sufficient for adjourned sessions. When any one or more Series (or Classes)
is to vote as a single Series (or Class) separate from any other Shares,
thirty-three and a third percent (33 1/3%) of the Shares of each such Series (or
Class) issued and outstanding shall constitute a quorum at a Shareholders'
meeting of that Series (or Class). Except when a larger vote is required by any
provision of this Declaration of Trust or the By-Laws or by applicable law, when
a quorum is present at any meeting, a majority of the Shares voted shall decide
any questions and a plurality of the Shares voted shall elect a Trustee,
provided that where any provision of law or of this Declaration of Trust
requires that the holders of any Series shall vote as a Series (or that holders
of a Class shall vote as a Class), then a majority of the Shares of that Series
(or Class) voted on the matter (or a plurality with respect to the election of a
Trustee) shall decide that matter insofar as that Series (or Class) is
concerned.
Section 3. Record Dates. 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 Trustees may from time to time fix a date, which
shall be before the date for the payment of such dividend or such other payment,
as the record date for determining the Shareholders of such Series (or Class)
having the right to receive such dividend or distribution. Without fixing a
record date, the Trustees may for distribution purposes close the register or
transfer books for one or more Series (or Classes) at any time prior to the
payment of a distribution. Nothing in this Section shall be construed as
precluding the Trustees from setting different record dates for different Series
(or Classes).
Section 4. Additional Provisions. The By-Laws may include further
provisions for Shareholders' votes and 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 applicable law and Article III, Section 6 hereof, the Trustees, in
their absolute discretion, may prescribe and shall set forth in the By-Laws or
in a duly adopted vote of the Trustees such bases and time for determining the
per Share or net asset value of the Shares of any Series or Class or net income
attributable to the Shares of any Series or Class, or the declaration and
payment of dividends and distributions on the Shares of any Series or Class, as
they may deem necessary or desirable.
Section 2. Redemptions. Except as provided with respect to a particular
Class in the By-laws or the resolutions establishing such Class, Shares of the
Trust will not be redeemed or repurchased by the Trust, except as the Trustees
shall determine from time to time and the Trust shall be under no obligation to
redeem or repurchase Shares. The Trustees may specify conditions, prices, and
places of redemption, may specify binding requirements for the proper form or
forms of requests for redemption and may specify the amount of any deferred
sales charge to be withheld from redemption proceeds. Payment of the redemption
price may be wholly or partly in securities or other assets at the value of such
securities or assets used in such determination of net asset value, or may be in
cash. Upon redemption, Shares may be reissued from time to time. The Trustees
may require Shareholders to redeem Shares for any reason under terms set by the
Trustees, including, but not limited to, the failure of a Shareholder to supply
a taxpayer identification number if required to do so, or to have the minimum
investment required, or to pay when due for the purchase of Shares issued to
him. 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 Series or Class or any governmental authority.
Notwithstanding the foregoing, the Trustees may postpone payment of the
redemption price and may suspend the right of the Shareholders to require any
Series or Class to redeem Shares during any period of time when and to the
extent permissible under the 1940 Act.
ARTICLE VII
Limitation of Liability; Indemnification
Section 1. Trustees, Shareholders, etc. Not Personally Liable; Notice. The
Trustees, officers, employees and agents of the Trust, in incurring any debts,
liabilities or obligations, or in limiting or omitting any other actions for or
in connection with the Trust, are or shall be deemed to be acting as Trustees,
officers, employees or agents of the Trust and not in their own capacities. No
Shareholder shall be subject to any personal liability whatsoever in tort,
contract or otherwise to any other Person or Persons in connection with the
assets or the affairs of the Trust or of any Series, and subject to Section 4 of
this Article VII, no Trustee, officer, employee or agent of the Trust shall be
subject to any personal liability whatsoever in tort, contract, or otherwise, to
any other Person or Persons in connection with the assets or affairs of the
Trust or of any Series, save only that arising from his or her own willful
misfeasance, bad faith, gross negligence or reckless disregard of the duties
involved in the conduct of his or her office or the discharge of his or her
functions. The Trust (or if the matter relates only to a particular Series, that
Series) shall be solely liable for any and all debts, claims, demands,
judgments, decrees, liabilities or obligations of any and every kind, against or
with respect to the Trust or such Series in tort, contract or otherwise in
connection with the assets or the affairs of the Trust or such Series, and all
Persons dealing with the Trust or any Series shall be deemed to have agreed that
resort shall be had solely to the Trust Property of the Trust (or if the matter
relates only to a particular Series, that of such Series), for the payment or
performance thereof.
The Trustees may provide that every note, bond, contract, instrument,
certificate or undertaking made or issued by the Trustees or by any officers or
officer shall give notice that a Certificate of Trust in respect of the Trust is
on file with the Secretary of State of the State of Delaware and may recite to
the effect that the same was executed or made by or on behalf of the Trust or by
them as Trustees or Trustee or as officers or officer, and not individually, and
that the obligations of any instrument made or issued by the Trustees or by any
officer of officers of the Trust are not binding upon any of them or the
Shareholders individually but are binding only upon the assets and property of
the Trust, or the particular Series in question, as the case may be. The
omission of any statement to such effect from such instrument shall not operate
to bind any Trustees or Trustee or officers or officer or Shareholders or
Shareholder individually, or to subject the assets of any Series to the
obligations of any other Series.
Section 2. Trustees' Good Faith Action; Expert Advice; No Bond or Surety.
The exercise by the Trustees of their powers and discretions hereunder shall be
binding upon everyone interested. Subject to Section 4 of this Article VII, a
Trustee shall be liable for his or her own willful misfeasance, bad faith, gross
negligence or reckless disregard of the duties involved in the conduct of the
office of Trustee, and for nothing else, and shall not be liable for errors of
judgment or mistakes of fact or law. Subject to the foregoing, (i) the Trustees
shall not be responsible or liable in any event for any neglect or wrongdoing of
any officer, agent, employee, consultant, Adviser, administrator, distributor or
Principal Underwriter, custodian or transfer agent, dividend disbursing agent,
shareholder servicing agent or accounting agent of the Trust, nor shall any
Trustee be responsible for the act or omission of any other Trustee; (ii) the
Trustees may take advice of counsel or other experts with respect to the meaning
and operation of this Declaration of Trust and their duties as Trustees, and
shall be under no liability for any act or omission in accordance with such
advice or for failing to follow such advice; and (iii) in discharging their
duties, the Trustees, when acting in good faith, shall be entitled to rely upon
the books of account of the Trust and upon written reports made to the Trustees
by any officer appointed by them, any independent public accountant, and (with
respect to the subject matter of the contract involved) any officer, partner or
responsible employee of a contracting party employed by the Trust. The Trustees
as such shall not be required to give any bond or surety or any other security
for the performance of their duties.
Section 3. Indemnification of Shareholders. If any Shareholder (or former
Shareholder) of the Trust shall be charged or held to be personally liable for
any obligation or liability of the Trust solely by reason of being or having
been a Shareholder and not because of such Shareholder's acts or omissions or
for some other reason, the Trust (upon proper and timely request by the
Shareholder) may assume the defense against such charge and satisfy any judgment
thereon or may reimburse the Shareholders for expenses, and the Shareholder or
former Shareholder (or the heirs, executors, administrators or other legal
representatives thereof, or in the case of a corporation or other entity, its
corporate or other general successor) shall be entitled (but solely out of the
assets of the Series of which such Shareholder or former Shareholder is or was
the holder of Shares) to be held harmless from and indemnified against all loss
and expense arising from such liability.
Section 4. Indemnification of Trustees, Officers, etc. Subject to the
limitations, if applicable, hereinafter set forth in this Section 4, the Trust
shall indemnify (from the assets of one or more Series to which the conduct in
question relates) each of its Trustees, officers, employees and agents
(including Persons who serve at the Trust's request as directors, officers or
trustees of another organization in which the Trust has any interest as a
shareholder, creditor or otherwise (hereinafter, together with such Person's
heirs, executors, administrators or personal representative, referred to as a
"Covered Person")) against all liabilities, including but not limited to amounts
paid in satisfaction of judgments, in compromise or as fines and penalties, and
expenses, including reasonable accountants' and counsel fees, incurred by any
Covered Person in connection with the defense or disposition of any action, suit
or other proceeding, whether civil or criminal, before any court or
administrative or legislative body, in which such Covered Person may be or may
have been involved as a party or otherwise or with which such Covered Person may
be or may have been threatened, while in office or thereafter, by reason of
being or having been such a Trustee or officer, director or trustee, except with
respect to any matter as to which it has been determined that such Covered
Person (i) did not act in good faith in the reasonable belief that such Covered
Person's action was in or not opposed to the best interests of the Trust; or
(ii) had acted with willful misfeasance, bad faith, gross negligence or reckless
disregard of the duties involved in the conduct of such Covered Person's office;
and (iii) for a criminal proceeding, had reasonable cause to believe that his or
her conduct was unlawful (the conduct described in (i), (ii) and (iii) being
referred to hereafter as "Disabling Conduct"). A determination that the Covered
Person is entitled to indemnification may be made by (i) a final decision on the
merits by a court or other body before whom the proceeding was brought that the
Covered Person to be indemnified was not liable by reason of Disabling Conduct,
(ii) dismissal of a court action or an administrative proceeding against a
Covered Person for insufficiency of evidence of Disabling Conduct, or (iii) a
reasonable determination, based upon a review of the facts, that the indemnitee
was not liable by reason of Disabling Conduct by (a) a vote of a majority of a
quorum of the Trustees who are neither "interested persons" of the Trust as
defined in the 1940 Act nor parties to the proceeding (the "Disinterested
Trustees"), or (b) an independent legal counsel in a written opinion. Expenses,
including accountants' and counsel fees so incurred by any such Covered Person
(but excluding amounts paid in satisfaction of judgments, in compromise or as
fines or penalties), may be paid from time to time by one or more Series to
which the conduct in question related in advance of the final disposition of any
such action, suit or proceeding; provided that the Covered Person shall have
undertaken to repay the amounts so paid to such Series if it is ultimately
determined that indemnification of such expenses is not authorized under this
Article VII and (i) the Covered Person shall have provided security for such
undertaking, (ii) the Trust shall be insured against losses arising by reason of
any lawful advances, or (iii) a majority of a quorum of the Disinterested
Trustees, or an independent legal counsel in a written opinion, shall have
determined, based on a review of readily available facts (as opposed to a full
trial type inquiry), that there is reason to believe that the Covered Person
ultimately will be found entitled to indemnification.
Section 5. Compromise Payment. As to any matter disposed of by a compromise
payment by any such Covered Person referred to in Section 4 of this Article VII,
pursuant to a consent decree or otherwise, no such indemnification either for
said payment or for any other expenses shall be provided unless such
indemnification shall be approved (i) by a majority of a quorum of the
Disinterested Trustees or (ii) by an independent legal counsel in a written
opinion. Approval by the Trustees pursuant to clause (i) or by independent legal
counsel pursuant to clause (ii) shall not prevent the recovery from any Covered
Person of any amount paid to such Covered Person in accordance with either of
such clauses as indemnification if such Covered Person is subsequently
adjudicated by a court of competent jurisdiction not to have acted in good faith
in the reasonable belief that such Covered Person's action was in or not opposed
to the best interests of the Trust or to have been liable to the Trust or its
Shareholders by reason of willful misfeasance, bad faith, gross negligence or
reckless disregard of the duties involved in the conduct of the Covered Person's
office.
Section 6. Indemnification Not Exclusive, etc. The right of indemnification
provided by this Article VII shall not be exclusive of or affect any other
rights to which any such Covered Person or shareholder may be entitled. As used
in this Article VII, a "disinterested" Person is one against whom none of the
actions, suits or other proceedings in question, and no other action, suit or
other proceeding on the same or similar grounds is then or has been pending or
threatened. Nothing contained in this Article VII shall affect any rights to
indemnification to which personnel of the Trust, other than Trustees and
officers, and other Persons may be entitled by contract or otherwise under law,
nor the power of the Trust to purchase and maintain liability insurance on
behalf of any such Person.
Section 7. Liability of Third Persons Dealing with Trustees. No person
dealing with the Trustees shall be bound to make any inquiry concerning the
validity of any transaction made or to be made by the Trustees or to see to the
application of any payments made or property transferred to the Trust or upon
its order.
Section 8. Insurance. The Trustees shall be entitled and empowered to the
fullest extent permitted by law to purchase with Trust assets insurance for
liability and for all expenses reasonably incurred or paid or expected to be
paid by a Trustee, officer, employee, or agent of the Trust in connection with
any claim, action, suit, or proceeding in which he or she may become involved by
virtue of his or her capacity or former capacity as a Trustee of the Trust.
ARTICLE VIII
Miscellaneous
Section 1. Termination of the Trust.
(a) Unless terminated as provided herein, the Trust shall continue
without limitation of time. Subject to the affirmative vote of not less
than three-quarters of the Shares outstanding and entitled to vote of the
Trust or of each Series to be affected, the Trustees may:
(i) sell and convey all or substantially all of the assets of all
Series or any affected Series to another Series or to any other
corporation, association, trust or other organization, or a series
thereof, for adequate consideration, which may include the assumption
of all outstanding obligations, taxes and other liabilities, accrued
or contingent, of the Trust or any affected Series, and which may
include shares of or interests in such Series, entity, or series
thereof;
(ii) merge with or into, consolidate or exchange Shares with any
other entity; or
(iii) at any time sell and convert into money all or
substantially all of the assets of all Series or any affected Series.
Provided, however, if at least three-quarters of the Trustees
then in office have approved the transactions in (i) or (ii) above,
then such actions may be approved by the affirmative vote of a
majority of the Shares outstanding and entitled to vote of the Trust
or the affected Series.
Upon making reasonable provision for the payment of all known
liabilities of all Series or any affected Series in either (i) or
(ii), by such assumption or otherwise, the Trustees shall distribute
the remaining proceeds or assets (as the case may be) ratably among
the Shareholders of all Series or any affected Series; however, the
payment to any particular Class of such Series may be reduced by any
fees, expenses or charges allocated to that Class.
(b) Upon completion of the distribution of the remaining proceeds or
assets pursuant to subsection (a), the Trust or affected Series shall
terminate and the Trustees and the Trust shall be discharged of any and all
further liabilities and duties hereunder with respect thereto and the
right, title and interest of all parties therein shall be canceled and
discharged. Upon 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 of cancellation may be signed by any one
Trustee.
Section 2. Conversion to an Open-End Investment Company.
Notwithstanding any other provisions of this Declaration of Trust or the
By-Laws of the Trust, a favorable vote of a majority of the Trustees then in
office followed by the favorable vote of the holders of not less than
three-quarters of the Shares of each affected class or series outstanding,
voting as separate classes or series, shall be required to approve, adopt or
authorize an amendment to this Declaration of Trust that makes the Shares a
"redeemable security" as that term is defined in the 1940 Act, unless such
amendment has been approved by three-quarters of the Trustees, in which case
approval by a vote of a majority of the Shares outstanding and entitled to vote
shall be required. Upon the adoption of a proposal to convert the Trust from a
"closed-end company" to an "open-end company" as those terms are defined by the
1940 Act and the necessary amendments to this Declaration of Trust to permit
such a conversion of the Trust's outstanding Shares entitled to vote, the Trust
shall, upon complying with any requirements of the 1940 Act and state law,
become an "open-end" investment company. Such affirmative vote or consent shall
be in addition to the vote or consent of the holders of the Shares otherwise
required by law, or any agreement between the Trust and any national securities
exchange.
Section 3. Reorganization.
(a) Except as provided in clause (b) of this Section 3 or in Sections
1 and 4 of this Article VIII, the Trustees may, without Shareholder
approval unless such approval is required by applicable law, (i) cause the
Trust to merge or consolidate with or into or transfer its assets and any
liabilities to one or more trusts (or series thereof to the extent
permitted by law), partnerships, associations, corporations or other
business entities (including trusts, partnerships, associations,
corporations or other business entities created by the Trustees to
accomplish such merger or consolidation or transfer of assets and any
liabilities) so long as the surviving or resulting entity is an investment
company as defined in the 1940 Act, or is a series thereof, that will
succeed to or assume the Trust's registration under the 1940 Act and that
is formed, organized, or existing under the laws of the United States or of
a state, commonwealth, possession or colony of the United States, unless
otherwise permitted under the 1940 Act, (ii) cause any one or more Series
(or Classes) of the Trust to merge or consolidate with or into or transfer
its assets and any liabilities to any one or more other Series (or Classes)
of the Trust, one or more trusts (or series or classes thereof to the
extent permitted by law), partnerships, associations, or corporations,
(iii) cause the Shares to be exchanged under or pursuant to any state or
federal statute to the extent permitted by law or (iv) cause the Trust to
reorganize as a corporation, limited liability company or limited liability
partnership under the laws of Delaware or any other state or jurisdiction.
(b) Pursuant to and in accordance with the provisions of Section
3815(f) of the Delaware Act, and notwithstanding anything to the contrary
contained in this Declaration of Trust, an agreement of merger or
consolidation or exchange or transfer of assets and liabilities approved by
the Trustees in accordance with this Section 3 may (i) effect any amendment
to the governing instrument of the Trust or (ii) effect the adoption of a
new governing instrument of the Trust if the Trust is the surviving or
resulting trust in the merger or consolidation.
(c) The Trustees may create one or more statutory trusts to which all
or any part of the assets, liabilities, profits, or losses of the Trust or
any Series or Class thereof may be transferred and may provide for the
conversion of Shares in the Trust or any Series or Class thereof into
beneficial interests in any such newly created trust or trusts or any
series or classes thereof.
Section 4. Certain Transactions.
(a) Notwithstanding any other provision of this Declaration of Trust
and subject to the exceptions provided in paragraph (d) of this Section,
the types of transactions described in paragraph (c) of this Section shall
require the affirmative vote or consent of a majority of the Trustees then
in office followed by the affirmative vote or consent of holders of not
less than three-quarters of the Shares of each affected class or series
outstanding, votes voting as separate classes or series, when a Principal
Shareholder (as defined in paragraph (b) of this Section) is a party to the
transaction. Such affirmative vote or consent shall be in addition to the
vote or consent of the holders of Shares otherwise required by law or by
the terms of any class or series of preferred stock, whether now or
hereafter authorized, or any agreement between the Trust and any national
securities exchange.
(b) The term "Principal Shareholder" shall mean any corporation,
Person or other entity which is the beneficial owner, directly or
indirectly, of five percent (5%) or more of the outstanding Shares of any
class or series and shall include any affiliate or associates, as such
terms are defined in clause (ii) below, of a Principal Shareholder. For the
purpose of this Section, in addition to the Shares which a corporation,
Person or other entity beneficially owns directly, (a) any corporation,
Person or other entity shall be deemed to be the beneficial owner of any
Shares (i) which it has the right to acquire pursuant to any agreement or
upon exercise of conversion rights or warrants, or otherwise (but excluding
share options granted by the Trust) or (ii) which are beneficially owned,
directly or indirectly (including Shares deemed owned through application
of clause (i) above, by any other corporation, Person or entity with which
its "affiliate" or "associate" (as defined below) has any agreement,
arrangement or understanding for the purpose of acquiring, holding, voting
or disposing of Shares, of which is its "affiliate" or "associate" as those
terms are defined in Rule 12b-2 of the General Rules and Regulations under
the Securities Exchange Act of 1934, and (b) the outstanding Shares shall
include Shares deemed owned through application of clauses (i) and (ii)
above but shall not include any other Shares which may be issuable pursuant
to any agreement, or upon exercise of conversion rights or warrants, or
otherwise.
(c) This Section shall apply to the following transactions:
(i) The merger or consolidation of the Trust or any subsidiary of
the Trust with or into any Principal Shareholder.
(ii) The issuance of any securities of the Trust to any Principal
Shareholder for cash (other than pursuant to any automatic dividend
reinvestment plan).
(iii) The sale, lease or exchange to the Trust or any subsidiary
thereof, in exchange for securities of the Trust, of any assets of any
Principal Shareholder (except assets having an aggregate fair market
value of less than $1,000,000, aggregating for the purpose of such
computation all assets sold, leased or exchanged in any series of
similar transactions within a twelve-month period.)
(iv) The sale, lease or exchange to the Trust or any subsidiary
thereof, in exchange for securities of the Trust, of any assets of any
Principal Shareholder (except assets having an aggregate fair market
value of less than $1,000,000, aggregating for the purposes of such
computation all assets sold, leased or exchanged in any series of
similar transactions within a twelve-month period).
(d) The provisions of this Section shall not be applicable to (i) any
of the transactions described in paragraph (c) of this Section if
three-quarters of the Trustees shall by resolution have approved a
memorandum of understanding with such Principal Shareholder with respect to
and substantially consistent with such transaction, in which case approval
by the vote of a majority of the Shares outstanding and entitled to vote
shall be the only vote of Shareholders required by this Section, or (ii)
any such transaction with any entity of which a majority of the outstanding
shares of all classes and series of a stock normally entitled to vote in
elections of directors is owner of record or beneficially by the Trust and
its subsidiaries.
(e) The Board of Trustees shall have the power and duty to determine
for the purposes of this Section on the basis of information known to the
Trust whether (i) a corporation, person or entity beneficially owns five
percent (5%) or more of the outstanding Shares of any class or series, (ii)
a corporation, person or entity is an "affiliate" or "associate" (as
defined above) of another, (iii) the assets being acquired or leased to or
by the Trust or any subsidiary thereof constitute a substantial part of the
assets of the Trust and have an aggregate fair market value of less than
$1,000,000, and (iv) the memorandum of understanding referred to in
paragraph (d) hereof is substantially consistent with the transaction
covered thereby. Any such determination shall be conclusive and binding for
all purposes of this Section.
Section 5. Amendments.
(a) Except as specifically provided in this Section 5, the Trustees
may, without Shareholder vote, restate, amend, or otherwise supplement this
Declaration of Trust. Shareholders shall have the right to vote on (i) any
amendment that would affect their right to vote granted in Article V,
Section 1 hereof, (ii) any amendment to this Section 5 of Article VIII;
(iii) any amendment that may require their vote under applicable law or by
the Trust's registration statement, as filed with the Commission, and (iv)
any amendment submitted to them for their vote by the Trustees. Any
amendment required or permitted to be submitted to the Shareholders that,
as the Trustees determine, shall affect the Shareholders of one or more
Series shall be authorized by a vote of the Shareholders of each Series
affected and no vote of Shareholders of a Series not affected shall be
required. Notwithstanding anything else herein, no amendment hereof shall
limit the rights to insurance provided by Article VII hereof with respect
to any acts or omissions of Persons covered thereby prior to such amendment
nor shall any such amendment limit the rights to indemnification referenced
in Article VII hereof as provided in the By-Laws with respect to any
actions or omissions of Persons covered thereby prior to such amendment.
The Trustees may, without Shareholder vote, restate, amend, or otherwise
supplement the Certificate of Trust as they deem necessary or desirable.
(b) The Trustees may not amend this Declaration of Trust to eliminate
the rights of Shareholders of any Class or Series as set forth in this
Section 5(b) to vote on any amendment of this Declaration of Trust or the
By-Laws or alter or amend the percentage of voting Shares required to
approve any amendment or action which requires a specific Shareholder vote
under this Declaration of Trust or the By-Laws unless an equivalent vote
has authorized such an amendment of the Declaration of Trust or By-Laws.
Any amendment (other than an amendment establishing the rights of another
Class of Shares, even if the rights of such Class adversely effect the
rights of any existing Class) which adversely affects the holders of one or
more Classes or Series of Shares shall require a vote of the Shareholders
holding a majority of the Shares of each Class or Series so adversely
affected and entitled to vote thereon and no vote of Shareholders of any
Class or Series not so adversely affected shall be required, except that
any amendment of any provision of Article VII, Sections 1, 2, 3 or 4 shall
require the vote of the Shareholders holding three-quarters of the Shares
of each Class and Series entitled to vote thereon, regardless of the
percentage of Trustees recommending such amendment.
Section 6. Filing of Copies; References; Headings. The original or a copy
of this instrument and of each restatement and/or amendment hereto shall be kept
at the 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 instrument and in any such restatements and/or amendments,
references to this instrument, and all expressions such as "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.
(a) The Trust is created under, and this Declaration of Trust is to be
governed by, and construed and enforced in accordance with, the laws of the
State of Delaware. The Trust shall be of the type commonly called a
statutory trust, and without limiting the provisions hereof, the Trust
specifically reserves the right to exercise any of the powers or privileges
afforded to statutory trusts or actions that may be engaged in by statutory
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.
(b) Notwithstanding the first sentence of Section 7(a) of this Article
VIII, there shall not be applicable to the Trust, the Trustees, or this
Declaration of Trust either the provisions of Section 3540 of Title 12 of
the Delaware Code or any provisions of the laws (statutory or common) of
the State of Delaware (other than the Delaware Act) pertaining to trusts
that 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 a court or other governmental approval concerning the
acquisition, holding, or disposition of real or personal property; (iv)
fees or other sums applicable 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 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 acts or powers or liabilities or authorities and powers
of trustees that are inconsistent with the limitations or liabilities or
authorities and powers of the Trustees set forth or referenced in this
Declaration of Trust; or (viii) activities similar to those referenced in
the foregoing items (i) through (vii).
Section 8. Provisions in Conflict with Law or Regulations.
(a) The provisions of this Declaration of Trust are severable, and if
the Trustees shall determine, with the advice of counsel, that any such
provision is in conflict with the 1940 Act, the regulated investment
company provisions of the Internal Revenue Code of 1986, as amended (or any
successor statute thereto), and the regulations thereunder, the Delaware
Act or with other applicable laws and regulations, the conflicting
provision shall be deemed never to have constituted a part of this
Declaration of Trust; provided, however, that such decision 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. Statutory Trust Only. It is the intention of the Trustees to
create a statutory trust pursuant to the Delaware Act. It is not the intention
of the Trustees to create a general partnership, limited partnership, joint
stock association, corporation, bailment, or any form of legal relationship
other than a statutory trust pursuant to the Delaware Act. 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.
IN WITNESS WHEREOF, the Trustee named below does hereby make and enter into
this Amended and Restated Agreement and Declaration of Trust as of the 9th day
of February, 2004.
/s/ Xxxxxxx X. Xxxxxx
Xxxxxxx X. Xxxxxx
Trustee and not individually
THE PRINCIPAL PLACE OF BUSINESS
OF THE TRUST IS:
000 Xxxxxxxx Xxxxxx
Xxxxxx, Xxxxxxxxxxxxx 00000
