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EXHIBIT (1)
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CADRE NETWORK HEALTH FINANCIAL SERVICES TRUST,
A CALIFORNIA TRUST
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DECLARATION OF TRUST
(AMENDED AND RESTATED)
October 21, 1997
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TABLE OF CONTENTS
PAGE
ARTICLE 1 THE TRUST . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
1.1 Name . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
1.2 Nature of Trust . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
1.3 Definitions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
ARTICLE 2 PORTFOLIOS, SHARES OF BENEFICIAL OWNERSHIP, ETC. . . . . . . . . . . . . . . . . . . 3
2.1 Authorized Shares. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
2.2 Powers, Preferences and Participations. . . . . . . . . . . . . . . . . . . . . . . 4
2.3 Investment in the Trust. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
2.4 Status of Shares . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
2.5 No Certificates; Nontransferability of Interests. . . . . . . . . . . . . . . . . . 5
2.6 Redemption. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6
2.7 Exchange. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6
ARTICLE 3 VALUATION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7
ARTICLE 4 POWERS OF THE TRUSTEES . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7
4.1 General . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7
4.2 Legal Title. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8
4.3 Disposition of Assets . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8
4.4 Taxes . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8
4.5 Rights as Holders of Trust Property . . . . . . . . . . . . . . . . . . . . . . . . 8
4.6 Delegation; Committees . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9
4.7 Collection . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9
4.8 Payment of Expenses . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10
4.9 Deposits . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10
4.10 Valuation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10
4.11 Fiscal Year; Accounts . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10
4.12 Concerning the Trust and Certain Affiliates . . . . . . . . . . . . . . . . . . . . 10
4.13 Investment Program . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11
4.14 Power to Contract, Appoint, Retain and Employ . . . . . . . . . . . . . . . . . . . 11
4.15 Insurance . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12
4.16 Indemnification . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12
4.17 Remedies . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12
4.18 Further Powers . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13
ARTICLE 5 LIMITATIONS OF LIABILITY . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13
5.1 Liability to Third Persons . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13
5.2 Liability to the Trust or the Participants . . . . . . . . . . . . . . . . . . . . . 13
5.3 Indemnification . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13
5.4 Surety Bonds . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15
5.5 Apparent Authority . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15
5.6 Trust Obligations . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15
5.7 Reliance on Experts, Etc . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16
5.8 Liability Insurance . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16
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ARTICLE 6 RECORD OF SHARES . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16
6.1 Share Register . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16
6.2 No Transfers or Pledges of Shares . . . . . . . . . . . . . . . . . . . . . . . . . 16
6.3 Limitation of Fiduciary Responsibility . . . . . . . . . . . . . . . . . . . . . . . 16
6.4 Notices . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17
ARTICLE 7 PARTICIPANTS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17
7.1 Voting . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17
7.2 Meetings of Participants . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17
7.3 Quorum . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18
7.4 Notice of Meetings . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18
7.5 Record Date for Meetings and Votes . . . . . . . . . . . . . . . . . . . . . . . . . 18
7.6 Proxies, Etc. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18
7.7 Financial Records; Reports; Etc . . . . . . . . . . . . . . . . . . . . . . . . . . 19
7.8 Inspection of Records . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19
ARTICLE 8 TRUSTEES AND OFFICERS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19
8.1 Number . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19
8.2 Qualifications of Trustees . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20
8.3 Term and Election . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20
8.4 Resignation and Removal . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20
8.5 Vacancies . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20
8.6 Meetings . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21
8.7 Officers . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21
8.8 Bylaws . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 22
ARTICLE 9 AMENDMENT OR TERMINATION OF TRUST;
DURATION OF TRUST . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 22
9.1 Amendments to Declaration . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 22
9.2 Duration and Termination . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 22
ARTICLE 10 MISCELLANEOUS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 23
10.1 Governing Law . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 23
10.2 Reliance by Third Parties . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 23
10.3 Provisions in Conflict with Law . . . . . . . . . . . . . . . . . . . . . . . . . . 23
10.4 Gender; Section Headings . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 24
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DECLARATION OF TRUST
(AMENDED AND RESTATED)
THIS AMENDED AND RESTATED DECLARATION OF TRUST is made as of October
21, 1997, by the Trustees of the Cadre Network Health Financial Services Trust:
W I T N E S S E T H:
WHEREAS, a California common law trust was established and organized
by the Hospital Council of Northern and Central California, a California
nonprofit mutual benefit corporation, acting as the Declarant, pursuant to a
Declaration of Trust made as of February 12, 1992 for the joint investment of
funds in order to enhance the investment opportunities available to persons who
are Eligible Participants and become Participants;
WHEREAS, the beneficial interest in the Trust's assets are divided
into non-transferable Shares of beneficial interest which are evidenced by a
share register maintained by the Trust or its agent;
WHEREAS, the Trust was formed to act as an open-end, diversified
management investment company registered with the Securities and Exchange
Commission under the Investment Company Act of 1940; and
WHEREAS, the Declaration of Trust was amended and restated on March
14, 1997 and the Trustees desire to further amend and restate the Declaration
of Trust to eliminate the requirement that Participants must meet certain
eligibility requirements as hereinafter set forth.
NOW, THEREFORE, the Trustees hereby declare that all monies,
securities, and other property now or hereafter acquired pursuant to this
Declaration of Trust shall be held and managed in trust, upon the terms and
conditions set forth in this Amended and Restated Declaration for the
proportionate benefit of the holders of record from time to time of Shares of
beneficial interest issued and to be issued hereunder.
ARTICLE 1
THE TRUST
1.1 NAME. The name of the trust (the "Trust") created by this
Declaration of Trust shall be Cadre Network Health Financial Services Trust
and, so far as may be practicable, the Trustees shall conduct the Trust's
activities under that name. The name
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of the Trust (and the word "Trust" wherever used in this Declaration, except
where the context otherwise requires) shall refer to the Trustees in their
capacity as Trustees, and not individually or personally. Should the Trustees
determine that the use of such name is not legal or convenient, they may use
such other designation or they may adopt such other name for the Trust as they
deem proper, and the Trust may hold property and conduct its activities under
such designation or name. The Trustees shall have full and complete power to
change the name of the Trust at any time and from time to time, in their sole
discretion, without the vote of the Participants; provided, that notice of any
such change of name shall be promptly given to the Participants.
1.2 NATURE OF TRUST. The Trust shall be a common law trust organized
and existing under the laws of the State of California. The Trust is not
intended to be and shall not be deemed to be a general partnership, limited
partnership, joint venture, corporation, joint stock company or other entity.
The Participants shall be beneficiaries of the Trust, and their relationship to
the Trustees shall be solely in their capacity as Participants and trust
beneficiaries in accordance with the rights conferred upon them hereunder.
1.3 DEFINITIONS. As used in this Declaration of Trust, the following
terms shall have the following meanings unless the context hereof otherwise
requires:
"AFFILIATE" shall mean, with respect to any Person, another Person
directly or indirectly controlling, controlled by or under common control with
such other Person, or any officer, director, partner or employee of such other
Person.
"ASSETS BELONGING TO" a Portfolio shall have the meaning defined in
Section 2.2(a).
"DECLARATION OF TRUST" shall mean this Amended and Restated
Declaration of Trust, as amended, restated or modified from time to time.
References in this Declaration of Trust to "Declaration", "hereof", "herein",
"hereby" and "hereunder" shall be deemed to refer to this Amended and Restated
Declaration of Trust and shall not be limited to the particular text, article
or section in which such words appear.
"INVESTMENT COMPANY ACT" shall mean the Investment Company Act of
1940, as amended, and the regulations promulgated thereunder.
"NET ASSET VALUE OF THE SHARES" and "NET ASSET VALUE OF THE RESPECTIVE
PORTFOLIOS" shall mean values determined as provided in Article 3.
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"PARTICIPANTS" shall have the meaning defined in Section 2.3.
"PERSON" shall mean and include natural persons, corporations,
partnerships, joint stock companies, joint ventures, associations, trusts,
business trusts and other entities.
"PORTFOLIO" shall mean an investment portfolio represented by a
separate class of Shares established by the Trustees in accordance with Article
2.
"PROSPECTUS" shall mean the prospectus for each Portfolio distributed
by the Trust to Participants and to potential Participants, as the same may be
amended from time to time.
"SHARE" or "SHARES" shall mean the unit used to denominate and measure
the respective pro rata beneficial interests of the Participants in the Trust
and any Portfolio as provided in Article 2.
"TRUST" shall have the meaning defined in Section 1.1.
"TRUSTEES" shall mean the Persons who become fiduciaries of the Trust
pursuant to Article 8.
"TRUST PROPERTY" shall mean, as of any particular time, any and all
property, real, personal or otherwise, tangible or intangible, which has been
transferred, conveyed or paid to the Trust or Trustees and all income, profits
and gains therefrom and which, at such time, is owned or held by, or for the
account of, the Trust or the Trustees.
ARTICLE 2
PORTFOLIOS, SHARES OF BENEFICIAL OWNERSHIP, ETC.
2.1 AUTHORIZED SHARES. The beneficial interest in the
Trust shall be divided into Shares and fractions thereof, and the Trust shall
have authority to issue an unlimited number of Shares without par value. The
Shares shall be divided into Portfolios. The initial Portfolio shall be known
as the "Cadre Network Health Financial Services Liquid Asset Fund," which shall
have the investment objective of seeking to obtain a high level of current
income and stability of principal by investing in short-term securities.
A portion of the assets of each Portfolio may be held, without
limitation on amount, in cash equivalents. Cash equivalents are short-term
interest-bearing instruments in which
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funds are invested temporarily pending longer-term investment or in which funds
are invested when market conditions dictate a more "defensive" investment
strategy. The instruments may include, but are not limited to, commercial
paper, certificates of deposit, repurchase agreements, bankers acceptances and
United States Treasury Bills.
The Trustees shall have full power and authority, without obtaining
any prior authorization or vote of any of the Participants: (i) to create and
establish any additional, Portfolio or Portfolios with preferences, voting
powers, rights and privileges as the Trustees may from time to time determine,
(ii) to divide or combine the Shares of any Portfolio or Portfolios into a
greater or less number, (iii) to classify or reclassify any issued Shares into
one or more Portfolios so long as such classification or reclassification will
not have a material adverse effect on Participants that own Shares of any of
the Portfolios, (iv) to terminate any Portfolio upon sixty (60) days' notice to
the Participants owning shares of that Portfolio in the event that the net
asset value of such Portfolio is less than $5,000,000 on the date of such
notice, and (v) take such other action with respect to the Shares of any
Portfolio or Portfolios as the Trustees may deem desirable, subject to the
terms of this Declaration.
2.2 POWERS, PREFERENCES AND PARTICIPATIONS. Each Portfolio shall
have the following powers, preferences and participating or other special
rights, and the qualifications, restrictions and limitations thereof shall be
as follows:
(a) All consideration received by the Trust for the issue
and sale of Shares of each Portfolio, together with all income, earnings,
profits and proceeds thereof, including any proceeds derived from the sale,
exchange or liquidation of any funds or payments derived from any reinvestment
of such proceeds in whatever form the same may be, shall irrevocably belong for
all purposes to the Portfolio with respect to such assets, payments or funds
were received by the Trust, subject only to the rights of creditors of the
Trust, and shall be so handled on the books of account of the Trust. Such
assets, income, earnings, profits and proceeds derived from the sale, exchange
or liquidation and any assets derived from any reinvestment of such proceeds in
whatever form the same may be, are herein referred to as "assets belonging to"
such Portfolio.
(b) The Trustees may from time to time declare and pay
dividends or distributions to the Participants, in Shares or in cash, on all or
any of the Portfolios, the amount of such dividends or distributions, and the
payment of them, being wholly in the discretion of the Trustees. Dividends or
distributions on
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any Portfolio shall be paid only out of the earnings or other lawfully
available assets belonging to such Portfolio.
(c) In the event of the liquidation or dissolution of the
Trust, Participants owning Shares of each Portfolio shall be entitled to
receive, as a class, out of the assets of the Trust available for distribution
to Participants, the assets belonging to such Portfolio, and the assets so
distributed among such Participants shall be distributed among such
Participants in proportion to the number of Shares of such Portfolio held by
them and recorded on the books of the Trust. In the event that there are any
general assets not belonging to any particular Portfolio and available for
distribution, then, after the distribution of the assets belonging to each
Portfolio, a distribution of such general assets shall be made to all
Portfolios in proportion to the net asset value of the respective Portfolios
prior to the distribution of assets belonging to each Portfolio.
(d) The assets belonging to any Portfolio shall be
charged with the liabilities in respect to such Portfolio, and shall also be
charged with a share of the general liabilities of the Trust in a fair and
equitable manner under policies and procedures established by the Trustees.
The determination of the Trustees shall be conclusive as the amount of
liabilities, including accrued expenses and reserves, as to the allocation of
the same as to a given Portfolio and as to whether the same or general assets
of the Trust are allocable to one or more Portfolios.
2.3 INVESTMENT IN THE TRUST. Shares may be owned only by
Participants. A Person shall become a participant ("Participant") as of the
date on which the payment of consideration to the Trust for Shares is accepted
by the Trustees for one or more Portfolios. The Trustees in their sole
discretion may decline to accept payments of consideration from any
Participant. The Trustees may establish minimum dollar amounts of initial or
additional consideration to be paid for Shares. Shares shall be issued to
Participants on the basis of the net asset value of the Shares of such
Portfolio next determined after receipt by the Trust of the Participant's
consideration for such Shares. Any Participant may have an interest in more
than one Portfolio.
2.4 STATUS OF SHARES. Shares acquired by Participants in the
manner described in Section 2.3 shall be fully paid and nonassessable. No
Participant shall have preemptive rights.
2.5 NO CERTIFICATES; NONTRANSFERABILITY OF INTERESTS. Ownership
of Shares shall be recorded on the books of the Trust or its transfer agent as
provided in Article 6. No certificate or other document shall be issued
evidencing Shares or any
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interest in the Trust. No Participant shall have the right or power to sell,
assign or otherwise transfer any Share or any part of its interest in the
Trust, or use the same as security for a loan.
2.6 REDEMPTION. A Participant may require the Trust, to the
extent that the class of Shares in question has assets lawfully available
therefor and out of such assets but not otherwise, to redeem all or any part of
the Shares outstanding on the books of the Trust in the name of such
Participant, payable as provided in the Investment Company Act. Shares will be
redeemed at the net asset value of such Shares next determined after receipt by
the Trust of a request for redemption. The Trust shall make payment for any
such redemption in cash, or if in the opinion of the Trustees, which shall be
conclusive, conditions exist which make payment wholly or partly in securities
or other property belonging to the Trust, the value of which shall be
determined as provided in Article 3, provided that all distributions made as of
any one valuation date shall be made pro rata on the same basis. The Trust
may, to the extent necessary, sell or cause to be sold any securities belonging
to a Portfolio to provide cash to pay for Shares of such Portfolio that are
redeemed. The Trustees may not suspend the right of the holders of the Shares
of any Portfolio to require the Trust to redeem Shares of such Portfolio except
as permitted by the Investment Company Act.
2.7 EXCHANGES. A Participant shall be entitled, subject to such
limitations as the Trustees in their sole discretion may adopt, to convert all
or any part of the Shares of any Portfolio owned by such Participant into
Shares of any other Portfolio. Shares may be exchanged at the net asset value
next determined after receipt by the Trustees of a request for exchange in
proper form. The Trustees shall determine the net asset value of the Shares to
be converted, and within five business days after receipt of such request,
shall transfer to such Participant on the books of the Trust such number of
Shares of the Portfolio desired as, taken at the net asset value thereof
determined in the same manner and at the same time as that of the Shares
exchanged, shall equal the net asset value of the Shares exchanged. Any amount
representing a fraction of a Share shall be paid in fractional Shares. Upon
any conversion, proper transfer shall be made between the assets belonging to
the various Portfolios of Shares involved.
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ARTICLE 3
VALUATION
The net asset value per Share of each Portfolio shall be determined by
dividing the total value of the Portfolio's assets less any liabilities,
including the fees payable for advisory and other services, by the number of
outstanding Shares. The Portfolio shall be charged with the liabilities in
respect to such Portfolio, and shall also be charged with a share of the
general liabilities of the Trust proportionate to the net asset value of such
Portfolio. The determination of the net asset value of Shares may be delegated
by the Trustees.
The net asset value of Shares shall be determined at such time or
times and in such manner as is determined by the Trustees and as required by
the Investment Company Act. The method of determining the value of Portfolio
assets shall be established by the Trustees and shall be set forth in the
Prospectus.
ARTICLE 4
POWERS OF THE TRUSTEES
4.1 GENERAL. Subject to the rights of the Participants as provided
herein, the Trustees shall have, to the extent permitted by applicable law,
full, exclusive and absolute power, control and authority over the Trust
Property and over the affairs of the Trust to the same extent as if the
Trustees were the sole and absolute owners of the Trust Property. The Trustees
may do and perform such acts and things as in their sole judgment and
discretion are necessary and proper for conducting the affairs of the Trust or
promoting the interests of the Trust and the Participants. The enumeration of
any specific power or authority herein shall not be construed as limiting the
aforesaid general power or authority or any specific power or authority. The
Trustees may exercise or delegate to others any power authorized and granted to
them by this Declaration of Trust. Such powers of the Trustees may be
exercised without the necessity of any order of, or resort to, any court.
Except as otherwise provided in this Declaration of Trust, the
Trustees shall not be limited by any law now or hereafter in effect limiting
the investments which may be held or retained by trustees or other fiduciaries,
and they shall have full authority and power to make any and all Trust
investments within the limitations of this Declaration of Trust, that they, in
their absolute discretion, shall determine to be advisable and appropriate.
The Trustees shall have no liability for loss with respect to Trust investments
made as permitted by this Declaration of Trust, even though such investments
shall be of a
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character or in an amount not otherwise considered proper for the investment of
trust funds by trustees or other fiduciaries. Notwithstanding the foregoing or
anything herein to the contrary, the Trustees shall make Trust investments for
each Portfolio only in accordance with the investment objectives and policies
of such Portfolio as set forth in its Prospectus.
4.2 LEGAL TITLE. Legal title to all of the Trust Property shall
be vested in the Trustees and be held by and transferred to the Trustees,
except that the Trustees shall have full power to cause legal title to any
Trust Property to be held by or in the name of the Trust, or in the name of any
other Person as nominee, on such terms, in such manner, and with such powers as
the Trustees may determine. The right, title and interest of the Trustees in
and to the Trust Property shall vest automatically in all persons who may
hereafter become Trustees upon their due election and qualification without any
further act. Upon the resignation, disability, removal, adjudication as an
incompetent, or death of a Trustee, he (and in the event of his death, his
estate) shall automatically cease to have any right, title or interest in or to
any of the Trust Property, and the right, title and interest of such Trustee in
and to the Trust Property shall vest automatically in the remaining Trustees
without any further act.
4.3 DISPOSITION OF ASSETS. The Trustees shall have full power to
sell, exchange or otherwise dispose of any and all Trust Property free and
clear of any and all trusts, at public or private sale, for cash or on terms,
with or without advertisement, and subject to such restrictions, stipulations,
agreements and reservations as they shall deem proper, and to execute and
deliver any deed, power, assignment, xxxx of sale, or other instrument in
connection with the foregoing. The Trustees shall also have full power in
furtherance of the affairs and purposes of the Trust, to give consents and make
contracts relating to Trust Property or its use.
4.4 TAXES. The Trustees shall have full power: (i) to pay all taxes
or assessments, of whatever kind or nature, validly and lawfully imposed upon
or against the Trust or the Trustees in connection with the Trust Property or
upon or against the Trust Property or income or any part thereof; (ii) to
settle and compromise disputed tax liabilities; and (iii) for the foregoing
purposes to make such returns and do all such other acts and things as may be
deemed by the Trustees to be necessary or desirable.
4.5 RIGHTS AS HOLDERS OF TRUST PROPERTY. The Trustees shall have
full power to exercise all of the rights, powers and privileges appertaining to
the ownership of all Trust Property to the same extent that any individual
might, and, without limiting
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the generality of the foregoing, to vote or give any consent, request or notice
or waiver, any notice either in person or by proxy or power of attorney, with
or without the power of substitution, to one or more Persons, which proxies and
powers of attorney may be for meetings or actions generally, or for any
particular meeting or action, and may include the exercise of discretionary
powers.
4.6 DELEGATION; COMMITTEES. The Trustees shall have full power
(consistent with their continuing exclusive authority over the management of
the Trust, the conduct of its affairs, their duties and obligations as
Trustees, and the management and disposition of Trust Property) to delegate
from time to time to such one or more of their number (who may be designated as
constituting a Committee of the Trustees) or to officers, employees or agents
of the Trust the doing of such acts and things and the execution of such
instruments either in the name of the Trust, or the names of the Trustees or as
their attorney or attorneys, or otherwise as the Trustees may from time to time
deem expedient and appropriate in the furtherance of the business affairs and
purposes of the Trust.
4.7 COLLECTION. The Trustees shall have full power: (i) to collect,
xxx for, receive and give receipt for all sums of money or other property due
to the Trust; (ii) to consent to extensions of the time for payment, or to the
renewal of any securities, investments or obligations; (iii) to engage or
intervene in, prosecute, defend, compromise, abandon or adjust by arbitration
or otherwise any actions, suits, proceedings, disputes, claims, demands or
things relating to the Trust Property; (iv) to foreclose any collateral,
security or instrument securing any investments, notes, bills, bonds,
obligations or contracts by virtue of which any sums of money are owed to the
Trust; (v) to exercise any power of sale held by them, and to convey good title
thereunder free of any and all trusts, and in connection with any such
foreclosure or sale, to purchase or otherwise acquire title to any property;
(vi) to be parties to reorganization and to transfer to and deposit with any
corporation, committee, voting trustee or other Person any securities,
investments or obligations of any Person which form a part of the Trust
Property, for the purpose of such reorganization or otherwise; (vii) to
participate in any arrangement for enforcing or protecting the interests of the
Trustees as the owners or holders of such securities, investments or
obligations and to pay any assessment levied in connection with such
reorganization or arrangement; (viii) to extend the time (with or without
security) for the payment or delivery of any debts or property and to execute
and enter into releases, agreements and other instruments; and (ix) to pay or
satisfy any debts or claims upon any evidence that the Trustees shall think
sufficient.
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4.8 PAYMENT OF EXPENSES. The Trustees shall have full power: (i) to
incur and pay any charges or expenses which in the opinion of the Trustees are
necessary or incidental to or proper for carrying out any of the purposes of
this Declaration of Trust; (ii) to reimburse others for the payment thereof;
and (iii) to pay appropriate compensation or fees from the funds of the Trust
to Persons with whom the Trust has contracted or transacted business. The
Trustees shall fix the compensation, if any, of all officers and employees of
the Trust. The Trustees shall not be paid compensation for their general
services as Trustees hereunder. The Trustees may reimburse themselves or any
other Person for any and all charges or expenses incurred or paid by any of
them on behalf of the Trust or any Portfolio. The Trustees may allocate such
expenses among various Portfolios in such manner and proportion as appropriate
in the discretion of the Trustees.
4.9 DEPOSITS. The Trustees shall have full power to deposit any
monies or funds included in the Trust Property, and intended to be used for the
payment of expenses of the Trust or the Trustees, with one or more banks, trust
companies or other banking institutions whether or not such deposits will draw
interest so long as the depository enters into a custodian agreement acceptable
to the Trustees. Such deposits are to be subject to withdrawal in such manner
as the Trustees may determine, and the Trustees shall have no responsibility
for any loss which may occur by reason of the failure of the bank, trust
company or other banking institution with whom the monies, investments, or
securities have been deposited.
4.10 VALUATION. Subject to the requirements of the Investment
Company Act, the Trustees shall have full and complete power to determine in
good faith or cause other Persons to determine conclusively the value of any of
the Trust Property and the method by which the Trust Property is to be valued.
4.11 FISCAL YEAR; ACCOUNTS. Subject to the requirements of the
Investment Company Act, the Trustees shall have full power to determine the
fiscal year of the Trust and the method or form in which its accounts shall be
kept and from time to time to change the fiscal year or method or form of
accounts. The Trustees may establish different fiscal years for the various
Portfolios as appropriate in the discretion of the Trustees.
4.12 CONCERNING THE TRUST AND CERTAIN AFFILIATES.
(a) Subject to the requirements of the Investment Company
Act, the Trustees may (but need not), in their discretion, from time to time,
adopt standards with respect to conflicts of interest, trading on the basis of
material nonpublic information, the appropriateness of the Trust paying its
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distribution and marketing expenses and similar matters to govern (i) Trustees,
officers, directors, employees and agents of the Trust and their Affiliates and
(ii) such other Persons and their Affiliates as the Trustees may deem
appropriate.
(b) Any Trustee or officer, employee, or agent of the
Trust may, in his personal capacity, or in a capacity as trustee, officer,
director, stockholder, partner, member, agent, adviser or employee of any
Person, have business interests and engage in business activities in addition
to those relating to the Trust, which interests and activities may be similar
to those of the Trust and include the acquisition, syndication, holding,
management, operation or disposition of securities, investments and funds, for
his own account or for the account of such Person. Each Trustee, officer,
employee and agent of the Trust shall be free of any obligation to present to
the Trust any investment opportunity which comes to him in any capacity other
than solely as Trustee, officer, employee or agent of the Trust, even if such
opportunity is of a character which, if presented to the Trust, could be taken
by the Trust.
4.13 INVESTMENT PROGRAM. The Trustees shall use their best efforts
to obtain through qualified Persons a continuing and suitable investment
program, consistent with the investment objectives and policies of each
Portfolio. The Trustees shall also have full power to contract for or
otherwise obtain from or through qualified Persons for the benefit of, and to
make available to, the Participants of the Trust from time to time, additional
investment and noninvestment programs and services distinct from the Trust's
program of investments measured by Shares, but consistent with the objectives
of the Trust and the general purposes of this Declaration of Trust. The
Trustees shall have the power to review and approve or reject, in their sole
discretion, such additional investment and noninvestment programs as may be
presented to the Trustee by such qualified Persons.
4.14 POWER TO CONTRACT, APPOINT, RETAIN AND EMPLOY. The Trustees
shall have full power to appoint or discharge, employ or dismiss, retain or
terminate, or contract or cancel the contract with any Person as the Trustees
may deem necessary or desirable for the transaction of the affairs of the
Trust, or the transaction of the affairs of any additional investment programs
or services or noninvestment programs or services of any nature affiliated with
the Trust or otherwise contracted for or by the Trust, including any Person or
Persons who, may, among other things: (i) serve as the Trust's investment
adviser; (ii) serve as the Trustee's administrator or co-administrator; (iii)
serve as the Trust's marketing agent; (iv) furnish reports to the Trustees and
provide research, economic and statistical data in connection with the Trust's
investments; (v) act as managers,
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consultants, accountants, technical advisers, attorneys, brokers, underwriters,
corporate fiduciaries, escrow agents, depositories, custodians or agents for
collection, insurers or insurance agents, registrars for Shares or in any other
capacity deemed by the Trustees to be necessary or desirable; (vi) investigate,
select, and, on behalf of the Trust, conduct relations with Persons acting in
such capacities and pay appropriate fees to, and enter into appropriate
contracts with, or employ, or retain services performed or to be performed by,
any of them in connection with the investments acquired, sold, or otherwise
disposed of, or committed, negotiated, or contemplated to be acquired, sold or
otherwise disposed of; (vii) act as attorney-in-fact or agent in the purchase
or sale or other disposition of investments, and in the handling, prosecuting
or other enforcement of any lien or security securing investments; (viii)
assist in the performance of such ministerial functions necessary in the
management of the Trust as may be agreed upon with the Trustees; and (ix) any
of the foregoing as may be agreed upon by the Trustees with regard to any
additional investment and noninvestment programs and services for the benefit
of the Participants.
4.15 INSURANCE. The Trustees shall have full power to purchase and
pay for, entirely out of Trust Property, insurance policies insuring the Trust
and the Trustees, officers, employees and agents, of the Trust individually
against all claims and liabilities of every nature arising by reason of holding
or having held any such office or position, for by reason of any action alleged
to have been taken or omitted by the Trust or any such Person as Trustee,
officer, employee and agent, including any action taken or omitted that may be
determined to constitute negligence, whether or not the Trustee would have the
power to indemnify such Person against such liability.
4.16 INDEMNIFICATION. In addition to the mandatory indemnification
provided for in Section 5.3, the Trustees shall have full power, to the extent
permitted by applicable laws, including without limitation, the Investment
Company Act, to indemnify or enter into agreements with respect to
indemnification with any Person with whom the Trust has dealings, to such
extent as the Trustees shall determine.
4.17 REMEDIES. Notwithstanding any provision in this Declaration of
Trust, when the Trustees deem that there is a significant risk that an obligor
to the Trust may default or is in default under the terms of any obligation to
the Trust, the Trustees shall have full power to pursue any remedies permitted
by law which, in their sole judgment, are in the interests of the Trust, and
the Trustees shall have full power to enter into any investment, commitment or
obligation of the Trust resulting from
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the pursuit of such remedies as are necessary or desirable to dispose of
property acquired in the pursuit of such remedies.
4.18 FURTHER POWERS. The Trustees shall have full power to take all
such actions, do all such matters and things and execute all such instruments
as they deem necessary, proper or desirable in order to carry out, promote or
advance the interests and purposes of the Trust although such actions, matters
or things are not herein specifically mentioned. Any determination as to what
is in the best 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. The
Trustees shall not be required to obtain any court order to deal with the Trust
Property.
ARTICLE 5
LIMITATIONS OF LIABILITY
5.1 LIABILITY TO THIRD PERSONS. No Participant shall be subject to
any personal liability whatsoever, in tort, contract or otherwise, to any other
Person in connection with Trust Property or the affairs of the Trust; and no
Trustee, officer, employee of the Trust or other Person designated by the
Trustees shall be subject to any personal liability whatsoever, in tort,
contract or otherwise, to any other Person in connection with Trust Property or
the affairs of the Trust, except for that arising from bad faith, willful
misconduct, gross negligence or reckless disregard of duties; and all such
other Persons shall look solely to the Trust Property for satisfaction of
claims of any nature arising in connection with the affairs of the Trust.
5.2 LIABILITY TO THE TRUST OR THE PARTICIPANTS. No Trustee, officer,
employee or agent of the Trust shall be liable to the Trust or to any
Participant, trustee, officer, employee or agent of the Trust for any action or
failure to act (including, without limitation, the failure to compel in any way
any former or acting Trustee to redress any breach of trust) except for his own
bad faith, willful misconduct, gross negligence or reckless disregard of his
duties; provided, that the provisions of this Section 5.2 shall not limit the
liability of any Person with respect to breaches by it of a contract between it
and the Trust.
5.3 INDEMNIFICATION.
(a) The Trust shall indemnify and hold each Participant
harmless from and against all claims and liabilities, whether they proceed to
judgment or are settled or otherwise brought to a conclusion, to which such
Participant may become subject by reason of its being or having been a
Participant, and
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shall reimburse such Participant for all legal and other expenses reasonably
incurred by it in connection with any such claim or liability. The rights
accruing to a Participant under this Section 5.3 shall not exclude any other
right to which such Participant may be lawfully entitled, nor shall anything
herein contained restrict the right of the Trust to indemnify or reimburse a
Participant in any appropriate situation even though not specifically provided
herein.
(b) The Trust shall indemnify each of its Trustees,
officers, employees and agents and other Persons designated by the Board of
Trustees to receive such indemnification, against all liabilities and expenses
(including, without limitation, amounts paid in satisfaction of judgments, in
compromise or as fines and penalties, and counsel fees) reasonably incurred by
him in connection with the defense or disposition of any action, suit or other
proceeding by the Trust or any other Person, whether civil or criminal, in
which he may be involved or with which he may be threatened, while an officer
or thereafter, by reason of his being or having been such a Trustee, officer,
employee, agent or otherwise designated person, except as to any matter as to
which he shall have been adjudicated to have acted in bad faith or with willful
misconduct or reckless disregard of his duties or gross negligence; provided,
that the provisions of this Section 5.3(b) shall not be construed to permit the
indemnification of any Person with respect to breaches by it of a contract
between it and the Trust; further provided, that as to any matters disposed of
by a compromise payment by such Trustee, officer, employee, agent or otherwise
designated Person, pursuant to a consent decree or otherwise, no
indemnification either for said payment or for any other expenses shall be
provided unless the Trust shall have determined that the officer, Trustee,
employee, agent or otherwise designated Person acted in good faith in a manner
he reasonably believed to be in, or not opposed to, the best interests of the
Trust and, with respect to any criminal proceeding, had no reasonable cause to
believe his conduct was unlawful. The determination of whether such officer,
Trustee, employee, or agent has met the standard set forth in the preceding
sentence shall be made: (i) by the Trustees by a majority vote of a quorum
consisting of Trustees who were not parties to the action, suit or other
proceeding; (ii) if such quorum is not obtainable or if obtainable and, a
majority vote of a quorum of disinterested Trustees so directs, by independent
legal counsel in a written opinion; or (iii) by a majority vote of the
Participants. The rights accruing to any Trustee, officer, employee, agent or
otherwise designated Person under the provisions of this Section 5.3(b) shall
not exclude any other right to which he may be lawfully entitled; provided,
that no Trustee, officer, employee, agent or otherwise designated Person may
satisfy any right of indemnity or reimbursement granted herein or to which he
may be otherwise entitled except out of the
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Trust Property, and no Participant shall be personally liable to any Person
with respect to any claim for indemnity or reimbursement or otherwise. The
Trustees may make advance payments in connection with indemnification under
this Section 5.3(b), provided that the indemnified Trustee, officer, employee,
agent or otherwise designated Person shall have given a written undertaking to
reimburse the Trust in the event that it is subsequently determined that he is
not entitled to such indemnification.
(c) Any action taken by, or conduct on the part of, a
Trustee, an officer, an employee, an agent of the Trust or other Person
designated by the Trustees, in conformity with, or in good faith reliance upon,
the provisions of Section 5.7 hereof shall not, for the purpose of this
Declaration of Trust (including, without limitation, Sections 5.1, 5.2 and 5.3)
constitute bad faith, willful misconduct, gross negligence or reckless
disregard of his duties.
(d) Notwithstanding the foregoing, any indemnification
shall be made by the Trust only as permitted by the Securities Act of 1933, as
amended, and the Investment Company Act.
5.4 SURETY BONDS. No Trustee shall, as such, be obligated to give
any bond or surety or other security for the Performance of any of his duties.
5.5 APPARENT AUTHORITY. Unless otherwise required by or pursuant to
applicable law, no purchaser, seller, transfer agent or other Person dealing
with the Trustees or any officer, employee or agent of the Trust shall be bound
to make any inquiry concerning the validity of any transaction purporting to be
made by the Trustees or by such officer, employee or agent or make inquiry
concerning or be liable for the application of money or property paid,
transferred or delivered to or on the order of the Trustees or of such officer,
employee or agent.
5.6 TRUST OBLIGATIONS. Any written instrument creating an obligation
of the Trust shall be conclusively taken to have been executed by a Trustee or
an officer, employee or agent of the Trust only in his capacity as a Trustee
under this Declaration of Trust or in his capacity as an officer, employee or
agent of the Trust. Any written instrument creating an obligation of the Trust
may refer to this Declaration of Trust and contain a statement or
acknowledgement to the effect that the obligations thereunder are not
personally binding upon, nor shall resort be had to the property of, any of the
Trustees, Participants, officers, employees or agents of the Trust, and that
only the Trust Property or a specific portion thereof shall be bound; provided,
that the omission of any recital pursuant to this Section 5.6 shall not operate
to impose personal liability on any
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of the Trustees, Participants, officers, employees or agents of the Trust.
5.7 RELIANCE ON EXPERTS, ETC. Each Trustee, officer, employee and
agent of the Trust shall, in the performance of his duties, be fully and
completely justified and protected with regard to any act or any failure to act
resulting from reliance in good faith upon the books of account or other
records of the Trust, upon an opinion of counsel or upon reports made to the
Trust by any of its officers or employees or by any investment adviser,
distributor, manager, custodian, accountant, appraiser or other expert or
consultant selected with reasonable care by the Trustees or officers of the
Trust.
5.8 LIABILITY INSURANCE. The Trustees may maintain insurance for the
protection of the Trust Property, and the Trustees, Participants, officers,
employees and agents of the Trust, in such amount as the Trustees shall deem
adequate to cover all foreseeable tort and contract liability to the extent
available at reasonable rates.
ARTICLE 6
RECORD OF SHARES
6.1 SHARE REGISTER. A share register shall be kept by or on behalf
of the Trustees, and shall contain the names and addresses of the Participants,
the number of Shares held by them, and a record of all allocations and
redemptions thereof. Such share register shall be conclusive as to the
identity of the holders of the Shares. Only Participants whose ownership of
Shares is recorded on such share register shall be entitled to receive
distributions with respect to Shares or otherwise to exercise or enjoy the
rights and benefits related to the ownership of Shares. No Participant shall
be entitled to receive any distribution, nor to have notices given to it as
herein provided, until it has given its appropriate address to such officer or
agent of the Trust as shall keep the share register for entry thereon.
6.2 NO TRANSFERS OR PLEDGES OF SHARES. The beneficial interest
evidenced, represented or measured by the Shares shall not be assignable or
transferable other than to the Trust itself for purposes of redemption.
6.3 LIMITATION OF FIDUCIARY RESPONSIBILITY. The Trustees shall not,
nor shall the Participants or any officer, transfer agent or other agent of the
Trust, be bound to see the execution of any trust, express, implied or
constructive, or of any charge, pledge or equity to which any of the Shares or
any interest thereof are subject, or to ascertain or inquire whether any
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redemption of any such Shares by any Participant or its representatives is
authorized by such trust, charge, pledge or equity, or to recognize any Person
as having any interest therein except the Participant recorded as the holder of
such Shares. The receipt of the Participant in whose name any Share is
recorded or of the duly authorized agent of such Participant shall be a
sufficient discharge for all monies payable or deliverable in respect of such
Shares and from all liability to see to the proper application thereof.
6.4 NOTICES. Any and all notices to which Participants may be
entitled and any and all communications shall be deemed duly served or given if
mailed, postage prepaid, addressed to Participants of record at their last
known post office addresses as recorded on the share register provided for in
Section 6.1.
ARTICLE 7
PARTICIPANTS
7.1 VOTING. On any matter submitted to a vote of the Participants,
all Shares then issued and outstanding shall be entitled to vote, shall be
voted in the aggregate and not by Portfolio, except
(a) when required by the Investment Company Act, Shares
shall be voted by individual Portfolio; and
(b) when the matter affects an interest of less than all
Portfolios, then only Participants that own Shares of the affected Portfolio or
Portfolios shall be entitled to vote.
Each Participant shall be entitled to exercise the voting rights of
Shares registered in the name of such Participant or the nominee thereof. Each
full Share shall be entitled to one vote and each fractional Share shall be
entitled to a corresponding fractional vote. All matters shall be decided by a
majority of the votes validly cast, except as otherwise required by law or this
Declaration of Trust. Participants shall not be entitled to cumulative voting.
7.2 MEETINGS OF PARTICIPANTS. Meetings of the Participants for such
purposes as may be permitted or required by law or this Declaration of Trust
shall be held at such time and place as may be determined by the Trustees and
specified in the notice of the meeting. The Participants shall, by an
instrument or concurrent instruments in writing delivered to the Board of
Trustees signed by the holders of at least ten percent (10%) of the Shares,
have the right to initiate a vote of the Participants as to any matter with
regard to which Participants have a right to vote. Within sixty (60) days of
receipt of such instrument or instruments, the
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Trustees shall cause a ballot to be sent to each Participant, setting forth the
matter to be voted on and the manner in which such ballots should be executed
and delivered or shall hold a meeting of the Participants.
7.3 QUORUM. The presence at any meeting, in person or by proxy, of
Participants that hold one-third of the issued and outstanding Shares shall
constitute a quorum for transaction of business of the Trust, except that when
a provision of law or this Declaration of Trust permits or requires that the
Shares be voted by Portfolio, then the Participants that hold one-third of the
issued and outstanding Shares of that Portfolio shall constitute a quorum for
transaction of business of that Portfolio.
In the absence of a quorum, the Participants that are present in
person or represented by proxy, by majority vote, may adjourn the meeting to
another time and place. No notice of adjournment need be given, and the
business that might have been transacted at the meeting originally called may
be transacted at any adjourned meeting at which a quorum is present.
7.4 NOTICE OF MEETINGS. Notice of meetings of the Participants,
stating the date, time, place and purposes of the meeting, and notice of any
vote without a meeting stating the purpose and method thereof, shall be given
by the Trustees by mail to each Participant at its registered address, mailed
at least ten (10) days before the date of the meeting. Only the business
stated in the notice of the meeting, shall be considered at such meeting.
7.5 RECORD DATE FOR MEETINGS AND VOTES. For the purpose of
determining the Participants that are entitled to notice of and to vote at any
meeting or any adjournment thereof, or that are entitled to participate in any
dividend or distribution, or for the purpose of any other action, the Trustees
may from time to time fix a date not more than thirty (30) days prior to the
date of any meeting or vote of Participants or other action as a record date
for the determination of Participants entitled to notice of and to vote at such
meeting or any adjournment thereof or to be treated as holders of record of
Shares for purposes of such other action. Any Participant who was a
Participant at the time so fixed shall be entitled to notice of and to vote at
such meeting, even though it holds no Shares at the time of the meeting. No
Person becoming a Participant after the record date shall be entitled to vote
at such meeting or to cast a ballot in such vote or to be treated as a holder
of record of Shares for purposes of such other action.
7.6 PROXIES, ETC. At any meeting of Participants, any Participant
entitled to vote may vote by proxy, provided that no
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proxy shall be voted at any meeting unless it shall have been placed on file
with the Secretary of the Trust, or with such other officer or agent of the
Trust as the Trustees may direct, for verification prior to the time at which
such vote shall be taken. Pursuant to a resolution of the Trustees, proxies may
be solicited in the name of one or more Trustees or nominees for Trustees. A
proxy purporting to be executed by or on behalf of a Participant shall be
deemed valid unless challenged at or prior to its exercise, and the burden of
proving invalidity shall rest on the challenger.
7.7 FINANCIAL RECORDS; REPORTS; ETC.
(a) The Trustees shall cause the Trust to keep full
accounts of all of its receipts and disbursements in accordance with the
requirements of the Investment Company Act and generally accepted accounting
principles. The Trustees shall at least once during each period of twelve
months cause an audit to be made of the Trust's financial records by
independent, certified public accountants responsible to the Trustees.
(b) The Trustees shall cause the Trust to maintain a
separate account on the books of the Trust for each Participant. All
transactions for such Participant shall be recorded by the Trusts in such
account. Statements showing transactions of and the number of Shares held by
each Participant shall be rendered by the Trust on a regular, periodic basis as
determined by the Trustees, but not less than annually.
(c) In addition to any reports, statements and opinions
prepared pursuant to Section 7.7(a) and (b), the Trustees may cause to be
prepared or conducted by the Trust's independent accountant such other reports
and examinations as the Trustees shall, in their discretion, deem appropriate.
7.8 INSPECTION OF RECORDS. The records of the Trust shall be open to
inspection for reasonable purpose by Participants at all reasonable times,
provided that five (5) days written notice thereof is given to the Trustees.
ARTICLE 8
TRUSTEES AND OFFICERS
8.1 NUMBER. The number of Trustees shall be not less than five, and
the number of Trustees may be changed from time to time by the Trustees;
provided, that the number of Trustees shall in no event be less than five or
more than fifteen. No reduction in the number of Trustees shall have the
effect of removing any Trustee from office prior to the expiration of his term.
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8.2 QUALIFICATIONS OF TRUSTEES. The members of the Board of Trustees
shall be persons who are eligible to serve as directors of a registered
investment company under the Investment Company Act, including without
limitation the requirement under the Investment Company Act that a majority of
the Board of Trustees shall be persons who are not "interested persons" (as
defined in the Investment Company Act) of any Portfolio's principal
underwriters and no more than sixty percent of the Board of Trustees shall be
persons who are "interested persons" of the Trust. At least three-fourths
(3/4ths) of the members of the Board of Trustees shall consist of persons whose
principal occupations are or have been in or related to the healthcare
industry, including without limitation, positions with hospitals, health
systems, health facilities, medical groups, and health insuring organizations.
8.3 TERM AND ELECTION. Each Trustee named, elected or appointed as
provided herein shall, except as otherwise provided in Section 8.4 or 8.5, hold
office until his successor has been elected or appointed and has qualified to
serve as a Trustee.
8.4 RESIGNATION AND REMOVAL. Any Trustee may resign (without need
for prior or subsequent accounting) by an instrument in writing delivered to
the remaining Trustees and such resignation shall be effective upon such
delivery, or at a later date according to the terms of the notice. Any Trustee
may be removed by the action of two-thirds of the other Trustees.
8.5 VACANCIES. The term of office of a Trustee shall terminate and a
vacancy shall occur in the event of the death, resignation, bankruptcy,
adjudicated incompetence or other incapacity to exercise the duties of the
office, or removal of a Trustee. No such vacancy shall operate to annul this
Declaration of Trust or to revoke any existing agency created pursuant to the
terms of this Declaration of Trust, and title to any Trust Property held in
the name of such Trustee and the other Trustees or otherwise, shall, in the
event of the death, resignation, removal, bankruptcy, adjudicated incompetence
or other incapacity to exercise the duties of the office of such Trustee, vest
in the continuing or surviving Trustees without necessity of any further act or
conveyance.
In the case of a vacancy, including a vacancy resulting from an
increase in the number of Trustees, a majority of the remaining Trustees,
regardless of whether they constitute a quorum, or the Participants fill such
vacancy, and any Trustee so elected by the Trustees shall hold office until his
successor has been elected and has qualified to serve as a Trustee.
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8.6 MEETINGS.
(a) Meetings of the Trustees shall be held from time to
time upon the call of the Chairman or any three Trustees. Regular meetings of
the Trustees may be held without call or notice at a time and place fixed by
resolution of the Trustees. Notice of any other meeting shall be mailed or
otherwise given not less than 48 hours before the meeting but may be waived in
writing by any Trustee either before or after such meeting. The attendance of
a Trustee at a meeting shall constitute a waiver of notice of such meeting,
except where a Trustee attends a meeting for the express purpose of objecting
to the transaction of any business on the ground that the meeting has not been
lawfully called or convened. The Trustees may act with or without a meeting.
A quorum for all meetings of the Trustees shall be a majority of the Trustees.
Unless specifically provided otherwise in this Declaration of Trust, any action
of the Trustees may be taken at a meeting by vote of a majority of the Trustees
present (a quorum being present) or without a meeting, by written consents of a
majority of the Trustees. Any agreement, or other instrument or writing
executed by one or more of the Trustees or by any authorized Person, shall be
valid and binding upon the Trustees and upon the Trust when authorized or
ratified by action of the Trustees as provided in this Declaration of Trust.
(b) Any committee of the Trustees, including an Executive
Committee, if any, may act with or without a meeting. A quorum for all
meetings of any such committee shall be a majority of the members thereof.
Unless otherwise specifically provided in this Declaration of Trust, any action
of any such committee may be taken at a meeting by vote of a majority of the
members present (a quorum being present) or by written consent of a majority of
the members.
(c) All or any one or more Trustees may participate in a
meeting of the Trustees or any committee thereof by utilizing conference
telephone or similar communications equipment by means of which all persons
participating in the meeting can hear each other and participation in a meeting
pursuant to such communications shall constitute presence in person at such
meeting. The minutes of any meeting of Trustees held by utilizing such
communications equipment shall be prepared in the same manner as those of a
meeting of Trustees held in person.
8.7 OFFICERS. The Trustees may elect, from among their numbers, a
Chairman who shall be the chief executive officer of the Trust, and a
Treasurer, who shall be the chief financial officer of the Trust. The Trustees
may elect or appoint, from among their number or otherwise, or may authorize
the Chairman to appoint, a Secretary, and such other officers or agents, who
shall have such powers, duties and responsibilities as the
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Trustees may deem to be advisable and appropriate. Two or more offices, except
those of Chairman and Secretary, may be held by the same person. The
Secretary, if not a Trustee, shall attend meetings of the Trustees but shall
have no voting power.
8.8 BYLAWS. The Trustees may adopt and, from time to time, amend or
repeal, Bylaws for the conduct of the business of the Trust, and in such
Bylaws, among other things, may define the duties of the respective officers,
agents, employees and representatives of the Trust.
ARTICLE 9
AMENDMENT OR TERMINATION OF TRUST;
DURATION OF TRUST
9.1 AMENDMENTS TO DECLARATION. This Declaration of Trust may be
amended by the Trustees or the Participants at any time or from time to time
and in any respect and, if determined by the Trustees or the Participants to be
necessary to comply with applicable law, retroactively; provided, that any such
amendment which amends Sections 2.1, 2.4, 5.1, 5.3, 7.1, 9.1 or 9.2 and
adversely affects the rights of the Participants shall be approved by the
Participants at a meeting or by a vote as provided in Article 7. No such
amendment shall divert any part of the Trust Property that equitably belongs to
any Participant for purposes other than the exclusive benefit of the
Participant at any time prior to the satisfaction of all liabilities with
respect to such Participant.
9.2 DURATION AND TERMINATION. This Trust shall continue until
termination of the last Portfolio existing under this Trust. Portfolios may be
terminated in the following manner:
(a) The Trustees, with the approval of Participants that
own at least a majority of the outstanding Shares of any Portfolio may sell and
convey the assets of such Portfolio to another trust or corporation organized
under the laws of any state of the United States for a consideration that may
include the assumption of all or a part of the outstanding obligations, taxes
and other liabilities, accrued or contingent, of the Portfolio and which may
include shares of beneficial interest or stock or other securities of such
trust or corporation. Upon making provision for the payment of all such
liabilities, by such assumption or otherwise, the Trustees shall distribute the
remaining proceeds ratably among the Participants owning outstanding Shares of
such Portfolio.
(b) The Trustees, with the approval of Participants that
own at least a majority of the outstanding Shares of any Portfolio, or, as
otherwise provided in Section 2.1, may
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terminate that Portfolio. Upon such termination, the Trustees shall sell and
convert into money all the assets of such Portfolio. Upon making provision for
the payment of all outstanding obligations, taxes and other liabilities,
accrued or contingent, of the Portfolio, the Trustees shall distribute the
remaining assets of the Portfolio ratably among the Participants owning
outstanding shares of the Portfolio.
(c) Upon completion of the distribution of the remaining proceeds
or the remaining assets as provided in subsections (a) through (b), the Trust
shall terminate as to the Portfolio and the Trustees shall be discharged of any
and all further liabilities and duties hereunder with respect to such
Portfolio. Further, the right, title and interest of all parties of that
Portfolio shall be cancelled and discharged.
ARTICLE 10
MISCELLANEOUS
10.1 GOVERNING LAW. This Declaration of Trust is adopted in the
State of California and with reference to the laws thereof, and the rights of
all parties and the validity, construction and effect of every provision hereof
shall be subject to and construed according to the laws of the State of
California.
10.2 RELIANCE BY THIRD PARTIES. Any certificate executed by an
individual who, according to the records of the Trust, or of any official or
public body or office in which this Declaration of Trust may be recorded or
filed, appears to be a Trustee or the Secretary of the Trust, certifying to:
(i) the number or identity of Trustees or Participants; (ii) the due
authorization of the execution of any instrument or writing; (iii) the form of
any vote passed at a meeting of the Trustees or Participants; (iv) the fact
that the number of Trustees or Participants present at any meeting or executing
any written instrument satisfies the requirements of this Declaration of Trust;
(v) the form of any Bylaw adopted by or the identity of any officers elected by
the Trustees; or (vi) the existence of any fact or facts which in any manner
relate to the affairs of the Trust, shall be conclusive evidence as to the
matters so certified in favor of any Person dealing with the Trustees or any of
them or the Trust and the successors of such Person.
10.3 PROVISIONS IN CONFLICT WITH LAW. The provisions of this
Declaration of Trust are severable, and if the Trustees shall determine, with
the advise of counsel, that any one or more of such provisions (the
"Conflicting Provisions") are in conflict with applicable federal or California
laws, the Conflicting Provisions shall be deemed never to have constituted a
part of
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this Declaration of Trust; provided, that such determination by the Trustees
shall not affect or impair any of the remaining provisions of this Declaration
of Trust or render invalid or improper any action taken or omitted (including,
but not limited to, the election of Trustees) prior to such determination.
10.4 GENDER; SECTION HEADINGS.
(a) Words of the masculine gender shall mean and include
correlative words of the feminine and neuter gender and words importing the
singular number shall mean and include the plural number and vice versa.
(b) Any headings preceding the texts of the several
Articles and Sections of this Declaration of Trust and any table of contents or
marginal notes appended to copies hereof, shall be solely for convenience of
reference and shall neither constitute a part of this Declaration of Trust nor
affect its meaning, construction or effect.
IN WITNESS WHEREOF, the undersigned has caused this Amended and
Restated Declaration of Trust to be executed by its proper and duly authorized
officers as of the date first above written.
BOARD OF TRUSTEES OF CADRE NETWORK
HEALTH FINANCIAL SERVICES TRUST
By /s/ Xxxxxxx X. Xxxxxxxx, Xx.
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Chairman of the
Board of Trustees
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