AGREEMENT AND DECLARATION OF TRUST
OF
THE BENCHMARK FUNDS
0000 Xxxxx Xxxxx
Xxxxxxx, Xxxxxxxx 00000
Dated: July 1, 1997
AGREEMENT AND DECLARATION OF TRUST made this 1st day of July, 1997 by the
undersigned Trustee (together with all other persons from time to time duly
elected, qualified and serving as Trustees in accordance with the provisions of
Article II hereof, the "Trustees");
WHEREAS, the Trustees desire to establish a trust for the investment and
reinvestment of funds contributed thereto;
WHEREAS, the Trustees desire that the beneficial interest in the trust
assets be divided into transferable shares of beneficial interest, as
hereinafter provided;
WHEREAS, the Trustees declare that all money and property contributed to
the trust established hereunder shall be held and managed in trust for the
benefit of the holders, from time to time, of the shares of beneficial interest
issued hereunder and subject to the provisions hereof;
NOW, THEREFORE, in consideration of the foregoing premises and the
agreements contained herein, the undersigned, being all of the Trustees of the
Trust, hereby declare as follows:
ARTICLE I
---------
NAME AND DEFINITIONS
--------------------
Section 1. Name. The name of the Trust created by this Agreement and
Declaration of Trust is "The Benchmark Funds."
Section 2. Definitions. Unless otherwise provided or required by the
context:
(a) "Administrator" means the party, other than the Trust, to the contract
described in Article III, Section 3 hereof.
(b) "By-laws" means the By-laws of the Trust adopted by the Trustees, 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.; provided that in the event of
a conflict between the provisions of this Declaration and the By-laws, the
provisions of this Declaration shall control.
(c) "Class" means any class of Shares of a Series established pursuant to
Article V.
(d) "Commission," "Interested Person" and "Principal Underwriter" have the
meanings provided in the 1940 Act. Except as such term may be otherwise defined
by the Trustees in conjunction with the establishment of any Series of Shares,
the term "vote of a majority of the Shares outstanding and entitled to vote" or
"Shares representing a majority of the votes entitled to be cast" shall have the
same meaning as is assigned to the term "vote of a majority of the outstanding
voting securities" in the 1940 Act (except as shall be necessary to give effect
to voting on a net asset basis in accordance with Article VII, Section 1).
(e) "Covered Person" means a person so defined in Article IV, Section 3.
(f) "Custodian" means any Person other than the Trust who has custody of
any Trust Property as required by Section 17(f) of the 1940 Act, but does not
include a system for the central handling of securities described in said
Section 17(f).
(g) "Declaration" shall mean this Agreement and Declaration of Trust, as
amended or restated from time to time. Reference in this Agreement and
Declaration of Trust to "Declaration," "hereof," "herein," and "hereunder" shall
be deemed to refer to this Declaration rather than exclusively to the article or
section in which such words appear.
(h) "Delaware Act" means Chapter 38 of Title 12 of the Delaware Code
entitled "Treatment of Delaware Business Trusts," as amended from time to time.
(i) "Distributor" means the party, other than the Trust, to the contract
described in Article III, Section 1 hereof.
(j) "His" shall include the feminine and neuter, as well as the masculine,
genders.
(k) "Investment Adviser" means the party, other than the Trust, to the
contract described in Article III, Section 2 hereof.
(l) "Net Asset Value" means the net asset value of each Series of the
Trust, determined as provided in Article VI, Section 3.
(m) "Person" means and includes individuals, corporations, partnerships,
trusts, associations, joint ventures, estates and other entities, and
governments and agencies and political subdivisions, thereof, whether domestic
or foreign.
(n) "Series" means a series of Shares established pursuant to Article V.
(o) "Shareholder" means a record owner of Outstanding Shares.
(p) "Shares" means the equal proportionate transferable units of interest
into which the beneficial interest of each Series or Class is divided from time
to time (including whole Shares and fractions of Shares). "Outstanding Shares"
means Shares shown in the books of the Trust or its transfer agent as then
issued and outstanding, but does not include Shares which have been repurchased
or redeemed by the Trust and which are held in the treasury of the Trust.
(q) "Transfer Agent" means any Person other than the Trust who maintains
the Shareholder records of the Trust, such as the list of Shareholders, the
number of Shares credited to each account, and the like.
(r) "Trust" means The Benchmark Funds established hereby, and reference to
the Trust, when applicable to one or more Series, refers to such Series.
(s) "Trustees" means the person who has signed this Declaration of Trust,
so long as she shall continue in office in accordance with the terms hereof, and
all other persons who may from time to time be duly qualified and serving as
Trustees in accordance with Article II, in all cases in their capacities as
Trustees hereunder.
(t) "Trust Property" means any and all property, real or personal, tangible
or intangible, which is owned or held by or for the Trust or any Series or the
Trustees on behalf of the Trust or any Series.
(u) The "1940 Act" means the Investment Company Act of 1940, as amended
from time to time.
ARTICLE II
----------
THE TRUSTEES
------------
Section 1. Management of the Trust. The business and affairs of the Trust
shall be managed by or under the direction of the Trustees, and they shall have
all powers necessary or desirable to carry out that responsibility. The Trustees
may execute all instruments and take all action they deem necessary or desirable
to promote the interests of the Trust. Any determination made by the Trustees in
good faith as to what is in the interests of the Trust shall be conclusive. In
construing the provisions of this Declaration, the presumption shall be in favor
of a grant of power to the Trustees.
Section 2. Powers. The Trustees in all instances shall act as principals,
free of the control of the Shareholders. The Trustees shall have full power and
authority to take or refrain from taking any action and to execute any contracts
and instruments that they may consider necessary or desirable in the management
of the Trust. The Trustees shall not in any
3
way be bound or limited by current or future laws or customs applicable to trust
investments, but shall have full power and authority to make any investments
which they, in their sole discretion, deem proper to accomplish the purposes of
the Trust. The Trustees may exercise all of their powers without recourse to any
court or other authority. Subject to any applicable limitation herein or in the
By-laws or resolutions of the Trust, the Trustees shall have power and
authority, without limitation:
(a) To operate as and carry on the business of an investment company, and
exercise all the powers necessary and appropriate to the conduct of such
operations.
(b) To invest in, hold for investment, or reinvest in, cash, including
foreign currencies; securities, including common, preferred and preference
stocks; warrants; subscription rights; profit- sharing interests or
participation and all other contracts for or evidence of equity interests;
bonds, debentures, bills, time notes and all other evidences of indebtedness;
negotiable or non-negotiable instruments; government securities, including
securities of any state, municipality or other political subdivision thereof, or
any governmental or quasi-governmental agency or instrumentality; and money
market instruments including bank certificates of deposit, finance paper,
commercial paper, bankers' acceptances and all kinds of repurchase agreements,
of any corporation, company, trust, association, firm or other business
organization however established, and of any country, state, municipality or
other political subdivision, or any governmental or quasi-governmental agency or
instrumentality; or any other security, property or instrument in which the
Trust or any of its Series shall be authorized to invest.
(c) To acquire (by purchase, subscription or otherwise), to hold, to trade
in and deal in, to acquire any rights or options to purchase or sell, to sell or
otherwise dispose of, to lend and to pledge any such securities, to enter into
repurchase agreements, reverse repurchase agreements, firm commitment agreements
and forward foreign currency exchange contracts, to purchase and sell options on
securities, securities indices, currency and other financial assets, futures
contracts and options on futures contracts of all descriptions and to engage in
all other types of transactions in which the Trust or any of its Series shall be
authorized to engage.
(d) To exercise all rights, powers and privileges of ownership or interest
in all securities, repurchase agreements and other property and instruments
included in the Trust Property, including the right to vote thereon and
otherwise act with respect thereto and to do all acts for the preservation,
protection, improvement and enhancement in value of all such securities and
repurchase agreements.
(e) To acquire (by purchase, lease or otherwise) and to hold, use,
maintain, develop and dispose of (by sale or otherwise) any property, real or
personal, including cash or foreign currency, and any interest therein.
(f) To borrow money or other property in the name of the Trust or any of
its Series exclusively for Trust purposes and in this connection issue notes or
other evidence of
4
indebtedness; to secure borrowings by mortgaging, pledging or otherwise
subjecting as security the Trust Property; and to endorse, guarantee, or
undertake the performance of any obligation or engagement of any other Person
and to lend Trust Property.
(g) To aid by further investment any corporation, company, trust,
association or firm, any obligation of or interest in which is included in the
Trust Property or in the affairs of which the Trustees have any direct or
indirect interest; to do all acts and things designed to protect, preserve,
improve or enhance the value of such obligation or interest; and to guarantee or
become surety on any or all of the contracts, stocks, bonds, notes, debentures
and other obligations of any such corporation, company, trust, association or
firm.
(h) To adopt By-laws not inconsistent with this Declaration providing for
the conduct of the business of the Trust and to amend and repeal them to the
extent such right is not reserved to the Shareholders.
(i) To elect and remove such officers and appoint and terminate such agents
as they deem appropriate.
(j) To employ as custodian of any assets of the Trust, subject to any
provisions herein or in the By-laws, one or more banks, trust companies or
companies that are members of a national securities exchange, or other entities
permitted by the Commission to serve as such.
(k) To retain one or more transfer agents and shareholder servicing agents,
or both.
(l) To provide for the distribution of Shares either through a Principal
Underwriter as provided herein or by the Trust itself, or both, or pursuant to a
distribution plan of any kind and to adopt on behalf of any Series or Class
distribution, authorized dealer service, administration, service or other plans
providing for the compensation by such Series or Class for distribution,
administration, shareholder liaison or similar services.
(m) To set record dates in the manner provided for herein or in the By-
laws.
(n) To delegate such authority as they consider desirable to any officers
of the Trust and to any agent, independent contractor, manager, investment
adviser, custodian, underwriter or other Person.
(o) To hold any security or other property (i) in a form not indicating any
trust, whether in bearer, book entry, unregistered or other negotiable form, or
(ii) either in the Trust's or Trustees' own name or in the name of a custodian
or a nominee or nominees, subject to safeguards according to the usual practice
of business trusts or investment companies.
(p) To establish separate and distinct Series with separately defined
investment
5
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 V.
(q) To the full extent permitted by Section 3804 of the Delaware Act, to
allocate assets, liabilities and expenses of the Trust to a particular Series
and assets, liabilities and expenses to a particular 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 V, Section 4.
(r) To consent to or participate in any plan for the reorganization,
consolidation or merger of any corporation or concern whose securities are held
by the Trust; to consent to any contract, lease, mortgage, purchase, or sale of
property by such corporation or concern; and to pay calls or subscriptions with
respect to any security held in the Trust.
(s) 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.
(t) To make distributions of income, capital gains, returns of capital (if
any) and redemption proceeds to Shareholders in the manner hereinafter provided
for.
(u) To establish committees for such purposes, with such membership, and
with such responsibilities as the Trustees may consider proper.
(v) To issue, sell, repurchase, redeem, cancel, retire, acquire, hold,
resell, reissue, dispose of and otherwise deal in Shares; to establish terms and
conditions regarding the issuance, sale, repurchase, redemption, cancellation,
retirement, acquisition, holding, resale, reissuance, disposition of or dealing
in Shares; and, subject to Articles V and VI, to apply to any such repurchase,
redemption, retirement, cancellation or acquisition of Shares any funds or
property of the Trust or of the particular Series or Class with respect to which
such Shares are issued.
(w) To invest part or all of the Trust Property (or part or all of the
assets of any Series), or to dispose of part or all of the Trust Property (or
part or all of the assets of any Series) and invest the proceeds of such
disposition, in interests issued by one or more other investment companies or
pooled portfolios (including investment by means of transfer of part or all of
the Trust Property in exchange for an interest or interests in such one or more
investment companies or pooled portfolios) all without any requirement of
approval by Shareholders. Any such other investment company or pooled portfolio
may (but need not) be a trust (formed under the laws of any state or
jurisdiction) which is classified as a partnership for federal income tax
purposes.
(x) To sell or exchange any or all of the assets of the Trust, subject to
Article IX,
6
Section 4.
(y) To enter into joint ventures, partnerships and other combinations and
associations.
(z) 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;
(aa) 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, subject to applicable law and any restrictions set forth in
the By-laws, insurance policies insuring the Shareholders, Trustees, officers,
employees, agents, investment advisers, Principal Underwriters, or independent
contractors of the Trust, individually, against all claims and liabilities of
every nature arising by reason of holding Shares, holding, being or having held
any such office or position, or by reason of any action alleged to have been
taken or omitted by any such Person as Trustee, officer, employee, agent,
investment adviser, Principal Underwriter, or independent contractor, 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;
(bb) 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;
(cc) To enter into contracts of any kind and description;
(dd) To interpret the investment policies, practices or limitations of any
Series or Class;
(ee) To guarantee indebtedness and contractual obligations of others;
(ff) To take any other action that may be taken by a Board of Directors of
a business corporation organized under the laws of the State of Delaware; and
(gg) To carry on any other business in connection with or incidental to any
of the foregoing powers, to do everything necessary or desirable to accomplish
any purpose or to further any of the foregoing powers, and to take every other
action incidental to the foregoing
7
business or purposes, objects or powers.
The clauses above shall be construed as objects and powers, and the
enumeration of specific powers shall not limit in any way the general powers of
the Trustees. Any action by one or more of the Trustees in their capacity as
such hereunder shall be deemed an action on behalf of the Trust or the
applicable Series, and not an action in an individual capacity. No one dealing
with the Trustees shall be under any obligation to make any inquiry concerning
the authority of the Trustees, or to see to the application of any payments made
or property transferred to the Trustees or upon their order. In construing this
Declaration, the presumption shall be in favor of a grant of power to the
Trustees.
Section 3. Certain Transactions. Except as prohibited by applicable law,
the Trustees may, on behalf of the Trust, buy any securities from or sell any
securities to, or lend any assets of the Trust to, any Trustee or officer of the
Trust or any firm of which any such Trustee or officer is a member acting as
principal, or have any such dealings with any investment adviser, administrator,
distributor or transfer agent for the Trust or with any Interested Person of
such person. The Trust may employ any such person or entity in which such person
is an Interested Person, as broker, legal counsel, registrar, investment
adviser, administrator, distributor, transfer agent, dividend disbursing agent,
custodian or in any other capacity upon customary terms.
Section 4. Initial Trustees; Election and Number of Trustees. The initial
Trustees shall be the persons initially signing this Declaration. The number of
Trustees (other than the initial Trustees) shall be fixed from time to time by a
majority of the Trustees; provided, that there shall be at least one (1)
Trustee. The Trustee (other than the initial Trustees) shall be appointed by the
Trustees pursuant to Section 6 of this Article II, provided that the Trustees
shall be elected by the Shareholders as and to the extent required under the
1940 Act on such dates as the Trustees may fix from time to time.
Section 5. Term of Office of Trustees. Each Trustee shall hold office for
life (or until the attainment of any mandatory retirement age or term limits
established by a majority of the Trustees) or until his successor is elected or
the Trust terminates; except that (a) any Trustee may resign by delivering to
the other Trustees or to any Trust officer a written resignation effective upon
such delivery or a later date specified therein; (b) any Trustee may be removed
with or without cause at any time by a written instrument signed by at least a
majority of the then Trustees, specifying the effective date of removal; (c) 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 (d) any Trustee may be removed
at any meeting of the Shareholders by a vote of at least two-thirds of the
Outstanding Shares.
Section 6. Vacancies; Appointment of Trustees. Whenever a vacancy shall
exist in the
8
Board of Trustees, regardless of the reason for such vacancy, the remaining
Trustees may appoint any person as they determine in their sole discretion to
fill that vacancy, consistent with the limitations under the 1940 Act, unless
the remaining Trustees determine to decrease the size of the Board to the number
of remaining Trustees. Such appointment shall be made by a written instrument
signed by a majority of the Trustees or by a resolution of the Trustees, duly
adopted and recorded in the records of the Trust, specifying the effective date
of the appointment. The Trustees may appoint a new Trustee as provided above in
anticipation of a vacancy expected to occur because of the retirement,
resignation or removal of a Trustee, or an increase in number of Trustees,
provided that such appointment shall become effective only at or after the
expected vacancy occurs. As soon as any such Trustee has accepted his
appointment in writing, the trust estate shall vest in the new Trustee, together
with the continuing Trustees, without any further act or conveyance, and he
shall be deemed a Trustee hereunder. The Trustees' power of appointment is
subject to Section 16(a) of the 1940 Act. Whenever a vacancy in the number of
Trustees shall occur, until such vacancy is filled as provided in this Article
II, 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 the Declaration.
Section 7. Temporary Vacancy or Absence. Whenever a vacancy in the Board of
Trustees shall occur, until such vacancy is filled, or while any Trustee is
absent from his domicile (unless that Trustee has made arrangements to be
informed about, and to participate in, the affairs of the Trust during such
absence), or is physically or mentally incapacitated, the remaining Trustees
shall have all the powers hereunder and their certificate as to such vacancy,
absence, or incapacity shall be conclusive. Any Trustee may, by power of
attorney, delegate his powers as Trustee for a period not exceeding six (6)
months at any one time to any other Trustee or Trustees.
Section 8. Chairman. The Trustees may, but need not, appoint from among
their number a Chairman. When present he may preside at the meetings of the
Shareholders and of the Trustees. He may call meetings of the Trustees and of
any committee thereof whenever he deems it necessary. The Chairman shall have
such other powers and duties as from time to time may be conferred upon or
assigned to him by this Declaration, the By-laws or the Trustees, but shall not
by reason of performing and executing those powers and duties be deemed an
officer or employee of the Trust.
Section 9. Action by the Trustees. Except as otherwise provided by law or
as provided below with respect to action taken by any Trustee or Trustees or
committee pursuant to delegation by a majority vote of the Trustees, the
Trustees shall act by majority vote at a meeting duly called at which a quorum
is present, including a meeting held by conference telephone, teleconference or
other electronic media or communication equipment by means of which all persons
participating in the meeting can communicate with each other; or by written
consent of a majority of Trustees (or such greater number as may be required by
applicable law) without a meeting. A majority of the Trustees shall constitute a
quorum at any meeting. Meetings of the Trustees may be called orally or in
writing by the President or by any one of
9
the Trustees. Notice of the time, date and place of all Trustees' meetings shall
be given to each Trustee as set forth in the By-laws. In the absence of a
quorum, a majority of the Trustees present may adjourn the meeting from time to
time until a quorum shall be present. Notice of an adjourned meeting need not be
given. Subject to applicable law, the Trustees by majority vote may delegate to
any Trustee or Trustees or committee (which may, in addition to or in lieu of
Trustees, include officers of the Trust) authority to approve particular matters
or take any particular actions on behalf of the Trust including action for and
binding upon the Trustees and the Trust with respect to the institution,
prosecution, dismissal, settlement, review or investigation of any legal action,
suit or proceeding pending or threatened. Approval of any particular matter or
the taking of any particular action on behalf of the Trust pursuant to any such
delegation shall be taken by a majority of the Trustees or committee to whom the
authority is delegated (unless a single Trustee is delegated to act with respect
thereto or unless the Trustees in delegating such responsibility shall specify a
different standard or a different standard is otherwise required by applicable
law). Any written consent or waiver may be provided and delivered to the Trust
by facsimile or other similar electronic mechanism.
Section 10. Ownership of Trust Property. The Trust Property of the Trust
and of each Series shall be held separate and apart from any assets now or
hereafter held in any capacity other than as Trustee hereunder by the Trustees
or any successor Trustees. Legal title in and beneficial ownership of all of the
assets of the Trust shall at all times be considered as vested in the Trust,
except that the Trustees may cause legal title in and beneficial ownership of
any Trust Property to be held by, or in the name of one or more of the Trustees
acting for and on behalf of the Trust, or in the name of any person as nominee
acting for and on behalf of the Trust. No Shareholder shall be deemed to have a
severable ownership in any individual asset of the Trust or of any Series or any
right of partition or possession thereof, but each Shareholder shall have, as
provided in Article V, a proportionate undivided beneficial interest in the
Trust or Series or Class thereof represented by Shares. The Shares shall be
personal property giving only the rights specifically set forth in this Trust
Instrument. The Trust, or at the determination of the Trustees one or more of
the Trustees or a nominee acting for and on behalf of the Trust, shall be deemed
to hold legal title and beneficial ownership of any income earned on securities
of the Trust issued by any business entities formed, organized, or existing
under the laws of any jurisdiction, including the laws of any foreign country.
Upon the resignation or removal of a Trustee, or his otherwise ceasing to be a
Trustee (other than as a result of his death or incapacity), he shall execute
and deliver such documents as the remaining Trustees shall require for the
purpose of conveying to the Trust or the remaining Trustees any Trust Property
held in the name of the resigning or removed Trustee. Upon the incapacity or
death of any Trustee, his legal representative shall execute and deliver on his
behalf such documents as the remaining Trustees shall require as provided in the
preceding sentence.
Section 11. Effect of Trustees Not Serving. The death, resignation,
retirement, removal, incapacity or inability or refusal to serve of the
Trustees, or any one or more 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.
10
Section 12. Trustees, etc. as Shareholders. Subject to any restrictions in
the By-laws, any Trustee, officer, agent or independent contractor of the Trust
may acquire, own and dispose of Shares to the same extent as any other
Shareholder; and the Trustees may issue and sell Shares to and buy Shares from
any such person or any firm or company in which such person is interested,
subject only to any general limitations herein.
Section 13. Series of Trustees. In connection with the establishment of one
or more Series or Classes, the Trustees establishing such Series or Class may
appoint, to the extent permitted by the Delaware Act, separate Trustees with
respect to such Series or Classes (the "Series Trustees"). To the extent
provided by the Trustees in the appointment of Series Trustees, the Series
Trustees: (a) may, but are not required to, serve as Trustees of the Trust or
any other Series or Class of the Trust; (b) may have, to the exclusion of any
other Trustee of the Trust, all the powers and authorities of Trustees hereunder
with respect to such Series or Class, including, without limitation, the power
to appoint additional or successor Series Trustees; and/or (c) may have no power
or authority with respect to any other Series or Class. Any provision of this
Declaration relating to election of Trustees by Shareholders only shall entitle
the Shareholders of a Series or Class for which Series Trustees have been
appointed to vote with respect to the election of such Series Trustees and the
Shareholders of any other Series or Class shall not be entitled to participate
in such vote. In the event that Series Trustees are appointed, the Trustees
initially appointing such Series Trustees shall, without the approval of any
Outstanding Shares, amend either the Declaration or the By-laws to provide for
the respective rights, duties, powers, authorities and responsibilities of the
Trustees and the Series Trustees in circumstances where an action of the
Trustees or Series Trustees affects all Series of the Trust or two or more
Series represented by different Trustees.
11
ARTICLE III
-----------
CONTRACTS WITH SERVICE PROVIDERS
--------------------------------
Section 1. Underwriting Contract. The Trustees may in their discretion from
time to time approve an exclusive or non-exclusive distribution contract or
contracts providing for the sale of the Shares whereby the Trust may either
agree to sell the Shares to the other party to the contract or appoint such
other party as the Trust's sales agent for the Shares, and in either case on
such terms and conditions, if any, as may be prescribed in the By-laws, and such
further terms and conditions as the Trustees may in their discretion determine
not inconsistent with the provisions of this Article III or of the By-laws; and
such contract may also provide for the repurchase of the Shares by such other
party as agent of the Trust.
Section 2. Advisory or Management Contract. The Trustees may in their
discretion from time to time approve one or more investment advisory or
management contracts or, if the Trustees establish multiple Series, separate
investment advisory or management contracts with respect to one or more Series
whereby the other party or parties to any such contracts shall undertake to
furnish the Trust or such Series management, investment advisory,
administration, accounting, legal, statistical and research facilities and
services, promotional or marketing activities, and such other facilities and
services, if any, as the Trustees shall from time to time consider desirable and
all upon such terms and conditions as the Trustees may in their discretion
determine. Notwithstanding any provisions of the Declaration, the Trustees may
authorize the Investment Advisers or persons to whom the Investment Adviser
delegates certain or all of their duties, or any of them, under any such
contracts (subject to such general or specific instructions as the Trustees may
from time to time adopt), including duties relating to purchases, sales, loans
or exchanges of portfolio securities and other investments of the Trust or may
authorize any officer, employee or Trustee to effect such duties, including
those relating to purchases, sales, loans or exchanges pursuant to
recommendations of such Investment Advisers, or any of them (and all without
further action by the Trustees). Any such purchases, sales, loans and exchanges
shall be deemed to have been authorized by all of the Trustees.
Section 3. Administration Agreement. The Trustees may in their discretion
from time to time approve an administration agreement or, if the Trustees
establish multiple Series or Classes, separate administration agreements with
respect to each Series or Class, whereby the other party to such agreement shall
undertake to manage the business affairs of the Trust or of a Series or Class
thereof of the Trust and furnish the Trust or a Series or a Class thereof with
office facilities, and shall be responsible for the ordinary clerical,
bookkeeping and recordkeeping services at such office facilities, and other
facilities and services, if any, and all upon such terms and conditions as the
Trustees may in their discretion determine.
Section 4. Service Agreements. The Trustees may in their discretion from
time to time approve service agreements with respect to one or more Series or
Classes of Shares whereby the other parties to such service agreements will
provide or arrange for the provision
12
of distribution, administration and/or support services pursuant to
distribution, authorized dealer service, administration, service or similar
plans, and all upon such terms and conditions as the Trustees in their
discretion may determine.
Section 5. Transfer Agent. The Trustees may in their discretion from time
to time approve one or more transfer agency and shareholder service contracts
whereby the other party to such contracts shall undertake to furnish transfer
agency and shareholder services to the Trust or one or more Classes of Shares.
The contracts shall have such terms and conditions as the Trustees may in their
discretion determine not inconsistent with the Declaration. Such services may be
provided by one or more Persons.
Section 6. Custodian. The Trustees may appoint or otherwise engage one or
more banks or trust companies, or any other entity, to serve as Custodian with
authority as the Trust's agent, but subject to such restrictions, limitations
and other requirements, if any, as may be contained in the By-laws of the Trust.
The Trustees may also authorize the Custodian to employ one or more sub-
custodians, including such foreign banks and securities depositories, upon such
terms and conditions as may be agreed upon between the Custodian and such sub-
custodian, to hold securities and other assets of the Trust and to perform the
acts and services of the Custodian, subject to applicable provisions of law and
resolutions adopted by the Trustees.
Section 7. Other Contracts. Subject to compliance with the provisions of
the 1940 Act, but notwithstanding any limitations of present and future law or
custom in regard to delegation of powers by trustees generally, the Trustees
may, at any time and from time to time and without limiting the generality of
their powers and authority otherwise set forth herein, approve other contracts
with any one or more corporations, trusts, associations, partnerships, limited
partnerships, other type of organizations, or individuals to provide for the
performance and assumption of such other services, duties and responsibilities
in addition to those set forth above as the Trustees may determine to be
appropriate.
Section 8. Affiliations of Trustees or Officers, Etc. The fact that:
(i) any of the Shareholders, Trustees or officers of the Trust or any
Series thereof is a shareholder, director, officer, partner, trustee,
employee, manager, adviser or distributor of or for any partnership,
corporation, trust, association or other organization or of or for any
parent or affiliate of any organization, with which a contract of the
character described in Sections 1, 2, 3, or 4 of this Article III, or for
services as Custodian, Transfer Agent, disbursing agent or for any other
services approved by the Trustees with respect to any Series or Class may
have been or may hereafter be made, or that any such organization, or any
parent or affiliate thereof, is a Shareholder of or has an interest in the
Trust, or that
(ii) any partnership, corporation, trust, association or other
organization with which a contract of the character described in Sections
1, 2, 3 or 4 of this
13
Article III or for services as Custodian, Transfer Agent or disbursing
agent or for any other services approved by the Trustees with respect to
any Series or Class may have been or may hereafter be made also has any one
or more of such contracts with one or more other partnerships,
corporations, trusts, associations or other organizations, or has other
business or interests,
shall not affect the validity of any such contract or disqualify any
Shareholder, Trustee or officer of the Trust from voting upon or executing the
same or create any liability or accountability to the Trust or its Shareholders.
ARTICLE IV
----------
COMPENSATION, LIMITATION OF LIABILITY AND INDEMNIFICATION
---------------------------------------------------------
Section 1. Compensation. The Trustees as such 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 the same by the Trust.
Section 2. Limitation of Liability. A Trustee, when acting in such
capacity, shall not be personally liable to any Person other than the Trust or a
Shareholder of the Trust for any act, omission or obligation of the Trust or any
Trustee. All persons contracting with or having any claim against the Trust or a
particular Series shall look only to the assets of the Trust or such particular
Series for payment under such contract or claim; and neither the Trustees nor,
when acting in such capacity, any of the Trust's officers, employees or agents,
whether past, present or future, shall be personally liable therefor. The
Trustees and officers of the Trust shall not be responsible or liable for any
act or omission or for neglect or wrongdoing of themselves or any officer,
agent, employee, investment adviser or independent contractor of the Trust, or
of any other Person, but nothing contained in this Declaration or in the
Delaware Act shall protect any Trustee or officer of the Trust against liability
to the Trust or to Shareholders to which he would otherwise be subject by reason
of willful misfeasance, bad faith, gross negligence or reckless disregard of the
duties involved in the conduct of his office.
Section 3. Indemnification. (a) Subject to the exceptions and limitations
contained in subsection (b) below:
(i) every person who is, or has been, a Trustee or an officer of the Trust
or any Series (including any individual who serves at its request as
director, officer, partner, trustee or the like of another organization in
which it has any interest as a shareholder, creditor or otherwise) and such
person's heirs, executors, administrators and other legal representatives
("Covered Person") shall be indemnified by the Trust or the
14
appropriate Series to the fullest extent permitted by law against liability
and against all expenses reasonably incurred or paid by him in connection
with any claim, action, suit or proceeding in which he becomes involved as
a party or otherwise by virtue of his being or having been a Covered Person
and against amounts paid or incurred by him in the settlement thereof; and
(ii) as used herein, the words "claim," "action," "suit," or "proceeding"
shall apply to all claims, actions, suits or proceedings (civil, criminal
or other, including appeals before any court or administrative or
legislative body), actual or threatened, and the words "liability" and
"expenses" shall include, without limitation, reasonable attorneys' fees,
costs, judgments, amounts paid in settlement, fines, penalties and other
liabilities.
(b) No indemnification shall be provided hereunder to a Covered Person:
(i) who shall have been adjudicated by a court or body before which the
proceeding was brought (A) to be 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 his office, or (B) not
to have acted in good faith in the reasonable belief that his action was in
the best interest of the Trust; or
(ii) in the event of a settlement, unless there has been a determination
that such Covered Person did not engage in willful misfeasance, bad faith,
gross negligence or reckless disregard of the duties involved in the
conduct of his office, (A) by the court or other body approving the
settlement; (B) by at least a majority of those Trustees who are neither
Interested Persons of the Trust nor are parties to the matter based upon a
review of readily available facts (as opposed to a full trial-type
inquiry); (C) by written opinion of independent legal counsel based upon a
review of readily available facts (as opposed to a full trial-type
inquiry); or (D) by a vote of a majority of the Outstanding Shares entitled
to vote (excluding any Outstanding Shares owned of record or beneficially
by such individual).
(c) The rights of indemnification herein provided may be insured against by
policies maintained by the Trust, shall be severable, shall not be exclusive of
or affect any other rights to which any Covered Person may now or hereafter be
entitled, and shall inure to the benefit of the heirs, executors and
administrators of a Covered Person.
(d) To the maximum extent permitted by applicable law, expenses in
connection with the preparation and presentation of a defense to any claim,
action, suit or proceeding of the character described in subsection (a) of this
Section may be paid by the Trust or applicable Series from time to time prior to
final disposition thereof upon receipt of an undertaking by or on behalf of such
Covered Person that such amount will be paid over by him to the Trust or
applicable Series if it is ultimately determined that he is not entitled to
indemnification under this Section; provided, however, that either (i) such
Covered Person shall have provided appropriate security for such undertaking,
(ii) the Trust is insured against losses arising out of
15
any such advance payments or (iii) either a majority of the Trustees who are
neither Interested Persons of the Trust nor parties to the matter, or
independent legal counsel in a written opinion, shall have determined, based
upon a review of readily available facts (as opposed to a full trial-type
inquiry) that there is reason to believe that such Covered Person will not be
disqualified from indemnification under this Section.
(e) Any repeal or modification of this Article IV by the Shareholders, or
adoption or modification of any other provision of the Declaration or By-laws
inconsistent with this Article, shall be prospective only, to the extent that
such repeal, or modification would, if applied retrospectively, adversely affect
any limitation on the liability of any Covered Person or indemnification
available to any Covered Person with respect to any act or omission which
occurred prior to such repeal, modification or adoption.
(f) The right of indemnification provided by this Section 3 shall not be
exclusive of or affect any other rights to which any Covered Person may be
entitled.
Section 4. Indemnification of Shareholders. If any Shareholder or former
Shareholder of any Series shall be held personally liable solely by reason of
his being or having been a Shareholder and not because of his acts or omissions
or for some other reason, the Shareholder or former Shareholder (or his heirs,
executors, administrators or other legal representatives or in the case of any
entity, its general successor) shall be entitled to be held harmless from and
indemnified against all loss and expense arising from such liability out of the
assets belonging to the applicable Series whose Shares were held by such
Shareholder at the time the act or event occurred and to which the liability
against the Shareholder relates. The Trust, on behalf of the affected Series,
shall, upon request by such Shareholder, assume the defense of any claim made
against such Shareholder for any act or obligation of the Series and satisfy any
judgment thereon from the assets of such Series.
Section 5. No Bond Required of Trustees. No Trustee shall be obligated to
give any bond or other security for the performance of any of his duties
hereunder.
Section 6. No Duty of Investigation; Notice in Trust Instruments, Etc. No
purchaser, lender, transfer agent or other Person dealing with the Trustees or
any officer, employee or agent of the Trust or a Series thereof shall be bound
to make any inquiry concerning the validity of any transaction purporting to be
made by the Trustees or by said officer, employee or agent or be liable for the
application of money or property paid, loaned, or delivered to or on the order
of the Trustees or of said officer, employee or agent. Every obligation,
contract, instrument, certificate, Share, other security of the Trust or a
Series thereof or undertaking, and every other act or thing whatsoever executed
in connection with the Trust shall be conclusively presumed to have been
executed or done by the executors thereof only in their capacity as Trustees
under this Declaration or in their capacity as officers, employees or agents of
the Trust or a Series thereof. Every written obligation,
contract, instrument, certificate, Share, other security of the Trust or a
Series or Class thereof or undertaking made
16
or issued by the Trustees may recite that the same is executed or made by them
not individually, but as Trustees under the Declaration, and that the
obligations of the Trust or a Series or Class thereof under any such instrument
are not binding upon any of the Trustees, officers or Shareholders individually,
but bind only the Trust Property or the Trust Property of the applicable Series
or Class, and may contain any further recital which they may deem appropriate,
but the omission of such recital shall not operate to bind the Trustees,
officers or Shareholders individually. The Trustees may maintain insurance for
the protection of the Trust Property or the Trust Property of the applicable
Series, its Shareholders, Trustees, officers, employees and agents in such
amount as the Trustees, officers or Shareholders shall deem adequate to cover
possible tort liability, and such other insurance as the Trustees in their sole
judgment shall deem advisable and as required by the 1940 Act.
Section 7. Reliance on Experts, Etc. Each Trustee, officer or employee of
the Trust or a Series thereof shall, in the performance of his duties, powers
and discretion hereunder be fully and completely justified and protected with
regard to any act or any failure to act resulting from reliance in good faith
upon the books of account or other records of the Trust or a Series or Class
thereof, upon an opinion of counsel, or upon reports made to the Trust or a
Series or Class thereof by any of its officers or employees or by the Investment
Adviser, the Administrator, the Distributor, Transfer Agent, selected dealers,
accountants, appraisers or other experts or consultants selected with reasonable
care by the Trustees, officers or employees of the Trust, regardless of whether
such counsel or other Person may also be a Trustee.
Section 8. No Accounting. Except to the extent required by the 1940 Act,
or by the other Trustees if determined by them to be necessary or appropriate
under circumstances which would justify his removal for cause, no person ceasing
to be a Trustee for reasons including, but not limited to, death, resignation,
retirement, removal or incapacity (nor the estate of any such person) shall be
required to make an accounting to the Shareholders or remaining Trustees upon
such cessation.
ARTICLE V
---------
SERIES; CLASSES; SHARES
-----------------------
Section 1. Establishment of Series or Class. The Trust shall consist of
one or more Series. Without limiting the authority of the Trustees to establish
and designate any further Series, the Trustees hereby establish the following 17
Series: U.S. Government Securities Portfolio, Short-Intermediate Bond
Portfolio, U.S. Treasury Index Portfolio, Bond Portfolio, Intermediate Bond
Portfolio, International Bond Portfolio, Balanced Portfolio, Equity Index
Portfolio, Diversified Growth Portfolio, Focused Growth Portfolio, Small Company
Index Portfolio, International Equity Index Portfolio, International Growth
Portfolio, Government Select Portfolio, Government Portfolio, Diversified Assets
Portfolio and Tax-Exempt Portfolio (the "Existing Series"). Each additional
Series shall be established and is effective upon the
17
adoption of a resolution of a majority of the Trustees or any alternative date
specified in such resolution. The Trustees may designate the relative rights and
preferences of the Shares of each Series. The Trustees may divide the Shares of
any Series into Classes. Without limiting the authority of the Trustees to
establish and designate any further Classes of any Existing Series or future
Series, the Trustees hereby establish the following Classes of Shares with
respect to the Series set forth below:
Class A, Class B, Class C U.S. Government Securities Portfolio, Short-
and Class D Shares: Intermediate Bond Portfolio, U.S. Treasury Index
Portfolio, Bond Portfolio, Intermediate Bond
Portfolio, International Bond Portfolio, Balanced
Portfolio, Equity Index Portfolio, Diversified Growth
Portfolio, Focused Growth Portfolio, Small Company
Index Portfolio, International Equity Index Portfolio
and International Growth Portfolio
Shares: Government Select Portfolio, Government Portfolio,
Diversified Assets Portfolio and Tax-Exempt Portfolio
(the "Existing Classes"). The Shares of the Existing Series and each Class
thereof herein established and designated and any Shares of any further Series
and Classes that may from time to time be established and designated by the
Trustees shall be established and designated, and the variations in the relative
rights and preferences as between the different Series shall be fixed and
determined, by the Trustees; provided, that all Shares shall be identical except
for such variations as shall be fixed and determined between different Series or
Classes by the Trustees in establishing and designating such Class or Series. In
connection therewith with respect to the Existing Classes, the purchase price,
the method of determining the net asset value and allocating expenses, and the
relative dividend and voting rights of holders shall be as set forth in the
Trust's Registration Statement on Form N-1A under the Securities Act of 1933
and/or the 1940 Act, as amended from time to time.
All references to Shares in this Declaration shall be deemed to be Shares
of any or all Series or Classes as the context may require. The Trust shall
maintain separate and distinct records for each Series and hold and account for
the assets thereof separately from the other assets of the Trust or of any other
Series. A Series may issue any number of Shares or any Class thereof and need
not issue Shares. Each Share of a Series shall represent a proportionate
beneficial interest in the net assets of such Series, subject to the liabilities
charged to a particular Class. Each holder of Shares of a Series or a Class
thereof shall be entitled to receive his pro rata share of all distributions
made with respect to such Series or Class. Upon redemption of his Shares, such
Shareholder shall be paid solely out of the funds and property of such Series.
The Trustees may adopt and change the name of any Series or Class.
Section 2. Shares. The beneficial interest in the Trust shall be divided
into transferable Shares of one or more separate and distinct Series or Classes
established by the Trustees. The number of Shares of each Series and Class is
unlimited and each Share shall
18
have no par value per Share or such other amount as the Trustees may establish.
All Shares issued hereunder shall be fully paid and nonassessable. Shareholders
shall have no preemptive or other right to subscribe to any additional Shares or
other securities issued by the Trust. The Trustees shall have full power and
authority, in their sole discretion and without obtaining Shareholder approval,
to issue original or additional Shares at such times and on such terms and
conditions and for such consideration as they deem appropriate; to issue
fractional Shares and Shares held in the treasury; to establish and to change in
any manner Shares of any Series or Classes with such preferences, terms of
conversion, voting powers, rights and privileges as the Trustees may determine;
to divide or combine the Shares of any Series or Classes into a greater or
lesser number; to classify or reclassify any unissued Shares of any Series or
Classes into one or more Series or Classes of Shares; to abolish any one or more
Series or Classes of Shares; to issue Shares to acquire other assets (including
assets subject to, and in connection with, the assumption of liabilities) and
businesses; and to take such other action with respect to the Shares as the
Trustees may deem desirable. Shares held in the treasury shall not confer any
voting rights on the Trustees and shall not be entitled to any dividends or
other distributions declared with respect to the Shares.
Section 3. Investment in the Trust. Subject to applicable law, the
Trustees shall accept investments in any Series or Class from such persons and
on such terms as they may from time to time authorize. Without limiting the
generality of the foregoing, at the Trustees' discretion, such investments may
be in the form of cash or securities in which that Series is authorized to
invest, valued as provided in Article VI, Section 3. The value of an investment
in a Class or a Series shall be credited to each Shareholder's account in the
form of full Shares at the Net Asset Value per Share next determined after the
investment is received or accepted as may be determined by the Trustees;
provided, however, that the Trustees may, in their sole discretion, (a) impose a
sales charge upon investments in any Series or Class, (b) issue fractional
Shares, (c) determine the Net Asset Value per Share of the initial capital
contribution or (d) authorize the issuance of Shares at a price other than Net
Asset Value to the extent permitted by the 1940 Act or any rule, order or
interpretation of the Commission thereunder. The Trustees shall have the right
to refuse to accept investments in any Series at any time without any cause or
reason therefor whatsoever.
Section 4. Assets and Liabilities of 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 (including any proceeds derived from the
sale, exchange or liquidation of such assets, and any funds or payments derived
from any reinvestment of such proceeds in whatever form the same may be), shall
be held and accounted for separately from the assets of every other Series and
are referred to as "assets belonging to" that Series. The assets belonging to a
Series shall belong only to that Series for all purposes, and to no other
Series, subject only to the rights of creditors of that Series. Any assets,
income, earnings, profits, and proceeds thereof, funds, or payments which are
not readily identifiable as belonging to any particular Series shall be
allocated by the Trustees between and among one or more Series as the Trustees
deem fair and equitable. Each such allocation shall be conclusive and binding
upon the Shareholders of all
19
Series for all purposes, and such assets, earnings, income, profits or funds, or
payments and proceeds thereof shall be referred to as assets belonging to that
Series. The assets belonging to a Series shall be so recorded upon the books of
the Series, and shall be held by the Trustees in trust for the benefit of the
Shareholders of that Series. The assets belonging to a Series shall be charged
with the liabilities of that Series and all expenses, costs, charges and
reserves attributable to that Series, except that liabilities, expenses, costs,
charges and reserves allocated by the Trustees solely to a particular Class
shall be borne by that Class. Any general liabilities, expenses, costs, charges
or reserves of the Trust which are not readily identifiable as belonging to any
particular Series or Class shall be allocated and charged by the Trustees
between or among any one or more of the Series or Classes in such manner as the
Trustees deem fair and equitable. Each such allocation shall be conclusive and
binding upon the Shareholders of all Series and 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 of such Series only, and not against the assets
of the Trust generally, including the assets of 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 of the Trust (whether
originally or by amendment) as filed or to be filed in the Office of the
Secretary of State of the State of Delaware pursuant to the Delaware Act, 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.
Section 5. Ownership and Transfer of Shares. The Trust or a transfer or
similar agent for the Trust shall maintain a register containing the names and
addresses of the Shareholders of each Series and Class thereof, the number of
Shares of each Series and Class held by such Shareholders, and a record of all
Share transfers. The register shall be conclusive as to the identity of
Shareholders of record and the number of Shares held by them from time to time.
The Trustees may authorize the issuance of certificates representing Shares and
adopt rules governing their use. The Trustees may make rules governing the
transfer of Shares, whether or not represented by certificates. 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 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 or 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
20
recorded on the books of the Trust. Until a transfer is so recorded, the
Shareholder 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 6. Status of Shares; Limitation of Shareholder Liability. Shares
shall be deemed to be personal property giving Shareholders only the rights
provided in this Declaration. Every Shareholder, by virtue of having acquired a
Share, shall be held expressly to have assented to and agreed to be bound by the
terms of this Declaration and to have become a party hereto. 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. 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 entitles 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 right to call for a
partition or division of the same or for an accounting, nor shall the ownership
of Shares constitute the Shareholders as partners. Neither the Trust nor the
Trustees shall have any power to bind any Shareholder personally or to demand
payment from any Shareholder for anything, other than as agreed by the
Shareholder. Shareholders shall have the same limitation of personal liability
as is extended to shareholders of a private corporation for profit incorporated
in the State of Delaware.
21
ARTICLE VI
----------
DISTRIBUTIONS AND REDEMPTIONS
-----------------------------
Section 1. Distributions. The Trustees or a committee of one or more
Trustees and/or one or more officers may declare and pay dividends and other
distributions, including dividends on Shares of a particular Series and other
distributions from the assets belonging to that Series. 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 of any particular Series 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
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. The amount and payment of dividends or distributions and their
form, whether they are in cash, Shares or other Trust Property, shall be
determined by the Trustees. Dividends and other distributions may be paid
pursuant to a standing resolution adopted once or more often as the Trustees
determine. All dividends and other distributions on Shares of a particular Class
shall be distributed pro rata to the Shareholders of that Class in proportion to
the number of Shares of that Class they held on the record date established for
such payment, except that in connection with any dividend or distribution
program or procedure the Trustees may determine that no dividend or distribution
shall be payable on Shares as to which the Shareholder's purchase order and/or
payment in the prescribed form has not been received by the time or times
established by the Trustees under such program or procedure. The Trustees may
adopt and offer to Shareholders such dividend reinvestment plans, cash dividend
payout plans or similar plans as the Trustees deem appropriate.
Section 2. Redemptions. Unless the Trustees otherwise determine with
respect to a particular Series or Class at the time of establishing and
designating the same, each Shareholder of a Series shall have the right at such
times as may be permitted by the Trustees to require the Series to redeem all or
any part of his Shares at such redemption price and at such times as the
Trustees shall prescribe by resolution to the extent permitted by the 1940 Act.
In the absence of such resolution, the redemption price per Share shall be the
Net Asset Value next determined after receipt by the Series of a request for
redemption in proper form less such charges as are determined by the Trustees
and described in the Trust's Registration Statement for that Series, as from
time to time in effect, under the Securities Act of 1933. 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, as determined in the sole
discretion of the Trustees or their delegate. Upon redemption, Shares
22
may be reissued from time to time. Unless the Trustees otherwise determine with
respect to a particular Series or Class at the time of establishing and
designating the same, the Trustees may require Shareholders to redeem Shares for
any reason at the redemption price which would be applicable if such Shares were
then being redeemed by the Shareholder pursuant to this Section 2 under terms
set by the Trustees, including, but not limited to: (a) the failure of a
Shareholder to supply a taxpayer identification number, or to have the minimum
investment required (which may vary by Series or Class), or to pay when due for
the purchase of Shares issued to him or to pay any charge relating to a
transaction effected for the benefit of such Shareholder as provided in the
prospectus relating to such Shares; or (b) the determination by the Trustees in
their sole discretion that failure to so redeem may have materially adverse
consequences to the Shareholders of any Series or Class of the Trust. 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.
Section 3. Determination of Net Asset Value. The Trustees shall cause the
Net Asset Value of Shares of each Series or Class to be determined from time to
time in a manner consistent with applicable laws and regulations. The Trustees
may delegate the power and duty to determine Net Asset Value per Share to one or
more Trustees or officers of the Trust or to a custodian, depository or other
agent appointed for such purpose. The Net Asset Value of Shares shall be
determined separately for each Series or Class at such times as may be
prescribed by the Trustees or, in the absence of action by the Trustees, as of
the close of regular trading on the New York Stock Exchange on each day for all
or part of which such Exchange is open for unrestricted trading.
The Trustees may determine to maintain the Net Asset Value per Share of any
Series or Class at a designated constant dollar amount and in connection
therewith may adopt procedures not inconsistent with the 1940 Act for the
continuing declarations of income attributable to that Series or Class as
dividends payable in additional Shares of that Series or Class at the designated
constant dollar amount and for the handling of any losses attributable to that
Series or Class. Such procedures may provide that in the event of any loss each
Shareholder of a Series or Class shall be deemed to have contributed to the
capital of the Trust attributable to that Series or Class his pro rata portion
of the total number of Shares required to be cancelled in order to permit the
Net Asset Value per Share of that Series or Class to be maintained, after
reflecting such loss, at the designated constant dollar amount. Each Shareholder
of the Trust shall be deemed to have agreed, by his investment in the Trust, to
make the contribution referred to in the preceding sentence in the event of any
such loss.
Section 4. Suspension of Right of Redemption. If, as referred to in
Section 2 of this Article, the Trustees suspend the right of Shareholders to
redeem their Shares, such suspension
23
shall take effect at the time the Trustees shall specify. Thereafter,
Shareholders shall have no right of redemption or payment until the Trustees
declare the end of the suspension. If the right of redemption is suspended, any
Shareholder having tendered a redemption request may either withdraw his request
for redemption or receive payment based on the Net Asset Value per Share next
determined after the suspension terminates.
Section 5. Repurchase by Agreement. In addition to the redemption of
Shares otherwise provided in this Article VII, the Trust may repurchase Shares
directly, or through the Distributor or another agent designated for the
purpose, by agreement with the owner thereof at a price not exceeding the Net
Asset Value per Share determined as of the time when the purchase or contract of
purchase is made or the Net Asset Value as of any time which may be later
determined.
ARTICLE VII
-----------
SHAREHOLDERS' VOTING POWERS AND MEETINGS
----------------------------------------
Section 1. Voting Powers. The Shareholders shall have power to vote only
with respect to (a) the election of Trustees to the extent and as provided in
Section 4 of Article II; (b) the removal of Trustees as provided in Article II,
Section 5(d); (c) any matter required to be approved by Shareholders of the
Trust or any Series or Class thereof under the 1940 Act; (d) any termination of
the Trust to the extent and as provided in Article IX, Section 4; (e) the
amendment of this Declaration to the extent and as provided in Article IX,
Section 8; (f) the matters referred to in Article IX, Section 12; and (g) such
additional matters relating to the Trust as may be required or authorized by
law, this Declaration, or the By-laws or any registration of the Trust with the
Commission or any State, or as the Trustees may consider desirable.
On any matter submitted to a vote of the Shareholders, unless the Trustees
determine otherwise, all Shares shall be voted in the aggregate not by
individual Series or Class, except (a) when required by the 1940 Act, other
applicable law or the attributes applicable to any Series or Class, Shares shall
be voted by individual Series or Class, and (b) when the Trustees have
determined that the matter affects the interests of only one or more Series or
Class, then only the Shareholders of all such Series or Classes shall be
entitled to vote thereon. As determined by the Trustees without the vote or
consent of Shareholders, on any matter submitted to a vote of Shareholders,
either (i) each whole Share shall be entitled to one vote as to any matter on
which it is entitled to vote and each fractional Share shall be entitled to a
proportionate fractional vote or (ii) each dollar of Net Asset Value (number of
Shares owned times Net Asset Value per share of such Series or Class, as
applicable) shall be entitled to one vote on any matter on which such Shares are
entitled to vote and each fractional dollar amount shall be entitled to a
proportionate fractional vote. Without limiting the power of the Trustees in any
way to designate otherwise in accordance with the preceding sentence, the
Trustees hereby establish that each whole Share shall be entitled to one vote as
to any matter on which
24
it is entitled to vote and each fractional Share shall be entitled to a
proportionate fractional vote. There shall be no cumulative voting in the
election of Trustees. Shares may be voted in person or by proxy or in any manner
provided for in the By-laws. The By-laws may provide that proxies may be given
by any electronic or telecommunications device or in any other manner, but if a
proposal by anyone other than the officers or Trustees is submitted to a vote of
the Shareholders of any Series or Class, or if there is a proxy contest or proxy
solicitation or proposal in opposition to any proposal by the officers or
Trustees, Shares may be voted only in person or by written proxy. Until Shares
of a Series are issued, as to that Series the Trustees may exercise all rights
of Shareholders and may take any action required or permitted to be taken by
Shareholders by law, this Declaration or the By-laws. Meetings of Shareholders
(including meetings involving only the holders of Shares of one or more but less
than all Series or Classes) may be called by the Trustees from time to time to
be held at such place within or without the State of Delaware, and on such date
as may be designated in the call thereof for the purpose of taking action upon
any matter as to which the vote or authority of the Shareholders is required or
permitted as provided in this Declaration. Special meetings of the Shareholders
shall be called by the Trustees upon the written request of Shareholders owning
at least a majority of the Shares outstanding and entitled to vote, except to
the extent that a lesser percentage is prescribed by the 1940 Act. Notice
thereof and record dates therefor shall be given and set as provided in the By-
laws.
Section 2. Quorum; Required Vote. Except when a larger vote is required by
law, this Declaration, the By-laws or the Trustees, holders of Shares of the
Trust, Series or Class, as applicable, representing one-third of the votes
entitled to be cast at the meeting in person or by proxy shall be a quorum for
the transaction of business at a Shareholders' meeting. Any lesser number shall
be sufficient for adjournments. Any adjourned session of a Shareholders' meeting
may be held within a reasonable time without further notice. Except when a
larger vote is required by law, this Declaration, the By-laws or the Trustees,
holders of Shares representing a majority of votes present and entitled to be
cast at a Shareholders' meeting in person or by proxy shall decide any matters
to be voted upon with respect to the entire Trust except that a plurality of
such votes shall elect a Trustee; provided, that if this Declaration or
applicable law permits or requires that Shares be voted on any matter by
individual Series or Classes, then holders, except when a larger vote is
required by law, this Declaration, the By-laws or the Trustees, of Shares of
that Series or Class representing a majority of the votes present or entitled to
be cast voting at a Shareholders' meeting in person or by proxy on the matter
shall decide that matter insofar as that Series or Class is concerned, except
that a plurality of such votes shall elect a Series Trustee. With respect to any
matter presented to the Shareholders for approval, the Shareholders may act as
to the Trust or any Series or Class by the written consent of holders of Shares
of the Trust, Series or Class, as the case may be, representing a majority (or
such other amount as may be required by applicable law) of the votes entitled to
be cast on the matter subject to such consent. Such consent shall be treated for
all purposes as a vote taken at a meeting of Shareholders.
Section 3. Additional Provisions. The By-laws may include further
provisions for Shareholders' votes and meetings and related matters.
25
ARTICLE VIII
------------
EXPENSES OF THE TRUST AND SERIES
--------------------------------
Section 1. Payment of Expenses by the Trust. Subject to Article IV, Section
4, and Article IV, Section 3, the Trust or a particular Series shall pay, or
shall reimburse the Trustees from the assets belonging to all Series or the
particular Series, for their expenses (or the expenses of a Class of such
Series) and disbursements, including, but not limited to, interest charges,
taxes, brokerage fees and commissions; expenses of issue, repurchase and
redemption of Shares; insurance premiums; applicable fees, interest charges and
expenses of third parties, including the Trust's investment advisers, managers,
administrators, distributors, custodians, transfer agents and fund accountants;
fees of pricing, interest, dividend, credit and other reporting services; costs
of membership in trade associations; telecommunications expenses; funds
transmission expenses; auditing, legal and compliance expenses (including, if
approved by the Trustees, an allocated portion of the legal, accounting and
compliance expenses incurred by the Investment Adviser, Administrator or other
service provider to the Trust); costs of forming the Trust and its Series and
maintaining its existence; costs of preparing and printing the prospectuses of
the Trust and each Series, statements of additional information and Shareholder
reports and delivering them to Shareholders; expenses of meetings of
Shareholders and proxy solicitations therefor; costs of maintaining books and
accounts; costs of reproduction, stationery and supplies; fees and expenses of
the Trustees; compensation of the Trust's officers and employees and costs of
other personnel performing services for the Trust or any Series; costs of
Trustee meetings; Commission registration fees and related expenses; state or
foreign securities laws registration fees and related expenses; and for such
non-recurring items as may arise, including litigation to which the Trust or a
Series (or a Trustee or officer of the Trust acting as such) is a party, and for
all losses and liabilities by them incurred in administering the Trust. The
Trustees shall have a lien on the assets belonging to the appropriate Series, or
in the case of an expense allocable to more than one Series, on the assets of
each such Series, prior to any rights or interests of the Shareholders thereto,
for the reimbursement to them of such expenses, disbursements, losses and
liabilities.
Section 2. 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 of Class, to pay directly, in advance or
arrears, for charges of the Trust's custodian or transfer, shareholder servicing
or similar agent, an amount fixed from time to time by the Trustees, by setting
off such charges 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 charges due from such Shareholder.
26
ARTICLE IX
----------
MISCELLANEOUS
-------------
Section 1. Trust Not a Partnership. This Declaration creates a trust and
not a partnership. No Trustee shall have any power to bind personally either the
Trust's officers or any Shareholder.
Section 2. Trustee Action. The exercise by the Trustees of their powers and
discretion hereunder in good faith and with reasonable care under the
circumstances then prevailing shall be binding upon everyone interested. Subject
to the provisions of Article IV, the Trustees shall not be liable for errors of
judgment or mistakes of fact or law.
Section 3. Record Dates. The Trustees may close the Share transfer books of
the Trust or any Series or Class for a period not exceeding one hundred twenty
(120) days preceding the date of any meeting of Shareholders, or the date for
the payment of any dividends or other distributions, or the date for the
allotment of rights, or the date when any change or conversion or exchange of
Shares shall go into effect; or in lieu of closing the stock transfer books as
aforesaid, the Trustees may fix in advance a date not exceeding one hundred
twenty (120) days before the scheduled date of any Shareholders' meeting, or the
date for the payment of any dividends or other distributions, or the date for
the allotment of rights, or the date when any change or conversion or exchange
of Shares shall go into effect as a record date for the determination of the
Shareholders entitled to notice of, and to vote at, any such meeting, or
entitled to receive payment of such dividend or other distribution, or to
receive any such allotment of rights, or to exercise such rights in respect of
any such change, conversion or exchange of Shares, and in such case such
Shareholders and only such Shareholders shall be Shareholders of record on the
date so fixed and entitled to such notice of, and to vote at, such meeting, or
to receive payment of such dividend or other distribution, or to receive such
allotment of rights, or to exercise such rights, as the case may be,
notwithstanding any transfer of any Shares on the books of the Trust after any
such record date fixed as aforesaid. Nothing in this Section shall be construed
as precluding the Trustees from setting different record dates for, or from
closing the register or transfer books with respect to, different Series (or
Classes).
Section 4. Termination of the Trust. (a) This Trust shall have perpetual
existence. Subject to the provisions of subsection (b) below, upon the vote of a
majority 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 or Class to another Series or to another trust,
partnership, association, corporation or other entity, or to a separate
series or class thereof, organized under the laws of any jurisdiction, for
adequate consideration, which may include the assumption of all outstanding
obligations, taxes and other liabilities, accrued or contingent, of the
27
Trust or any affected Series or Class, and which may include shares of or
interests in such Series, trust, partnership, association, corporation or
other entity, or series or class thereof; or
(ii) at any time sell and convert into money all or substantially all of
the assets of all Series or any affected Series or Class.
Subject to the provisions of Article IX, Section 12, upon paying or making
reasonable provision for the payment of all known liabilities of all Series or
any affected Series or Class in either (i) or (ii), by such assumption or
otherwise, the Shareholders of each Class of a Series involved in such sale or
conversion shall be entitled to receive, as a Class, when and as declared by the
Trustees, the excess of the assets belonging to that Series that are allocated
to such Class over the liabilities belonging to that Series that are allocated
to such Class. The assets so distributable to the Shareholders of any particular
Class of a Series shall be distributed among such Shareholders in proportion to
the number of Shares of that Class held by them and recorded on the books of the
Trust.
(b) Subject to the provisions of Article IX, Section 12, the Trustees may
take any of the actions specified in subsection (a) (i) and (ii) above without
obtaining the vote of a majority of the Shares Outstanding and entitled to vote
of the Trust or any Series or Class if a majority of the Trustees determines, in
their sole discretion, that the continuation of the Trust or such Series or
Class is not in the best interests of the Trust, such Series, such Class or
their respective Shareholders. In reaching such determination, the Trustees may
consider such factors as the Trustees, in their sole discretion, deem to be
appropriate, which factors may include the inability of the Trust or a Series or
Class to maintain its assets at an appropriate size, changes in laws or
regulations governing the Trust or the Series or Class or affecting assets of
the type in which the Trust or such Series invests, or economic developments or
trends having a significant adverse impact on the business or operations of the
Trust or such Series or Class.
(c) Upon completion of the distribution of the remaining proceeds or assets
pursuant to subsection (a), the Trust or any affected Series or Class 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 5. Reorganization and Master/Feeder. (a) Notwithstanding anything
else herein other than the provisions of Article IX, Section 12, , a majority of
the Trustees may, without Shareholder approval unless such approval is required
by applicable federal law, (i) cause the Trust to merge or consolidate with or
into one or more trusts, partnerships, associations, corporations or other
entities organized under the laws of any jurisdiction,
28
(ii) cause the Shares to be exchanged under or pursuant to any state or federal
statute to the extent permitted by law, or (iii) cause the Trust to incorporate
under the laws of Delaware or any other jurisdiction. Any agreement of merger
or consolidation or certificate of merger may be signed by a majority of
Trustees and facsimile signatures conveyed by electronic or telecommunication
means shall be valid.
(b) Pursuant to and in accordance with the provisions of Section 3815(f)
of the Delaware Act, an agreement of merger or consolidation approved by the
Trustees in accordance with this Section 5 may effect any amendment to the
Declaration or effect the adoption of a new trust instrument of the Trust if it
is the surviving or resulting trust in the merger or consolidation.
(c) The Trustees may cause to be organized or assist in organizing a
corporation or corporations under the laws of any jurisdiction or any other
trust, partnership, association or other organization to take over all or
portion of the Trust Property or the Trust Property allocated or belonging to
such Series or to carry on any business in which the Trust shall directly or
indirectly have any interest, or to sell, convey and transfer all or a portion
of the Trust Property or the Trust Property allocated or belonging to such
Series to any such corporation, trust, association or organization in exchange
for the shares or securities thereof or otherwise, and to lend money to,
subscribe for the shares or securities of, and enter into any contracts with any
such corporation, trust, partnership, association, or organization or any
corporation, partnership, trust, association or organization in which the Trust
or such Series holds or is about to acquire shares or any other interest. The
Trustees may also cause a merger or consolidation between the Trust or any
successor thereto and any such corporation, trust, partnership, association or
other organization if and to the extent permitted by law, as provided under the
law then in effect. Nothing contained herein shall be construed as requiring
approval of Shareholders for the Trustees to organize or assist in organizing
one or more corporations, trusts, partnerships, associations or other
organizations and selling, conveying or transferring all or a portion of the
Trust Property to such organization or entities.
(d) Notwithstanding anything else herein, the Trustees may, without
Shareholder approval unless such approval is required by applicable law, invest
all or a portion of the Trust Property of any Series, or dispose of all or a
portion of the Trust Property of any Series, and invest the proceeds of such
disposition in interests issued by one or more other investment companies or
pooled portfolios. Any such other investment company or pooled portfolio may
(but need not) be a trust (formed under the laws of any state or jurisdiction)
(or subtrust thereof) which is classified as a partnership for federal income
tax purposes. Notwithstanding anything else herein, the Trustees may, without
Shareholder approval unless such approval is required by applicable law, cause a
Series that is organized in the master/feeder fund structure to withdraw or
redeem its Trust Property from the master fund and cause such Series to invest
its Trust Property directly in securities and other financial instruments or in
another master fund.
29
Section 6. Declaration of Trust. The original or a copy of this Declaration
of Trust and of each amendment hereto or Declaration of Trust supplemental 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 a Trustee or an
officer of the Trust as to the authenticity of the Declaration of Trust or any
such amendments or supplements and as to any matters in connection with the
Trust. Headings herein are for convenience only and shall not affect the
construction of this Declaration of Trust. This Declaration of Trust may be
executed in any number of counterparts, each of which shall be deemed an
original.
Section 7. Applicable Law. This Declaration and the Trust created hereunder
are governed by and construed and administered according to the Delaware Act and
the applicable laws of the State of Delaware; provided, however, that there
shall not be applicable to the Trust, the Trustees or this Declaration of Trust
(a) the provisions of Section 3540 of Title 12 of the Delaware Code, or (b) any
provisions of the laws (statutory or common) of the State of Delaware pertaining
to trusts which relate to or regulate (i) the filing with any court or
governmental body or agency of trustee accounts or schedules of trustee fees and
charges, (ii) affirmative requirements to post bonds for trustees, officers,
agents or employees of a trust, (iii) the necessity for obtaining court or other
governmental approval concerning the acquisition, holding or disposition of real
or personal property, (iv) fees or other sums payable to trustees, officers,
agents or employees of a trust, (v) the allocation of receipts and expenditures
to income or principal, (vi) restrictions or limitations on the permissible
nature, amount or 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 of responsibilities or limitations
on the acts or powers of trustees, which are inconsistent with the limitations
or liabilities or authorities and powers of the Trustees set forth or referenced
in this Declaration. The Trust shall be of the type commonly called a Delaware
business trust, and, without limiting the provisions hereof, the Trust may
exercise all powers which are ordinarily exercised by such a trust under
Delaware law. The Trust specifically reserves the right to exercise any of the
powers or privileges afforded to trusts or actions that may be engaged in by
trusts under the Delaware Act, and the absence of a specific reference herein to
any such power, privilege or action shall not imply that the Trust may not
exercise such power or privilege or take such actions.
Section 8. Amendments. The Trustees may, without any Shareholder vote,
amend or otherwise supplement this Declaration by making an amendment, a
Declaration of Trust supplemental hereto or an amended and restated trust
instrument; provided, that Shareholders shall have the right to vote on any
amendment (a) which would adversely affect the voting rights of Shareholders
granted in Article VII, Section l, (b) to this Section 8, (c) required to be
approved by Shareholders by law or by the Trust's registration statement(s)
filed with the Commission, and (d) submitted to them by the Trustees in their
discretion. Any amendment submitted to Shareholders which the Trustees determine
would affect the Shareholders of one or more Series or Classes shall be
authorized by vote of the Shareholders of each Series or Class affected and no
vote shall be required of Shareholders of a Series or Class not affected.
Notwithstanding anything else herein, any amendment to Article IV which would
have the
30
effect of reducing the indemnification and other rights provided thereby to
Trustees or officers of the Trust or to Shareholders or former Shareholders, and
any repeal or amendment of this sentence shall each require the affirmative vote
of the holders of two-thirds of the Outstanding Shares of the Trust entitled to
vote thereon.
Section 9. Derivative Actions. In addition to the requirements set forth in
Section 3816 of the Delaware Act, a Shareholder may bring a derivative action on
behalf of the Trust only if the following conditions are met:
(a) Shareholders eligible to bring such derivative action under the
Delaware Act who hold at least 10% of the Outstanding Shares of the Trust, or
10% of the Outstanding Shares of the Series or Class to which such action
relates, shall join in the request for the Trustees to commence such action; and
(b) the Trustees must be afforded a reasonable amount of time to consider
such shareholder request and to investigate the basis of such claim. The
Trustees shall be entitled to retain counsel or other advisers in considering
the merits of the request and shall require an undertaking by the Shareholders
making such request to reimburse the Trust for the expense of any such advisers
in the event that the Trustees determine not to bring such action.
No person, other than the Trustees, who is not a Shareholder of a
particular Series or Class shall be entitled to bring any derivative action,
suit or other proceeding on behalf of or with respect to such Series or Class.
Section 10. Fiscal Year. The fiscal year of the Series shall end on a
specified date as set forth in the By-laws; provided that different Series may
have different fiscal years. The Trustees may change the fiscal year of any
Series without Shareholder approval.
Section 11. Severability. The provisions of this Declaration are severable.
If the Trustees determine, with the advice of counsel, that any provision hereof
conflicts with the 1940 Act, the regulated investment company provisions of the
Internal Revenue Code or with other applicable laws and regulations, the
conflicting provision shall be deemed never to have constituted a part of this
Declaration; provided, however, that such determination shall not affect any of
the remaining provisions of this Declaration or render invalid or improper any
action taken or omitted prior to such determination. If any provision hereof
shall be held invalid or unenforceable in any jurisdiction, such invalidity or
unenforceability shall attach only to such provision only in such jurisdiction
and shall not affect any other provision of this Declaration.
Section 12. Special Treatment of Holders of Shares of Same Class.
Notwithstanding anything else herein, in connection with the termination or
reorganization of the Trust or any Series or Class by way of merger,
consolidation, the sale of all or substantially all of the assets, or otherwise,
the Trustees may classify the holders of Shares of a Class into one or
31
more separate groups by reference to any facts or circumstances that the
Trustees deem relevant in their sole discretion and may provide for the
mandatory treatment for Shares of the Class held by particular groups of
Shareholders that differs materially from the treatment accorded other groups of
Shareholders holding Shares of the same Class, provided that (a) each group of
holders of any Shares of a Class so classified who are to receive the same
treatment shall be entitled to vote as a special class in respect of such
termination or reorganization regardless of any limitations stated in this
Declaration or the By-laws on the voting rights of any Class, and (b) such
termination or reorganization shall be approved by a majority of the outstanding
voting securities (as defined in the 0000 Xxx) of each such special class.
IN WITNESS WHEREOF, the undersigned has executed this instrument as of the
date first written above.
_______________________________________________
Xxxxxxx X. Xxxxxxxx
as sole initial Trustee and not individually
32
