AGREEMENT AND DECLARATION OF TRUST
of
TD WATERHOUSE TRUST
a Delaware Business Trust
Principal Place of Business:
000 Xxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
TABLE OF CONTENTS
AGREEMENT AND DECLARATION OF TRUST
ARTICLE I Name and Definitions..................................................................................1
Section 1. Name.........................................................................................1
Section 2. Definitions. ...............................................................................1
(a) "By-Laws".........................................................................1
(b) "Certificate of Trust".............................................................1
(c) "Class"............................................................................1
(d) "Commission" and "Principal Underwriter"...........................................1
(e) "Declaration of Trust".............................................................1
(f) "Delaware Act".....................................................................2
(g) "Interested Person"................................................................2
(h) "Investment Manager" or "Manager"..................................................2
(i) "1940 Act".........................................................................2
(j) "Person"...........................................................................2
(k) "Series"...........................................................................2
(l) "Shareholder"......................................................................2
(m) "Shares"...........................................................................2
(n) "Trust"............................................................................2
(o) "Trust Property"...................................................................2
(p) "Trustee"..........................................................................2
ARTICLE II Purpose of Trust.....................................................................................3
ARTICLE III Shares..............................................................................................3
Section 1. Division of Beneficial Interest. ...........................................................3
Section 2. Ownership of Shares. .......................................................................4
Section 3. Transfer of Shares. ........................................................................4
Section 4. Investments in the Trust. .................................................................4
Section 5. Status of Shares and Limitation of Personal Liability........................................4
Section 6. Establishment and Designation of Series. ...................................................5
(a) Assets Held with Respect to a Particular Series. .................................5
(b) Liabilities Held with Respect to a Particular Series. ............................6
(c) Dividends, Distributions, Redemptions, and Repurchases. ..........................6
(d) Equality. ........................................................................6
(e) Fractions. .......................................................................6
(f) Exchange Privilege. ..............................................................7
(g) Combination of Series. ...........................................................7
(h) Elimination of Series. ...........................................................7
Section 7. Indemnification of Shareholders. ...........................................................7
ARTICLE IV The Board of Trustees................................................................................7
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Section 1. Number, Election and Tenure. ...............................................................7
Section 2. Effect of Death, Resignation, etc. of a Trustee. ..........................................8
Section 3. Powers. ....................................................................................8
Section 4. Payment of Expenses by the Trust. .........................................................12
Section 5. Payment of Expenses by Shareholders. ......................................................12
Section 6. Ownership of Assets of the Trust. .........................................................12
Section 7. Service Contracts...........................................................................12
Section 8. Trustees and Officers as Shareholders. ....................................................14
ARTICLE V Shareholders' Voting Powers and Meetings.............................................................14
Section 1. Voting Powers, Meetings, Notice and Record Dates. .........................................14
Section 2. Quorum and Required Vote. .................................................................15
Section 3. Record Dates. .............................................................................15
Section 4. Additional Provisions. ....................................................................15
ARTICLE VI Net Asset Value, Distributions and Redemptions......................................................15
Section 1. Determination of Net Asset Value, Net Income, and Distributions. ..........................15
Section 2. Redemptions and Repurchases.................................................................16
ARTICLE VII Compensation and Limitation of Liability of Trustee................................................17
Section 1. Compensation. .............................................................................17
Section 2. Indemnification and Limitation of Liability. ..............................................17
Section 3. Trustee's Good Faith Action, Expert Advice, No Bond or Surety. .............................18
Section 4. Insurance. ................................................................................18
ARTICLE VIII Miscellaneous ....................................................................................18
Section 1. Liability of Third Persons Dealing with Trustee. ..........................................18
Section 2. Termination of Trust or Series..............................................................18
Section 3. Reorganization and Master/Feeder............................................................19
Section 4. Amendments. ...............................................................................20
Section 5. Filing of Copies, References, Headings. ...................................................20
Section 6. Applicable Law..............................................................................21
Section 7. Provisions in Conflict with Law or Regulations..............................................21
Section 8. Business Trust Only. ......................................................................22
Section 9. Derivative Actions. .......................................................................22
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AGREEMENT AND DECLARATION OF TRUST
OF
TD WATERHOUSE TRUST
THIS AGREEMENT AND DECLARATION OF TRUST is made and entered into as of
the date set forth below by the Trustee named hereunder for the purpose of
forming a Delaware business trust in accordance with the provisions hereinafter
set forth.
NOW, THEREFORE, the Trustee hereby directs that the Certificate of
Trust be filed with the Office of the Secretary of State of the State of
Delaware and does hereby declare that the Trustee will hold IN TRUST all cash,
securities and other assets which the Trust now possesses or may hereafter
acquire from time to time in any manner and manage and dispose of the same upon
the following terms and conditions for the benefit of the holders of Shares in
this Trust.
Name and Definitions
Name. This Trust shall be known as TD WATERHOUSE TRUST and the Trustee
shall conduct the business of the Trust under that name or any other name as he
or she may from time to time determine.
Definitions. Whenever used herein, unless otherwise required by the
context or specifically provided:
"By-Laws" shall mean the By-Laws of the Trust as amended from time to time,
which By-Laws are expressly herein incorporated by reference as part of the
"governing instrument" within the meaning of the Delaware Act;.
"Certificate of Trust" means the certificate of trust, as amended or restated
from time to time, filed by the Trustee in the Office of the Secretary of State
of the State of Delaware in accordance with the Delaware Act;
"Class" means a class of Shares of a Series of the Trust established in
accordance with the provisions of Article III hereof;
"Commission" and "Principal Underwriter" shall have the meanings given them
in the 1940 Act;
"Declaration of Trust" means this Agreement and Declaration of Trust, as
amended or restated from time to time;
"Delaware Act" means the Delaware Business Trust Act, 12 Del. C. Sections 3801
et seq., as amended from time to time;
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"Interested Person" shall have the meaning given it in Section 2(a)(19) of the
1940 Act;
"Investment Manager" or "Manager" means a party furnishing services to the Trust
pursuant to any contract described in Article IV, Section 7(a) hereof;
"1940 Act" means the Investment Company Act of 1940 and the Rules and
Regulations thereunder, all as amended from time to time;
"Person" means and includes individuals, corporations, partnerships, trusts,
associations, joint ventures, estates and other entities, whether or not legal
entities, and governments and agencies and political subdivisions thereof,
whether domestic or foreign;
"Series" means each Series of Shares established and designated under or in
accordance with the provisions of Article III;
"Shareholder" means a record owner of outstanding Shares;
"Shares" means the shares of beneficial interest into which the beneficial
interest in the Trust shall be divided from time to time and includes fractions
of Shares as well as whole Shares;
"Trust" means the Delaware Business Trust established under the Delaware Act by
this Declaration of Trust and the filing of the Certificate of Trust in the
Office of the Secretary of State of the State of Delaware;
"Trust Property" means any and all property, real or personal, tangible or
intangible, which is from time to time owned or held by or for the account of
the Trust; and
"Trustees" means the person who has signed this Declaration of Trust and all
other Person or Persons who may from time to time be duly elected or appointed
to serve as Trustee or Trustees in accordance with the provisions hereof, in
each case so long as such Person or Persons shall continue in office in
accordance with the terms of this Declaration of Trust, and reference herein to
a Trustee or the Trustees shall refer to such Person or Persons in his, her or
their capacities as trustee or trustees hereunder. Unless otherwise required by
the context or specifically provided, any reference herein to the Trustees shall
refer to the Trustee at any time that there is only one Trustee of the Trust.
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Purpose of Trust
The purpose of the Trust is to conduct, operate and carry on the
business of a management investment company registered under the 1940 Act
through one or more Series investing primarily in securities, and to carry on
such other business as the Trustees may from time to time determine pursuant to
their authority under this Declaration of Trust.
Shares
Division of Beneficial Interest. The beneficial interest in the Trust
shall be divided into one or more Series. Each Series may be divided into two or
more Classes. Subject to the further provisions of this Article III and any
applicable requirements of the 1940 Act, the Trustees shall have full power and
authority, in their sole discretion, and without obtaining any authorization or
vote of the Shareholders of any Series or Class thereof, (i) to divide the
beneficial interest in each Series or Class thereof into Shares, with or without
par value as the Trustees shall determine, (ii) to issue Shares without
limitation as to number (including fractional Shares), to such Persons and for
such amount and type of consideration, subject to any restriction set forth in
the By-Laws, including cash or securities, at such time or times and on such
terms as the Trustees may deem appropriate, (iii) to establish and designate and
to change in any manner any Series or Class thereof and to fix such preferences,
voting powers, rights, duties and privileges and business purpose of each Series
or Class thereof as the Trustees may from time to time determine, which
preferences, voting powers, rights, duties and privileges may be senior or
subordinate to (or in the case of business purpose, different from) any existing
Series or Class thereof and may be limited to specified property or obligations
of the Trust or profits and losses associated with specified property or
obligations of the Trust, (iv) to divide or combine the Shares of any Series or
Class thereof into a greater or lesser number without thereby materially
changing the proportionate beneficial interest of the Shares of such Series or
Class in the assets held with respect to that Series, (v) to classify or
reclassify any issued Shares of any Series or Class thereof into shares of one
or more Series or Classes thereof and (vi) to take such other action with
respect to the Shares as the Trustees may deem desirable.
Subject to the distinctions permitted among Classes of the same Series
as established by the Trustees consistent with the requirements of the 1940 Act,
each Share of a Series of the Trust shall represent an equal beneficial interest
in the net assets of such Series, and each holder of Shares of a Series shall be
entitled to receive such holder's pro rata share of distributions of income and
capital gains, if any, made with respect to such Series. Upon redemption of the
Shares of any Series, the applicable Shareholder shall be paid solely out of the
funds and property of such Series of the Trust.
All references to Shares in this Declaration of Trust shall be deemed
to be Shares of any or all Series or Classes thereof, as the context may
require. All provisions herein relating to the
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Trust shall apply equally to each Series of the Trust and each Class thereof,
except as the context otherwise requires.
All Shares issued hereunder, including, without limitation, Shares
issued in connection with a dividend in Shares or a split or reverse split of
Shares, shall be fully paid and non-assessable. Except as otherwise provided by
the Trustees, Shareholders shall have no preemptive or other right to subscribe
to any additional Shares or other securities issued by the Trust.
Ownership of Shares. The Ownership of Shares shall be recorded on the
books of the Trust or a transfer or similar agent for the Trust, which books
shall be maintained separately for the Shares of each Series (or Class). No
certificates certifying the ownership of Shares shall be issued except as the
Board of Trustees may otherwise determine from time to time. The Trustees may
make such rules as they consider appropriate for the issuance of Share
certificates, the transfer of Shares of each Series (or Class) and similar
matters. The record books of the Trust as kept by the Trust or any transfer or
similar agent, as the case may be, shall be conclusive as to the identity of the
Shareholders of each Series (or Class) and as to the number of Shares of each
Series (or Class) held from time to time by each Shareholder.
Transfer of Shares. Except as otherwise provided by the Trustees,
Shares shall be transferable on the books of the Trust only by the record holder
thereof or by his duly authorized agent upon delivery to the Trustees or the
Trust's transfer agent of a duly executed instrument of transfer, together with
a Share certificate if one is outstanding, and such evidence of the genuineness
of each such execution and authorization and of such other matters as may be
required by the Trustees. Upon such delivery, and subject to any further
requirements specified by the Trustees or contained in the By-Laws, the transfer
shall be recorded on the books of the Trust. Until a transfer is so recorded,
the 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.
Investments in the Trust. Investments may be accepted by the Trust
from such Persons, at such times, on such terms, and for such consideration as
the Trustees from time to time may authorize.
Status of Shares and Limitation of Personal Liability. Shares shall be
deemed to be personal property giving only the rights provided in this
instrument. Every Shareholder by virtue of having become a Shareholder shall be
held to have expressly assented and agreed to the terms hereof. The death,
incapacity, dissolution, termination or bankruptcy of a Shareholder during the
existence of the Trust shall not operate to terminate the Trust, nor entitle the
representative of any such Shareholder to an accounting or to take any action in
court or elsewhere against the Trust or the Trustees, but 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
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the Trust nor the Trustees, nor any officer, employee or agent of the Trust
shall have any power to bind personally any Shareholders, nor, except as
specifically provided herein, to call upon any Shareholder for the payment of
any sum of money or assessment whatsoever other than such as the Shareholder may
at any time personally agree to pay.
Establishment and Designation of Series. The establishment and
designation of any Series (or Class) of Shares shall be effective upon the
adoption by a majority of the then Trustees of a resolution that sets forth such
establishment and designation and the relative rights and preferences of such
Series (or Class), whether directly in such resolution or by reference to
another document including, without limitation, any registration statement of
the Trust, or as otherwise provided in such resolution. The Trustees hereby
establish one Series, to be known as XX Xxxxxxxxxx Xxx 30 Fund, consisting of a
single Class of Shares.
Shares of each Series (or Class) established pursuant to this Article
III, unless otherwise provided in the resolution establishing such Series, shall
have the following relative rights and preferences:
Assets Held with Respect to a Particular Series. All consideration received by
the Trust for the issue or sale of Shares of a particular Series, together with
all assets in which such consideration is invested or reinvested, all income,
earnings, profits, and proceeds thereof from whatever source derived, including,
without limitation, any proceeds derived from the sale, exchange or liquidation
of such assets, and any funds or payments derived from any reinvestment of such
proceeds in whatever form the same may be, shall irrevocably be held with
respect to that Series for all purposes, subject only to the rights of creditors
of such Series, and shall be so recorded upon the books of account of the Trust.
Such consideration, assets, income, earnings, profits and proceeds thereof, from
whatever source derived, including, without limitation, any proceeds derived
from the sale, exchange or liquidation of such assets, and any funds or payments
derived from any reinvestment of such proceeds, in whatever form the same may
be, are herein referred to as "assets held with respect to" that Series. In the
event that there are any assets, income, earnings, profits and proceeds thereof,
funds or payments which are not readily identifiable as assets held with respect
to any particular Series (collectively "General Assets"), the Trustees shall
allocate such General Assets to, between or among any one or more of the Series
in such manner and on such basis as the Trustees, in their sole discretion, deem
fair and equitable, and any General Assets so allocated to a particular Series
shall be held with respect to that Series. Each such allocation by the Trustees
shall be conclusive and binding upon the Shareholders of all Series for all
purposes. Separate and distinct records shall be maintained for each Series and
the assets held with respect to each Series shall be held and accounted for
separately from the assets held with respect to all other Series and the General
Assets of the Trust not allocated to such Series.
Liabilities Held with Respect to a Particular Series. The assets of the Trust
held with respect to each particular Series shall be charged against the
liabilities of the Trust held with respect to that Series and all expenses,
costs, charges and reserves attributable to that Series. Any general liabilities
of the Trust which are not readily identifiable as being held with respect to
any particular Series shall be allocated and charged by the Trustees to and
among any one or more of
5
the Series in such manner and on such basis as the Trustees in their sole
discretion deems fair and equitable. All liabilities, expenses, costs, charges,
and reserves so charged to a Series are herein referred to as "liabilities held
with respect to" that Series. Each allocation of liabilities, expenses, costs,
charges and reserves by the Trustees shall be conclusive and binding upon the
holders of all Series for all purposes. All liabilities held with respect to a
particular Series shall be enforceable against the assets held with respect to
such Series only and not against the assets of the Trust generally or against
the assets held with respect to any other Series and, except as otherwise
provided in this Declaration of Trust, none of the debts, liabilities,
obligations and expenses incurred, contracted for or otherwise existing with
respect to the Trust generally or any other Series thereof shall be enforceable
against the assets of such Series. Notice of this contractual limitation on the
liability of each Series shall be set forth in the Certificate of Trust or in an
amendment thereto prior to the issuance of any Shares of a Series.
Dividends, Distributions, Redemptions, and Repurchases. Notwithstanding any
other provisions of this Declaration of Trust, including, without limitation,
Article VI, no dividend or distribution, including, without limitation, any
distribution paid upon termination of the Trust or of any Series (or Class) with
respect to, nor any redemption or repurchase of, the Shares of any Series (or
Class) shall be effected by the Trust other than from the assets held with
respect to such Series, nor shall any Shareholder 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 the extent not inconsistent with the 1940 Act, to determine
which items shall be treated as income and which items as capital; and each such
determination and allocation shall be conclusive and binding upon the
Shareholders.
Equality. All the Shares of each particular Series shall represent an equal
proportionate interest in the assets held with respect to that Series (subject
to the liabilities held with respect to that Series and such rights and
preferences as may have been established and designated with respect to Classes
of Shares within such Series), and each Share of any particular Series shall be
equal to each other Share of that Series.
Fractions. Any fractional Share of a Series shall carry proportionately all the
rights and obligations of a whole Share of that Series, including rights with
respect to voting, receipt of dividends and distributions, redemption of Shares
and termination of the Trust.
Exchange Privilege. The Trustees shall have the authority to provide that the
holders of Shares of any Series shall have the right to exchange said Shares for
Shares of one or more other Series of Shares in accordance with such
requirements and procedures as may be established by the Trustees.
Combination of Series. The Trustees shall have the authority, without the
approval of the Shareholders of any Series unless otherwise required by
applicable law, to combine the assets and liabilities held with respect to any
two or more Series into assets and liabilities held with respect to a single
Series.
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Elimination of Series. At any time that there are no Shares outstanding of any
particular Series (or Class) previously established and designated, the Trustees
may by resolution of a majority of the then Trustees abolish that Series (or
Class) and rescind the establishment and designation thereof.
Indemnification of Shareholders. If any Shareholder or former
Shareholder shall be exposed to liability by reason of a claim or demand
relating to such Person being or having been a Shareholder, and not because of
such Person's acts or omissions, the Shareholder or former Shareholder (or such
Person's heirs, executors, administrators, or other legal representatives or in
the case of a corporation or other entity, its corporate or other general
successor) shall be entitled to be held harmless from and indemnified out of the
assets of the Trust against all loss and expense arising from such claim or
demand, but only out of the assets held with respect to the particular Series of
Shares of which such Person is or was a Shareholder and from or in relation to
which such liability arose.
The Board of Trustees
Number, Election and Tenure. The number of Trustees shall initially be
one, who shall be Xxxxxxxxxxx X. Xxxxxx. Hereafter, the number of Trustees shall
at all times be at least one and no more than fifteen as determined, from time
to time, by the Trustees pursuant to Section 3 of this Article IV. Each Trustee
shall serve during the continued lifetime of the Trust until the next meeting of
Shareholders called for the purpose of electing Trustees and until the election
and qualification of his or her successor or, if sooner, until he or she dies,
resigns, retires, or is removed by the affirmative vote of a majority of the
outstanding Shares of the Trust. If there is more than one Trustee, in the event
that less than the majority of the Trustees holding office have been elected by
the Shareholders, to the extent required by the 1940 Act, but only to such
extent, the Trustees then in office shall call a Shareholders' meeting for the
election of Trustees. Any Trustee may resign at any time by written instrument
signed by the Trustee and delivered to any officer of the Trust or to a meeting
of the Trustees. Such resignation shall be effective upon receipt unless
specified to be effective at some other time. Except to the extent expressly
provided in a written agreement with the Trust, no Trustee resigning and no
Trustee removed shall have any right to any compensation for any period
following the effective date of his or her resignation or removal, or any right
to damages on account of such removal. The Shareholders may elect Trustees at
any meeting of Shareholders called by the Trustees for that purpose. Any Trustee
may be removed at any meeting of Shareholders by the affirmative vote of the
majority of the outstanding Shares of the Trust.
Effect of Death, Resignation, etc. of a Trustee. The death, declination
to serve, resignation, retirement, removal, or incapacity of one or more
Trustees, or all of them, shall not operate to annul the Trust or to revoke any
existing agency created pursuant to the terms of this Declaration of Trust.
Whenever there shall be fewer than the designated number of Trustees, until
additional Trustees are elected or appointed as provided herein to bring the
total number of Trustees equal to the designated number, the Trustees in office,
regardless of their number, shall
7
have all the powers granted to the Trustees and shall discharge all the duties
imposed upon the Trustee by this Declaration of Trust. As conclusive evidence of
such vacancy, a written instrument certifying the existence of such vacancy may
be executed by an officer of the Trust or by a majority of the Trustees. In the
event of the death, declination, resignation, retirement, removal, or incapacity
of all the then Trustees within a short period of time and without the
opportunity for at least one Trustee being able to appoint additional Trustees
to replace those no longer serving, the Trust's Investment Manager(s) are
empowered to appoint new Trustees subject to the provisions of Section 16(a) of
the 1940 Act.
Powers. Subject to the provisions of this Declaration of Trust, the
business of the Trust shall be managed by the Trustees, and the Trustees shall
have all powers necessary or convenient to carry out that responsibility
including the power to engage in securities transactions of all kinds on behalf
of the Trust. Without limiting the foregoing, the Trustees may: adopt By-Laws
not inconsistent with this Declaration of Trust providing for the regulation and
management of the affairs of the Trust and may amend and repeal them to the
extent that such By-Laws do not reserve that right to the Shareholders; enlarge
or reduce their number; remove any Trustee with or without cause at any time by
written instrument signed by at least two-thirds of the number of Trustees prior
to such removal, specifying the date when such removal shall become effective,
and fill vacancies caused by enlargement of their number or by the death,
resignation or removal of a Trustee; elect and remove, with or without cause,
such officers and appoint and terminate such agents as they consider
appropriate; appoint from their own number and establish and terminate one or
more committees consisting of one or more Trustees which may exercise the powers
and authority of the Board of Trustees to the extent that the Trustees
determine; employ one or more custodians of the assets of the Trust and
authorize such custodians to employ subcustodians and to deposit all or any part
of such assets in a system or systems for the central handling of securities or
with a Federal Reserve Bank; retain a transfer agent or a shareholder servicing
agent, or both; provide for the issuance and distribution of Shares by the Trust
directly or through one or more Principal Underwriters or otherwise; redeem,
repurchase and transfer Shares pursuant to applicable law; set record dates for
the determination of Shareholders with respect to various matters; declare and
pay dividends and distributions to Shareholders of each Series from the assets
of such Series; and in general delegate such authority as they consider
desirable to any officer of the Trust, to any committee of the Trustees and to
any agent or employee of the Trust or to any such custodian, transfer or
Shareholder servicing agent, or Principal Underwriter. Any determination as to
what is in the interests of the Trust made by the Trustees in good faith shall
be conclusive. In construing the provisions of this Declaration of Trust, the
presumption shall be in favor of a grant of power to the Trustees. Unless
otherwise specified herein or in the By-Laws or required by law, any action by
the Trustees shall be deemed effective if approved or taken by a majority of the
Trustees present at a meeting of Trustees at which a quorum (as defined in the
By-Laws as may be amended from time to time) of Trustees are present, within or
without the State of Delaware.
Without limiting the foregoing, the Trustees shall have the power and
authority to cause the Trust (or to act on behalf of the Trust):
8
To invest and reinvest cash, to hold cash uninvested, and to subscribe for,
invest in, reinvest in, purchase or otherwise acquire, own, hold, pledge, sell,
assign, transfer, exchange, distribute, write options on, lend or otherwise deal
in or dispose of contracts for the future acquisition or delivery of fixed
income or other securities, and securities of every nature and kind, including,
without limitation, all types of bonds, debentures, stocks, negotiable or
non-negotiable instruments, obligations, evidences of indebtedness, certificates
of deposit or indebtedness, commercial paper, repurchase agreements, bankers'
acceptances, and other securities of any kind, issued, created, guaranteed, or
sponsored by any and all Persons, including, without limitation, states,
territories, and possessions of the United States and the District of Columbia
and any political subdivision, agency, or instrumentality thereof, any foreign
government or any political subdivision of the U.S. Government or any foreign
government, or any international instrumentality, or by any bank or savings
institution, or by any corporation or organization organized under the laws of
the United States or of any state, territory, or possession thereof, or by any
corporation or organization organized under any foreign law, or in "when issued"
contracts for any such securities, to change the investments of the assets of
the Trust; and to exercise any and all rights, powers, and privileges of
ownership or interest in respect of any and all such investments of every kind
and description, including, without limitation, the right to consent and
otherwise act with respect thereto, with power to designate one or more Persons,
to exercise any of said rights, powers, and privileges in respect of any of said
instruments;
To sell, exchange, lend, pledge, mortgage, hypothecate, lease, or write options
(including, options on futures contracts) with respect to or otherwise deal in
any property rights relating to any or all of the assets of the Trust or any
Series;
To vote or give assent, or exercise any rights of ownership, with respect to
stock or other securities or property; and to execute and deliver proxies or
powers of attorney to such Person or Persons as the Trustees shall deem proper,
granting to such Person or Persons such power and discretion with relation to
securities or property as the Trustees shall deem proper;
To exercise powers and right of subscription or otherwise which in any manner
arise out of ownership of securities;
To hold any security or property in a form not indicating any trust, whether in
bearer, unregistered or other negotiable form, or in its own name or in the name
of a custodian or subcustodian or a nominee or nominees or otherwise;
To consent to or participate in any plan for the reorganization, consolidation
or merger of any corporation or issuer of any security which is held in the
Trust; to consent to any contract, lease, mortgage, purchase or sale of property
by such corporation or issuer; and to pay calls or subscriptions with respect to
any security held in the Trust;
To join with other security holders in acting through a committee, depository,
voting trustee or otherwise, and in that connection to deposit any security
with, or transfer any security to, any such committee, depository 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
9
proper, and to agree to pay, and to pay, such portion of the expenses and
compensation of such committee, depository or trustee as the Trustees shall deem
proper;
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;
To enter into joint ventures, general or limited partnerships and any other
combinations or associations;
To borrow funds or other property in the name of the Trust exclusively for Trust
purposes and in connection therewith issue notes or other evidence of
indebtedness; and to mortgage and pledge the Trust Property or any part thereof
to secure any or all of such indebtedness;
To endorse or guarantee the payment of any notes or other obligations of any
Person; to make contracts of guaranty or suretyship, or otherwise assume
liability for payment thereof; and to mortgage and pledge the Trust Property or
any part thereof to secure any of or all of such obligations;
To purchase and pay for entirely out of Trust Property such insurance as the
Trustees may deem necessary or appropriate for the conduct of the business,
including, without limitation, insurance policies insuring the assets of the
Trust or payment of distributions and principal on its portfolio investments,
and insurance policies insuring the Shareholders, the 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;
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;
To operate as and carry out the business of an investment company, and exercise
all the powers necessary or appropriate to the conduct of such operations;
To enter into contracts of any kind and description;
To employ one or more banks, trust companies or companies that are members of a
national securities exchange or such other entities as the Commission may permit
as custodians of any assets of the Trust subject to any conditions set forth in
this Declaration of Trust or in the By-Laws;
10
To interpret the investment policies, practices or limitations of any Series or
Class; and
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
securities issued by one or more other investment companies registered under the
1940 Act (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) all without any requirement of approval by Shareholders unless
required by the 1940 Act. Any such other investment company may (but need not)
be a trust (formed under the laws of the State of Delaware or of any other
state) which is classified as a partnership for federal income tax purposes.
Subject to the 1940 Act, to engage in any other lawful act or activity in which
a business trust organized under the Delaware Act may engage.
The Trust shall not be limited to investing in obligations maturing
before the possible termination of the Trust or one or more of its Series. The
Trust shall not in any way be bound or limited by any present or future law or
custom in regard to investment by fiduciaries. The Trust shall not be required
to obtain any court order to deal with any assets of the Trust or take any other
action hereunder.
Payment of Expenses by the Trust. The Trustees are authorized to pay or
cause to be paid out of the principal or income of the Trust, or partly out of
the principal and partly out of income, as they deem fair, all expenses, fees,
charges, taxes and liabilities incurred or arising in connection with the Trust,
or in connection with the management thereof, including, but not limited to, the
Trustees compensation and such expenses and charges for the services of the
Trust's officers, employees, investment adviser or manager, Principal
Underwriter, auditors, counsel, custodian, transfer agent, shareholder servicing
agent, and such other agents or independent contractors and such other expenses
and charges as the Trustees may deem necessary or proper to incur, which
expenses, fees, charges, taxes and liabilities shall be allocated in accordance
with Article III, Section 6 hereof.
Payment of Expenses by Shareholders. The Trustees shall have the power,
as frequently as they may determine, to cause each Shareholder, or each
Shareholder of any particular Series, to pay directly, in advance or arrears,
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.
Ownership of Assets of the Trust. Title to all of the assets of the
Trust shall at all times be considered as vested in the Trust, except that the
Trustees shall have power to cause legal title to any Trust Property to be held
by or in the name of one or more of the Trustees, or in the name of the Trust,
or in the name of any other Person as nominee, on such terms as the Trustees may
11
determine. The right, title and interest of the Trustees in the Trust Property
shall vest automatically in each Person who may hereafter become a Trustee. Upon
the resignation, removal or death of a Trustee, he or she shall automatically
cease to have any right, title or interest in any of the Trust Property, and the
right, title and interest of such Trustee in the Trust Property shall vest
automatically in the remaining Trustees. Such vesting and cessation of title
shall be effective whether or not conveyancing documents have been executed and
delivered.
Service Contracts
Subject to such requirements and restrictions as may be set forth under federal
and/or state law and in the By-Laws, including, without limitation, the
requirements of Section 15 of the 1940 Act, the Trustees may, at any time and
from time to time, contract for exclusive or nonexclusive advisory, management
and/or administrative services for the Trust or for any Series (or Class
thereof) with any corporation, trust, association or other organization; and any
such contract may contain such other terms as the Trustees may determine,
including, without limitation, authority for the Investment Manager or
administrator to delegate certain or all of its duties under such contracts to
qualified investment advisers and administrators and to determine from time to
time without prior consultation with the Trustees what investments shall be
purchased, held, sold or exchanged and what portion, if any, of the assets of
the Trust shall be held uninvested and to make changes in the Trust's
investments, or such other activities as may specifically be delegated to such
party.
The Trustees may also, at any time and from time to time, contract with any
corporation, trust, association or other organization, appointing it exclusive
or nonexclusive distributor or Principal Underwriter for the Shares of one or
more of the Series (or Classes) or other securities to be issued by the Trust.
Every such contract shall comply with such requirements and restrictions as may
be set forth under federal and/or state law and in the By-Laws, including,
without limitation, the requirements of Section 15 of the 1940 Act; and any such
contract may contain such other terms as the Trustees may determine.
The Trustees are also empowered, at any time and from time to time, to contract
with any corporations, trusts, associations or other organizations, appointing
it or them the custodian, transfer agent and/or Shareholder servicing agent for
the Trust or one or more of its Series. Every such contract shall comply with
such requirements and restrictions as may be set forth under federal and/or
state law and in the By-Laws or stipulated by resolution of the Trustees.
Subject to applicable law, the Trustees are further empowered, at any time and
from time to time, to contract with any entity to provide such other services to
the Trust or one or more of the Series, as the Trustees determine to be in the
best interests of the Trust and the applicable Series.
The fact that:
any of the Shareholders, Trustees, or officers of the Trust is a shareholder,
director, officer, partner, trustee, employee, Manager, adviser, Principal
Underwriter, distributor, or affiliate or agent of or for any corporation,
trust, association, or other organization, or for any parent or
12
affiliate of any organization with which an advisory, management or
administration contract, or principal underwriter's or distributor's contract,
or transfer, shareholder servicing or other type of service contract may have
been or may hereafter be made, or that any such organization, or any parent or
affiliate thereof, is a Shareholder or has an interest in the Trust, or that
(ii) any corporation, trust, association or other organization
with which an advisory, management or administration contract or
principal underwriter's or distributor's contract, or transfer,
shareholder servicing or other type of service contract may have been
or may hereafter be made also has an advisory, management or
administration contract, or principal underwriter's or distributor's
contract, or transfer, shareholder servicing or other service contract
with one or more other corporations, trusts, associations, or other
organizations, or has other business or interests, shall not affect the
validity of any such contract or disqualify any Shareholder, Trustee or
officer of the Trust from voting upon or executing the same, or create
any liability or accountability to the Trust or its Shareholders,
provided approval of each such contract is made pursuant to the
requirements of the 1940 Act.
Trustees and Officers as Shareholders. Any Trustee, officer or agent of
the Trust may acquire, own and dispose of Shares to the same extent as if he
were not a Trustee, officer or agent; and the Trustees may issue and sell and
cause to be issued and sold Shares to, and redeem such Shares from, any such
Person or any firm or company in which such Person is interested, subject only
to the general limitations contained herein or in the By-Laws relating to the
sale and redemption of such Shares.
Shareholders' Voting Powers and Meetings
Voting Powers, Meetings, Notice and Record Dates. The Shareholders
shall have power to vote only (i) for the election or removal of Trustees as
provided in Article IV, Section 1, and (ii) with respect to such additional
matters relating to the Trust as may be required by applicable law, this
Declaration of Trust, the By-Laws or any registration of the Trust with the
Commission (or any successor agency) or any state, or as the Trustees may
consider necessary or desirable. As determined by the Trustees without the vote
or consent of Shareholders (except as required by the 1940 Act), 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 it is entitled to vote
and each fractional Share shall be entitled to a proportionate fractional vote.
Notwithstanding any other provision of this Declaration of Trust,
13
on any matter submitted to a vote of the Shareholders, all Shares of the Trust
then entitled to vote shall be voted in aggregate, except (i) when required by
the 1940 Act, Shares shall be voted by individual Series; (ii) when the matter
involves the termination of a Series or any other action that the Trustees have
determined will affect only the interests of one or more Series, then only
Shareholders of such Series shall be entitled to vote thereon; and (iii) when
the matter involves any action that the Trustees have determined will affect
only the interests of one or more Classes, then only the Shareholders of such
Class or Classes shall be entitled to vote thereon. There shall be no cumulative
voting in the election of Trustees. Shares may be voted in person or by proxy. A
proxy may be given in writing. The By-Laws may provide that proxies may also, or
may instead, be given by any electronic or telecommunications device or in any
other manner. Notwithstanding anything else contained herein or in the By-Laws,
in the event a proposal by anyone other than the officers or the Trustees of the
Trust is submitted to a vote of the shareholders of one or more Series or
Classes thereof or of the Trust, or in the event of any proxy contest or proxy
solicitation or proposal in opposition to any proposal by the officers or the
Trustees of the Trust, Shares may be voted only in person or by written proxy at
a meeting. Until Shares are issued, the Trustees may exercise all rights of
Shareholders and may take any action required by law, this Declaration of Trust
or the By-Laws to be taken by the Shareholders. Meetings of the Shareholders
shall be called and notice thereof and record dates therefor shall be given and
set as provided in the By-Laws.
Quorum and Required Vote. Except when a larger quorum is required by
applicable law, by the By-Laws or by this Declaration of Trust, the holders of
Shares entitled to cast one-third of the votes, present in person or by proxy,
shall constitute a quorum at a Shareholders' meeting. When any one or more
Series (or Class) is to vote as a single class separate from any other Shares,
the holders of Shares of each such Series (or Class) entitled to cast one-third
of the votes, present in person or by proxy, shall constitute a quorum at a
Shareholders' meeting of that Series (or Class). Except when a larger vote is
required by any provision of this Declaration of Trust or the By-Laws or by
applicable law, when a quorum is present at any meeting, a majority of the
Shares voted shall decide any questions and a plurality of the Shares voted
shall elect a Trustee, provided that where any provision of law or of this
Declaration of Trust requires that the holders of any Series shall vote as a
Series (or that holders of a Class shall vote as a Class), then a majority of
the Shares of that Series (or Class) voted on the matter (or a plurality with
respect to the election of a Trustee) shall decide that matter insofar as that
Series (or Class) is concerned.
Record Dates. For the purpose of determining the Shareholders of any
Series (or Class) who are entitled to receive payment of any dividend or of any
other distribution, the Trustees may from time to time fix a date, which shall
be before the date for the payment of such dividend or such other payment, as
the record date for determining the Shareholders of such Series (or Class)
having the right to receive such dividend or distribution. Without fixing a
record date, the Trustees may for distribution purposes close the register or
transfer books for one or more Series (or Classes) at any time prior to the
payment of a distribution. Nothing in this Section shall be construed as
precluding the Trustees from setting different record dates for different Series
(or Classes).
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Additional Provisions. The By-Laws may include further provisions for
Shareholders' votes and meetings and related matters.
Net Asset Value, Distributions and Redemptions
Determination of Net Asset Value, Net Income, and Distributions.
Subject to applicable law and Article III, Section 6 hereof, the Trustees, in
their absolute discretion, may prescribe and shall set forth in a duly adopted
vote of the Trustees such bases and time for determining the per Share or net
asset value of the Shares of any Series (or Class) or net income attributable to
the Shares of any Series (or Class), or the declaration and payment of dividends
and distributions on the Shares of any Series (or Class), as they may deem
necessary or desirable.
Redemptions and Repurchases.
The Trust shall purchase such Shares as are offered by any Shareholder for
redemption, upon the presentation of a proper instrument of transfer together
with a request directed to the Trust or a Person designated by the Trust that
the Trust purchase such Shares or in accordance with such other procedures for
redemption as the Trustees may from time to time authorize; and the Trust will
pay therefor the net asset value thereof as determined by the Trustees (or on
their behalf), in accordance with any applicable provisions of the By-Laws and
applicable law, less any fees imposed on such redemption. Unless extraordinary
circumstances exist, payment for said Shares shall be made by the Trust to the
Shareholder within seven (7) days after the date on which the request is made in
proper form. The obligation set forth in this Section 3 is subject to the
provision that in the event that any time the New York Stock Exchange (the
"Exchange") is closed for other than weekends or holidays, or if permitted by
the rules and regulations or an order of the Commission during periods when
trading on the Exchange is restricted or during any emergency which makes it
impracticable for the Trust to dispose of the investments of the applicable
Series or to determine fairly the value of the net assets held with respect to
such Series or during any other period permitted by order of the Commission for
the protection of investors, such obligations may be suspended or postponed by
the Trustees. In the case of a suspension of the right of redemption as provided
herein, a Shareholder may either withdraw the request for redemption or receive
payment based on the net asset value per share next determined after the
termination of such suspension, less any fees imposed on such redemption.
The redemption price may in any case or cases be paid wholly or partly in kind
if the Trustees determine that such payment is advisable in the interest of the
remaining Shareholders of the Series for which the Shares are being redeemed.
Subject to the foregoing, the fair value, selection and quantity of securities
or other property so paid or delivered as all or part of the redemption price
may be determined by or under authority of the Trustees. In no case shall the
Trust be liable for any delay of any corporation or other Person in transferring
securities selected for delivery as all or part of any payment in kind.
15
The Trustees may require Shareholders to redeem Shares for any reason under
terms set by the Trustees, including, but not limited to, (i) the determination
of the Trustees that direct or indirect ownership of Shares of any Series has or
may become concentrated in such Shareholder to an extent that would disqualify
any Series as a regulated investment company under the Internal Revenue Code of
1986, as amended (or any successor statute thereto), (ii) the failure of a
Shareholder to supply a tax identification number if required to do so, or to
have the minimum investment required (which may vary by Series), or (iii) the
failure of a Shareholder to pay when due for the purchase of Shares issued to
him. Any such redemption shall be effected at the redemption price and in the
manner provided in this Article VI.
The holders of Shares shall upon demand disclose to the Trustees in writing such
information with respect to direct and indirect ownership of Shares as the
Trustees deem necessary to comply with the provisions of the Internal Revenue
Code of 1986, as amended (or any successor statute thereto), or to comply with
the requirements of any other taxing authority.
Compensation and Limitation of Liability of Trustees
Compensation. The Trustees as such shall be entitled to reasonable
compensation from the Trust, and the Trustees 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.
Indemnification and 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 to the extent provided in this Article VII, for any act,
omission or obligation of the Trust, of such Trustee or of any other Trustee.
The Trustees shall not be responsible or liable in any event for any neglect or
wrongdoing of any officer, agent, employee, Manager, adviser, sub-adviser or
Principal Underwriter of the Trust. The Trust shall indemnify each Person who
is, or has been, a Trustee, officer, employee or agent of the Trust and any
Person who is serving or has served at the Trust's request as a director,
officer, trustee, employee or agent of another organization in which the Trust
has any interest as a shareholder, creditor or otherwise to the extent and in
the manner provided in the By-Laws. All persons extending credit to, contracting
with or having any claim against the Trust or the Trustees shall look only to
the assets of the Series that such person extended credit to, contracted with or
has a claim against, or, if the Trustees have yet to establish Series, of the
Trust for payment under such credit, contract or claim; and neither the Trustees
nor the Shareholders, nor any of the Trust's officers, employees or agents,
whether past, present or future, shall be personally liable therefor. Every
note, bond, contract, instrument, certificate or undertaking and every other act
or thing whatsoever executed or done by or on behalf of the Trust or the
Trustees by any of them in connection with the Trust shall conclusively be
deemed to have been executed or done only in or with respect to his or her
capacity as Trustee or Trustees and such Trustee or Trustees shall not be
personally liable thereon. At the Trustees' discretion, any note, bond,
contract, instrument, certificate or undertaking made or issued by the Trustees
or by any officer or officers may give notice that the Certificate of Trust is
on file in the
16
Office of the Secretary of State of the State of Delaware and that a limitation
on liability of Series exists and such note, bond, contract, instrument,
certificate or undertaking may, if the Trustees so determines, recite that the
same was executed or made on behalf of the Trust by a Trustee or Trustees in
such capacity and not individually or by an officer or officers in such capacity
and not individually and that the obligations of such instrument are not binding
upon any of them or the Shareholders individually but are binding only on the
assets and property of the Trust or a Series thereof, and may contain such
further recital as such Person or Persons may deem appropriate. The omission of
any such notice or recital shall in no way operate to bind any Trustees,
officers or Shareholders individually.
Trustee's Good Faith Action, Expert Advice, No Bond or Surety. The
exercise by the Trustees of their powers and discretions hereunder shall be
binding upon everyone interested. A Trustee shall be liable to the Trust and to
any Shareholder solely for the his or her own willful misfeasance, bad faith,
gross negligence or reckless disregard of the duties involved in the conduct of
the office of Trustee, and shall not be liable for errors of judgment or
mistakes of fact or law. The Trustees may take advice of counsel or other
experts with respect to the meaning and operation of this Declaration of Trust,
and shall be under no liability for any act or omission in accordance with such
advice nor for failing to follow such advice. The Trustees shall not be required
to give any bond as such, nor any surety if a bond is required.
Insurance. The Trustees shall be entitled and empowered to the fullest
extent permitted by law to purchase with Trust assets insurance for liability
and for all expenses reasonably incurred or paid or expected to be paid by a
Trustee, officer, employee or agent of the Trust in connection with any claim,
action, suit or proceeding in which he or she becomes involved by virtue of his
or her capacity or former capacity with the Trust.
Miscellaneous
Liability of Third Persons Dealing with Trustees. No Person dealing
with the Trustee shall be bound to make any inquiry concerning the validity of
any transaction made or to be made by the Trustees or to see to the application
of any payments made or property transferred to the Trust or upon its order.
Termination of Trust or Series.
Unless terminated as provided herein, the Trust shall continue without
limitation of time. The Trust may be terminated at any time by vote of a
majority of the Shares of each Series entitled to vote, voting separately by
Series, or by the Trustees by written notice to the Shareholders. Any Series of
Shares or Class thereof may be terminated at any time by vote of a majority of
the Shares of such Series or Class entitled to vote or by the Trustees by
written notice to the Shareholders of such Series or Class.
17
Upon the requisite Shareholder vote or action by the Trustees to terminate the
Trust or any one or more Series of Shares or any Class thereof, after paying or
otherwise providing for all charges, taxes, expenses and liabilities, whether
due or accrued or anticipated, of the Trust or of the particular Series or any
Class thereof as may be determined by the Trustees, the Trust shall in
accordance with such procedures as the Trustees consider appropriate reduce the
remaining assets of the Trust or of the affected Series or Class to
distributable form in cash or Shares (if any Series remain) or other securities,
or any combination thereof, and distribute the proceeds to the Shareholders of
the Series or Classes involved, ratably according to the number of Shares of
such Series or Class held by the several Shareholders of such Series or Class on
the date of distribution. Thereupon, 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 relating thereto or arising therefrom, and
the right, title and interest of all parties with respect to the Trust or such
Series or Class 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.
Reorganization and Master/Feeder
Notwithstanding anything else herein, the Trustees may, without Shareholder
approval unless such approval is required by applicable law, (i) cause the Trust
to merge or consolidate with or into one or more trusts (or series thereof to
the extent permitted by law), partnerships, associations, corporations or other
business entities (including trusts, partnerships, associations, corporations or
other business entities created by the Trustees to accomplish such merger or
consolidation) so long as the surviving or resulting entity is an open-end
management investment company under the 1940 Act, or is a series thereof, that
will succeed to or assume the Trust's registration under the 1940 Act and that
is formed, organized or existing under the laws of the United States or of a
state, commonwealth, possession or colony of the United States, (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. Any agreement of merger or consolidation or exchange or certificate
of merger may be signed by a majority of the Trustees and facsimile signatures
conveyed by electronic or telecommunication means shall be valid.
Pursuant to and in accordance with the provisions of Section 3815(f) of the
Delaware Act, and notwithstanding anything to the contrary contained in this
Declaration of Trust, an agreement of merger or consolidation approved by the
Trustees in accordance with this Section 3 may effect any amendment to the
governing instrument of the Trust or effect the adoption of a new trust
instrument of the Trust if the Trust is the surviving or resulting trust in the
merger or consolidation.
The Trustees may create one or more business trusts to which all or any part of
the assets, liabilities, profits or losses of the Trust or any Series or class
thereof may be transferred and may
18
provide for the conversion of Shares in the Trust or any Series or Class thereof
into beneficial interests in any such newly created trust or trusts or any
series or classes thereof.
Notwithstanding anything else herein, the Trustees may, without Shareholder
approval, 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 registered under the 1940 Act. Any such other investment company may
(but need not) be a trust (formed under the laws of the State of Delaware or any
other 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.
Amendments. Except as specifically provided in this Section, the
Trustees may, without Shareholder vote, restate, amend or otherwise supplement
this Declaration of Trust. Shareholders shall have the right to vote (i) on any
amendment that would affect their right to vote granted in Article V, Section 1
hereof, (ii) on any amendment to this Section 4 of Article VIII, (iii) on any
amendment that may be required to be approved by Shareholders by applicable law
or by the Trust's registration statement filed with the Commission and (iv) on
any amendment submitted to them by the Trustees. Any amendment required or
permitted to be submitted to the Shareholders that, as the Trustees determine,
shall affect the Shareholders of one or more Series shall be authorized by a
vote of the Shareholders of each Series affected and no vote of Shareholders of
a Series not affected shall be required. Notwithstanding anything else herein,
no amendment hereof shall limit the rights to insurance provided by Article VII,
Section 4 with respect to any acts or omissions of Persons covered thereby prior
to such amendment nor shall any such amendment limit the rights to
indemnification referenced in Article VII, Section 2 hereof as provided in the
By-Laws with respect to any actions or omissions of Persons covered thereby
prior to such amendment. The Trustees may, without Shareholder vote, restate,
amend, or otherwise supplement the Certificate of Trust as the Trustees deem
necessary or desirable.
Filing of Copies, References, Headings. The original or a copy of this
instrument and of each restatement and/or amendment hereto shall be kept at the
office of the Trust where it may be inspected by any Shareholder. Anyone dealing
with the Trust may rely on a certificate by an officer of the Trust as to
whether or not any such restatements and/or amendments have been made and as to
any matters in connection with the Trust hereunder; and, with the same effect as
if it were the original, may rely on a copy certified by an officer of the Trust
to be a copy of this instrument or of any such restatements and/or amendments.
In this instrument and in any such restatements and/or amendments, references to
this instrument, and all expressions such as "herein", "hereof" and "hereunder",
shall be deemed to refer to this instrument as amended or affected by any such
restatements and/or amendments. Headings are placed herein for convenience of
reference only and shall not be taken as a part hereof or control or affect the
meaning, construction or effect of this instrument. Whenever the singular number
is used herein, the same shall include the plural; and the neuter, masculine and
feminine genders shall include
19
each other, as applicable. This instrument may be executed in any number of
counterparts each of which shall be deemed an original.
Applicable Law.
The Trust is created under, and this Declaration of Trust is to be governed by,
and construed and enforced in accordance with, the laws of the State of
Delaware. The Trust shall be of the type commonly called a business trust, and
without limiting the provisions hereof, the Trust specifically reserves the
right to exercise any of the powers or privileges afforded to business trusts or
actions that may be engaged in by business 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.
Notwithstanding the first sentence of Section 6(a) of this Article VIII, there
shall not be applicable to the Trust, the Trustees or this Declaration of Trust
(x) the provisions of Section 3540 of Title 12 of the Delaware Code or (y) any
provisions of the laws (statutory or common) of the State of Delaware (other
than the Delaware Act) pertaining to trusts that relate to or regulate: (i) the
filing with any court or governmental body or agency of trustee accounts or
schedules of trustee fees and charges, (ii) affirmative requirements to post
bonds for trustees, officers, agents or employees of a trust, (iii) the
necessity for obtaining a court or other governmental approval concerning the
acquisition, holding or disposition of real or personal property, (iv) fees or
other sums applicable to trustees, officers, agents or employees of a trust, (v)
the allocation of receipts and expenditures to income or principal, (vi)
restrictions or limitations on the permissible nature, amount or concentration
of trust investments or requirements relating to the titling, storage or other
manner of holding of trust assets, or (vii) the establishment of fiduciary or
other standards or responsibilities or limitations on the acts or powers of
trustees that are inconsistent with the limitations or liabilities or
authorities and powers of the Trustees set forth or referenced in this
Declaration of Trust.
Provisions in Conflict with Law or Regulations.
The provisions of the Declaration of Trust are severable, and if the Trustees
shall determine, with the advice of counsel, that any of such provision is in
conflict with the 1940 Act, the regulated investment company provisions of the
Internal Revenue Code of 1986, as amended (or any successor statute thereto),
and the regulations thereunder, the Delaware Act or with other applicable laws
and regulations, the conflicting provision shall be deemed never to have
constituted a part of the Declaration of Trust; provided, however, that such
determination shall not affect any of the remaining provisions of the
Declaration of Trust or render invalid or improper any action taken or omitted
prior to such determination.
If any provision of the Declaration of Trust shall be held invalid or
unenforceable in any jurisdiction, such invalidity or unenforceability shall
attach only to such provision in such jurisdiction and shall not in any manner
affect such provision in any other jurisdiction or any other provision of the
Declaration of Trust in any jurisdiction.
20
Business Trust Only. It is the intention of the Trustees to create a
business trust pursuant to the Delaware Act. It is not the intention of the
Trustees to create a general partnership, limited partnership, joint stock
association, corporation, bailment, or any form of legal relationship other than
a business trust pursuant to the Delaware Act. Nothing in this Declaration of
Trust shall be construed to make the Shareholders, either by themselves or with
the Trustees, partners or members of a joint stock association.
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:
The Shareholder or Shareholders must make a pre-suit demand upon the Trustees to
bring the subject action unless an effort to cause the Trustees to bring such an
action is not likely to succeed. For purposes of this Section 9(a), a demand on
the Trustees shall only be deemed not likely to succeed and therefore excused if
a majority of the Board of Trustees, or a majority of any committee established
to consider the merits of such action, has a personal financial interest in the
transaction at issue, and a Trustee shall not be deemed interested in a
transaction or otherwise disqualified from ruling on the merits of a Shareholder
demand by virtue of the fact that such Trustee receives remuneration for his
service on the Board of Trustees of the Trust or on the boards of one or more
trusts that are under common management with or otherwise affiliated with the
Trust.
Unless a demand is not required under paragraph (a) of this Section 9,
Shareholders eligible to bring such derivative action under the Delaware Act who
collectively hold at least 10% of the Outstanding Shares of the Trust, or who
collectively hold at least 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
Unless a demand is not required under paragraph (a) of this Section 9, 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 advisors 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 advisors in the event
that the Trustees determines not to bring such action.
For purposes of this Section 9, the Board of Trustees may designate a
committee of one Trustee to consider a Shareholder demand if necessary to create
a committee with a majority of Trustees who do not have a personal financial
interest in the transaction at issue. The Trustees shall be entitled to retain
counsel or other advisors in considering the merits of the request and may
require an undertaking by the Shareholders making such request to reimburse the
Trust for the expense of any such advisors in the event that the Trustees
determine not to bring such action.
IN WITNESS WHEREOF, the Trustees named below does hereby make and enter
into this Declaration of Trust as of the 6th day of August, 1999
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/s/ Xxxxxxxxxxx X. Xxxxxx
--------------------------------
Xxxxxxxxxxx X. Xxxxxx
THE PRINCIPAL PLACE OF BUSINESS OF THE TRUST IS:
000 Xxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000