Second AMENDED AND RESTATED AGREEMENT AND DECLARATION OF TRUST OF FUNDVANTAGE TRUST
Exhibit (a)(i)
Second AMENDED AND RESTATED
AGREEMENT AND DECLARATION OF TRUST
OF
The Second Amended and Restated Agreement and Declaration of Trust of FundVantage Trust (the “Trust”), dated as of December 2, 2024, among the individual(s) listed on the signatory page attached hereto (each, a “Trustee”) and each person who becomes a Shareholder (as defined in Section 1.2) in accordance with the terms hereinafter set forth.
WHEREAS, a Certificate of Trust was filed with the Secretary of State of the State of Delaware on August 28, 2006 to form the Trust;
WHEREAS, the Trust entered into an initial Agreement and Declaration of Trust dated August 28, 2006, which was amended and restated as of March 26, 2012 (the “Existing Trust Agreement”);
WHEREAS, the Trustees desire to amend and restate the Existing Trust Agreement;
NOW, THEREFORE, the Trustees do hereby declare that all money and property contributed to the Trust hereunder shall be held and managed in trust under this Agreement and Declaration of Trust, for the benefit of the Shareholders as set forth below.
Article 1
NAME AND DEFINITIONS
1.2.1. “By-Laws” shall mean the By-Laws of the Trust as amended from time to time.
1.2.2. “Class” shall mean a portion of Shares of a Series of the Trust established in accordance with the provisions of Article 3 hereof.
1.2.3. “Covered Person” shall have the meaning assigned to it in Section 9.2.1.
1.2.4. “Class Expenses” shall mean expenses incurred by a particular Class in connection with a shareholder services arrangement or plan that is specific to such Class or any other differing share of expenses or differing fees, in each case, pursuant to a plan, as such plan or rule may be amended from time to time.
1.2.5. “Commission” shall mean the U.S. Securities and Exchange Commission.
1.2.6. “Declaration of Trust” shall mean this Agreement and Declaration of Trust, as amended or restated from time to time.
1.2.7. “Delaware Act” refers to the Delaware Statutory Trust Act, 12 Del. C. Section 3801 et seq., as such act may be amended from time to time.
1.2.8. “Exchange” means a national securities exchange, including as defined in Section 2(a)(26) of the 1940 Act or in Section 6 of the Securities Exchange Act of 1934, as amended (the “Exchange Act”);
1.2.9. “ETF Series” shall mean a Series of the Trust whose Shares are listed on an Exchange;
1.2.10. “General Assets” shall have the meaning set forth in Section 3.4.1 hereof.
1.2.11. “Interested Person” shall have the meaning set forth in Section 2(a)(19) of the 1940 Act.
1.2.12. “Investment Manager” or “Manager” shall mean a party furnishing services to the Trust pursuant to any contract described in Section 6.1 hereof.
1.2.13. “Mutual Fund Series” shall mean a Series of the Trust whose Shares are not listed on an Exchange;
1.2.14. “Person” shall mean and include any of the following: individuals, limited liability companies, corporations, partnerships, trusts, foundations, plans, associations, joint ventures, estates and other entities, whether or not legal entities, and governments and agencies and political subdivisions thereof, whether domestic or foreign.
1.2.15. “Principal Underwriter” shall have the meaning set forth in Section (2)(a)(29) of the 1940 Act.
1.2.16. “Proportionate Interest” shall have the meaning set forth in Section 3.2.2 hereof.
1.2.17. “Series” refers to each series of Shares established and designated under or in accordance with the provisions of Article 3 hereof.
1.2.18. “Shares” means the shares of beneficial interest into which the beneficial interest in the Trust shall be divided from time to time and, when used in relation to any particular Series or Class of Shares established by the Trustees pursuant to Section 3.2 hereof, shares of beneficial interest into which such Series or Class of Shares shall be divided from time to time in accordance with the terms hereof. The term “Shares” includes fractions of Shares as well as whole Shares.
1.2.19. “Shareholder” means a record owner of outstanding Shares of the Trust.
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1.2.20. “Successor Entity” shall have the meaning set forth in Section 10.3.
1.2.21. “Trust” refers to the Delaware statutory trust established by this Declaration of Trust.
1.2.22. “Trustees” refers to the persons who have signed this Declaration of Trust, so long as they continue in office in accordance with the terms hereof, and all other persons who may from time to time be duly elected or appointed to serve on the Board of Trustees in accordance with the provisions hereof, and reference herein to a Trustee or the Trustees shall refer to such person or persons in their capacity as trustees hereunder.
1.2.23. “Trust Property” means any and all property, real or personal, tangible or intangible, which is owned or held by or for the account of the Trust.
1.2.24. “1940 Act” refers to the Investment Company Act of 1940, and the rules and regulations promulgated thereunder, each as amended from time to time. References herein to specific sections of the 1940 Act shall be deemed to include such rules and regulations as are applicable to such sections as determined by the Trustees or their designees.
Article 2
PURPOSE OF TRUST
The purpose of the Trust is to conduct, operate and carry on the business of an investment company registered under the 1940 Act through one or more Series investing primarily in securities and to carry on such other business as the Trustees may from time to time determine pursuant to authority under this Agreement and Declaration of Trust.
Article 3
SHARES
3.1 Shares of Beneficial Interest.
3.1.1. The beneficial interest in the Trust shall at all times be divided into an unlimited number of Shares, with a par value of $0.01 per Share, provided that the Shares of a Series that is established by the Trustees to be taxable as a separate partnership for federal income tax purposes shall have no par value. Shares shall be validly issued, fully paid and non-assessable when issued for such consideration as the Trustees shall determine. All Shares issued in connection with a dividend or other distribution in Shares or a split or reverse split of Shares shall be fully paid and non-assessable.
3.1.2. Pursuant to Section 3806(b) of the Delaware Act, the Trustees shall have authority, from time to time, (a) to establish Shares of one or more series, each of which constitutes a “Series” and shall be separate and distinct from the Shares in any other Series and (b) to further divide Shares of any Series into one or more separate and distinct classes of Shares, each of which constitutes a “Class.”
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3.1.3. The Series shall include, without limitation, those Series specifically established and designated in Section 3.2.3 hereof, and such other Series as the Trustees may deem necessary or desirable. The Trustees shall have exclusive power, without the requirement of Shareholder approval, from time to time, to establish and designate separate and distinct Series, and, subject to the provisions of this Declaration of Trust and the 1940 Act, to fix and determine the rights of Shareholders of Shares in such Series. If only one Series shall be established, unless provided for otherwise, the Shares shall have the rights and preferences provided for herein and in Section 3.4 hereof to the extent relevant.
3.1.4. This Trust is a series trust pursuant to Sections 3804(a) and 3806(b) of the Delaware Act, and each Series shall be a separate series of the Trust within the meaning of Section 3806(b)(2) of the Delaware Act. As such, separate and distinct records shall be maintained for each Series and the assets of the Trust associated with each Series shall be held in such separate and distinct records (directly or indirectly, including through a nominee or otherwise) and accounted for in such separate and distinct records separately from the other assets of the Trust or any other Series.
3.1.5. The debts, liabilities, obligations and expenses incurred, contracted for or otherwise existing with respect to each Series shall be enforceable against the assets of such Series only, and not against the assets of the Trust generally or the assets of any other Series nor shall the assets of any Series be charged with the debts, liabilities, obligations and expenses incurred, contracted for or otherwise existing with respect to another Series, or, except as otherwise provided herein, the Trust generally.
3.2 Establishment and Designation of Series and Classes.
(a) each Class may be subject to separate charges, each as determined by the Trustees;
(b) class expenses allocated to a Class for which such expenses were incurred shall be borne solely by that Class;
(c) other expenses, costs, charges and reserves allocated to a Class in accordance with Section 3.4.2 may be borne solely by that Class, provided that the allocation of such other expenses, costs, charges and reserves is not specifically required to be set forth in a plan adopted by the Trust;
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(d) dividends declared and payable to a Class pursuant to Section 3.4.3 shall reflect the items separately allocated thereto pursuant to the preceding clauses; and
(e) each Class may have separate rights to convert to another Class, exchange rights, and similar rights, each as determined by the Trustees.
3.4.1. Assets Held with Respect to a Particular Series or Class.
(a) Specific Assets. All consideration received by the Trust for the issue or sale of Shares of a particular Series, including dividends and distributions paid by, and reinvested in, such 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, 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.
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(b) General Assets. In the event that there are any assets, income, earnings, profits and proceeds thereof, or any funds or payments derived from any reinvestment of such proceeds, 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 Asset 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 in the absence of manifest error.
(c) Class Proportionate Interests. Each Class of a Series shall have a Proportionate Interest in the net assets belonging to that Series. References herein to assets, expenses, charges, costs and reserves “allocable” or “allocated” to a particular Class of a Series shall mean the aggregate amount of such items held with respect to such Series multiplied by the Class’s Proportionate Interest.
3.4.2. Liabilities Held with Respect to a Particular Series or Class.
(a) Specific Liabilities. The assets of the Trust held with respect to each Series shall be charged with the liabilities of the Trust with respect to such Series and all expenses, costs, charges and reserves attributable to such Series. Class Expenses shall, in all cases, be allocated to the Class for which such Class Expenses were incurred.
(b) General Liabilities. Any general liabilities, expenses, costs, charges or reserves of the Trust or any Series that are not readily identifiable as belonging to a particular Series or any particular Class thereof shall be allocated and charged by the Trustees, between or among any one or more of the Series or Classes in such manner and on such basis as the Trustees in their sole discretion deem fair and equitable. Each allocation of liabilities, expenses, costs, charges and reserves by the Trustees shall be conclusive and binding upon the Shareholders of all Series for all purposes in the absence of manifest error.
(c) Claims of Creditors. All Persons who have extended credit which has been allocated to a particular Series, or who have a claim or contract which has been allocated to a Series, shall look exclusively to the assets held with respect to such Series for payment of such credit, claim, or contract. None of the debts, liabilities, obligations and expenses incurred, contracted or otherwise existing with respect to the Trust generally which have not been allocated to a specified Series, or with respect to any other Series, shall be enforceable against the assets of such specified Series.
(d) Each creditor, claimant and contracting party shall be deemed nevertheless to have agreed to such limitation unless an express provision to the contrary has been incorporated in the written contract or other document establishing the contractual relationship.
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3.4.3. Dividends, Distributions, and Repurchases.
All dividends and other distributions on Shares of a particular Series or Class shall be distributed pro rata to the Shareholders of such Series or Class, as the case may be, in proportion to the number of Shares of such Series or Class they held on the record date established for such payment, provided that such dividends and other distributions on Shares of a Class shall appropriately reflect Class Expenses and other expenses allocated to that Class.
(a) if a matter to be voted on affects only the interests of certain Series, then only the Shareholders of such affected Series shall be entitled to vote on the matter;
(b) if a matter to be voted on affects only the interests of a single Series, then only the Shareholders of such Series shall be entitled to vote on the matter;
(c) if a matter to be voted on affects only the interests of certain Classes, then only the Shareholders of such affected Classes shall be entitled to vote on the matter; and
(d) if a matter to be voted on affects only the interests of a single Class, then only the Shareholders of such Class shall be entitled to vote on the matter.
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3.4.7. Pre-Emptive Rights. Shareholders shall have no pre-emptive or other right to subscribe to any additional Shares or other securities issued by the Trust or any Series.
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3.8 Status of Shares; Limitation of Personal Liability and Indemnification of Shareholders.
3.8.1. Shares shall be deemed to be personal property giving only the rights provided in this Declaration of Trust, the By-Laws of the Trust and the resolutions of the Board of Trustees. Every Shareholder by virtue of having become a Shareholder shall be held to have expressly assented and agreed to the terms thereof. The death of a Shareholder during the existence of the Trust shall not operate to terminate the Trust, nor entitle the representative of any deceased Shareholder to an accounting or to take any action in court or elsewhere against the Trust or the Trustees, but shall entitle such representative only to the rights of said deceased Shareholder under this Declaration of Trust. Ownership of Shares shall not entitle a 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 or joint venturers except as specifically provided for pursuant to Article 3 herein or by resolution of the Board of Trustees.
3.8.2. No Shareholder shall be personally liable for the debts, liabilities, obligations and expenses incurred by, contracted for, or otherwise existing with respect to, the Trust or any Series. Neither the Trust nor the Trustees, nor any officer, employee or agent of the Trust shall have any power to bind personally any Shareholder, or 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 agree to pay. Shareholders shall have the same limitation of personal liability as is extended to shareholders of private corporations for profit organized under the general corporation law of the State of Delaware.
3.8.3. 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 out of the assets belonging to the applicable Series to be held harmless from and indemnified against all loss and expense arising from such liability. The Trust, on behalf of the affected Series, shall, upon request by such Shareholder, assume the defense of any such claim made against such Shareholder for any act or obligation of the Series and satisfy any judgment thereon from the assets of the Series.
Article 4
THE BOARD OF TRUSTEES
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Article 5
POWER OF THE TRUSTEES
5.1 Management of the Trust. The Trustees shall have exclusive and absolute control over the Trust Property and over the business of the Trust to the extent as if the Trustees were the sole owners of the Trust Property and business in their own right, but with such powers of delegation as may be permitted by this Declaration of Trust. The Trustees shall have power to conduct the business of the Trust and carry on its operations in any and all of its branches and maintain offices both within and without the State of Delaware, in any and all states of the United States of America, in the District of Columbia, in any and all commonwealths, territories, dependencies, colonies, or possessions of the United States of America, and in any and all foreign jurisdictions and to do all such other things and execute any and all such instruments that they may consider desirable, necessary or appropriate in order to promote the interests of the Trust although such things are not herein specifically mentioned. Any determination as to what is in the interests of the Trust made by the Trustees in good faith shall be conclusive. In construing the provisions of this Declaration of Trust, the presumption shall be in favor of a grant of power to the Trustees and unless otherwise specified herein or required by the 1940 Act or other applicable law, any action by the Board of Trustees shall be deemed effective if approved or taken by a majority of the Trustees then in office or a majority of any duly constituted committee of Trustees. The enumeration of any specific power in this Declaration of Trust shall not be construed as limiting the aforesaid power. The powers of the Trustees may be exercised without order of or resort to any court or other authority.
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(a) a majority of the Trustees or the members of the committee (as the case may be) present at a meeting at which a quorum is present, including any meeting held by means of a conference telephone connection or similar communications equipment by means of which all persons participating in the meeting can hear each other; or
(b) a written consent signed by a majority of the Trustees, or members of the committee, as the case may be, filed with the minutes of the proceedings of the Board of Trustees, or committee.
5.3.1. To operate as, and to carry on the business of, an investment company, and exercise all the powers necessary and appropriate to the conduct of such operations;
5.3.2. To invest and reinvest cash and cash items, 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 all types of securities (as used herein to include any and all investments), futures contracts and options thereon, and forward currency contracts of every nature and kind, including, without limitation, all types of bonds, debentures, stocks, preferred 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, the government of the United States and any agencies or instrumentalities thereof, 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 organization, 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, futures contracts and options thereon, and forward currency contracts; 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;
5.3.3. To sell, exchange, lend, pledge, mortgage, hypothecate, lease, or write options with respect to or otherwise deal in any property rights relating to any or all of the assets of the Trust or any Series;
5.3.4. 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;
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5.3.5. To exercise powers and rights of subscription or otherwise which in any manner arise out of ownership of securities or property;
5.3.6. To hold any security or property in a form not indicating that it is Trust Property, whether in bearer, book entry, 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 or to authorize the custodian or a subcustodian or a nominee or nominees to deposit the same in a securities depository, subject in each case to the applicable provisions of the 1940 Act;
5.3.7. 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;
5.3.8. 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;
5.3.9. To litigate, compromise, arbitrate, settle or otherwise adjust claims in favor of or against the Trust or a Series, or any matter in controversy, including but not limited to claims for taxes;
5.3.10. To enter into joint ventures, general or limited partnerships and any other combinations or associations;
5.3.11. To borrow funds or other property in the name of the Trust or Series exclusively for Trust purposes;
5.3.12. 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;
5.3.13. Subject to Article 9, to purchase and pay for entirely out of Trust Property such insurance as the Trustees may deem necessary, desirable 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, Trustees, officers, employees, agents, any Investment Manager, Principal Underwriter, 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 taken or omitted, or alleged to have been taken or omitted, by any such Person as Trustee, officer, employee, agent, Investment Manager, Principal Underwriter, or independent contractor, including any action taken or omitted that may be determined to constitute negligence;
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5.3.14. Subject to the provisions of Section 3804 of the Delaware Act, to allocate assets, liabilities and expenses of the Trust to a particular Series or to apportion the same between or among two or more Series, provided that any liabilities or expenses incurred by a particular Series shall be payable solely out of the assets of that Series;
5.3.15. To adopt, establish and carry out pension, profit-sharing, share bonus, share purchase, savings, thrift and other retirement, incentive and benefit plans, trusts and provisions, 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;
5.3.16. To adopt, amend and repeal By-Laws not inconsistent with this Declaration of Trust providing for the regulation and management of the affairs of the Trust;
5.3.17. To elect and remove such officers and appoint and terminate such agents as they consider appropriate;
5.3.18. To appoint from their own and establish and terminate one or more committees consisting of two or more Trustees who may exercise the powers and authority of the Board of Trustees to the extent that the Trustees determine and to adopt a committee charter providing for such responsibilities;
5.3.19. Subject to the 1940 Act and in accordance with Section 6.1, to retain one or more Investment Managers to manage the assets of the Trust (or any Series) and to authorize such Investment Managers to employ one or more sub-advisers;
5.3.20. In accordance with Section 6.4, to employ one or more custodians of the assets of the Trust and to 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;
5.3.21. In accordance with Section 6.4, to retain, as applicable for a Series depending on its status as Mutual Fund Series or ETF Series, one or more transfer agents, index receipt agents, registrars, and/or similar agents (which in the case of an ETF Series may be the DTC or the like) Shareholder servicing agents, dividend (disbursing) agents, securities lending agents, accounting agents, auditors, counsel, market makers, Exchange specialists, listing and similar agents and entities, and intraday indicative value calculation agents of the ETF Series, among others;
5.3.22. Subject to the 1940 Act and in accordance with Section 6.2, to provide for the issuance and distribution of Shares by the Trust directly or through one or more Principal Underwriters or otherwise and to arrange for the listing and trading of Shares of the ETF Series on one or more Exchanges;
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5.3.23. To 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;
5.3.24. To establish and terminate from time to time one or more separate and distinct Series and Classes with separately defined investment objectives and policies and distinct investment purposes in accordance with Article 3 hereof;
5.3.25. To interpret the investment policies, practices or limitations of any Series;
5.3.26. To 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, administrator, transfer or servicing agents, Investment Manager or Principal Underwriter;
5.3.27. In general to carry on any other business in connection with or incidental to any of the foregoing powers, to do everything necessary, suitable or proper for the accomplishment of any purpose or the attainment of any object or the furtherance of any power set forth herein, either alone or in association with others, and to do every other act or thing incidental or appurtenant to or arising from the businesses, purposes, objects or powers set forth above.
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.
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Article 6
SERVICE CONTRACTS
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6.5 Validity of Contracts. The fact that:
(a) 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 Person 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 be made, or
(b) any Person 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 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, or has other business or interests with any other Person, 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 applicable requirements of the 1940 Act.
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Article 7
SHAREHOLDERS’ VOTING POWERS AND MEETINGS
7.1 Voting Powers. The Shareholders shall have the right to vote only:
(a) for removal of Trustees as provided in Section 4.2 hereof;
(b) with respect to such additional matters relating to the Trust as may be required by applicable provisions of law, including the 1940 Act;
(c) with respect to matters specified in Section 10.2; and
(d) on such other matters as the Trustees may consider necessary or desirable.
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. There shall be no cumulative voting in the election of Trustees. Shares may be voted in person or by proxy. A proxy purporting to be executed by or on behalf of a Shareholder shall be deemed valid unless challenged at or prior to its exercise and the burden of proving invalidity shall rest on the challenger.
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Article 8
NET ASSET VALUE, AND DISTRIBUTIONS
8.1 Determination of Net Asset Value, Net Income, and Distributions.
8.1.1. The Trustees, in their absolute discretion, may prescribe and shall set forth in the By-laws or in a duly adopted resolution of the Trustees such bases and time for determining the net asset value of the Shares of any Series and the net income attributable to the Shares of any Series and the declaration and payment of dividends and distributions on the Shares of any Series, as they may deem necessary or desirable. The Trustees may designate the investment adviser or other person as “valuation designee” within the meaning of Rule 2a-5 under the 1940 Act, and such valuation designee shall have such power and authority as is delegated to it by the Board of Trustees and is consistent with the 1940 Act.
8.1.2. For the ETF Series, in the event that the Trust, a Series or Class sells or redeems Shares at a Net Asset Value per Share that is subsequently determined not to have been calculated in accordance with the applicable methods and procedures established by the Trustees (“Initial Net Asset Value per Share”) and the Trust’s officers and or agents determine to reprocess such sales and redemptions at the Net Asset Value per Share calculated in accordance with the applicable methods and procedures established by the Trustees (“Final Net Asset Value per Share”), the Trust, Series or Class, as the case may be, shall have no liability, based on any difference between the Initial Net Asset Value per Share and the Final Net Asset Value per Share, to any Shareholder who did not purchase their Shares directly from the Trust, or redeem their Shares directly to the Trust, at the Initial Net Asset Value per Share.
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8.2 Redemptions and Repurchases.
8.2.1. With respect to any Mutual Fund Series, in the event any Shareholder of record desires to dispose of its Shares, the Shareholder may deposit at the office of the transfer agent or other authorized agent of the Trust a written request or such other form of request, including, but not limited to, electronic mail, as the Trustees may from time to time authorize, requesting that the Trust purchase (i.e., redeem) the Shares in accordance with this Article 8; and the Shareholder so requesting shall be entitled to require the applicable Series to purchase, and the Trust or the Principal Underwriter of the Trust shall purchase, said Shares, but only at the Net Asset Value thereof, less such charges as are determined by the Trustees and described in the Trust’s Registration Statement under the Securities Act of 1933, as amended, or any Prospectus or Statement of Additional Information contained therein, as supplemented. The Series shall make payment for any such Shares to be redeemed, as aforesaid, in cash (to the extent required by federal law) and securities from the assets of that Series, and payment for such Shares shall be made to the Shareholder within seven (7) days, or such other period as permitted by the Commission or the 1940 Act, or any rules or regulations adopted by the Commission or interpretative releases of the Commission or its staff, after the date upon which the request is received in proper form or as otherwise determined by the Trustees. If Shares being redeemed have been purchased by check, the Series may postpone payment until the Trust has assurance that good payment has been collected for the purchase of the Shares. The Trust may require Shareholders to pay a sales charge to the Trust, the Principal Underwriter, or any other person designated by the Trustees upon redemption or repurchase of Shares or any Series or Class in such amount as shall be determined from time to time by the Trustees. The amount of such sales charge may, but need not, vary depending on various factors including, without limitation, the holding period of the redeemed or repurchased Shares. The Trustees may also charge a redemption or repurchase fee in such amount as may be determined from time to time by the Trustees to the extent consistent with the 1940 Act or any rules or regulations adopted by the Commission or interpretative releases of the Commission or its staff.
8.2.2. With respect to any ETF Series, in case any Shareholder desires to dispose of its Shares, the Shareholder may deposit at the office of the transfer or similar agent or other authorized agent of the Trust a written request or such other form of request as the Trustees may from time to time authorize, requesting that the Trust purchase (i.e., redeem) the Shares in accordance with this Section 8; and the Shareholder so requesting shall be entitled to require the applicable ETF Series to purchase, and the applicable ETF Series shall purchase, said Shares, but (i) only at the Net Asset Value thereof, (ii) only if the Shareholder tenders one or more whole Creation Units of Shares, to the extent that the Trustees have determined that the applicable ETF Series will sell and purchase (i.e., redeem) Shares in certain aggregations thereof (“Creation Units”), and (iii) only if the Shareholder has complied with such other procedures as have been established for the redemption of such Shares. All such redemptions will be subject to such charges (“transaction fees”) as are determined by the Trustees and described in the Trust’s Registration Statement under the Securities Act of 1933, as amended, or any Prospectus or Statement of Additional Information contained therein, as supplemented. The Trustees shall have the unrestricted power, and may delegate the power to Trust officers as deemed appropriate, to determine from time to time the number of Shares constituting a Creation Unit for each ETF Series and the maximum transaction fee to be charged by each ETF Series, provided that such amount is consistent with the 1940 Act or any rules or regulations adopted by the Commission or interpretative releases of the Commission or its staff. The ETF Series shall make payment for any such Shares to be redeemed, as aforesaid, in cash and/or securities from the assets of that Series, and the payment for such Shares shall be made to the Shareholder within seven (7) days, or such other period as permitted by the Commission or the 1940 Act, or any rules or regulations adopted by the Commission or interpretative releases of the Commission or its staff, after the date upon which the request is received in proper form or as otherwise determined by the Trustees. In the event of any ETF Class, the provisions of this Article 8, to the extent applicable as determined in the discretion of the Trustees and consistent with applicable law, may, but need not, be equally applied thereto.
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8.3 Redemptions at the Option of the Trust.
8.3.1. The Trustees may require Shareholders to redeem Shares of a Mutual Fund Series for any reason under terms set by the Trustees, including, but not limited to, (i) the failure of a Shareholder to supply a tax identification or similar number if requested to do so, including to facilitate the Trust or a Series’ compliance with applicable law or regulation (ii) the failure of a Shareholder to pay when due for the purchase of Shares issued to him, (iii) the failure to maintain a minimum account balance as may be established by the Trustees, (iv) if the Share activity of the account or ownership of Shares by a particular Shareholder is deemed by the Trustees either to affect adversely the Trust or any Series or Class or not to be in the best interests of the remaining Shareholders of the Trust or any Series or Class, (v) the direct or indirect ownership of Shares of the Trust or any Series has or may become concentrated in such Shareholder or group of Shareholders to an extent that would disqualify any Series as a regulated investment company under the Internal Revenue Code of 1986, as amended (successor statute thereto); (vi) if a Shareholder fails to meet or maintain the qualifications for ownership of Shares of a particular Series or Class. The redemption shall be effected at the redemption price and in the manner provided in this Article 8.3.1; or (vii) if otherwise necessary to comply with applicable law or advisable to further the purpose for which the Trust was established.
8.3.2. The Trustees may cause the Trust to redeem the Shares of an ETF Series or Class held by a Shareholder at the redemption price that would be applicable if such Shares were then being redeemed by the Shareholder pursuant to Article 8.2.2, upon such conditions as may from time to time be determined by the Trustees. The Trustees may require any Shareholder or group of Shareholders (including some or all of the shareholders of any Series or Class) to redeem Shares for any reason as may be determined by the Trustees in their sole discretion, including when: (i) the direct or indirect ownership of Shares of the Trust or any Series has or may become concentrated in such Shareholder or group of Shareholders to an extent that would disqualify any Series or the Trust as a regulated investment company under the Internal Revenue Code of 1986, as amended (successor statute thereto); (ii) the failure to supply a tax identification number or other identifying information to facilitate the Trust or a Series compliance with applicable law or regulation or impact the tax treatment of in-kind purchases of Creation Units; (iii) if the Share activity of the account or ownership of Shares is deemed either to affect adversely the Trust or any Series or not to be in the best interests of the remaining Shareholders of the Trust, any Series or Class; (iv) the failure of any Shareholder to pay when due the consideration for any purchase of Shares, including any purchase of any Creation Unit of Shares; (v) the failure of any Shareholder to tender Shares to the Trust or Series in connection with any redemption of Shares, including any redemption of any Creation Unit(s) of Shares; (vi) if a Shareholder fails to meet or maintain any qualifications applicable to holding, purchasing or redeeming Shares of the Trust, any Series or Class. Upon redemption of Shares pursuant to this Article [__]; or (vii) if otherwise necessary to comply with applicable law or advisable to further the purpose for which the Trust was established.
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8.3.3. In the event of any Redemption at the Option of the Trust, the Trust shall promptly cause payment of the full redemption price to be made to such Shareholder for Shares so redeemed; provided that to the extent permitted by law, the Trustees may retain the proceeds of any redemption of Shares required by them for payments of amounts due and owing by a Shareholder to the Trust or any Series.
Article 9
LIMITATION OF LIABILITY; INDEMNIFICATION
9.1.2. Every note, bond, contract, instrument, certificate or undertaking and every other act or thing whatsoever issued, executed or done by or on behalf of the Trust or the Trustees or any of them in connection with the Trust shall be conclusively deemed to have been issued, executed or done only in or with respect to their or his or her capacity as Trustees or Trustee, and such Trustees or Trustee shall not be personally liable thereon.
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9.2.1. Subject to Section 9.2.2, the Trust shall indemnify and hold harmless each and every Trustee and officer of the Trust and each former Trustee and officer of the Trust (each hereinafter referred to as a “Covered Person”) from and against any and all claims, demands, costs, losses, expenses, and damages whatsoever arising out of or related to such Covered Person’s performance of his or her duties as a Trustee or officer of the Trust or otherwise relating to any act, omission, or obligation of the Trust.
9.2.2. Indemnification pursuant to Section 9.2.1 shall be provided to a Covered Person if:
(a) the court or other body before which the proceeding was brought determines, in a final decision on the merits, that the Covered Person was not liable by reason of bad faith, willful misfeasance, gross negligence or reckless disregard of the duties involved in the conduct of that individual’s office; or (b) in the event of a settlement involving a payment by a Trustee, or officer or other disposition not involving a final adjudication as provided in paragraph (a) above resulting in a payment by a Covered Person, there has been either a determination that such Covered Person did not engage in bad faith, willful misfeasance, gross negligence or reckless disregard of the duties involved in the conduct of that individual’s office by the court or other body approving the settlement or other disposition or a reasonable determination, based upon a review of readily available facts (as opposed to a full trial-type inquiry) that that individual did not engage in such conduct:
(i) by vote of a majority of the Disinterested Trustees (as defined below) acting on the matter (provided that a majority of the Disinterested Trustees then in office act on the matter); or
(ii) by written opinion of legal counsel chosen by a majority of the Trustees and determined by them in their reasonable judgment to be independent.
9.2.3. The rights of indemnification herein provided may be insured against by policies maintained by the Trust, shall be severable, shall not affect any other rights to which any Covered Person may now or hereafter be entitled, shall continue as to a person who has ceased to be a Covered Person and shall inure to the benefit of the heirs, executors and administrators of such person. Nothing contained herein shall affect any rights to indemnification to which personnel, including Covered Persons, may be entitled by contract or otherwise under law.
9.2.4. Expenses of preparation and presentation of a defense to any claim, action, suit, or proceeding of the character described in Section 9.2.1 shall be advanced by the Trust prior to final disposition thereof upon receipt of an undertaking by or on behalf of the Covered Person to repay such amount if it is ultimately determined that the Covered Person is not entitled to indemnification under this Section 9.2, provided that either:
(a) such undertaking is secured by a surety bond or some other appropriate security or the Trust shall be insured against losses arising out of any such advances; or
(b) a majority of the Disinterested Trustees acting on the matter (provided that a majority of the Disinterested Trustees then in office act on the matter) or legal counsel selected as provided in Section 9.2.2(b)(ii) above in a written opinion, shall determine, based upon a review of readily available facts (as opposed to a full trial-type inquiry), that there is reason to believe that the Covered Person ultimately will be found entitled to indemnification.
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9.2.5. As used in this Section 9.2 in relation to any claim for indemnification or advances of expenses in relation to any claim, action, suit, or proceeding, a “Disinterested Trustee” is one (a) who is not an “Interested Person” of the Trust (including anyone who has been exempted from being an “Interested Person” by any rule, regulation or order of the Commission), and (b) against whom neither such claim, action, suit or proceeding nor another claim, action, suit or proceeding on the same or similar grounds is then or had been pending.
9.2.6. In making a determination under Section 9.2.2(b) as to whether a Covered Person engaged in the conduct described therein, or under Section 9.2.4(b) as to whether there is reason to believe that a Covered Person ultimately will be found entitled to indemnification, the Disinterested Trustees or legal counsel making the determination shall afford the Covered Person a rebuttable presumption that the Covered Person has not engaged in bad faith, willful misfeasance, gross negligence or reckless disregard of the duties involved in the conduct of the Covered Person’s office.
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(a) 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; and a demand on the Trustees shall only be deemed not likely to succeed and therefore excused if a majority of the 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 as a Trustee of the Trust or as a trustee or director of one or more investment companies that are under common management with or otherwise affiliated with the Trust; and
(b) unless a demand is not required under clause (a) of this sentence, the Trustees must be afforded a reasonable amount of time to consider such Shareholder request and to investigate the basis of such claim; and 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 Shareholder(s) 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. For purposes of this Section 9.6, the 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.
Article 10
TERMINATION; MERGER; REORGANIZATION
10.1.1. Upon termination of the Trust (or any Series or Class, as the case may be), after paying or otherwise providing for all charges, taxes, expenses and liabilities held, severally, with respect to each Series or Class (or the applicable Series or Class, as the case may be), whether due or accrued or anticipated as may be determined by the Trustees, the Trust shall, in accordance with such procedures as the Trustees consider appropriate, reduce the remaining assets held, severally, with respect to each Series or Class (or the applicable Series or Class, as the case may be), to distributable form in cash or shares or other securities, and any combination thereof, and distribute the proceeds held with respect to each Series or Class (or the applicable Series or Class, as the case may be), (a) to the Shareholders of a Series or Class not taxable as a partnership for federal income tax purposes, pro rata according to the number of Shares of that Series or Class held by the several Shareholders on the date of termination and, (b) to the Shareholders of a Series or Class, taxable as a partnership for federal income tax purposes, in accordance with the positive Book Capital Account balances of the Shareholders.
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Article 11
MISCELLANEOUS
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11.5.1. If any provision of this Declaration of Trust shall be held invalid or unenforceable in any jurisdiction, such invalidity or unenforceability shall attach only to such provision in such jurisdiction and shall not in any manner affect such provision in any other jurisdiction or any other provision of this Declaration of Trust in any jurisdiction.
[signature page follows]
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IN WITNESS WHEREOF, the Trustees named below, being all of the Trustees of the Trust, do hereby make and enter into this Second Amended and Restated Agreement and Declaration of Trust of the Trust as of the date set forth above.
Xxxxxxxx X. Xxxxxxx | |
Xxxxxx X. Xxxxxxxxx | |
Xxxxx Xxxxxx | |
Xxxxx X. Xxxxxxx | |
Xxxxxxx X. Xxxxx |
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