AGREEMENT AND DECLARATION OF TRUST
OF
INVESTBIO OPPORTUNITY TRUST
A DELAWARE BUSINESS TRUST
TABLE OF CONTENTS
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ARTICLE I NAME AND DEFINITIONS 1
SECTION 1. NAME 1
SECTION 2. DEFINITIONS 1
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. INVESTMENTS IN THE TRUST 4
SECTION 4. STATUS OF SHARES AND LIMITATION OF PERSONAL LIABILITY 4
SECTION 5. ESTABLISHMENT AND DESIGNATION OF SERIES OR CLASS 5
SECTION 6. ASSENT TO AGREEMENT 7
ARTICLE IV TRUSTEES 7
SECTION 1. NUMBER, ELECTION AND TENURE 8
SECTION 2. VACANCIES; APPOINTMENT OF TRUSTEES 8
SECTION 3. TEMPORARY VACANCY OR ABSENCE 8
SECTION 4. EFFECT OF TRUSTEES NOT SERVING 8
SECTION 5. POWERS 9
SECTION 6. PAYMENT OF EXPENSES BY THE TRUST 13
SECTION 7. OWNERSHIP OF ASSETS OF THE TRUST 13
SECTION 8. CERTAIN TRANSACTIONS 13
SECTION 9. TRUSTEES AND OFFICERS AS SHAREHOLDERS 14
SECTION 10. COMPENSATION 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
ARTICLE VI CONTRACTS WITH SERVICE PROVIDERS 15
SECTION 1. INVESTMENT ADVISER 15
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SECTION 2. PRINCIPAL UNDERWRITER 15
SECTION 3. TRANSFER AGENCY, SHAREHOLDER SERVICES, AND ADMINISTRATION AGREEMENTS 15
SECTION 4. CUSTODIAN 16
SECTION 5. PARTIES TO CONTRACTS WITH SERVICE PROVIDERS 16
ARTICLE VII NET ASSET VALUE, DISTRIBUTIONS AND REDEMPTIONS 16
SECTION 1. DISTRIBUTIONS 16
SECTION 2. DETERMINATION OF NET ASSET VALUE 16
SECTION 3. REDEMPTIONS AND REPURCHASES 17
SECTION 4. SUSPENSION OF RIGHT OF REDEMPTION 17
ARTICLE VIII LIMITATION OF LIABILITY AND INDEMNIFICATION 18
SECTION 1. LIMITATION OF LIABILITY 18
SECTION 2. INDEMNIFICATION OF COVERED PERSONS 18
SECTION 3. INDEMNIFICATION OF SHAREHOLDER 18
ARTICLE IX MISCELLANEOUS 19
SECTION 1. LIABILITY OF THIRD PERSONS DEALING WITH TRUSTEES 19
SECTION 2. TRUSTEE'S GOOD FAITH ACTION, EXPERT ADVICE, NO BOND OR SURETY 19
SECTION 3. TERMINATION OF THE TRUST OR ANY SERIES OR CLASS 19
SECTION 4. REORGANIZATION 20
SECTION 5. AMENDMENTS 20
SECTION 6. FILING OF COPIES, REFERENCES, HEADINGS 21
SECTION 7. APPLICABLE LAW 21
SECTION 8. PROVISIONS IN CONFLICT WITH LAW OR REGULATIONS 22
SECTION 9. BUSINESS TRUST ONLY 22
SECTION 10. TAXATION 22
SECTION 11. SHAREHOLDERS' RIGHT TO INSPECT SHAREHOLDER LIST 23
SECTION 12. FISCAL YEAR 23
SECTION 13. SEVERABILITY 23
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AGREEMENT AND DECLARATION OF TRUST
OF
INVESTBIO OPPORTUNITY TRUST
THIS AGREEMENT AND DECLARATION OF TRUST is made and entered into as of the
date set forth below by the Trustees named hereunder for the purpose of forming
a
Delaware business trust in accordance with the provisions hereinafter set
forth.
WHEREAS, the Trustees desire to create a business trust pursuant to the
Delaware Act for the investment and reinvestment of funds contributed thereto;
NOW, THEREFORE, the Trustees hereby direct that the Certificate of Trust be
filed with the Office of the Secretary of State of the State of
Delaware and do
hereby declare that the Trustees will hold IN TRUST all cash, securities, and
other assets which the Trust now possesses or may hereafter acquire from time to
time in any manner and manage and dispose of the same upon the following terms
and conditions for the benefit of the holders of Shares of this Trust.
ARTICLE I
NAME AND DEFINITIONS
SECTION 1. NAME. This Trust shall be known as the
InvestBio Opportunity
Trust and the Trustees shall conduct the business of the Trust under that name
or any other name as they may from time to time determine. However, should the
Trustees determine that the use of the name of the Trust is not advisable, they
may select such other name for the Trust as they deem proper and the Trust may
hold its property and conduct its activities under such other name. Any name
change shall become effective upon the execution by a majority of the then
Trustees of an instrument setting forth the new name and the filing of a
certificate of amendment pursuant to Section 3810(b) of the
Delaware Act. Any
such instrument shall not require the approval of the Shareholders, but shall
have the status of an amendment to this Declaration of Trust. The Trust shall
constitute a
Delaware business trust in accordance with the
Delaware Act and
this Declaration of Trust shall constitute the governing instrument of the
Trust.
SECTION 2. DEFINITIONS. Whenever used herein, unless otherwise required by
the context or specifically provided:
(a) "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;
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(b) "Certificate of Trust" means the certificate of trust, as amended
or restated from time to time, filed by the Trustees in the Office of the
Secretary of State of the State of
Delaware in accordance with the
Delaware
Act;
(c) "Class" means a class of Shares of a Series of the Trust
established in accordance with the provisions of Article III hereof;
(d) "Commission" shall have the meaning given such term in the
1940 Act;
(e) "Covered Person" means every person who is, or has been, a Trustee
or an officer or employee of the Trust;
(f) "Declaration of Trust" means this Agreement and Declaration of
Trust, as amended or restated from time to time;
(g) "Delaware Act" means Chapter 38 of Title 12 of the Delaware Code,
as amended from time to time;
(h) "Interested Person" shall have the meaning given such term in
Section 2(a) of the 1940 Act;
(i) "Net Asset Value" means the net asset value of each Series of the
Trust, determined as provided in Article VII, Section 2;
(j) "Outstanding Shares" means Shares shown on the books of the Trust
or its transfer agent as then issued and outstanding, but does not include
Shares which have been repurchased or redeemed by the Trust;
(k) "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;
(l) "Registered Investment Company" means a company registered as a
management investment company under the 1940 Act;
(m) "Principal Underwriter" shall have the meaning given such term in
Section 2(a) of the 1940 Act;
(n) "Series" means each Series of Shares established and designated
under or in accordance with the provisions of Article III hereof;
(o) "Shareholder" means a record owner of outstanding Shares;
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(p) "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;
(q) "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;
(r) "Trustees" means the "Person" or "Persons" who have signed this
Declaration of Trust and all other Persons who may from time to time be
duly elected or appointed to serve as Trustees in accordance with the
provisions hereof, in each case so long as such Person shall continue in
office in accordance with the terms of this Declaration of Trust, and
reference herein to a Trustee or the Trustees shall refer to such Person or
Persons in his or her or their capacity as Trustees hereunder; and
(s) "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 or any Series or the Trustees on behalf of the
Trust or any Series.
(t) "1940 Act" means the Investment Company Act of 1940 and the rules
and regulations thereunder, all as amended from time to time;
ARTICLE II
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. In furtherance of the
foregoing, it shall be the purpose of the Trust to do everything necessary,
suitable, convenient or proper for the conduct, promotion and attainment of any
businesses and purposes which at any time may be incidental or may appear
conducive or expedient for the accomplishment of the business of an investment
company registered under the 1940 Act and which may be engaged in or carried on
by a trust organized under the Delaware Act, and in connection therewith the
Trust shall have and may exercise all of the powers conferred by the laws of the
State of Delaware upon a Delaware business trust.
ARTICLE III
SHARES
SECTION 1. DIVISION OF BENEFICIAL INTEREST. The beneficial interest in
the Trust shall be divided into Shares of one or more Series or Classes
established by the Trustees. The number of Shares of the Trust and of each
Series and Class is unlimited and each Share shall have a par value of $0.001
per Share. All Shares issued hereunder, including Shares issued in connection
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with a dividend or other distribution in Shares or a split or reverse split of
Shares, shall be fully paid and nonassessable. Shareholders shall have no
preemptive or other right to subscribe to any additional Shares or other
securities issued by the Trust. The Trustees shall have full power and
authority, in their sole discretion and without obtaining Shareholder approval:
to issue original or additional Shares and fractional Shares at such times and
on such terms and conditions as they deem appropriate; to establish and to
change in any manner Shares of any Series or Class with such preferences, terms
of conversion, voting powers, rights and privileges as the Trustees may
determine (but the Trustees may not change Outstanding Shares in a manner
materially adverse to the Shareholders of such Shares); to divide or combine the
Shares of any Series or Class into a greater or lesser number; to classify or
reclassify any unissued Shares of any Series or Class into one or more Series or
Classes of Shares; to abolish any one or more Series or Class of Shares; to
issue Shares to acquire other assets (including assets subject to, and in
connection with, the assumption of liabilities) and businesses; and to take such
other action with respect to the Shares as the Trustees may deem desirable.
SECTION 2. OWNERSHIP OF SHARES. The Ownership of Shares shall be recorded
on the books of the Trust or those of a transfer or similar agent for the Trust,
which books shall be maintained separately for the Shares of each Series or
Class of the Trust. No certificates certifying the ownership of Shares shall be
issued except as the Trustees may otherwise determine from time to time. The
Trustees may make such rules as they consider appropriate for the issuance of
Share certificates, the transfer of Shares of each Series or Class of the Trust
and similar matters. The record books of the Trust as kept by the Trust or any
transfer or similar agent, as the case may be, shall be conclusive as to the
identity of the Shareholders of each Series or Class of the Trust and as to the
number of Shares of each Series or Class of the Trust held from time to time by
each Shareholder.
SECTION 3. INVESTMENTS IN THE TRUST. Investments may be accepted by the
Trust from such Persons, at such times, on such terms, and for such
consideration, which may consist of cash or tangible or intangible property or a
combination thereof, as the Trustees from time to time may authorize. At the
Trustees' sole discretion, such investments, subject to applicable law, may be
in the form of cash or securities in which the affected Series is authorized to
invest, valued as provided in applicable law. Investments in a Series shall be
credited to each Shareholder's account in the form of full and fractional Shares
at the Net Asset Value per Share next determined after the investment is
received or accepted in good form as may be determined by the Trustees;
provided, however, that the Trustees may, in their sole discretion, (a) impose a
sales charge upon investments in any Series or Class, or (b) determine the Net
Asset Value per Share of the initial capital contribution. The Trustees shall
have the right to refuse to accept investments in any Series at any time without
any cause or reason therefor whatsoever.
SECTION 4. 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
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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 participation or
division of the same or for an accounting, nor shall the ownership of Shares
constitute the Shareholders as partners. No Shareholder shall be personally
liable for the debts, liabilities, obligations and expenses incurred by,
contracted for, or otherwise existing with respect to, the Trust or any Series.
Neither the Trust nor the Trustees, nor any officer, employee, or agent of the
Trust shall have any power to bind personally any 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. The Shareholders shall be entitled, to the
fullest extent permitted by applicable law, to the same limitation of personal
liability as is extended under the Delaware General Corporation Law to
stockholders of private corporations for profit. Every note, bond, contract, or
other undertaking issued by or on behalf of the Trust or the Trustees relating
to the Trust or to any Series shall include a recitation limiting the obligation
represented thereby to the Trust and its assets or to one or more Series and the
assets belonging thereto (but the omission of such a recitation shall not
operate to bind any Shareholder or Trustee of the Trust).
SECTION 5. ESTABLISHMENT AND DESIGNATION OF SERIES OR CLASS. The Trustees
hereby establish the Series listed in Schedule A attached hereto and made a part
hereof. The establishment and designation of each additional Series or Class of
Shares of the Trust 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 of the Trust,
whether directly in such resolution or by reference to another document
including, without limitation, any registration statement of Trust, or as
otherwise provided in such resolution. Shares of each Series or Class of the
Trust established pursuant to this Article III, unless otherwise provided in the
resolution establishing such Series or Class, shall have the following relative
rights and preferences:
(a) ASSETS HELD WITH RESPECT TO A PARTICULAR SERIES. All consideration
received by the Trust for the issue or sale of Shares of a particular
Series, together with all assets in which such consideration is invested or
reinvested, all income, earnings, profits, and proceeds thereof from
whatever source derived (including, without limitation, any proceeds
derived from the sale, exchange or liquidation of such assets and any funds
or payments derived from any reinvestment of such proceeds in whatever form
the same may be) shall irrevocably be held separately with respect to that
Series for all purposes, subject only to the rights of creditors of such
Series, from the assets of the Trust and every other 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
5
identifiable as assets held with respect to any particular Series
(collectively "General Assets"), the Trustees shall allocate such General
Assets to, between or among any one or more of the Series in such manner
and on such basis as the Trustees, in their sole discretion, deem fair and
equitable, and any General Assets so allocated to a particular Series shall
be held with respect to that Series. Each such allocation by the Trustees
shall be conclusive and binding upon the Shareholders of all Series for all
purposes. Separate and distinct records shall be maintained for each Series
and the assets held with respect to each Series shall be held and accounted
for separately from the assets held with respect to all other Series and
the General Assets of the Trust not allocated to such Series.
(b) LIABILITIES 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 with respect to that Series and all expenses,
costs, charges, and reserves attributable to that Series, except that
liabilities and expenses allocated solely to a particular Class shall be
borne by that Class. Any general liabilities of the Trust which are not
readily identifiable as being with respect to any particular Series or
Class shall be allocated and charged by the Trustees to and among any one
or more of the Series or Classes in such manner and on such basis as the
Trustees in their sole discretion deem fair and equitable. All liabilities,
expenses, costs, charges, and reserves so charged to a Series or Class are
herein referred to as "liabilities with respect to" that Series or Class.
Each allocation of liabilities, expenses, costs, charges, and reserves by
the Trustees shall be conclusive and binding upon the shareholders of all
Series or Classes for all purposes. Without limiting the foregoing, but
subject to the right of the Trustees to allocate general liabilities,
expenses, costs, charges or reserves as herein provided, the debts,
liabilities, obligations and expenses incurred, contracted for or otherwise
existing with respect to a particular Series shall be enforceable against
the assets held with respect to such Series only and not against the assets
of the Trust generally or against the assets held with respect to any other
Series. Notice of this contractual limitation on liabilities among Series
shall be set forth in the certificate of trust of the Trust (whether
originally or by amendment) as filed or to be filed in the Office of the
Secretary of State of the State of Delaware pursuant to the Delaware Act,
and upon the giving of such notice in the certificate of trust, the
statutory provisions of Section 3804 of the Delaware Act relating to
limitations on liabilities among Series (and the statutory effect under
Section 3804 of setting forth such notice in the certificate of trust)
shall become applicable to the Trust and each Series. Any person extending
credit to, contracting with or having any claim against any Series may look
only to the assets of that Series to satisfy or enforce any debt, with
respect to that Series. No Shareholder or former Shareholder of any Series
shall have a claim on or any right to any assets allocated or belonging to
any other Series.
(c) DIVIDENDS, DISTRIBUTIONS, REDEMPTIONS, AND REPURCHASES.
Notwithstanding any other provisions of this Declaration of Trust,
including, without limitation, Article VII, no dividend or distribution,
including, without limitation, any distribution paid upon termination of
the Trust or of any Series or Class with respect to, nor any redemption or
repurchase of, the Shares of any Series or Class, shall be effected by the
Trust other than from the assets held with respect to such Series, nor
shall any Shareholder or any
6
particular Series or Class otherwise have any right or claim against the
assets held with respect to any other Series except to the extent that such
Shareholder has such a right or claim hereunder as a Shareholder of such
other Series. The Trustees shall have full discretion, to the extent not
inconsistent with the 1940 Act, to determine which items shall be treated
as income and which items as capital, and each such determination and
allocation shall be conclusive and binding upon the Shareholders.
(d) EQUALITY. All the Shares of each particular Series shall represent
an equal proportionate interest in the assets held with respect to that
Series (subject to the liabilities with respect to that Series or Class
thereof and such rights and preferences as may have been established and
designated with respect to any Class within such Series), and each Share of
any particular Series shall be equal to each other Share of that Series.
With respect to any Class of a Series, each such Class shall represent
interests in the assets of that Series and have identical voting, dividend,
liquidation and other rights and the same terms and conditions, except that
expenses allocated to a Class may be borne solely by such Class as
determined by the Trustees and a Class may have exclusive voting rights
with respect to matters affecting only that Class.
(e) FRACTIONS. Any fractional Share of a Series or Class thereof,
shall carry proportionately all the rights and obligations of a whole Share
of that Series or Class, including rights with respect to voting, receipt
of dividends and distributions, redemption of Shares and termination of the
Trust.
(f) EXCHANGE PRIVILEGE. The Trustees shall have the authority to
provide that the holders of Shares of any Series or Class shall have the
right to exchange said Shares for Shares of one or more other Series of
Shares or Class of Shares of the Trust or of other investment companies
registered under the 1940 Act in accordance with such requirements and
procedures as may be established by the Trustees.
(g) COMBINATION OF SERIES. The Trustees shall have the authority,
without the approval of the Shareholders of any Series or Class unless
otherwise required by applicable law, to combine the assets and liabilities
with respect to any two or more Series or Classes into assets and
liabilities with respect to a single Series or Class.
SECTION 6. ASSENT TO AGREEMENT. Every Shareholder, by virtue of having
purchased a Share, shall be held to have expressly assented to, and agreed to be
bound by, the terms hereof. The death of a Shareholder during the continuance of
the Trust shall not operate to terminate the same 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 only to rights of said decedent
under this Trust.
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ARTICLE IV
TRUSTEES
SECTION 1. NUMBER, ELECTION AND TENURE. The number of Trustees shall
initially be three (3), who shall be Xxxxx X. Xxxxxx, Xxxxxx X. Xxxxxxx and
Xxxxxx Xxxxxxxx. Hereafter, the number of Trustees shall at all times be at
least two (2) and no more than twelve (12) as determined, from time to time, by
the Trustees pursuant to Section 5 of this Article IV. The Shareholders shall
elect the Trustees (other than the initial Trustees) on such dates as the
Trustees may fix from time to time. Shareholders shall not be required to elect
Trustees except as required by the 1940 Act or under this Declaration of Trust.
Each Trustee shall hold office for life or until his or her successor is
elected or the Trust terminates; except that (a) any Trustee may resign by
delivering to the other Trustees or to any Trust officer a written resignation
effective upon such delivery or a later date specified therein; (b) any Trustee
may be removed with or without cause at any time by a written instrument signed
by at least two-thirds of the other Trustees, specifying the effective date of
removal; (c) any Trustee who requests to be retired, or who has become
physically or mentally incapacitated or is otherwise unable to serve, may be
retired by a written instrument signed by a majority of the other Trustees,
specifying the effective date of retirement; and (d) any Trustee may be removed
at any meeting of the Shareholders by a vote of at least two-thirds of the
Outstanding Shares.
SECTION 2. VACANCIES; APPOINTMENT OF TRUSTEES. Whenever a vacancy shall
exist in the Board of Trustees, regardless of the reason for such vacancy, the
remaining Trustees shall appoint any person as they determine in their sole
discretion to fill that vacancy, consistent with the limitations under the 1940
Act. Such appointment shall be made by a written instrument signed by a majority
of the Trustees or by a resolution of the Trustees, duly adopted and recorded in
the records of the Trust, specifying the effective date of the appointment. The
Trustees may appoint a new Trustee as provided above in anticipation of a
vacancy expected to occur because of the retirement, resignation, or removal of
a Trustee, or an increase in number of Trustees, provided that such appointment
shall become effective only at or after the expected vacancy occurs. Upon the
appointment and/or election of a successor Trustee, the trust estate shall vest
in the new Trustee, together with the continuing Trustees, without any further
act or conveyance, and he or she shall be deemed a Trustee hereunder. The power
of appointment is subject to Section 16(a) of the 1940 Act.
SECTION 3. TEMPORARY VACANCY OR ABSENCE. Whenever a vacancy in the Board of
Trustees shall occur, until such vacancy is filled, or while any Trustee is
absent from his or her domicile (unless that Trustee has made arrangements to be
informed about, and to participate in, the affairs of the Trust during such
absence), or is physically or mentally incapacitated, the remaining Trustees
shall have all the powers hereunder and their certificate as to such vacancy,
absence, or incapacity shall be conclusive.
SECTION 4. EFFECT OF TRUSTEES NOT SERVING. The death, resignation,
retirement, removal, incapacity, or inability or refusal to serve of the
Trustees, or any one 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.
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SECTION 5. POWERS. Subject to the provisions of this Declaration of Trust,
the business of the Trust shall be managed by the Trustees. The Trustees shall
have exclusive and absolute control over the Trust Property and over the
business of the Trust to the same 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 all such
instruments as they deem necessary, proper or desirable 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.
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.
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 duly called meeting of Trustees (including
a meeting by telephonic or other electronic means, unless the 1940 Act requires
that a particular action be taken only at a meeting of the Trustees in person)
at which a quorum of Trustees is present or by unanimous written consent of the
Trustees (or by written consent of a majority of the Trustees if the President
of the Trust or, in his absence, the Chairman or any two Trustees determines
that such exceptional circumstances exist, and are of such urgency, as to make
unanimous written consent impossible or impractical, which determination shall
be conclusive and binding on all Trustees and not otherwise subject to
challenge) without a meeting. A majority of the Trustees shall constitute a
quorum at any meeting. Meetings of the Trustees may be called orally or in
writing by the President of the Trust or by any two Trustees. Notice of the
time, date, and place of all meetings of the Trustees shall be given to each
Trustee by telephone, facsimile, electronic-mail, or other electronic mechanism
sent to his or her home or business address at least twenty-four hours in
advance of the meeting or in person at another meeting of the Trustees or by
written notice mailed to his or her home or business address at least
seventy-two hours in advance of the meeting. Notice need not be given to any
Trustee who attends the meeting without objecting to the lack of notice or who
signs a waiver of notice either before or after the meeting. Subject to the
requirements of the 1940 Act, the Trustees by majority vote may delegate to any
Trustee or Trustees authority to approve particular matters or take particular
actions on behalf of the Trust. Any written consent or waiver may be provided
and delivered to the Trust by any means by which notice may be given to a
Trustee.
Without limiting the foregoing and subject to any applicable limitation in
this Declaration of Trust or the By-Laws, the Trustees shall have the power and
authority to cause the Trust (or to act on behalf of the Trust):
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(a) To operate as and carry on the business of a Registered Investment
Company, and exercise all the powers necessary and proper to conduct such a
business;
(b) To subscribe for, invest in, reinvest in, purchase, or otherwise
acquire, hold, pledge, sell, assign, transfer, exchange, distribute, or
otherwise deal in or dispose of any form of property, including cash (U.S.
currency), foreign currencies and related instruments, and securities
(including common and preferred stocks, warrants, bonds, debentures, time
notes, and all other evidences of indebtedness, negotiable or
non-negotiable instruments, obligations, certificates of deposit or
indebtedness, commercial paper, repurchase agreements, reverse repurchase
agreements, dollar rolls, convertible securities, forward contracts,
options, futures contracts, swaps, and other financial contracts or
derivative instruments) issued, guaranteed, or sponsored by any state,
territory, or possession of the United States or the District of Columbia
or their political subdivisions, agencies, or instrumentalities, or by the
U.S. government, any foreign government, or any agency, instrumentality, or
political subdivision thereof, or by any international instrumentality, or
by any bank, savings institution, corporation, or other business entity
organized under the laws of the United States (including a Registered
Investment Company or any series thereof, subject to the provisions of the
0000 Xxx) or under foreign laws, without regard to whether any such
securities mature before or after the possible termination of the Trust; 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; and to hold cash or other property uninvested, without in any
event being bound or limited by any current or future law or custom
concerning investments by trustees;
(c) To adopt By-Laws not inconsistent with this Declaration of Trust
providing for the conduct of the business of the Trust and to amend and
repeal them to the extent such right is not reserved to the Shareholders;
(d) To sell, exchange, or otherwise dispose of any or all of the
assets of the Trust or any Series subject to Article IX, Section 3 of this
Declaration of Trust;
(e) To vote or give assent, or exercise any rights of ownership, with
respect to 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;
(f) To exercise powers and right of subscription or otherwise which in
any manner arise out of ownership or securities;
(g) 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, subject in either case to safeguards according to
the usual practice of business trusts or investment companies;
10
(h) 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;
(i) 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;
(j) To borrow money or otherwise obtain credit and to secure the same
by mortgaging, pledging, or otherwise subjecting as security any assets of
the Trust, including the lending of portfolio securities, and to endorse,
guarantee or undertake the performance of any obligation, contract, or
engagement of any other person, firm, association, or corporation;
(k) To purchase, and pay for, out of Trust Property or the assets
belonging to any appropriate Series, insurance policies insuring the
Shareholders, Trustees, officers, employees, agents, and/or independent
contractors of the Trust (including the investment adviser of any Series)
against all claims arising by reason of holding any such position or by
reason of any action taken or omitted by any such person in such capacity,
whether or not the Trust would have the power to indemnify such person
against such claim;
(l) To establish committees for such purposes, with such membership,
and with such responsibilities as the Trustees may consider proper,
including a committee consisting of fewer than all of the Trustees then in
office, which may act for and bind the Trustees and the Trust with respect
to the institution, prosecution, dismissal, settlement, review or
investigation of any legal action, suit or proceeding, pending or
threatened to be brought before any court, administrative agency, or other
adjudicatory body;
(m) To establish a registered office and have a registered agent in
the State of Delaware;
(n) To issue, sell, repurchase, redeem, cancel, retire, acquire, hold,
resell, reissue, dispose of and otherwise deal in Shares; to establish
terms and conditions regarding the issuance, sale, repurchase, redemption,
cancellation, retirement, acquisition, holding, resale, reissuance,
disposition of or dealing in Shares; and, subject to Articles III and VI,
to apply to any such repurchase, redemption, retirement, cancellation or
acquisition of Shares any funds or property of the Trust or of the
particular Series with respect to which such Shares are issued;
(o) To declare and make distributions of income and of capital gains
to Shareholders in the manner hereinafter provided for;
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(p) To establish, from time to time, a minimum total investment for
Shareholders in the Trust or in one or more Series or Classes, and to
require the redemption of the Shares of any Shareholders whose investment
is less than such minimum or take such other action as the Trustees in
their discretion shall determine;
(q) 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;
(r) To enter into contracts of any kind and description;
(s) To employ as custodian of any assets of the Trust one or more
banks, trust companies or companies that are members of a national
securities exchange or such other entities as the Commission may permit as
custodians of the Trust, subject to any conditions set forth in this
Declaration of Trust or in the By-Laws;
(t) To elect and remove such officers and appoint and terminate such
agents as they deem appropriate;
(u) To retain one or more transfer agents and Shareholder servicing
agents, or both;
(v) To provide for the distribution of Shares either through a
Principal Underwriter as provided herein or by the Trust itself, or both,
or pursuant to a distribution plan of any kind;
(w) To set record dates in the manner provided for herein or in the
By-Laws;
(x) To delegate such authority as they consider desirable to any
officers of the Trust and to any agent, independent contractor, investment
adviser, custodian, administrator, underwriter or other service provider;
(y) To employ auditors, counsel or other agents of the Trust, subject
to any conditions set forth in this Declaration of Trust or in the By-Laws;
(z) To interpret the investment policies, practices, or limitations of
any Series or Class;
(aa) To establish separate and distinct Series with separately defined
investment objectives and policies and distinct investment purposes, and
with separate Shares representing beneficial interests in such Series, and
to establish separate Classes, all in accordance with the provisions of
Article III;
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(bb) To the full extent permitted by Section 3804 of the
Delaware Act, to allocate assets, liabilities and expenses of the Trust
to a particular Series and liabilities and expenses to a particular
Class or to apportion the same between or among two or more Series or
Classes, provided that any liabilities or expenses incurred by a
particular Series or Class shall be payable solely out of the assets
belonging to that Series or Class as provided for in Article III; and
(cc) 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.
SECTION 6. 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 any
Series, or partly out of the principal and partly out of income, and to charge
or allocate to, between or among such one or more Series (or Classes), as they
deem fair, all expenses, fees, charges, taxes and liabilities incurred or
arising in connection with the Trust or Series (or Class), 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, administrator, Principal Underwriter,
auditors, counsel, custodian, transfer agent, shareholder servicing agent, and
such other agents or independent contractors and such other expenses and charges
as the Trustees may deem necessary or proper to incur, which expenses, fees,
charges, taxes and liabilities shall be allocated in accordance with Article
III, Section 6 hereof.
SECTION 7. OWNERSHIP OF ASSETS OF THE TRUST. Title to all of the assets of
the Trust shall at all times be considered as vested in the Trust, except that
the Trustees shall have power to cause legal title to any Trust Property to be
held by or in the name of one or more of the Trustees, or in the name of the
Trust, or in the name of any other Person as nominee, on such terms as the
Trustees may determine. The right, title and interest of the Trustees in the
Trust Property shall vest automatically in each Person who may hereafter become
a Trustee. Upon the resignation, removal or death of a Trustee, he or she shall
automatically cease to have any right, title or interest in any of the Trust
Property, and the right, title and interest of such Trustee in the Trust
Property shall vest automatically in the remaining Trustees. Such vesting and
cessation of title shall be effective whether or not conveyancing documents have
been executed and delivered.
SECTION 8. CERTAIN TRANSACTIONS. Except as prohibited by applicable law,
the Trustees may, on behalf of the Trust, buy any securities from or sell any
securities to, or lend any assets of the Trust to, any Trustee or officer of the
Trust or any firm of which any such Trustee or officer is a member acting as
principal, or have any such dealings with any investment adviser, administrator,
distributor or transfer agent for the Trust or with any Interested Person of
such person. The Trust may employ any such person or entity in which such person
is an Interested
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Person, as broker, legal counsel, registrar, investment adviser, administrator,
distributor, transfer agent, dividend disbursing agent, custodian or in any
other capacity upon customary terms.
SECTION 9. TRUSTEES AND OFFICERS AS SHAREHOLDERS. Any Trustee, officer or
agent of the Trust may acquire, own and dispose of Shares to the same extent as
if he were not a Trustee, officer or agent; and the Trustees may issue and sell
and cause to be issued and sold Shares to, and redeem such Shares from, any such
Person or any firm or company in which such Person is interested, subject only
to the general limitations contained herein or in the By-Laws relating to the
sale and redemption of such Shares.
SECTION 10. COMPENSATION. The Trustees in such capacity shall be entitled
to reasonable compensation from the Trust and they may fix the amount of such
compensation. However, the Trust will not compensate those Trustees who are
Interested Persons of the Trust, its Adviser, subadvisers, distributor or
Principal Underwriter. Nothing herein shall in any way prevent the employment of
any Trustee for advisory, management, legal, accounting, investment banking or
other services and payment for such services by the Trust.
ARTICLE V
SHAREHOLDERS' VOTING POWERS AND MEETINGS
SECTION 1. VOTING POWERS, MEETINGS, NOTICE, AND RECORD DATES. The
Shareholders shall have power to vote only with respect to (a) the election of
Trustees as provided in Section 2 of this Article and Section 1 of Article IV;
(b) the removal of Trustees as provided in Article IV, Section 1(d); (c) any
investment advisory or management contract as provided in Article VI, Section 1;
(d) any termination of the Trust as provided in Article VIII, Section 3; (e) the
amendment of this Declaration of Trust to the extent and as provided in Article
VIII, Section 5; and (f) such additional matters relating to the Trust as may be
required or authorized by law, this Declaration of Trust, or the By-Laws or any
registration of the Trust with the Commission or any State, or as the Trustees
may consider desirable.
Each whole Share shall be entitled to one vote as 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, on any matters submitted to a vote of the Shareholders, all Shares of the
Trust then entitled to vote shall be voted in aggregate, except: (i) when
required by the 1940 Act, Shares shall be voted by individual Series; (ii) when
the matter involves 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 or in any manner provided for in the By-Laws. A proxy may be given in
writing. The By-Laws may provide that proxies may also, or may instead, be given
by an electronic or telecommunications device or in any other manner.
Notwithstanding anything else contained herein or in the By-Laws, in the event a
proposal by anyone other than the officers or Trustees of the Trust is submitted
to a vote of the Shareholders
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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 Trustees of the Trust, Shares may be voted only by written proxy
or in person 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.
SECTION 2. QUORUM AND REQUIRED VOTE. Except when a larger quorum is
required by applicable law, by the By-Laws or by this Declaration of Trust,
thirty-three and one-third percent (33-1/3%) of the Shares entitled to vote
shall constitute a quorum at a Shareholders' meeting. When any one or more
Series (or Class) is to vote as a single Series (or Class) separate from any
other Shares, thirty-three and one-third percent (33-1/3%) of the Shares of each
such Series (or Class) entitled to vote shall constitute a quorum at a
Shareholders' meting 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 shall decide that
matter insofar as that Series (or Class) is concerned.
ARTICLE VI
CONTRACTS WITH SERVICE PROVIDERS
SECTION 1. INVESTMENT ADVISER. The Trustees may enter into one or more
investment advisory or management contracts on behalf of the Trust or any
Series, providing for investment advisory services, statistical and research
facilities and services, and other facilities and services to be furnished to
the Trust or Series on terms and conditions acceptable to the Trustees. Any such
contract may provide for the investment adviser to effect purchases, sales or
exchanges of portfolio securities or other Trust Property on behalf of the
Trustees or may authorize any officer or agent of the Trust to effect such
purchases, sales or exchanges pursuant to recommendations of the investment
adviser. The Trustees may authorize the investment adviser to employ one or more
sub-advisers or servicing agents.
SECTION 2. PRINCIPAL UNDERWRITER. The Trustees may enter into contracts on
behalf of the Trust or any Series or Class, providing for the distribution and
sale of Shares by the other party, either directly or as sales agent, on terms
and conditions acceptable to the Trustees. The Trustees may adopt a plan or
plans of distribution with respect to Shares of any Series or Class and enter
into any related agreements, whereby the Series or Class finances directly or
indirectly any activity that is primarily intended to result in sales of its
Shares, subject to the requirements of Section 12 of the 1940 Act, Rule 12b-1
thereunder, and other applicable rules and regulations.
SECTION 3. TRANSFER AGENCY, SHAREHOLDER SERVICES, AND ADMINISTRATION
AGREEMENTS. The Trustees, on behalf of the Trust or any Series or Class, may
enter into transfer
15
agency agreements, Shareholder service agreements, and administration and
management agreements with any party or parties on terms and conditions
acceptable to the Trustees.
SECTION 4. CUSTODIAN. The Trustees shall at all times place and maintain
the securities and similar investments of the Trust and of each Series with a
custodian meeting the requirements of Section 17(f) of the 1940 Act and the
rules thereunder or as otherwise permitted by the Commission or its staff. The
Trustees, on behalf of the Trust or any Series, may enter into an agreement with
a custodian on terms and conditions acceptable to the Trustees, providing for
the custodian, among other things, (a) to hold the securities owned by the Trust
or any Series and deliver the same upon written order or oral order confirmed in
writing, (b) to receive and give a receipt for money paid for any moneys due to
the Trust or any Series and on behalf of the Trust or any Series, deposit the
same in its own banking department or elsewhere, (c) to disburse such funds upon
orders or vouchers, and (d) to employ one or more sub-custodians.
SECTION 5. PARTIES TO CONTRACTS WITH SERVICE PROVIDERS. The Trustees may
enter into any contracts with any entity, although one or more of the Trustees
or officers of the Trust may be an officer, director, trustee, partner,
shareholder, or member of such entity and no such contract shall be invalidated
or rendered void or voidable because of such relationship. No person having such
a relationship shall be disqualified from voting on or executing a contract in
his or her capacity as Trustee and/or Shareholder, or be liable merely by reason
of such relationship for any loss or expense to the Trust with respect to such a
contract or accountable for any profit realized directly or indirectly
therefrom; provided, that the contract was reasonable and fair and not
inconsistent with this Declaration of Trust or the By-Laws.
ARTICLE VII
NET ASSET VALUE, DISTRIBUTIONS AND REDEMPTIONS
SECTION 1. DISTRIBUTIONS. The Trustees may declare and pay dividends and
other distributions, including dividends on Shares of a particular Series and
other distributions from the assets belonging to that Series. The amount and
payment of dividends or distributions and their form, whether they are in cash,
Shares or other Trust Property, shall be determined by the Trustees. Dividends
and other distributions may be paid pursuant to a standing resolution adopted
once or more often as the Trustees determine. All dividends and other
distributions on Shares of a particular Series shall be distributed pro rata to
the Shareholders of that Series in proportion to the number of Shares of that
Series they held on the record date established for such payment, except that
such dividends and distributions shall appropriately reflect expenses allocated
to a particular Class of such Series. The Trustees may adopt and offer to
Shareholders such dividend reinvestment plans, cash dividend payout plans or
similar plans as the Trustees deem appropriate.
SECTION 2. DETERMINATION OF NET ASSET VALUE. The Trustees shall cause the
Net Asset Value of Shares of each Series or Class to be determined from time to
time in a manner consistent with applicable laws and regulations. The Trustees
may delegate the power and duty to determine Net Asset Value per Share to one or
more Trustees or officers of the Trust or to an
16
investment adviser, administrator, custodian, depository or other agent
appointed for such purpose. The Net Asset Value of Shares shall be determined
separately for each Series or Class at such times as may be prescribed by the
Trustees or, in the absence of action by the Trustees as of the close of
regular trading on the New York Stock Exchange on each day for all or part of
which such Exchange is open for regular trading.
SECTION 3. REDEMPTIONS AND REPURCHASES.
(a) 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
and subject to any applicable charges, fees or loads. Unless extraordinary
circumstances exist, payment for said Shares shall be made by the Trust to
the Shareholder in accordance with the 1940 Act and any rules and
regulations thereunder or as otherwise required by the Commission. 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 obligation 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.
(b) 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 or Class thereof
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 Adviser or other Person in transferring securities
selected for delivery as all or part of any payment-in-kind.
SECTION 4. SUSPENSION OF RIGHT OF REDEMPTION. If, as referred to in Section
3 of this Article, the Trustees postpone payment of the redemption price and/or
suspend the right of Shareholders to redeem their Shares, such suspension shall
take effect at the time the Trustees shall specify, but not later than the close
of business on the business day next following the declaration of suspension.
Thereafter Shareholders shall have no right of redemption or payment until the
Trustees declare the end of the suspension. If the right of redemption is
suspended, a
17
Shareholder may either withdraw his request for redemption or receive payment
based on the Net Asset Value per Share next determined after the suspension
terminates.
ARTICLE VIII
LIMITATION OF LIABILITY AND INDEMNIFICATION
SECTION 1. 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 VIII, for any act, omission
or obligation of the Trust, of such Trustee or of any other Trustee; provided,
however, that nothing contained herein or in the Delaware Act shall protect any
Trustee against any liability to the Trust or to any Shareholder to which he
would otherwise be subject by reason of willful misfeasance, bad faith, gross
negligence, or reckless disregard of the duties involved in the conduct of the
office of the Trustee hereunder.
All persons extending credit to, contracting with or having any claim
against the Trust or a particular Series shall look only to the assets of the
Trust or such Series for payment under such contract or claim; and neither the
Trustees nor any of the Trust's officers, employees or agents, whether past,
present or future, shall be personally liable therefor. Provided they have
exercised reasonable care and have acted under the reasonable belief that their
actions are in the best interest of the Trust, the Trustees and officers of the
Trust shall not be responsible or liable for any act or omission or for neglect
or wrongdoing of them or any officer, agent, employee, Adviser, or Principal
Underwriter of the Trust, but nothing contained in this Declaration of Trust or
in the Delaware Act shall protect any Trustee or officer of the Trust against
liability to the Trust or to Shareholders to which he or she would otherwise be
subject by reason of willful misfeasance, bad faith, gross negligence or
reckless disregard of the duties involved in the conduct of his or her office.
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 their capacity as Trustee or Trustees, and such Trustee or Trustees shall
not be personally liable thereon.
SECTION 2. INDEMNIFICATION OF COVERED PERSONS. Every Covered Person shall
be indemnified by the Trust to the fullest extent permitted by the Delaware Act
and other applicable law.
SECTION 3. INDEMNIFICATION OF SHAREHOLDER. If any Shareholder or former
Shareholder of any Series shall be held personally liable solely by reason of
his or her being or having been a Shareholder and not because of his or her acts
or omissions or for some other reason, the Shareholder or former Shareholder (or
his or her 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 claim made against such
18
Shareholder for any act or obligation of the Series and satisfy any judgment
thereon from the assets of the Series.
ARTICLE IX
MISCELLANEOUS
SECTION 1. LIABILITY OF THIRD PERSONS DEALING WITH TRUSTEES. No Person
dealing with the Trustees shall be bound to make any inquiry concerning the
validity of any transaction made or to be made by the Trustees or to see to the
application of any payments made or property transferred to the Trust or upon
its order.
SECTION 2. 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 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
have no liability for any act or omission in accordance with such advice or 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.
SECTION 3. TERMINATION OF THE TRUST OR ANY SERIES OR CLASS.
(a) 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.
(b) 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 may 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 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.
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(c) Upon termination of the Trust, following completion of winding up
of its business, the Trustees shall cause a certificate of cancellation of
the Trust's Certificate of Trust to be filed in accordance with the
Delaware Act, which Certificate of Cancellation may be signed by any one
Trustee.
SECTION 4. REORGANIZATION.
(a) 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 investment company as defined in the
1940 Act, or is a series thereof, that will succeed to or assume the
Trust's registration under the 1940 Act and that is formed, organized, or
existing under the laws of the United States or of a state, commonwealth,
possession or colony of the United States, unless otherwise permitted under
the 1940 Act, (ii) cause any one or more Series (or Classes) of the Trust
to merge or consolidate with or into any one or more other Series (or
Classes) of the Trust, one or more trusts (or series or classes thereof to
the extent permitted by law), partnerships, associations, corporations,
(iii) cause the Shares to be exchanged under or pursuant to any state or
federal statute to the extent permitted by law or (iv) cause the Trust to
reorganize as a corporation, limited liability company or limited liability
partnership under the laws of Delaware or any other state or jurisdiction.
Any agreement of merger or consolidation or exchange or certificate or
merger may be signed by a majority of the Trustees and facsimile signatures
conveyed by electronic or telecommunication means shall be valid.
(b) Pursuant to and in accordance with the provisions of Section
3815(f) of the Delaware Act, 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 4
may (i) effect any amendment to the governing instrument of the Trust or
(ii) effect the adoption of a new governing instrument of the Trust if the
Trust is the surviving or resulting trust in the merger or consolidation.
(c) The Trustees may create one or more 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 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 of classes thereof.
SECTION 5. AMENDMENTS. Except as specifically provided in this Section 5,
the Trustees may, without Shareholder vote, restate, amend, or otherwise
supplement this Declaration of Trust. Shareholders shall have the right to vote
on (i) any amendment that would affect their right to vote granted in Article V,
Section 1 hereof, (ii) any amendment to this Section 5; (iii) any
20
amendment that may require their vote under applicable law or by the Trust's
registration statement, as filed with the Commission, and (iv) any amendment
submitted to them for their vote by the Trustees. Any amendment required or
permitted to be submitted to the Shareholders that, as the Trustees determine,
shall affect the Shareholders of one or more Series shall be authorized by a
vote of the Shareholders of each Series affected and no vote of Shareholders of
a Series not affected shall be required. Notwithstanding anything else herein,
no amendment hereof shall limit the rights to insurance 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 VIII,
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 they deem necessary or desirable.
SECTION 6. FILING OF COPIES, REFERENCES, HEADINGS. The original or a copy
of this instrument and of each restatement and/or amendment hereto shall be kept
at the office of the Trust where it may be inspected by any Shareholder. Anyone
dealing with the Trust may rely on a certificate by an officer of the Trust as
to whether or not any such restatements and/or amendments have been made and as
to any matters in connection with the Trust hereunder; and, with the same effect
as if it were the original, may rely on a copy certified by an officer of the
Trust to be a copy of this instrument or of any such restatements and/or
amendments. In this instrument and in any such restatements and/or amendments,
references to this instrument, and all expressions such as "herein," "hereof,"
and "hereunder," shall be deemed to refer to this instrument as amended or
affected by any such restatements and/or amendments. Headings are placed herein
for convenience of reference only and shall not be taken as a part hereof or
control or affect the meaning, construction or effect of this instrument.
Whenever the singular number is used herein, the same shall include the plural;
and the neuter, masculine and feminine genders shall include each other, as
applicable. This instrument may be executed in any number of counterparts each
of which shall be deemed an original.
SECTION 7. APPLICABLE LAW.
(a) The Trust is created under, and this Declaration of Trust is to be
governed by, and construed and enforced in accordance with, the laws of the
State of Delaware. The Trust shall be of the type commonly called a
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.
(b) Notwithstanding the first sentence of Section 7(a) of this Article
IX, there shall not be applicable to the Trust, the Trustees, or this
Declaration of Trust either the provisions of Section 3540 of Title 12 of
the Delaware Code or any provisions of the laws (statutory or common) of
the State of Delaware (other than the Delaware Act) pertaining to trusts
that relate to or regulate: (i) the filing with any court or governmental
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body or agency of trustee accounts or schedules of trustee fees and
charges; (ii) affirmative requirements to post bonds for trustees,
officers, agents, or employees of a trust; (iii) the necessity for
obtaining a court or other governmental approval concerning the
acquisition, holding, or disposition of real or personal property; (iv)
fees or other sums applicable to trustees, officers, agents or employees of
a trust; (v) the allocation of receipts and expenditures to income or
principal; (vi) restrictions or limitations on the permissible nature,
amount, or concentration of trust investments or requirements relating to
the titling, storage, or other manner of holding of trust assets; or (vii)
the establishment of fiduciary or other standards or responsibilities or
limitations on the acts or powers or liabilities or authorities and powers
of trustees that are inconsistent with the limitations or liabilities or
authorities and powers of the Trustees set forth or referenced in this
Declaration of Trust.
SECTION 8. PROVISIONS IN CONFLICT WITH LAW OR REGULATIONS.
(a) The provisions of this Declaration of Trust are severable, and if
the Trustees shall determine, with the advice of counsel, that any such
provision is in conflict with the 1940 Act, the regulated investment
company provisions of the Internal Revenue Code of 1986, as amended (or any
successor statute thereto), and the regulations thereunder, the Delaware
Act or with other applicable laws and regulations, the conflicting
provision shall be deemed never to have constituted a part of this
Declaration of Trust; provided, however, that such determination shall not
affect any of the remaining provisions of this Declaration of Trust or
render invalid or improper any action taken or omitted prior to such
determination.
(b) If any provision of this Declaration of Trust shall be held
invalid or unenforceable in any jurisdiction, such invalidity or
unenforceability shall attach only to such provision in such jurisdiction
and shall not in any manner affect such provision in any other jurisdiction
or any other provision of this Declaration of Trust in any jurisdiction.
SECTION 9. 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.
No Trustee hereunder shall have any power to bind personally either the
Trust's officers, its other Trustees or any Shareholder. 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 appropriate Series or, until the
Trustees shall have established any separate Series, of the Trust for payment
under such credit, contract, or claim; and neither the Shareholders nor the
Trustee, nor any of their agents, whether past, present, or future, shall be
personally liable therefor.
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SECTION 10. TAXATION. It is intended that the Trust, or each Series if
there is more than one Series, be classified for income tax purposes as an
association taxable as a corporation, and the Trustees shall do all things that
they, in their sole discretion, determine are necessary to achieve that
objective, including (if they so determine) electing such classification on
Internal Revenue Form 8832. Any Trustee is hereby authorized to sign such form
on behalf of the Trust or any Series, and the Trustees may delegate such
authority to any executive officer(s) of any Series' investment adviser. The
Trustees, in their sole discretion and without the vote or consent of the
Shareholders, may amend this Declaration of Trust to ensure that this objective
is achieved.
SECTION 11. SHAREHOLDERS' RIGHT TO INSPECT SHAREHOLDER LIST. The
Shareholders, as beneficial owners of the Trust, shall have such inspection
rights as required by applicable law.
SECTION 12. FISCAL YEAR. The fiscal year of the Trust shall end on a
specified date as set forth in the By-Laws or by resolution. The Trustees may
change the fiscal year of the Trust without Shareholder approval.
SECTION 13. SEVERABILITY. The provisions of this Declaration of Trust are
severable. If the Trustees determine, with the advice of counsel, that any
provision hereof conflicts with the 1940 Act, the Internal Revenue Code or with
other applicable laws and regulations, the conflicting provision shall be deemed
never to have constituted a part of this Declaration of Trust; provided,
however, that such determination shall not affect any of the remaining
provisions of this Declaration of Trust or render invalid or improper any action
taken or omitted prior to such determination. If any provision hereof shall be
held invalid or unenforceable in any jurisdiction, such invalidity or
unenforceability shall attach only to such provision only in such jurisdiction
and shall not affect such provision in any other jurisdiction or any other
provision of this Declaration of Trust.
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IN WITNESS WHEREOF, the Trustees named below do hereby make and enter into
this Agreement and Declaration of Trust as of the 17th day of December 2001.
/s/ Xxxxx X. Xxxxxx
-----------------------------
Xxxxx X. Xxxxxx, as Trustee
/s/ Xxxxxx X. Xxxxxxx
-----------------------------
Xxxxxx X. Xxxxxxx, as Trustee
/s/ Xxxxxx Xxxxxxxx
-----------------------------
Xxxxxx Xxxxxxxx, as Trustee
THE PRINCIPAL PLACE OF BUSINESS OF THE TRUST IS:
000 Xxxxx Xxxxxx, 00xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
SCHEDULE A
InvestBio Opportunity Fund
