AGREEMENT AND DECLARATION OF TRUST OF CULLEN FUNDS TRUST a Delaware Business Trust Principal Place of Business:
AGREEMENT
AND DECLARATION OF TRUST
OF
a
Delaware Business Trust
Principal
Place of Business:
000 Xxxxx
Xxxxxx
Xxx Xxxx,
XX 00000
TABLE OF
CONTENTS
1
| ARTICLE VII. |
33
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33
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|
Section
1.
|
Compensation |
33
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Section
2.
|
Limitation of Liability |
33
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Section
3.
|
Indemnification |
34
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Section
4.
|
Insurance |
36
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| ARTICLE VIII. |
36
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AMENDMENT
|
36
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| ARTICLE IX. |
37
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37
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Section
1.
|
Dissolution of Trust or Termination of Series or Classes |
37
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Section
2.
|
Reorganization |
38
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| ARTICLE X. |
39
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|
MISCELLANEOUS
|
39
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Section
1.
|
Filing of Copies; References; Headings; Singular and Plural; Counterparts |
39
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Section
2.
|
Applicable Law; Construction |
40
|
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Section
3.
|
Record Dates for Other Purposes |
41
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Section
4.
|
Provisions in Conflict with Law or Regulations |
41
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2
AGREEMENT
AND DECLARATION OF TRUST
OF
WHEREAS,
THIS AGREEMENT AND DECLARATION OF TRUST is made and entered into as of the date
set forth below by the Initial Trustee for the purpose of creating a Delaware
business trust in accordance with the Act and the provisions hereinafter set
forth;
NOW,
THEREFORE, the Initial Trustee hereby directs that a Certificate of Trust be
filed with the Office of the Secretary of State of the State of Delaware and
declare that this Trust shall hold IN TRUST all securities and other property
which it now possesses or may hereafter acquire from time to time in any manner
and that the Trustees shall manage and dispose of the same for the benefit of
the holders of Shares in this Trust upon the following terms and
conditions.
ARTICLE
I.
NAME AND
DEFINITIONS
Section
1. Name
The name
of the trust created hereby (this "Trust") shall be "Cullen Funds Trust", and
the Trustees shall conduct, operate and carry on the business and affairs of
this Trust under that name or any other name or names as they from time to time
may deem appropriate.
Section
2. Definitions
Whenever
used herein, the following terms shall have the following meanings, unless
otherwise required by the context or otherwise expressly provided
herein:
(a) "Act"
means Title 12, Chapter 38, Sections 3801 et. seq. of the Delaware Code,
entitled "Treatment of Delaware Business Trusts," and also referred to as the
"Delaware Business Trust Act," as amended from time to time.
(b) "By-Laws"
means the by-laws of the Trust as adopted by the Trustees under and in
accordance with ARTICLE VI, Section 10(b) hereof and as amended or restated from
time to time, which are incorporated herein by
reference.
3
(c) "Class"
means each class of Shares within a Series, which Class (i) has been authorized
by the Trustees under and in accordance with the provisions of ARTICLE III
hereof and (ii) is a class subject to Rule 18f-3 under the 1940
Act.
(d) "Covered
Person" has the meaning given it in ARTICLE VII, Section 3 hereof.
(e) "Commission"
has the meaning given it in Section 2(a)(7) of the 1940 Act.
(f) "Declaration
of Trust" means this Agreement and Declaration of Trust, as amended or restated
from time to time. References in this Declaration of Trust to
"hereby," "herein," "hereof," "hereto" and "hereunder" shall be deemed to refer
to this Declaration of Trust rather than the article or Section of this
Declaration of Trust in which such words appear.
(g) "Disinterested
Trustee" has the meaning given it in ARTICLE VII, Section 3 hereof.
(h) "Distribution
Record Date" has the meaning given it in ARTICLE IV, Section 2
hereof.
(i) "Initial
Trustee" has the meaning given it in ARTICLE VI, Section 2 hereof.
(j) "Interested
Person" has the meaning given it in Section 2(a)(19) of the 1940
Act.
(k) "Investment
Manager" or "Manager" means a party furnishing services to the Trust or any
Series or to another Investment Manager or Manager pursuant to any contract
described in ARTICLE VI, Section 13 hereof.
(l) "Meeting
Record Date" has the meaning given it in ARTICLE V, Section 5
hereof.
(m) "Net
Asset Value," when used with respect to a Share of a particular Series or Class,
means the amount determined by dividing the Net Asset Value of that Series or
Class by the number of Shares of that Series or Class outstanding as of the time
of determination of such Net Asset Value per Share; and “Net Asset Value”, when
used with respect to a particular Series or Class, means the net asset value of
that Series or Class determined under and in accordance with ARTICLE IV, Section
1 hereof.
(n) "1940
Act" means the Investment Company Act of 1940, as amended from time to time, and
the rules and regulations thereunder, as adopted or amended from time to
time.
(o) "Person"
means and includes (i) natural persons; (ii) corporations, general partnerships,
limited partnerships, joint ventures, limited liability companies, joint stock
associations or companies, trusts, funds, other entities or any organized group
of Persons, whether incorporated or not; and (iii) governments and agencies and
political subdivisions thereof, whether domestic or foreign.
4
(p) "Principal
Underwriter" has the meaning given it in Section 2(a)(29) of the 0000
Xxx.
(q) "Resolution",
as of any time, means a written consent or consents signed, or a resolution
approved at a duly constituted meeting of the Trustees, by a majority of the
Trustees in office at such time.
(r) "Series"
means each series of Shares that is (i) authorized by the Trustees under and in
accordance with the provisions of ARTICLE III hereof and (ii) a
series, as described in Section 18(f)(2) of the 1940 Act, subject to
Rule 18f-2 thereunder.
(s) "Service
Provider" means any Person who, as agent, independent contractor or consultant,
provides services of any nature, including, without limitation, services of the
type customarily provided to investment companies registered as such under the
1940 Act by investment managers or advisers, administrators, custodians,
depositories, transfer or similar agents, dividend disbursement agents,
shareholder servicing agents, accountants and accounting agents, counsel,
Principal Underwriters and distributors.
(t) "Shareholder,"
as of any time, means a holder of record as of such time of outstanding
Shares. References herein to a Shareholder or to Shareholders shall
refer to such Shareholder or Shareholders solely in his or her or their capacity
or capacities as such hereunder.
(u) "Shares"
mean the shares of beneficial interest into which the beneficial interest in the
Trust shall be divided from time to time under and in accordance with the terms
hereof, and includes fractional Shares as well as whole Shares; and "outstanding
Shares" or "Shares then outstanding," as of any time, mean those
Shares shown as of such time on the books of the Trust (or of the applicable
transfer or similar agent for such Shares) as then issued and
outstanding.
(v) "State"
means any state, territory or possession of the United States and includes the
District of Columbia and Puerto Rico.
(w) "Trust"
means this Delaware business trust created by this Declaration of Trust, as
amended from time to time.
(x) "Trustees"
mean the Initial Trustee, so long as he shall continue in office in accordance
with the terms hereof, and all other natural persons who at the time in question
have been duly elected or appointed to serve as Trustees in accordance with the
terms hereof, who have signed this Declaration of Trust and who are then in
office in accordance with the terms hereof, and references herein to a Trustee
or to the Trustees shall refer to such person or persons solely in his or her or
their capacity or capacities as Trustee or Trustees hereunder.
5
(y) “Trust
Property,” as of any time, means any and all property, real or
personal, tangible or intangible, which as of such time is owned or held by or
for the account of any one or more of the Trust and the Series,
including, without limitation, the limited rights referenced in
ARTICLE X, Section 5 hereof.
(z) "vote
of a majority of the outstanding Shares of a Series" means the vote, at a
meeting of the holders of Shares of such Series duly called, (i) of sixty-seven
percent (67%) or more of the Shares of such Series present at such
meeting, if holders of more than fifty percent (50%) of the
outstanding Shares of such Series are present or represented by proxy or (ii) of
more than fifty percent (50%) of the outstanding Shares of such Series,
whichever is less.
ARTICLE
II.
PURPOSE AND NATURE OF
TRUST
Section
1. Purpose of
Trust
The
purpose of the Trust is to conduct, operate and carry on the business and
affairs of an open-end management investment company registered under the 1940
Act, through one or more investment portfolios, each investing in securities and
other property and represented by a Series.
Section
2. Nature of
Trust
It is the
intention of the Trustees to create, and this Trust is and shall continue to be,
a business trust within the meaning of Section 3801(A) of the
Act. Accordingly, it is the intention of the Trustees to create
only the relationship of trustee and beneficial owners within the meaning of the
Act between the Trustees and Shareholders. It is not the
intention of the Trustees to create, and the Trust shall not be deemed to be or
be treated as, a corporation, general partnership, limited partnership, joint
venture, joint stock association or company, bailment, or any form of legal
organization other than a business trust within the meaning of Section 3801(A)
of the Act. Accordingly, nothing in this Declaration of Trust
shall be construed to make the Trustees or Shareholders, or any combination of
them, shareholders of a corporation, partners, joint venturers or members of a
joint stock association or company, for any purpose, nor shall the Trustees or
Shareholders, or any combination of them, for any purpose be deemed to be, or be
treated in any way whatsoever as though they were, liable or responsible
hereunder as partners or joint venturers.
6
ARTICLE
III.
SHARES AND
SHAREHOLDERS
Section
1. Division of Beneficial
Interest
The
beneficial interest in the Trust shall at all times be divided into an unlimited
number of Shares having a par value of $0.001 per share; provided, however, that
subject to the requirements of the 1940 Act, the remainder of this ARTICLE III
and ARTICLES IV and V hereof, the Trustees, at any time and from time to time,
by Resolution, may authorize the division of Shares into two or more Series and
the division of any existing or new Series into two or more Classes (with each
such Series and Class being constituted of an unlimited number of Shares or such
number of Shares as the Trustees may deem appropriate in connection with such
authorization). Any such authorization shall (a) establish and
designate, and fix and determine the relative rights, powers, privileges,
preferences and duties of, the Series or Class so authorized; (b) set forth,
either expressly or by reference to another document or documents, the
investment objectives, policies, restrictions and limitations of the
Series so authorized; (c) be effective as of the date specified
therein; and (d) be incorporated herein by reference.
The
Trustees shall cause the Trust to maintain separate and distinct records for
each Series authorized by the Trustees under this Section 1.
Section
2. Assets and Liabilities
Associated with Series and Classes
Shares of
each particular Series and Class that have been authorized under and in
accordance with ARTICLE III, Section 1 hereof, unless otherwise expressly
provided in such authorization, shall have the following relative rights,
powers, privileges, preferences and duties:
(a) Assets
Associated with a Particular Series.
All
consideration received by the Trust for the issuance or sale of Shares of a
particular Series, together with all assets in which such consideration is
invested or reinvested, and 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 be held in trust for the benefit of the holders of Shares of
such Series, and not for the benefit of holders of Shares of any other Series,
for all purposes, subject only to the liabilities associated with such Series
(or the applicable Class thereof) (as hereinafter defined), and shall be
accounted for and recorded upon the books of the Trust separately from the
assets associated with any other Series. Such consideration, and such
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 associated with" that Series. In the event
that there are any assets, income, earnings, profits and proceeds thereof, and
any funds or payments, which are not readily associated with a 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 thereupon be
deemed to be an asset associated with that Series. Each such
allocation by the Trustees shall be conclusive and binding upon the Shareholders
of all Series for all purposes.
7
Notwithstanding
the foregoing, where a Series is divided into two or more Classes under and in
accordance with ARTICLE III, Section 1 hereof, all income and realized and
unrealized capital gains that are required under Rule 18f-3 under the 1940 Act
to be allocated to, between or among one or more of such Classes in a
particular manner shall be so allocated, and where the Trustees have discretion
under that Rule to allocate income and realized and unrealized capital gains to,
between or among one or more of such Classes, the Trustees shall exercise such
discretion (either in the authorization creating such Classes or on an ongoing
basis) in such manner and on such basis as they in their sole discretion deem
fair and equitable.
(b) Liabilities
Associated with a Particular Series or Class.
All
liabilities, expenses, costs, charges and reserves of the Trust which are
readily associated with a particular Series shall be charged against the assets
associated with that Series, and any liabilities, expenses, costs, charges and
reserves of the Trust which are not readily associated with a particular Series
shall be allocated and charged by the Trustees 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; provided, however, that where a Series
is divided into two or more Classes under and in accordance with ARTICLE III,
Section 1 hereof, all expenses and realized and unrealized capital losses that
are required under Rule 18f-3 under the 1940 Act to be allocated and charged to,
between or among one or more of such Classes in a particular manner shall be so
allocated and charged, and where the Trustees have discretion under that Rule to
allocate and charge expenses and realized and unrealized capital losses to,
between or among one or more of such Classes, the Trustees shall exercise such
discretion (either in the authorization creating such Classes or on an ongoing
basis) in such manner and on such basis as they in their sole discretion deem
fair and equitable. The liabilities, expenses, costs, charges
and reserves so allocated and charged to a Series or Class are herein referred
to as "liabilities associated with" 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 and Classes
for all purposes.
Without
limiting the generality of the foregoing, but subject to the authority of the
Trustees to allocate liabilities, expenses, costs, charges and reserves which
are not readily associated with a particular Series as provided in the first
sentence of this Section 2(b), the debts, liabilities, obligations and expenses
incurred by, contracted for or otherwise existing with respect to a particular
Series shall be enforceable against the assets associated with that Series only,
and not against the assets associated with any other Series (or against the
assets of the Trust generally). The Trustees may cause
notice of this limitation on interseries liabilities to be set forth in the
Certificate of Trust of the Trust (whether originally or by amendment) to be
filed in the Office of the Secretary of State of the State of Delaware pursuant
to the Act, and upon the giving of such notice in the Certificate of Trust, the
statutory provisions of Section 3804 (or any successor Section) of the Act
relating to limitations on interseries liabilities (and the statutory effect
under Section 3804 (or any successor Section) of setting forth such notice in
the Certificate of Trust) shall become applicable to the Trust and each
Series. All Persons who extend credit to (or with respect to) a
particular Series, or who contract with (or with respect to) or have a claim
against a particular Series, may look only to the assets associated with that
Series for repayment of such credit or to enforce or satisfy any such contract
or claim; and no Shareholder or Trustee or officer, employee or Service Provider
of the Trust, whether past, present or future, shall be personally liable
therefor solely by reason of his or her capacity as such.
8
(c) Dividends, Distributions,
Redemptions, and Repurchases.
Notwithstanding
any other provision of this Declaration of Trust, including, without limitation,
any provision of ARTICLE IV hereof or of ARTICLE IX, Section 1 hereof, no
dividend or distribution on or with respect to Shares of a particular Series,
including, without limitation, any distribution paid in connection with the
dissolution of the Trust or the termination of that Series, nor any redemption
or repurchase of Shares of that Series, shall be effected by the Trust other
than from the assets associated with that Series, nor shall any Shareholder or
former Shareholder of a particular Series otherwise have any right or claim
against the assets associated with any other Series (except to the extent that
such Shareholder or former Shareholder has such a right or claim hereunder as a
Shareholder or former Shareholder of such other Series or in a capacity other
than as a Shareholder or former Shareholder).
Section
3. Issuance of and Investments
in Shares
The
Trustees, at any time and from time to time, may cause the Trust to issue whole
and fractional Shares of any Series or Class that has been authorized under and
in accordance with ARTICLE III, Section 1 hereof (in addition to the then
outstanding Shares of such Series or Class and Shares held as treasury shares in
accordance with ARTICLE III, Section 16 hereof), to such Person or Persons, on
such terms (including, without limitation, terms establishing minimum required
purchases), and for such type and amount of consideration as is permitted by
Section 3802(A) of the Act (including cash and securities or other property), or
for no consideration, as the Trustees may deem appropriate.
Each
investment in Shares by the purchaser thereof shall be credited to such
purchaser's individual Shareholder account in the form of whole and fractional
Shares of the Trust, of such Series and Class thereof as may be
available to such purchaser and as such purchaser may select, at the Net Asset
Value per Share next determined (under and in accordance with ARTICLE IV,
Section 1 hereof) for such Series and Class after receipt and/or acceptance of
the investment by or on behalf of the Trust on the terms determined by the
Trustees; provided, however, that subject to the requirements of the 1940 Act,
the Trustees may cause the Trust to impose a sales charge upon investments in
the Trust in such manner and amount or amounts and at such time or times as the
Trustees may deem appropriate.
9
The
Trustees shall not be required to cause the Trust to issue Shares of a Series or
Class that has been authorized under and in accordance with ARTICLE III, Section
1 hereof, and may terminate the sale of Shares of a Series or Class at any time
or suspend such sales from time to time for such any periods as they may deem
appropriate.
Section
4. Nonassessability of
Shares
All
Shares (including, without limitation, Shares issued in connection with a
dividend paid in Shares or in connection with a split or reverse split of
Shares), when issued on the terms determined by the Trustees, shall be fully
paid and nonassessable, and neither the Trust nor any Trustee, nor any officer,
employee or agent of the Trust, shall have the power or authority 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 by
way of subscription for Shares or otherwise; provided, however, that the
foregoing shall not be deemed to prohibit the Trustees from taking any of the
actions described in the second paragraph of ARTICLE IV, Section 1
hereof.
Section
5. No Personal Liability;
Indemnification for Personal Liability
Neither
the Trust nor any Trustee, nor any officer, employee or agent of the Trust,
shall have the power or authority to bind any Shareholder personally, and no
Shareholder or former Shareholder shall be personally liable for the debts,
liabilities, obligations or expenses incurred by, contracted for or otherwise
existing with respect to the Trust, any Series or any Class, but shall be
entitled to the same limitation of personal liability as is extended to
stockholders of private corporations for profit organized under the General
Corporation Law of the State of Delaware. The Trustees may cause any
note, bond, contract, instrument, certificate, Share or other undertaking
issued, executed or made by or on behalf of the Trust or any Series to include a
recitation limiting the obligation represented thereby to the Trust or to such
Series and the assets associated therewith, but the omission of such a
recitation shall not operate to bind any Shareholder personally.
If any
Shareholder or former Shareholder of any Series shall be held to be personally
liable solely by reason of being or having been a Shareholder and not because of
his or her acts or omissions, the Shareholder or former Shareholder (or his or
her heirs, executors, administrators or other legal representatives or, in the
case of a corporation or other entity, its corporate or other general successor)
shall be entitled, out of the assets associated with that Series, to be held
harmless from and indemnified against all losses and expenses arising from such
liability; provided, however, that there shall be no obligation of
the Trust or of any Series arising under this Section 5 to reimburse any
Shareholder or former Shareholder for taxes paid by reason of such Shareholder's
or former Shareholder's holding of any Share.
10
Section
6. Equality
Each
Share of a particular Series or Class thereof shall represent an equal undivided
beneficial interest in the assets associated with that Series (subject to the
liabilities associated with that Series or Class, as the case may be), and,
subject to the relative rights, powers, privileges, preferences and duties as
among Classes within a Series (with each Share within a particular Class being
equal in every respect to each other Share within that Class), each Share of a
particular Series shall be equal in every respect to each other Share of that
Series. Accordingly, (a) subject to the relative rights, powers,
privileges, preferences and duties as among Classes within a Series, (i) no
Share of a particular Series shall have any priority or preference over any
other Share of that Series with respect to dividends or distributions including,
without limitation, distributions paid in connection with the dissolution of the
Trust or the termination of such Series, and (ii) all dividends and other
distributions shall be made ratably among all Shareholders of a particular
Series from the assets associated with that Series according to the number of
Shares of that Series held of record by such Shareholders as of the applicable
Distribution Record Dates for the payment of such dividends and distributions;
and (b) (i) no Share of a particular Class shall have any priority or preference
over any other Share of that Class with respect to dividends or distributions
including, without limitation, distributions paid in connection with the
dissolution of the Trust or the termination of such Class, and (ii) all
dividends and other distributions shall be made ratably among all Shareholders
of a particular Class from the assets associated with the Series of which such
Class is a part according to the number of Shares of that Class held of record
by such Shareholders as of the applicable Distribution Record Dates for the
payment of such dividends and distributions.
The
foregoing shall not be deemed to prohibit the Trust from distributing different
types of Trust Property to different Shareholders of a particular Series or
Class (or to a particular Shareholder in respect of the various Shares of a
particular Series or Class held by him or her) in the case of a dividend,
distribution, or redemption in-kind, so long as the Trust shall have complied
with the principles set forth in the preceding paragraph and in ARTICLE IV,
Section 5 hereof.
Section
7. Dividends and Other
Distributions
Holders
of Shares of a particular Series (and Class thereof) shall be entitled to
receive dividends and other distributions, if, when and as declared by the
Trustees on or with respect thereto, to the extent provided in ARTICLE IV
hereof.
Section
8. Voting
Rights
Shareholders
shall have no voting rights except to the extent provided in ARTICLE V
hereof.
In any
case herein where it is provided that the Trustees shall or may take a
particular action, do a particular thing or make a particular determination, and
the 1940 Act or such case does not expressly provide for Shareholder
authorization or approval of such action, thing or determination, the Trustees
shall have full power and authority to take such action, to do such thing or to
make such determination without obtaining any prior or subsequent authorization
or approval of the Shareholders of any Series or Class (and the Trustees may
take such action, do such thing or make such determination in their
sole discretion on such terms and in such manner as they may deem appropriate,
unless the context requires otherwise).
11
Without
limiting the generality of the foregoing, the Trustees may authorize Series and
Classes of Shares under and in accordance with ARTICLE III, Section 1 hereof
without obtaining authorization or approval of the Shareholders of any Series or
Class.
Section
9. Transferability
Unless
otherwise expressly provided by the Trustees in the authorization establishing
and designating a Series or Class of Shares, Shares of that Series or Class
shall be transferable without restriction (subject to the provisions of ARTICLE
III, Section 17 hereof, ARTICLE IV, Section 2 hereof, ARTICLE V,
Section 5 hereof, ARTICLE X, Section 3 hereof and the By-Laws).
Section
10. No Preemptive
Rights
Unless
otherwise expressly provided by the Trustees in the authorization establishing
and designating a Series or Class of Shares or as otherwise expressly provided
by the Trustees by Resolution, no holder of Shares of that Series or Class, as
such, shall have any preemptive or other right to acquire, purchase
or subscribe for any Shares or other securities of the Trust which the Trust may
hereafter issue or sell, whether of the same or of any other Series
or Class or otherwise.
Section
11. Actions by
Shareholders
Except to
the extent inconsistent with the requirements of the1940 Act:
(a) No
action may be brought by a Shareholder on behalf of the Trust, or on behalf of
any Series or Class, unless holders of not less than ten percent (10%) of the
Shares then outstanding (in the case of an action brought on behalf of the
Trust), or of not less than ten percent (10%) of the outstanding Shares of such
Series or Class (in the case of an action brought on behalf of such Series or
Class), join in the bringing of such action.
(b) A
holder of Shares of a particular Series or Class, in his or her capacity as
such, shall not be entitled to participate in a derivative action or class
action lawsuit on behalf of any other Series or Class or on behalf of the
holders of Shares of any other Series or Class.
12
Section
12. Exchange Privileges and
Conversion Features
Subject
to the requirements of the 1940 Act, the Trustees, at any time and from time to
time, by Resolution, may provide that (a) 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 (or Classes) or (b) Shares of any Series (or Class) may or
shall be converted into Shares of one or more other Series (or Classes), in each
case in accordance with such requirements and procedures as the Trustees may
deem appropriate. In the absence of such provision by the
Trustees with respect to a Series (or Class), Shareholders of that
Series (or Class) shall have no exchange privileges, and Shares of that Series
(or Class) shall not be subject to any conversion features.
Section
13. No Appraisal
Rights
Shareholders
shall have no appraisal rights with respect to their Shares.
Section
14. Other Attributes of Shares
and Share Ownership
Shares
shall be deemed to be personal property giving only the rights, powers,
privileges and preferences provided herein, notwithstanding the nature of the
property held by the Trust or any Series thereof. Every Person who
purchases a Share on the terms determined by the Trustees under and in
accordance with ARTICLE III, Section 3 hereof and who is recorded on the books
of the Trust or of a transfer or similar agent of the Trust shall be deemed to
have complied with the conditions for becoming a beneficial owner in an interest
in the Trust and, by virtue of the foregoing, shall be held to have expressly
assented to, and to have agreed to be bound by, the terms hereof and to have
become a party hereto; provided, however, that no Shareholder shall be required
to execute this Declaration of Trust unless the Trustees determine
otherwise. Each holder of Shares shall upon demand by the Trustees
disclose to the Trustees in writing such information with respect to such
holder's direct and indirect ownership of Shares as the Trustees may deem
necessary to comply with the requirements of any law or taxing
authority. As Shares of a Series represent only an undivided
beneficial interest in the assets associated with that Series, a holder or
beneficial owner of Shares shall have no right, title or interest in or to any
specific Trust Property, nor shall such holder or beneficial owner have any
right to call for a partition or division, or possession, of the same
or for an accounting. The death of a Shareholder during the existence
of this Trust shall not operate to annul or dissolve this Trust or to terminate
any Series or Class, 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 any such representative shall be
entitled only to the same rights to which said deceased Shareholder would have
been entitled under this Declaration of Trust but for such Shareholder's
death.
13
Section
15. Fractional
Shares
Any
outstanding fractional Share of a Series (or Class) shall carry proportionately
all the rights, powers, privileges, preferences and duties of a whole Share of
that Series (or Class), including rights with respect to voting and receipt of
dividends and other distributions, as well as rights accorded to Shares of such
Series (or Class) in connection with (a) the redemption or purchase of such
Shares by the Trust or (b) the dissolution of the Trust or the termination of
such Series (or Class).
Section
16. Treasury
Shares
Any
Shares redeemed, purchased or otherwise acquired by the Trust shall be deemed to
be treasury shares and shall not be canceled (unless the Trustees provide
otherwise at or subsequent to the time of such redemption, purchase or
acquisition).
The
Trustees may cause the Trust from time to time to reissue treasury shares in
accordance with ARTICLE III, Section 3 hereof.
The
Trustees may classify or reclassify any unissued Shares or any Shares redeemed,
purchased or otherwise acquired by the Trust, regardless of Series or Class,
into one or more Series or Classes that have been or may be authorized from time
to time under and in accordance with ARTICLE III, Section 1 hereof.
Shares
held by the Trust as treasury shares shall not be considered outstanding for any
purpose of this Declaration of Trust and, in that connection, shall not confer
any voting rights on the Trust or the Trustees, nor shall such Shares be
entitled to any dividends or other distributions declared or paid on or with
respect to Shares.
Section
17. Ownership and Transfer of
Shares
The
ownership and transfer of Shares shall be recorded on the books of the Trust or
of a transfer or similar agent for the Trust, which books shall be maintained
separately and distinctly for the Shares of each Series (and
Class). No certificates certifying the ownership of Shares shall be
issued except as the Trustees otherwise may determine from time to
time. The Trustees may make such rules as they deem appropriate for
the issuance of share certificates, the transfer of Shares of each
Series (and Class) and similar matters. The record books of the Trust
as kept by the Trust or by any transfer or similar agent, as the case may be,
shall be conclusive as to who are the holders of Shares of each Series (and
Class) and as to the number of Shares of each Series (and Class) held from time
to time by each.
14
Section
18. Combination of
Shares
The
Trustees, at any time and from time to time, may divide or combine the Shares of
any particular Series into a greater or lesser number of Shares of that Series
(with corresponding adjustments being made to the number of Shares of each Class
within such Series). No such division or combination shall be
deemed, for purposes of ARTICLE VIII, Section 1 hereof or for any other purpose,
to adversely affect to a material degree the rights, powers, privileges,
preferences or duties of the Shares of that Series (or Class) or of the Shares
of any other Series (or Class).
Section
19. Rights of Shareholders to
Inspect Records
(a) In
addition to the rights provided for in the first sentence of ARTICLE X, Section
1 hereof, each holder of Shares has the right, subject to such reasonable
standards (including standards governing what information and documents are to
be furnished at what time and location and at whose expense) as may be
established from time to time by the Trustees, to obtain from the Trust from
time to time upon reasonable demand for any purpose reasonably related to the
holder's interest as a holder of Shares:
(1) any
written powers of attorney pursuant to which this Declaration of Trust and any
amendments hereto and any certificates filed by or on behalf of this Trust with
the Office of the Secretary of State of the State of Delaware pursuant to the
Act have been executed;
(2) a
current list of the name and last known business, residence or
mailing address of each record holder of Shares;
(3) information
regarding the business and financial condition of the Trust; and
(4) other
information regarding the affairs of the Trust as is reasonable.
(b) Notwithstanding
the foregoing, the Trustees shall have the right to keep confidential from the
holders of Shares, for such period of time as the Trustees deem reasonable, any
information that the Trustees reasonably believe to be in the nature of trade
secrets or other information the disclosure of which the Trustees in good faith
believe is not in the best interest of the Trust or could damage the Trust or
its business or which the Trust is required by law or by agreement with a third
party to keep confidential.
(c) Any
demand by a holder of Shares under this Section 19 shall be in writing under
oath and shall state the purpose of such demand.
15
Section
20. Purchase of Shares by
Trustees, Officers, Employees and Agents of Trust
Any
Trustee, officer, employee or agent of the Trust, and any organization in which
any of the foregoing has an interest, may acquire, own, hold, redeem and dispose
of Shares of any Series or Class to the same extent as if such person were not a
Trustee, officer, employee or agent of the Trust; and the Trust may issue and
sell or cause to be issued and sold and may purchase or redeem or cause to be
purchased or redeemed Shares of any Series or Class to or from any such person
or organization subject only to the provisions of the 1940 Act and to the
general limitations, restrictions or other provisions applicable to the
issuance, sale, purchase or redemption of Shares of such Series or Class
generally.
ARTICLE
IV.
DETERMINATION OF NET ASSET
VALUE, DIVIDENDS AND DISTRIBUTIONS, AND REDEMPTIONS
Section
1. Determination of Net Asset
Value
The
Trustees shall prescribe and set forth in the By-laws or other written
instrument such bases and times for determining the value of Trust Property, the
net asset value of each Series and Class and net income attributable to the
Shares of each Series and Class as they may deem appropriate consistent with the
requirements of the 1940 Act and generally accepted accounting
principles. To the extent not inconsistent with the
requirements of the 1940 Act and generally accepted accounting principles, the
Trustees may determine which items shall be treated as income and which items as
capital; and each such determination shall be conclusive and binding upon the
Shareholders of all Series and Classes for all purposes.
The
Trustees may determine to maintain the Net Asset Value per Share of any Series
at a designated constant dollar amount and in connection therewith may adopt
procedures not inconsistent with the requirements of the 1940 Act for the
continuing declarations of income attributable to that Series as dividends
payable in additional Shares of that Series at the designated constant dollar
amount and for the handling of any losses attributable to that
Series. To the extent not inconsistent with the requirements of
the 1940 Act, each Shareholder of the Trust, by his or her investment in any
Series with respect to which the Trustees shall have adopted any such
procedures, shall be held to have agreed to be bound by the following provisions
of this paragraph in the event of any such loss. If, for any
reason, the net income of any Series, determined at any time, is a negative
amount, the Trustees may, with respect to that Series, (a) offset
each Shareholder's pro rata share of such negative amount against the accrued
dividend account of such Shareholder; (b) reduce the number of
outstanding Shares of such Series by reducing the number of Shares in the
account of each Shareholder of such Series by a pro rata portion of that number
of whole and fractional Shares which represents such negative
amount; (c) cause to be recorded on the books of such Series an asset
account in the amount of such negative amount (provided that the same shall
thereupon become an asset associated with such Series but shall not be paid to
any Shareholder),which account may be reduced by the amount of dividends
declared thereafter upon the outstanding Shares of such Series from and
including the day such negative amount is experienced until such asset account
is reduced to zero; (d) combine the methods described in clauses (a),
(b) and (c) of this sentence; or (e) take any other action they may
deem appropriate, in order to cause (or in order to assist in
causing) the Net Asset Value per Share of such Series to remain at a constant
amount per outstanding Share immediately after each such
determination. The Trustees also may determine not to declare a
dividend out of net income for the purpose of causing the Net Asset Value per
Share to be increased. The Trustees shall not be required to, but at
any time may, adopt, discontinue or amend the practice of maintaining the Net
Asset Value per Share of a Series at a designated dollar amount. In
event that any Series is divided into Classes, the provisions of this paragraph,
to the extent applicable as determined by the Trustees consistent with the
requirements of the 1940 Act, may be applied equally to each such
Class.
16
The
Trustees may delegate any of their powers, authority, functions and duties under
this Section 1 with respect to determining the value of Trust Property and the
net asset value of each Series (and Class) or with respect to a suspension of
the determination of net asset value to an officer or officers or agent or
agents of the Trust designated from time to time by the Trustees.
Section
2. Dividends and Other
Distributions
The
Trustees from time to time may declare and cause the Trust to pay dividends
(including, without limitation, dividends paid in Shares) or other distributions
on or with respect to the Shares of any Series or Class, in such amounts and
with such frequency as the Trustees in their sole discretion may deem
appropriate (subject, however, to the provisions of ARTICLE III hereof and
applicable law). Without limiting the generality of the
foregoing, such dividends or other distributions may be declared and paid daily
or otherwise pursuant to a standing resolution or resolutions adopted only once
or with such frequency as the Trustees may deem appropriate.
For the
purpose of determining the Shareholders who are entitled to receive payment of
any dividend or other distribution, the Trustees may from time to time fix a
date and time, by standing resolution or otherwise (any such date and time being
herein referred to as a "Distribution Record Date"), for determining the
Shareholders who are entitled to receive such payment, and in such
case only Shareholders of record as of the Distribution Record Date shall have
that right, notwithstanding any transfer of Shares on the record books of the
Trust after the Distribution Record Date. Without fixing a
Distribution Record Date, the Trustees may close the register or transfer books
for one or more Series (or Classes) for all or any part of the period (not
exceeding ten (10) days) preceding the date for the payment of a dividend or
other distribution. Nothing in this Declaration of Trust shall
be construed as precluding the Trustees from setting different Distribution
Record Dates for different Series (or Classes).
Subject
to the requirements of the 1940 Act and ARTICLE IV, Section 5 hereof, any
dividend or other distribution on or with respect to the Shares of a Series or
Class may be made in cash, Shares of such Series or Class or in-kind (that is,
in securities or other property associated with the Series on or with respect to
which such dividend or distribution is being paid), or in any
combination thereof, as the Trustees may deem appropriate.
17
Section
3. Redemptions at the Option of
the Shareholder
Each
holder of record of Shares of a particular Series shall have the right at such
times as may be permitted by this Declaration of Trust and as otherwise required
by the 1940 Act to require the applicable Series of the Trust to redeem all or
any number of his or her Shares of that Series at a redemption price equal to
the Net Asset Value per Share of that Series (or applicable Class thereof) next
determined (under and in accordance with ARTICLE IV, Section 1 hereof) after the
Shares are properly tendered for redemption; provided, however, that subject to
the requirements of the 1940 Act, the Trustees may cause the Trust to impose a
redemption charge upon redemptions of Shares in such manner and amount or
amounts and at such time or times as the Trustees may deem
appropriate. A Shareholder will not be deemed properly to have
tendered Shares for redemption unless and until he or she shall have complied
with such procedures for redemption as the Trustees may from time to time deem
appropriate, including, without limitation, procedures requiring the redeeming
Shareholder to deposit at the office of the applicable transfer or similar agent
a written request or such other form of request as the Trustees may from time to
time deem appropriate (together with such accompanying documentation as the
Trustees may from time to time deem appropriate) requesting that the applicable
Series of the Trust redeem such Shares in accordance with this Section
3. Payment of the redemption price shall be in cash; provided,
however, that if the Trustees determine, which determination shall be
conclusive, that conditions exist which make payment wholly in cash inadvisable
or undesirable, the Trust, subject to the requirements of the 1940 Act and
ARTICLE IV, Section 5 hereof, may make payment wholly or partly in-kind (that
is, in securities or other property associated with the Series of which the
Shares being redeemed are part).
Notwithstanding
the foregoing, the Trustees may cause the Trust to postpone payment of the
redemption price or to suspend the right of the holders of the Shares of any
Series to require the Trust to redeem Shares of that Series during any period or
at any time when and to the extent permissible under the 1940
Act. Such suspension shall take effect at such time as the
Trustees shall determine but not later than the close of business on the
business day next following the declaration of suspension, and thereafter there
shall be no right of redemption or payment until the Trustees shall declare the
suspension at an end. In the case of a suspension of the right
of redemption, a Shareholder either may withdraw his or her request for
redemption or receive payment based on the Net Asset Value per Share next
determined after the termination of the suspension, in accordance with such
procedures as the Trustees from time to time may deem
appropriate. In the event that any Series is divided into
Classes, the provisions of this paragraph, to the extent applicable as
determined by the Trustees consistent with the requirements of the 1940 Act, may
be applied equally to each such Class.
18
Section
4. Redemptions at the Option of
the Trust
The
Trustees, at any time and from time to time, may cause the Trust to redeem
Shares of a particular Series or Class held by any holder thereof at the Net
Asset Value per Share thereof (determined under and in accordance with ARTICLE
IV, Section 1 hereof): (a) if at such time the Shares of such Series or Class
held by such holder have an aggregate net asset value of less than an amount
determined from time to time by the Trustees and set forth in the Trust's
prospectus or statement of additional information relating to such Series or
Class prior to the time such Shares were purchased, as the minimum aggregate net
asset value that must be maintained by a holder with respect to such Shares in
order for such Shares not to be subject to redemption at the option of the
Trust; (b) if at such time such holder holds Shares of the Trust or
of any Series or Class in excess of a percentage determined from time to time by
the Trustees and set forth in the Trust's prospectus or statement of additional
information relating to such Series or Class prior to the time such Shares were
purchased, as the maximum percentage of Shares of the Trust or of such Series or
Class that may be held by a holder in order for Shares held by a holder not to
be subject to redemption at the option of the Trust; or (c) if the Trustees
shall determine that direct or indirect ownership of Shares of any Series has or
may become concentrated in any Person to an extent which would disqualify such
Series as a regulated investment company under the Internal Revenue Code of
1986, as amended (in which case the Trustees may (i) call for redemption by any
such Person of a number, or principal amount, of Shares sufficient to maintain
or bring the direct or indirect ownership of Shares into conformity with the
requirements for such qualification and (ii) refuse to transfer or issue Shares
to any Person whose acquisition of Shares in question would result in such
disqualification).
No
redemption shall be effected pursuant to subSections (a) or (b) of this Section
4 unless the Trust has given the holder at least thirty (30) days notice of the
Trust's intention to redeem and such holder is given an opportunity, within such
thirty-day period, to adjust his or her holdings so as to avoid the application
of this Section 4.
Redemptions
effected pursuant to this Section 4 shall otherwise be effected in the manner
provided in ARTICLE IV, Section 3 hereof.
Section
5. Dividends, Distributions
and Redemptions In-Kind
In the
event the Trustees determine that dividends or other distributions on or with
respect to Shares of a particular Series or Class (including, for purposes of
this Section 5, without limitation, distributions upon redemption of Shares of
such Series or Class or in connection with the dissolution of the Trust or the
termination of such Series or Class) shall be paid wholly or partly in-kind, the
Trustees first must determine that such payments shall not be prejudicial to the
interest of the remaining Shareholders of such Series. The selection
and quantity of securities or other property to be paid in-kind shall be
determined by or under the authority of the Trustees; provided, however, that
the value of the securities or other property paid in-kind shall be the value of
such securities or other property used in determining the Net Asset Value of the
Series with which such securities or other property are
associated. In no case shall the Trust or Trustees be liable for any
delay of any Person in transferring securities or other property selected for
delivery as all or part of any payment in-kind.
19
ARTICLE
V.
SHAREHOLDERS' VOTING POWERS
AND MEETINGS
Section
1. Voting
Powers
Shareholders
shall have power to vote only (a) for the election and removal of Trustees to
the extent provided in ARTICLE VI, Sections 3 and 4 hereof,
respectively; (b) to the extent provided in ARTICLES VIII and IX
hereof; (c) with respect to such additional matters relating to this Trust or
any Series or Class as may be required by the 1940 Act or any registration of
this Trust or any Series or Class with the Commission (or any successor agency)
or any State; and (d) with respect to such additional matters as the Trustees
may deem appropriate; provided, however, that in no event shall
holders of Shares of a Series or Class be entitled to vote such Shares with
respect to any matter that does not affect any interest of such Series or Class,
as the case may be, unless otherwise required by the 1940 Act.
Each
whole Share shall carry one vote as to any matter on which it is entitled to be
voted, and each fractional Share shall carry a proportionate
fractional vote.
In the
case of (a) the election or removal of Trustees and (b) an amendment to the
provisions of ARTICLE VIII hereof, and where required by the 1940 Act or by any
registration of this Trust with the Commission (or any successor agency) or any
State, all Shares entitled to be voted shall be voted in the aggregate without
differentiation among the separate Series or Classes. In all other cases, (a)
where Rule 18f-3 under the 1940 Act does not apply in connection with the matter
to be voted on and such matter does not involve an amendment to this Declaration
of Trust that would adversely affect to a material degree the rights, powers,
privileges, preferences or duties of Shares of a particular Class in a manner
different from the Shares of any other Class within the same Series, all Shares
entitled to be voted with respect to the matter shall be voted separately by
individual Series and (b) where Rule 18f-3 under the 1940 Act applies in
connection with the matter to be voted on, or where such matter involves an
amendment to this Declaration of Trust that would adversely affect to a material
degree the rights, powers, privileges, preferences or duties of Shares of a
particular Class in a manner different from the Shares of any other Class within
the same Series, all Shares entitled to be voted with respect to the matter
shall be voted separately by individual Class; provided, however, that the
Trustees in their sole discretion may determine that, in situations where the
Shares of more than one Series (or Class) are entitled to be voted with respect
to a matter, such Shares shall be voted as a single class with respect to such
matter if and to the extent permitted under the 1940 Act.
There
shall be no cumulative voting in the election of Trustees or for any other
purpose.
20
Shares
may be voted in person or by written proxy or in any manner provided for in the
By-Laws; provided, however, that in the event a proposal by anyone other than
the Trustees or the officers of the Trust is submitted to a vote of the
Shareholders of one or more Series or Classes or of the Trust, or in the event
of any proxy contest or proxy solicitation or proposal in opposition to any
proposal by the Trustees or the officers of the Trust, Shares may be voted only
in person or by written proxy. A proxy with respect to Shares held in the name
of two or more Persons shall be valid if executed by any one of them unless at
or prior to exercise of the proxy the Trust receives a specific written notice
to the contrary from any one of them. 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.
Until
Shares are issued, the Trustees may exercise all rights hereunder that pertain
to Shares and may take any action required or permitted by law, this Declaration
of Trust or any of the By-Laws of the Trust to be taken by Shareholders
(including, without limitation, the right to amend this Declaration of Trust and
the By-Laws).
Section
2. Meetings
No annual
or regular meetings of Shareholders are required. The Trustees, their
Chairman or the President of the Trust may from time to time call and give
notice of meetings of the Shareholders in general, or of the Shareholders of any
one or more Series or Classes in particular, for the purpose of taking action
upon any matter requiring Shareholder authorization or approval as herein
provided or upon any other matter as the Trustees may deem
appropriate. The Trustees, their Chairman or the President of the
Trust shall promptly call and give notice of a meeting of Shareholders for the
purpose of voting upon the question of removal of any Trustee or Trustees when
requested to do so in writing by Shareholders holding of record at least ten
percent (10%) of the Shares then outstanding. In that connection, the
provisions of the third, fourth and fifth paragraphs of Section 16(c) of the
1940 Act shall apply to this Trust as though this Trust were subject to those
provisions. The Trustees, their Chairman or the President of the
Trust shall call and give notice of a meeting within thirty (30) days after
written application by Shareholders holding of record at least ten percent (10%)
of the Shares then outstanding entitled to be voted on the matter requesting a
meeting be called for the purpose of taking action upon a matter requiring
authorization or approval of the holders of such Shares under the provisions of
ARTICLE V, Sections l(b) or (c) hereof.
A meeting
of Shareholders may be held at any place designated by the Trustees, within or
without the State of Delaware.
21
Section
3. Quorum and Required
Vote
In cases
where all Shares of the Trust are to be voted in the aggregate without
differentiation among the separate Series and Classes pursuant to the terms of
this Declaration of Trust, the holders of at least 33 2/3% of the Shares
entitled to be voted in person or by proxy at a meeting of the holders of such
Shares shall constitute a quorum for the transaction of business at a meeting of
such holders. In cases where Shares of a Series (or Class) are to be voted
separately by Series (or Class) pursuant to the terms of this Declaration of
Trust, the holders of more than 50% of the Shares of such Series (or Class)
entitled to be voted in person or by proxy at a meeting of the holders of such
Shares shall constitute a quorum for the transaction of business at a meeting of
such holders. In cases where Shares of more than one but fewer than
all Series (or Classes) are to be voted as a single class pursuant to the terms
of this Declaration of Trust, the holders of more than 50% of such Shares
entitled to be voted in person or by proxy at a meeting of the holders of such
Shares shall constitute a quorum for the transaction of business at a meeting of
such holders.
Any
meeting of Shareholders may be adjourned from time to time to another date and
time by a majority of the votes properly cast in person or by proxy upon the
question of adjournment, whether or not a quorum is present, and the
meeting so adjourned may be held within a reasonable time after the date set for
the original meeting, without the necessity for giving further
notice.
Subject
to the provisions of the preceding paragraph, when a quorum of holders of Shares
entitled to be voted on the matter is present at any meeting, a majority of the
votes properly cast in person or by proxy shall decide any questions and a
plurality shall elect a Trustee, except where a larger percentage is required by
the 1940 Act, by any express provision of this Declaration of Trust or by any
registration of this Trust with the Commission (or any successor agency) or any
State.
Section
4. Action by Written
Consent
Any
action requiring authorization or approval of Shareholders may be taken without
a meeting of such Shareholders and without prior notice if holders of at least
66 2/3% of the Shares entitled to be voted on the matter consent to the action
in writing and such written consent or consents are filed with the records of
the meetings of Shareholders (except where a larger percentage is required by
the 1940 Act or by any express provision of this Declaration of
Trust). Such consent shall be treated for all purposes as a vote
taken at a meeting of such Shareholders.
Section
5. Record
Dates
For the
purpose of determining the Shareholders who are entitled to notice of and to
vote or act at any meeting or any adjournment thereof, the Trustees may fix a
date and time, which shall be not more than ninety (90) days prior to the date
of such meeting, as the date and time of record (a "Meeting Record Date") for
determining the Shareholders who are entitled to receive notice of and to vote
or act at such meeting and any adjournment thereof, and in such case only
Shareholders of record as of the Meeting Record Date shall have that
right, notwithstanding any transfer of Shares on the record books of
the Trust after the Meeting Record Date. Without fixing a Meeting
Record Date, the Trustees may close the register or transfer books for one or
more Series (or Classes) for all or any part of the period (not exceeding ten
(10) days) preceding the date of a meeting of Shareholders. Nothing in this
Declaration of Trust shall be construed as precluding the Trustees from setting
different Meeting Record Dates for different Series (or Classes).
22
Section
6. Additional
Provisions
The
By-Laws may include further provisions for Shareholders' votes and meetings and
related matters not inconsistent with the provisions hereof.
ARTICLE
VI.
THE
TRUSTEES
Section
1. Number and
Qualifications
Prior to
any offering of Shares, there shall be an Initial Trustee and thereafter the
number of Trustees shall be fixed at such number as the Trustees from time to
time hereafter may fix by Resolution; provided, however, that the number of
authorized Trustees shall in no event be less than one (1) nor more than fifteen
(15). A Trustee must be a natural person at least 21 years of age who
is not under a legal disability. A Trustee need not be a Shareholder,
a citizen of the United States or a resident of the State of Delaware. No
decrease in the authorized number of Trustees shall have the effect of removing
any Trustee from office prior to the expiration of his or her term, but the
authorized number of Trustees may be decreased in conjunction with a vacancy
created by the death, physical or mental incapacity, resignation or removal of a
Trustee.
Section
2. Initial
Trustee
The
initial Trustee shall be the person whose signature appears below on the
signature page dated March 25, 2000 (the "Initial Trustee").
Section
3. Election of
Trustees
Except
for the Initial Trustee and Trustees appointed to fill vacancies pursuant to
ARTICLE VI, Section 5 hereof, Trustees shall be elected by Shareholders at such
meetings of Shareholders as the Trustees may from time to time determine to call
in their sole discretion; provided, however, that the Trustees shall call
meetings of Shareholders for the purpose of electing Trustees at such time or
times and in such manner as may be required by the 1940 Act.
23
Section
4. Term of
Office
Each
Trustee shall serve and hold office until the next meeting of Shareholders held
for the purpose of considering the reelection of such Trustee or the election of
a successor to such Trustee and until his or her successor is elected and
qualified (or until the earlier death or physical or mental incapacity of such
Trustee), and any Trustee who is appointed by the Trustees to fill a vacancy as
provided in ARTICLE VI, Section 5 hereof shall have the same remaining term of
his or her predecessor, if any, or such term as the Trustees, by Resolution, may
determine; provided, however, that without the need for a prior or subsequent
accounting, (a) any Trustee may resign at any time by a written instrument
signed by him or her and delivered to any officer of the Trust or to a meeting
of the Trustees, such resignation to be effective upon such delivery
unless such written instrument specifies a later effective date; (b)
any Trustee may be removed at any time with or without cause by a written
instrument signed by at least two-thirds of the number of Trustees then in
office (including, solely for the purpose of determining two-thirds of the
number of the Trustees then in office, the Trustee sought to be removed), such
removal to be effective upon the date specified in such written instrument; and
(c) any Trustee may be removed at any time with or without cause (i) at any
meeting of the Shareholders called for that purpose by a vote of Shareholders
holding of record at least 66 2/3% of the outstanding Shares, properly cast in
person or by proxy at such meeting or (ii) by way of a written instrument signed
by Shareholders holding of record at least 66 2/3% of the outstanding Shares,
and delivered to an officer of the Trust. A meeting of Shareholders
for the purpose of removing one or more Trustees may be called (a) by the
Trustees or (b) at the request of Shareholders in accordance with the provisions
of ARTICLE V, Section 2 hereof.
Notwithstanding
the foregoing, if, after giving effect to the resignation or removal of a
Trustee, the Trust would not have any Trustee then in office, such resignation
or removal shall not become effective unless and until there shall be at least
one Trustee then in office.
Section
5. Vacancies and
Appointments
In case
of the death, physical or mental incapacity, resignation or removal of a
Trustee, or an increase in the authorized number of Trustees, a vacancy shall
occur. As conclusive evidence of such vacancy, a written
instrument certifying the existence of such vacancy may be executed by an
officer of the Trust or by the Trustees. Subject to (a) the
provisions of the last sentence of ARTICLE VI, Section 1 hereof and (b) the
right of the Trustees, in their sole discretion, to call a meeting of
Shareholders for the purpose of electing a Trustee or Trustees, as provided in
ARTICLE VI, Section 3 hereof, and subject in all cases to the proviso to ARTICLE
VI, Section 3 hereof, in the case of a vacancy, the remaining Trustees, by
Resolution, shall appoint a person to fill such vacancy in a manner consistent
with the requirements of the 1940 Act and the By-Laws (including, without
limitation, provisions of the 1940 Act relating to the number of Interested
Persons who may serve as Trustees). Such appointment shall be
recorded in the minutes of a meeting of the Trustees, whereupon such appointment
shall become effective if accepted by the person so appointed by becoming a
signatory to this Declaration of Trust as a Trustee.
24
An
appointment of a Trustee may be made by the Trustees, by Resolution, in
anticipation of a vacancy to occur by reason of the resignation of a Trustee or
Trustees or an increase in the authorized number of Trustees, provided that said
appointment shall become effective only at or after the effective date of said
resignation or increase.
Section
6. Effect of Death,
Resignation, etc. of a Trustee
The
death, physical or mental incapacity, resignation or removal of one or more
Trustees, or all of them, during the existence of this Trust shall not operate
to annul or dissolve this Trust, to terminate any Series or Class or to revoke
any existing agency created pursuant to the terms of this Declaration of
Trust. Whenever a vacancy in the authorized number of Trustees shall
occur, until such vacancy is filled as provided in ARTICLE VI, Section 5 hereof,
the Trustees then in office, regardless of their number, but subject to the
requirements of the 1940 Act, shall have all the powers and authority granted to
the Trustees hereunder and shall discharge all the duties imposed upon the
Trustees by this Declaration of Trust. Except to the extent expressly
provided in a written agreement with the Trust, no Trustee resigning and no
Trustee removed shall have any right to any compensation for any period
following his or her resignation or removal, or any right to damages on account
of such removal.
Section
7. Action by the
Trustees
Except as
otherwise required by the 1940 Act or by the provisions of ARTICLE VI, Section
4(b) hereof, and except where this Declaration of Trust expressly provides that
an action to be taken by Trustees shall be taken by Resolution, any action to be
taken by the Trustees on behalf of this Trust or any Series or Class may be
taken by (a) a majority of the Trustees present at a duly constituted meeting of
the Trustees (a quorum, consisting of at least a majority of the Trustees then
in office, being present), including any meeting held by means of a
conference telephone or other communications equipment through which all persons
participating in the meeting can hear each other at the same time or (b) written
consents signed by a majority of the Trustees then in office; provided, however,
that whether or not a quorum is present, a majority of the Trustees present at a
duly constituted meeting of the Trustees may adjourn the meeting to another
place and time.
Section
8. Chairman of the
Trustees
The
Trustees may appoint one of their number to be Chairman of the
Trustees. The Chairman shall preside at all meetings of the Trustees
to the extent reasonably feasible and, to the extent provided by the Trustees,
shall be responsible for the execution of policies established by the Trustees
and the administration of the Trust. The Chairman may be (but is not
required to be) the chief executive, financial and/or accounting officer of the
Trust.
25
Section
9. Principal
Transactions
Except to
the extent prohibited by the 1940 Act, the Trustees may, on behalf of the Trust,
buy any securities from or sell any securities to, or lend any Trust Property
to, any Trustee or any officer or employee of the Trust or any organization in
which any such person has a direct or indirect interest, acting as
principal.
Section
10. Powers
Subject
only to such restrictions as are set forth in this Declaration of Trust, the
1940 Act and other applicable law, the Trustees shall have exclusive control
over the Trust Property and over the management of the business and affairs of
the Trust to the same extent as if the Trustees were the sole owners and holders
of the Trust Property and business and affairs in their own right, and shall
possess and may exercise all the powers and authority which may be possessed and
exercised by trustees of a business trust established under the Act; provided,
however, that the foregoing shall not be construed to prohibit the
Trustees from delegating their powers and authority in the manner described
herein.
Without
limiting the generality of the foregoing, in addition to the powers and
authority granted to the Trustees elsewhere herein, the Trustees shall have full
power and authority, for and on behalf of any one or more of the Trust and the
Series and Classes, to do or cause the Trust or other Persons to do any one or
more of the following, subject only to such restrictions as may be set forth in
this Declaration of Trust, the 1940 Act and other applicable law:
(a) To
conduct, operate and carry on the business and affairs of an open-end management
investment company organized as a series company and registered under the 1940
Act and do any and all acts or things (including, without limitation, the making
and execution of such agreements, contracts and instruments) as the Trustees may
deem necessary, convenient, appropriate, incidental or customary in connection
therewith or in the interest of any one or more of the Trust and the Series and
Classes (it being understood that, for purposes of this Section 10(a), any good
faith determination by the Trustees as to what is in the interest of any one or
more of the Trust and the Series and Classes shall be conclusive);
(b) To
adopt by-laws, not inconsistent with this Declaration of Trust, containing
additional provisions relating to the conduct of the business and affairs of the
Trust, and amend and repeal them to the extent that such by-laws do not
expressly and exclusively reserve that right to the Shareholders;
(c)
To conduct, operate and carry on the business and affairs of the Trust,
and maintain offices of the Trust, both within and without the State of
Delaware, in any and all other States and in any and all foreign
jurisdictions;
26
(d) To
elect and remove such officers and hire and terminate such employees, and
provide for the compensation of any or all of the foregoing (any one or more of
any of whom may be a Trustee), as the Trustees may deem
appropriate;
(e) To
establish, by appointing from the Trustees' own number or from among other
Persons, and terminate, any one or more committees consisting of two or more
Trustees or other Persons, and adopt committee charters providing for such
responsibilities, membership and other characteristics of such committees as the
Trustees may deem appropriate;
(f)
To delegate such powers, authority, functions and duties
(including, without limitation, those set forth in ARTICLE IV, Section 1 hereof)
as the Trustees may deem appropriate to (i) any officer, employee or Service
Provider (and authorize any of the foregoing to employ subagents and to
delegate, to any other Person, any of the powers, authority, functions or duties
so delegated to them); (ii) any committee consisting of Trustees or other
Persons (including, without limitation, (A) an executive
committee consisting of less than the whole number of Trustees then in office,
which may, when the Trustees are not in session, exercise some or all
of the powers and authority of the Trustees and act for and bind the Trustees
and the Trust, as if the acts of such committee were the acts of all the
Trustees then in office, and (B) a special committee which may exercise some or
all of the powers and authority of the Trustees, and act for and bind the
Trustees and the Trust, as if the acts of such committee were the acts of all
the Trustees then in office, with respect to the institution, prosecution,
dismissal, settlement, review or investigation of any claim,
action, suit or proceeding (civil, criminal, administrative or other,
including appeals) which shall be pending or threatened to be brought before any
court, administrative agency or other adjudicatory body); and (iii)
other Trustees, to the extent and in the manner provided in the
By-Laws;
(g)
To provide for the distribution of Shares either through one
or more Principal Underwriters or distributors, as described more fully in
ARTICLE VI, Section 13(b) hereof or by the Trust itself, or both, or otherwise
pursuant to a plan of distribution of any kind;
(h) To
interpret the investment objectives, policies restrictions and limitations
applicable to a particular Series;
(i) To
invest and reinvest cash and other property, hold cash and other property
uninvested, and subscribe for, invest in, reinvest in, purchase or otherwise
acquire, own, hold, pledge, sell, assign, transfer, trade, exchange, distribute,
write options on, lend, and deal in or dispose of contracts for the
future acquisition or delivery of, securities and instruments of every nature
and kind, including, without limitation, all types of bonds,
debentures, common stocks, preferred stocks, negotiable or
non-negotiable instruments, obligations, evidences of indebtedness, certificates
of deposit or indebtedness, commercial paper, repurchase agreements,
bankers' acceptances, futures contracts, options on futures contracts, swaps,
caps, collars, floors and other securities and instruments of any nature and
kind, issued, created, guaranteed or sponsored by any and all Persons,
including, without limitation, the United States government, States, foreign
governments, any political subdivision, agency or instrumentality of
any of the foregoing or of any combination of the foregoing, any supranational
organization, any bank or savings institution, or any corporation or
other entity organized under the laws of the United States, any State, or any
foreign jurisdiction, or in "when issued" contracts for any such
securities;
27
(j)
To sell, exchange, lend, pledge, mortgage,
hypothecate or lease, or write options with respect to or otherwise deal in any
property rights relating to, any or all of the Trust Property or the assets
associated with any Series;
(k) To
vote or give assent or otherwise act, or exercise any and all rights, powers and
privileges of ownership or interest, 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 may deem appropriate, granting to such Person
or Persons such power and discretion with relation to the Trust Property as the
Trustees may deem appropriate (including, without limitation, the power and
authority to act in the name of the Trust or the Trustees; to sign documents and
to act as attorney-in-fact for the Trust or the Trustees);
(l) To
exercise powers and rights of subscription or otherwise which in any manner
arise out of ownership of securities or other property; and to pay calls or
subscriptions with respect to any security held by or for the account of the
Trust;
(m)
To hold any security or other property in a form not
indicating that it is trust property, whether in bearer, book entry,
unregistered or other negotiable form; to deposit, or authorize any custodian or
subcustodian of Trust Property to deposit, all or any part of the Trust Property
in one or more systems for the central handling of securities or other
instruments or with a Federal Reserve Bank (each of the foregoing, a "Securities
Depository"), and authorize any Securities Depository to utilize the services of
one or more other Securities Depositories or agents; and to hold all or any part
of the Trust Property in the name(s) of one or more
custodians, subcustodians, Securities Depositories,
nominees or otherwise;
(n) To
consent to, or participate in, any plan for the reorganization, consolidation or
merger of any corporation or issuer of any security which is or was held by or
for the account of the Trust; and to consent to any contract, lease, mortgage,
purchase or sale of property by such corporation or issuer;
(o)
To join with other security holders in acting through a
committee, depositary, voting trustee or otherwise, and in that connection
deposit any security with, or transfer any security to, any such committee,
depositary or trustee, and delegate to them such power and authority with
relation to any security (whether or not so deposited or transferred) as the
Trustees may deem appropriate; and to agree to pay, and pay, such portion of the
expenses and compensation of such committee, depositary or trustee as the
Trustees may deem appropriate;
28
(p) To
compromise, arbitrate or otherwise adjust claims in favor of or against this
Trust or any Series or any matter in controversy, including, without limitation,
claims for taxes;
(q) To
enter into joint ventures, general or limited partnerships and any other
combinations or associations;
(r) To
borrow money or other property in the name of the Trust or of any Series
exclusively for the purposes of the Trust or of such Series, and in that
connection issue notes or other evidences of indebtedness;
(s) To
endorse or guarantee the payment of any notes or other obligations or undertake
the performance of any obligation or engagement of any Person; and to make
contracts of guaranty or suretyship, or otherwise assume liability for payment
thereof;
(t) To
purchase and pay for entirely out of Trust Property such insurance as the
Trustees may deem appropriate for the conduct of the business and affairs of the
Trust, including, without limitation, insurance policies insuring the assets of
the Trust or payment of distributions or principal on the Trust's portfolio
investments, and insurance policies insuring the Shareholders and Trustees and
officers, employees and Service Providers of the Trust or any thereof (or any
Person connected therewith), individually against all claims and liabilities of
every nature arising by reason of holding or having held Shares or holding or
having held any such office or position, or by reason of any action alleged to
have been taken or omitted by any such Person in any such capacity, including
any action taken or omitted that may be determined to constitute
negligence, whether or not the Trust would have the power to
indemnify such Person against liability;
(u) To
adopt, establish and carry out pension, profit-sharing, share bonus, share
purchase, savings, thrift and other retirement, incentive and benefit plans,
including the purchasing of life insurance and annuity contracts as a means of
providing retirement and other benefits, for any or all of the Trustees,
officers, employees and agents of the Trust;
(v) To
adopt and offer to Shareholders such dividend reinvestment plans, cash dividend
payout plans and related plans as the Trustees may deem
appropriate;
(w) To
redeem Shares in accordance with the provisions of ARTICLE IV hereof and
purchase or otherwise acquire Shares; and
(x) To
do everything that the Trustees may deem
necessary, convenient, appropriate, incidental
or customary for the accomplishment of any valid purpose or the attainment of
any valid object or for the furtherance of any power herein before set forth,
either alone or in association with others, the foregoing clauses to be
construed as objects as well as powers.
In
construing the provisions of this Declaration of Trust, the presumption shall be
in favor of (a) a grant of power and authority to the Trustees and (b) the power
and authority of the Trustees to delegate any of their powers and authority, and
the enumeration of any specific powers shall not be construed as limiting or
restricting in any manner the general powers of the Trustees. The Trust and the
Trustees shall not be limited to investing in securities or instruments maturing
before the possible dissolution of the Trust or the termination of one or more
Series. The Trust and the Trustees shall not in any way be bound or limited by
any present or future law or custom in regard to investments by trustees or
other fiduciaries, but shall have full power and authority to make any and all
investments which they may deem appropriate to accomplish the purpose of the
Trust or of any Series. No Person dealing with the Trustees shall be bound to
make any inquiry concerning the authority of the Trustees or 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 the Trustees or upon
its or their order. The Trust and the Trustees shall not be required
to resort to any court or other authority or to obtain an order of any court or
other authority to deal with any Trust Property or the assets associated with
any Series or take any other action hereunder.
29
Section
11. Payment of Expenses by the
Trust
The
Trust, and not the Trustees, shall be responsible for all liabilities, expenses,
costs and charges incurred or arising in connection with the Trust or any Series
(or Class), or in connection with the management thereof, and, subject to the
other provisions of this Declaration of Trust, the Trustees are authorized to
pay or cause to be paid (which authorization carries with it the authorization
to reimburse themselves for), out of the principal or income of the Trust or any
Series (or Class), or partly out of such principal and partly out of
such income, all such liabilities, expenses, costs and charges, including,
without limitation: interest charges; taxes; brokerage fees and commissions;
expenses related to the issuance, redemption and purchase of Shares; insurance
premiums; fees, and expenses of third parties, including Service Providers; fees
of pricing, interest, dividend, credit and other reporting services; costs of
membership in trade associations; telecommunications expenses; costs of
preparing transmission expenses; auditing, legal and compliance
expenses; costs of creating the Trust and maintaining its existence; costs of
preparing and printing the Trust's prospectuses, statements of
additional information and shareholder reports and delivering them to existing
and prospective shareholders; expenses of meetings of shareholders
and proxy solicitations therefor; costs of maintaining books and
accounts; costs of reproduction, stationery and supplies, fees and expenses of
the Trustees; compensation of the Trust's officers and employees and costs of
other personnel performing services for the Trust; costs of Trustee meetings,
Commission registration fees and related expenses; State or foreign securities
laws registration fees and related expenses; and such non-recurring items as may
arise, including litigation to which the Trust or the Trustees or any of them is
a party, and, subject to the provisions of ARTICLE VII, Section 3 hereof, for
all losses and expenses incurred by them in administering the Trust, and for the
payment of such losses and expenses the Trustees shall have a lien on the assets
belonging to the appropriate Series, or in the case of a loss or an expense
allocable to more than one Series, on the assets of each such Series, prior to
any rights or interests of the Shareholders thereto. This Section
shall not preclude the Trust from directly paying any of the aforementioned
liabilities, expenses, costs or charges.
30
Section
12. Ownership of Assets of the
Trust
The Trust
Property (including Trust Property associated with the various Series) shall be
held separate and apart from any assets now or hereafter held in any capacity
other than as Trustee hereunder by the Trustees or any successor
Trustees. Legal right, title and interest in and to all Trust
Property (including all Trust Property associated with the various Series) and
the right to conduct the business and affairs of the Trust shall at all times be
considered as vested in the Trust as a separate legal entity under the Act,
except that the Trustees may cause or authorize legal right, title or interest
in or to any Trust Property to be held by or in the name of the Trustees or any
of them or as provided in ARTICLE VI, Section 10(m) hereof. To the
extent that legal right, title or interest in or to any Trust Property is vested
in the Trustees, upon the death, physical or mental incapacity, resignation or
removal of a Trustee, he or she automatically shall cease to have any such
right, title or interest, and such right, title or interest shall vest
automatically in the remaining Trustees and in each person who may thereafter
become a Trustee. To the maximum extent permitted by law, such
cessation and vesting of right, title and interest shall be effective whether or
not conveyancing documents have been executed and delivered and whether or not
any other action has been taken.
Section
13. Service
Contracts
Subject
to such requirements and restrictions as may be set forth in the
By-Laws:
(a) the
Trustees, at any time and from time to time, may cause the Trust (or any Series
or Class thereof) to contract for exclusive or nonexclusive management, advisory
and/or administrative services with one or more Investment Managers or other
Persons, on such terms as the Trustees may deem appropriate,
including, without limitation, terms authorizing any Investment Manager to
determine (or to employ another Investment Manager to determine) from time to
time without prior consultation with the Trustees what investments shall be
purchased, held, sold or exchanged and what portion, if any, of the assets of
the Trust shall be held uninvested.
(b)
The Trustees, at any time and from time to time, may
cause the Trust (or any Series or Class thereof) to contract with one or more
Persons, appointing any such Person exclusive or nonexclusive Principal
Underwriter or distributor for the Shares of one or more of the Series (or
Classes) or other securities to be issued by the Trust, on such terms as the
Trustees may deem appropriate.
(c)
The Trustees, at any time and from time to time, may cause the Trust
(or any Series or Class thereof) to contract with one or more Persons,
appointing any such Person the custodian, transfer or similar agent, shareholder
servicing agent and/or dividend disbursement agent for the Trust or for one or
more of its Series (or Classes), on such terms as the Trustees may
deem appropriate (including, without limitation, terms authorizing
any such Person to employ subagents).
31
(d) The
Trustees, at any time and from time to time, may cause the Trust (or any Series
or Class thereof) to contract with any other Service Provider to provide such
other services as the Trustees may deem appropriate, on such terms as the
Trustees may deem appropriate.
(e) The
fact that: shall not affect the validity of any such Trust Contract or
disqualify any Trustee or Shareholder 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, however, that approval of each such Trust Contract
is obtained pursuant to the applicable requirements of the 1940
Act.
(i) any of
the Trustees or Shareholders or officers of the Trust has a management, advisory
or administration contract, or Principal Underwriter's or distributor's
contract, or transfer or similar agent, shareholder servicing agent, dividend
disbursement agent or other type of service contract with the Trust, or
that
(ii)
any of
the Trustees or Shareholders or officers of the Trust is or may become a
shareholder, trustee, director, officer, partner, member, employee, investment
manager or adviser, Principal Underwriter, distributor, or affiliate or agent of
or for any Person, or of or for any parent or affiliate of any Person, with
which a management, advisory or administration contract, or Principal
Underwriter's or distributor's contract, or transfer or similar
agent, shareholder servicing agent, dividend disbursement agent or other type of
service contract may have been or may hereafter be made by the Trust, or that
any such Person or any parent or affiliate thereof, is a Shareholder or has an
interest in the Trust, or that
(iii) any
Person with which a management, advisory or administration contract, or
Principal Underwriter's or distributor's contract, or transfer or
similar agent, shareholder servicing agent, dividend disbursement
agent or other type of service contract may have been or may hereafter be made
by the Trust (a "Trust Contract") also has a management, advisory or
administration contract, or Principal Underwriter's or distributor's
contract, or transfer or similar agent, shareholder servicing agent,
dividend disbursement agent or other service contract with one or more other
Persons, or has other business or interests,
Subject
to the foregoing proviso, nothing in this Declaration of Trust shall be deemed
to preclude (a) any one Person from entering into more than one Trust Contract
with the Trust or (b) any one Person from being financially interested in or
otherwise affiliated with more than one Person with whom the Trust has entered
into a Trust Contract.
32
ARTICLE
VII.
COMPENSATION, LIMITATION OF
LIABILITY AND
INDEMNIFICATION OF TRUSTEES
AND OFFICERS
Section
1. Compensation
The
Trustees shall be entitled to compensation from the Trust for their services as
such, and the Trustees may from time to time fix such compensation in such
reasonable amount as they may deem appropriate.
Section
2. Limitation of
Liability
Every
note, bond, contract, instrument, certificate, Share or other undertaking and
every other act or thing whatsoever issued, executed, made or done by the
Trustees or officers or employees or (to the extent permitted by the Trustees)
Service Providers of the Trust or any of them on behalf of the Trust or any
Series or Class thereof shall conclusively be deemed to have been issued,
executed, made or done only in or with respect to such capacities or capacity,
and not in their or his or her individual capacities or
capacity. In addition, neither a Trustee nor an officer of the
Trust shall be liable for any act or omission or any conduct whatsoever in his
or her capacity as Trustee or officer (including, without limitation, errors of
judgment or mistakes of fact or law), provided that nothing contained herein
shall protect any Trustee or officer against any liability to the Trust or the
Shareholders to which he or she otherwise would 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 Trustee or
officer. Accordingly, a Trustee or officer of the Trust, when
acting in such capacity (a) shall not personally be liable to any Person (except
as set forth in clause (b) immediately following) for any act, omission, debt or
obligation of the Trust or of such Trustee or officer and (b) shall be liable to
the Trust and the Shareholders only to the extent provided in the preceding
sentence. Without limiting the generality of the foregoing, but
subject in each case to clause (b) immediately above, (i) the exercise by the
Trustees or officers of the Trust of their powers and authority in good faith
shall be binding on the Trust, the Shareholders and every other interested
person; (ii) a Trustee shall not be responsible or liable for any act, omission,
debt or obligation of any officer, employee or Service Provider of
the Trust, or of any other Trustee; (iii) an officer shall not be
responsible or liable for any act, omission, debt or obligation of any Trustee,
employee or Service Provider of the Trust, or of any other
officer; (iv) the Trustees and officers may take advice of counsel or
other experts with respect to the meaning and operation of this Declaration of
Trust and their duties as Trustees or officers hereunder, and shall
not be liable for any act or omission in accordance with such advice or for
failing to follow such advice; and (v) in discharging their duties, the
Trustees, when acting in good faith, shall be entitled to rely upon the books of
account of the Trust and upon written reports made to the Trustees by any
officer, employee or Service Provider appointed by them, any
independent public accountant and (with respect to the subject matter of the
contract involved) any officer, partner, member or responsible employee or agent
of any other party to any contract entered into by the Trust or by the Trustees
on behalf of the Trust. The Trustees and officers shall not be
required to give any bond as such, nor any surety if a bond is
required or obtained. The provisions of this Declaration of Trust, to
the extent they restrict the duties and liabilities of the Trustees and officers
otherwise existing at law or in equity, are agreed by the Shareholders and all
other Persons to replace such other duties and liabilities of the Trustees and
officers.
33
Every
note, bond, contract, instrument, certificate, Share or other undertaking
issued, executed or made by the Trustees or any of them or by the officers,
employees or (to the extent permitted by the Trustees) Service Providers of the
Trust or any of them may recite that the same was issued, executed or made by or
on behalf of the Trust by them solely in such capacities or capacity and not
personally and that the obligations of such instrument are not binding upon any
of them personally but are binding only upon the assets and property of the
Trust or a particular Series thereof, and may contain such further recitals as
they or he or she may deem appropriate, but the omission thereof shall not
operate to bind any Trustee or any officer, employee or Service Provider of the
Trust personally.
Section
3. Indemnification
Subject
to the exceptions and limitations contained in this Section 3, every person who
is, or has been, a Trustee or officer of the Trust, or who serves at the request
of the Trust or at the request of a Trustee on behalf of the Trust as a trustee,
director, member, officer, employee or agent of another organization in which
the Trust has an interest as a shareholder, creditor or otherwise (hereinafter
referred to as a "Covered Person"), shall be indemnified by the Trust to the
fullest extent permitted by law against liability, and against all
expenses reasonably incurred or paid by him or her, in connection with any
claim, action, suit or proceeding in which he or she becomes involved
as a party or otherwise by virtue of his or her being or having been such a
Trustee, trustee, director, member, officer, employee or agent and against
amounts paid or incurred by him or her in settlement
thereof.
No
indemnification shall be provided hereunder to a Covered Person:
(a) for
any liability to this Trust or the Shareholders arising out of a final
adjudication by the court or other body before which the proceeding
was brought that he or she engaged in willful misfeasance, bad faith, gross
negligence or reckless disregard of the duties involved in the conduct of his or
her office;
(b) with
respect to any matter as to which he or she shall have been finally adjudicated
by the court or other body before which the proceeding was brought not to have
acted in good faith in the reasonable belief that his or her action was in the
best interest of the Trust; or
(c) in
the event of a settlement or other disposition not involving a final
adjudication (as provided in paragraph (a) or (b) immediately above) and
resulting in a payment by a Covered Person, unless there has been either a
determination that such Covered Person did not engage in willful
misfeasance, bad faith, gross negligence or reckless disregard of the
duties involved in the conduct of his or her office by the court or other body
approving the settlement or other disposition or a reasonable
determination, based on a review of the readily available facts (as opposed to a
full trial-type inquiry), that he or she did not engage in such conduct, such
determination being made by:
(i) a
vote of 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
(ii) a
written opinion of independent legal counsel.
34
The
rights of indemnification herein provided may be insured against by policies
maintained by the Trust, shall be severable, shall not exclude or affect any
other rights to which any Covered Person may now or hereafter be entitled, shall
be considered enforceable contract rights of Covered Persons, shall continue as
to a Person who has ceased to be a Covered Person (but only with respect to the
acts or omissions of such person occurring prior to the time such person ceased
to be a Covered Person) and shall inure to the benefit of the heirs, executors
and administrators of such a person. Nothing contained herein shall affect any
rights to indemnification to which Trust personnel other than Covered Persons
may be entitled by contract or otherwise under law. The
Trustees from time to time may provide for such indemnification as they deem
appropriate (but in no event more extensive than that provided in this Section
3), for employees, agents and Service Providers of this Trust. For
purposes of this Section 3, this Trust shall include any successor in interest
to this Trust.
Expenses
in connection with preparation and presentation of a defense to any claim,
action, suit or proceeding subject to a claim for indemnification
under this Section 3 may be advanced by the Trust or applicable Series from time
to time prior to final disposition thereof upon receipt of an undertaking by or
on behalf of the recipient to repay such amount to the Trust or applicable
Series if it is ultimately determined that he or she is not entitled to
indemnification under this Section 3, provided that either:
(a) such
undertaking is secured by a surety bond or some other appropriate security
supplied by the recipient (unless the Trustees shall waive the
requirement that such surety bond or security be supplied by the recipient) 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
independent legal counsel in a written opinion shall determine, based on a
review of the readily available facts (as opposed to a full trial-type inquiry),
that there is reason to believe that the recipient ultimately will be found to
be entitled to indemnification under this Section 3.
For
purposes of this Section 3, a "Disinterested Trustee" is a Trustee (i) 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 (ii) against whom none of such claims, actions, suits or other
proceedings or another claim, action, suit or proceeding on the same or similar
grounds is then or has been pending.
35
For
purposes of this Section 3 and Section 4 immediately below, the words "claim,"
"action," "suit" or "proceeding" shall apply to all claims, actions, suits or
proceedings (civil, criminal, administrative or other, including appeals),
actual or threatened and while in office or thereafter; and the words
"liability," "losses" and "expenses" shall include, without limitation,
attorneys' fees, costs, judgments, amounts paid in settlement, fines, penalties
and other liabilities.
Section
4. Insurance
The
Trustees may to the fullest extent permitted by law purchase with Trust assets
insurance for liability and for all expenses reasonably incurred or paid or
expected to be paid by a Covered Person in connection with any claim, action,
suit or proceeding in which he or she becomes involved as a party or otherwise
by virtue of his or her being or having been a Person who falls within the
definition of Covered Person, whether or not the Trust would have the power to
indemnify him or her against such liability under the provisions of this
Article.
ARTICLE
VIII.
AMENDMENT
Notwithstanding
any other provision of this Declaration of Trust, the Trustees, at any time and
from time to time, by Resolution, without any need for Shareholder authorization
or approval, may amend this Declaration of Trust so as to add
to, delete, replace or otherwise modify any provision hereof
(including, without limitation, any provision (a) relating to the Shares (or any
Series or Class thereof) or (b) contained in any document incorporated herein by
reference ("Incorporated Document") or in any document incorporated by reference
into an Incorporated Document); provided, however, that (i) the Trustees must
obtain Shareholder authorization or approval of any such amendment to the extent
they are required to do so by the 1940 Act; (ii) the Trustees must obtain the
authorization or approval of holders of not less than seventy-five percent (75%)
of the outstanding Shares, voting together without differentiation among the
separate Series or Classes, to adopt any amendment to this ARTICLE
VIII; (iii) the Trustees must obtain the authorization or approval of
Shareholders of a particular Series (or Class) to adopt any amendment which
would adversely affect to a material degree the rights, powers, privileges,
preferences or duties of the Shares of such Series (or Class), in the manner
provided in ARTICLE V, Section 1 hereof; (iv) to the extent voting
rights are accorded to Shareholders under the provisions of this Declaration of
Trust to authorize or approve a particular matter, the Trustees may
not adopt any amendment to any such voting right, or any amendment
which would have the effect of altering or nullifying such voting
right, unless they first obtain the same authorization or
approval of such Shareholders as would be required to be obtained from them if
such Shareholders were voting on such matter; and (v) no amendment to ARTICLE
VII hereof shall limit the rights to indemnification or insurance provided
herein which arise prior to such amendment.
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An
amendment required to be authorized or approved by holders of particular Shares
in a particular manner shall not be effective with respect to such Shares if not
so approved by such holders in such manner.
Any
amendment hereto shall be effective at the time specified by the Trustees by
Resolution (or upon the time specified in any requisite authorization or
approval of the Shareholders).
The
Certificate of Trust of the Trust also may be amended in accordance with the
foregoing principles, and any such amendment shall be effective immediately upon
the filing of a certificate of amendment with the Office of the Secretary of
State of the State of Delaware or upon such future date as may be stated
therein. Any such certificate of amendment may be signed by any one
Trustee pursuant to authorization of the Trustees.
ARTICLE
IX.
DISSOLUTION OF TRUST OR
TERMINATION OF SERIES OR CLASSES; REORGANIZATION
Section
1. Dissolution of Trust or
Termination of Series or Classes
Unless
dissolved as provided herein, the Trust shall continue without limitation of
time. The Trust may be dissolved (a) at any time by approval of
the Trustees and the holders of at least 66 2/3% of the outstanding Shares of
each Series, voting separately by Series; (b) at any time by the Trustees, by
Resolution and written notice to the Shareholders; or (c) in accordance with the
provisions of ARTICLE IX, Section 2 hereof. Any Series or Class may
be terminated (a) at any time by approval of the Trustees and the vote of the
holders of at least 66 2/3% of the outstanding Shares of that Series or Class;
(b) at any time by the Trustees, by Resolution and written notice to the
Shareholders of that Series or Class; or (c) in accordance with the provisions
of ARTICLE IX, Section 2 hereof. At any time there are no Shares of a
previously authorized Series or Class outstanding, the Trustees, by Resolution,
may abolish that Series or Class and rescind the authorization thereof, such
Resolution to be effective as of the date specified therein, and to be
incorporated by reference herein upon adoption.
Upon the
dissolution of the Trust (or the termination of any Series, as the case may be),
the Trustees shall proceed to cause the Trust (or Series) to wind up its
business and affairs. After paying or otherwise providing,
severally, for all liabilities, expenses, costs, charges and reserves with
respect to each Series (or the applicable Series, 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 may deem appropriate,
reduce the remaining assets held, severally, with respect to each Series (or the
applicable Series, as the case may be), to distributable form in cash or shares
or other securities, or any combination thereof, and distribute the
proceeds associated with each Series (or the applicable Series, as the case may
be), to the Shareholders of that Series, as a Series, ratably according to the
number of Shares of that Series held of record by such Shareholders on the
Distribution Record Date established by the Trustees in connection with the
dissolution or termination (giving due effect to the differences among the
various Classes within each such Series).
37
Upon
completion of the distribution of all of the Trust Property, or upon completion
of the distribution to holders of Shares of a Series of all of the assets
associated with that Series, whether pursuant to this Section 1 or ARTICLE IX,
Section 2 hereof, the Trustees shall be discharged of any and all further
liabilities and duties hereunder with respect to the Trust or such Series, as
the case may be, and the right, title and interest of all parties with respect
to the Trust or such Series, as the case may be, shall be canceled and
discharged.
In the
event of a dissolution of the Trust, following completion of winding up of the
Trust's business and affairs, the Trustees shall cause a certificate of
cancellation of the Trust's Certificate of Trust to be filed in accordance with
the Act, which certificate of cancellation may be signed by any one Trustee
pursuant to authorization of the Trustees.
Section
2. Reorganization
The
Trustees, by Resolution, may cause the Trust to sell, convey and transfer all or
substantially all of the assets of the Trust, or all or substantially all of the
assets associated with any one or more Series, to another trust, partnership,
limited liability company, association or corporation organized under the laws
of any State, or to one or more separate series thereof, or to the Trust to be
held as assets associated with one or more other Series of the Trust, in
exchange for cash, shares or other securities (including, without
limitation, in the case of a transfer to another Series of the Trust,
Shares of such other Series) with such transfer either (a) being made subject
to, or with the assumption by the transferee of, the liabilities associated with
each Series the assets of which are so transferred, or (b) not being made
subject to, or not with the assumption of, such liabilities;
provided, however, that, if required by the 1940 Act, no assets
associated with any particular Series shall be so sold, conveyed or
transferred unless the terms of such transaction shall first have been approved
at a meeting called for that purpose by the affirmative vote of a majority of
the outstanding Shares of that Series. Following such sale,
conveyance and transfer, the Trustees shall distribute such cash,
shares or other securities (giving due effect to the assets and liabilities
associated with and any other differences among the various Series the assets
associated with which have so been sold, conveyed and transferred) ratably among
the Shareholders of the Series the assets associated with which have been so
sold, conveyed and transferred (giving due effect to the differences among the
various Classes within each such Series); and if all of the assets of the Trust
have been so sold, conveyed and transferred the Trust shall be
dissolved.
The
Trustees may cause the Trust, or any one or more Series, either as the
successor, survivor, or non-survivor, (a) to consolidate with one or more other
trusts, partnerships, limited liability companies, associations or corporations
organized under the laws of any State, or with one or more separate series
thereof, or with one or more other Series, thereby forming a new consolidated
trust, partnership, limited liability company, association,
corporation, series or Series under the laws of which any one of the constituent
entities is organized, or (b) to merge into one or more other trusts,
partnerships, limited liability companies, associations or
corporations organized under the laws of any State, or into one or more separate
series thereof, or into one or more other Series, or to have one or more of such
trusts, partnerships, limited liability companies, associations,
corporations, series or Series merged into it, any such consolidation
or merger to be upon such terms and conditions as are specified in an agreement
and plan of reorganization entered into by the Trust, or any one or more Series,
as the case may be, in connection therewith. The terms "merge" or
"merger" as used herein also shall include the purchase or acquisition, other
than in the ordinary course of business, of any assets or business of any other
trust, partnership, limited liability company, association or corporation which
is an investment company organized under the laws of any State, or of any series
thereof, or of any Series. Any such consolidation or merger shall
require a Resolution of the Trustees and, if required by the 1940 Act, the
affirmative vote of a majority of the outstanding Shares of each Series affected
thereby, at a meeting duly called for that purpose.
38
In
accordance with Section 3815(F) of the Act, an agreement of merger or
consolidation approved in accordance with this Section 2 may effect any
amendment to this Declaration of Trust or the By-Laws or effect the adoption of
a new declaration of trust or by-laws of this Trust if this Trust is the
surviving or resulting business trust. A certificate of merger or
consolidation of this Trust shall be signed by a majority of the
Trustees.
ARTICLE
X.
MISCELLANEOUS
Section
1. Filing of Copies;
References; Headings; Singular and Plural; Counterparts
The
original or a copy of this Declaration of Trust, each amendment or restatement
hereof, each document incorporated herein by reference and each certificate
filed by or on behalf of this Trust with the Office of the Secretary of State of
the State of Delaware pursuant to the Act shall be kept at the principal
executive office of this Trust where it may be inspected by any Shareholder at
any reasonable time during usual office hours. The inspection shall
include the right to make copies and extracts, at the sole cost and expense of
the Shareholder making the inspection. Anyone dealing with this
Trust may rely on a certificate by a Trustee or officer of this Trust as to
whether or not any such amendments or restatements have been made and as to any
matter in connection with this Trust hereunder; and, with the same effect as if
it were the original, may rely on a copy certified by a Trustee or officer of
this Trust to be a copy of this Declaration of Trust or of any such amendment or
restatement.
In this
Declaration of Trust and in any such amendment or restatement hereof, references
to this Declaration of Trust, and all expressions like "hereby," "herein,"
"hereof," "hereto" and "hereunder," shall be deemed to refer to this Declaration
of Trust as amended or restated or affected by any such amendment or
restatement.
39
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
Declaration of Trust.
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
Declaration of Trust may be executed in any number of counterparts, each of
which shall be deemed an original.
Section
2. Applicable Law;
Construction
This
Declaration of Trust is executed and delivered by all of the Trustees with
reference to the Act and the laws of the State of Delaware, and this Trust and
all provisions of this Declaration of Trust (which shall be the governing
instrument of this Trust), and the rights, duties and obligations of the
Trustees and Shareholders hereunder, are to be governed by and construed and
administered in accordance with the Act and the internal substantive laws of
said State without regard to principles of conflict of laws (unless and to the
extent preempted by the 1940 Act or other applicable Federal securities laws);
provided, however, that there shall not be applicable to this Trust, the
Trustees or this Declaration of Trust (a) the provisions of Section 3540 of
Title 12 of the Delaware Code or (b) any provisions of the laws (statutory or
common) of the State of Delaware (other than the Act) pertaining to trusts which
are inconsistent with the powers and authority and limitations of liability of
the Trustees set forth or referenced herein or which relate to or regulate (i)
the filing with any court or governmental body or agency of trustee accounts or
schedules of trustee fees and charges, (ii) affirmative requirements to post
bonds for trustees, officers, agents or employees of a trust, (iii) the
necessity for obtaining court or other governmental approval concerning the
acquisition, holding or disposition of real or personal property, (iv) fees or
other sums payable to trustees, officers, agents or employees of a trust, (v)
the allocation of receipts and expenditures to income or principal, (vi)
restrictions or limitations on the permissible nature, amount or concentration
of trust investments or requirements relating to the titling, storage or other
manner of holding of trust assets, or (vii) the establishment of
fiduciary or other standards of responsibilities or limitations on the acts or
powers of trustees. This Trust shall be of the type commonly called a
"business trust," and without limiting the provisions hereof, this Trust
specifically reserves the right to exercise any of the powers or privileges
afforded to trusts and to take actions that may be taken by trusts under the
Act, and the absence of a specific reference herein to any such power, privilege
or action shall not imply that this Trust may not exercise such powers or
privileges or take such actions.
In
construing the meaning or application of the Securities Act of 1933, as amended,
or any rule or regulation of the Commission thereunder (the"1933 Act"), the
Securities Exchange Act of 1934, as amended, or any rule or regulation of the
Commission thereunder (the "1934 Act") or the 1940 Act, the Trustees
may consider the effect of any applicable order or interpretive release issued
by the Commission, or any applicable "no action" or interpretive position issued
by the staff of the Commission, that modifies or interprets any of the
foregoing.
40
If any
provision of this Declaration of Trust appears to the Trustees to be ambiguous
or inconsistent with any other provision hereof, the Trustees may construe such
provision in such manner as they reasonably may determine in good faith, and
such construction shall be conclusive and binding as to the meaning to be given
to such provision.
Section
3. Record Dates for Other
Purposes
The
Trustees may establish such procedures for determining record dates for purposes
other than those set forth in ARTICLE IV, Section 2 hereof and ARTICLE V,
Section 5 hereof as they may deem appropriate. In lieu of
establishing record dates in connection with such other purposes, the Trustees
may close the register or transfer books for one or more Series (or
Classes), for such periods as they may deem appropriate, preceding a
date that serves the same purpose as a record date.
Section
4. 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 (i) the 1933 Act, the 1934 Act or the 1940 Act, or any rule,
regulation or order of the Commission under any of the foregoing, (ii) the
regulated investment company provisions of the Internal Revenue Code of 1986, as
amended, or (iii) the Act or other applicable laws, rules, regulations or
orders, whether generally or in a particular application, the conflicting
provision or such particular application thereof, as the case may be, shall not
be deemed to constitute a part of this Declaration of Trust for so long as such
conflict exists; provided, however, that such determination shall not affect any
of the remaining provisions of this Declaration of Trust or any lawful
application of any provision, or render invalid or improper any
action taken or omitted prior to such determination.
(b) If
any provision or the application of 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 or application in such jurisdiction and
shall not in any manner affect such provision or application in any other
jurisdiction or any other provision of this Declaration of Trust in any
jurisdiction.
41
IN
WITNESS WHEREOF, the Trustee named below does hereby make and enter into this
Declaration of Trust as of the 10th day of May, 2001.
/s/ Xxxxx X.
Xxxxxx
Xxxxx X.
Xxxxxx
THE
PRINCIPAL PLACE OF BUSINESS OF THE TRUST IS:
000 Xxxxx Xxxxxx, Xxx Xxxx,
XX 00000
42
