AGREEMENT AND DECLARATION OF TRUST
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of
LINCOLN VARIABLE INSURANCE PRODUCTS TRUST
a Delaware Business Trust
TABLE OF CONTENTS
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Page
ARTICLE I. NAME AND DEFINITIONS 1
Section 1. Name 1
Section 2. Definitions 2
(a) "1940 Act" 2
(b) "Affiliate" 2
(c) "Board of Trustees" 2
(d) "By-Laws" 2
(e) "Certificate of Trust" 2
(f) "Class" 2
(g) "Code" 2
(h) "Commission" 2
(i) "DBTA" 2
(j) "Declaration of Trust" 2
(k) "General Liabilities" 2
(l) "Interested Person" 2
(m) "Manager" or "Managers" 2
(n) "National Financial Emergency" 2
(o) "Person" 3
(p) "Principal Underwriter" 3
(q) "Series" 3
(r) "Shares" 3
(s) "Shareholder" 3
(t) "Trust" 3
(u) "Trust Property" 3
(v) "Trustee" or "Trustees" 3
ARTICLE II. PURPOSE OF TRUST 3
ARTICLE III. SHARES 7
Section 1. Division of Beneficial Interest 7
Section 2. Ownership of Shares 9
Section 3. Transfer of Shares 9
Section 4. Investments in the Trust 9
Section 5. Status of Shares and Limitation of Personal Liability 9
Section 6. Power of Board of Trustees to Change Provisions Relating to Shares 10
Section 7. Establishment and Designation of Series 11
(a) Assets Held with Respect to a Particular Series 11
(b) Liabilities Held with Respect to a Particular Series 11
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(c) Dividends, Distributions, Redemptions and Xxxxxxxxxxx 00
(x) Voting 12
(e) Equality 13
(f) Fractions 13
(g) Exchange Privilege 13
(h) Combination of Series 13
(i) Elimination of Series 13
Section 7. Indemnification of Shareholders 13
ARTICLE IV. THE BOARD OF TRUSTEES 14
Section 1. Number, Election and Tenure 14
Section 2. Effect of Death, Resignation, Removal, etc. of a Trustee 14
Section 3. Powers 15
Section 4. Payment of Expenses by the Trust 16
Section 5. Payment of Expenses by Shareholders 16
Section 6. Ownership of Trust Property 17
Section 7. Service Contracts 17
Section 8. Trustees and Officers as Shareholders 18
Section 9. Principal Transaction 18
Section 10. Independent Trustees 19
ARTICLE V. SHAREHOLDERS' VOTING POWERS AND MEETINGS 19
Section 1. Voting Powers 19
Section 2. Meetings 19
Section 3. Quorum and Required Vote 19
Section 4. Shareholder Action by Written Consent without a Meeting 20
Section 5. Record Dates 20
Section 6. Additional Provisions 21
ARTICLE VI. NET ASSET VALUE, DISTRIBUTIONS AND REDEMPTIONS 21
Section 1. Determination of Net Asset Value, Net Income and Distributions 21
Section 2. Redemptions at the Option of a Shareholder 21
Section 3. Redemptions at the Option of the Trust 23
ARTICLE VII. COMPENSATION AND LIMITATION OF LIABILITY OF OFFICERS AND TRUSTEES 23
Section 1. Compensation 23
Section 2. Indemnification and Limitation of Liability 24
Section 3. Officers and Trustees' Good Faith Action, Expert Advice, No Bond or Surety 25
Section 4. Insurance 25
ARTICLE VIII. MISCELLANEOUS 25
Section 1. Liability of Third Persons Dealing with Trustees 25
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Section 2. Dissolution of Trust or Series 25
Section 3. Merger and Consolidation; Conversion 26
(a) Merger and Consolidation 26
(b) Conversion 26
Section 4. Reorganization 27
Section 5. Amendments 27
Section 6. Filing of Copies, References, Headings 28
Section 7. Applicable Law 28
Section 8. Provisions in Conflict with Law or Regulations 29
Section 9. Business Trust Only 29
Section 10. Writings 29
Section 11. Fiscal Year 30
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AGREEMENT AND
DECLARATION OF TRUST
OF
LINCOLN VARIABLE INSURANCE PRODUCTS TRUST
AGREEMENT AND
DECLARATION OF TRUST made as of this 1st day of February,
2003, by the Trustees hereunder, and by the holders of shares of beneficial
interest to be issued hereunder as hereinafter provided. This
Declaration of
Trust shall be effective upon the filing of the Certificate of Trust in the
office of the Secretary of State of the State of
Delaware.
W I T N E S S E T H:
WHEREAS this Trust has been formed to carry on the business of an
investment company; and
WHEREAS this Trust is authorized to issue its shares of beneficial
interest in separate Series, and to issue Classes of Shares of any Series or
divide Shares of any Series into two or more Classes, all in accordance with
the provisions hereinafter set forth; and
WHEREAS the Trustees have agreed to manage all property coming into their
hands as trustees of a
Delaware business trust in accordance with the
provisions of the
Delaware Business Trust Act (12 DEL. C. Section 3801, ET
SEQ.), as from time to time amended and including any successor statute of
similar import (the "DBTA"), and the provisions hereinafter set forth.
NOW, THEREFORE, the Trustees hereby declare that they will hold all cash,
securities and other assets which they may from time to time acquire in any
manner as Trustees hereunder IN TRUST to manage and dispose of the same upon
the following terms and conditions for the benefit of the holders from time to
time of shares of beneficial interest in this Trust and the Series created
hereunder as hereinafter set forth.
ARTICLE I.
NAME AND DEFINITIONS
Section 1. NAME. This trust shall be known as "LINCOLN VARIABLE
INSURANCE PRODUCTS TRUST" and the Trustees shall conduct the business of the
Trust under that name, or any other name as they may from time to time
determine.
Section 2. DEFINITIONS. Whenever used herein, unless otherwise required
by the context or specifically provided:
(a) "1940 ACT" shall mean the Investment Company Act of 1940 and the
rules and regulations thereunder, all as adopted or amended from time to time;
(b) "AFFILIATE" shall have the meaning given to it in Section 2(a)(3) of
the 1940 Act when used with reference to a specified Person.
(c) "BOARD OF TRUSTEES" shall mean the governing body of the Trust, which
is comprised of the Trustees of the Trust;
(d) "BY-LAWS" shall mean the By-Laws of the Trust, as amended from time
to time, which By-Laws are expressly incorporated herein by reference as part
of the "governing instrument" within the meaning of the DBTA;
(e) "CERTIFICATE OF TRUST" shall mean the certificate of trust as amended
or restated from time to time, filed with the Office of the Secretary of State
of the State of
Delaware in accordance with the DBTA;
(f) "CLASS" shall mean a Class of Shares of a Series of the Trust
established in accordance with the provisions of Article III hereof;
(g) "CODE" shall mean the Internal Revenue Code of 1986, as amended, and
the rules and regulations thereunder;
(h) "COMMISSION" shall have the meaning given such term in the 1940 Act;
(i) "DBTA" shall mean the
Delaware Business Trust Act, (12 Del. C.
Section3801, et seq.), as amended from time to time;
(j) "
DECLARATION OF TRUST" shall mean this Agreement and
Declaration of
Trust, as amended or restated from time to time;
(k) "GENERAL LIABILITIES" shall have the meaning given it in Article III,
Section 6(b) of this Declaration Trust;
(l) "INTERESTED PERSON" shall have the meaning given it in Section
2(a)(19) of the 1940 Act;
(m) "MANAGER" OR "MANAGERS" shall mean a party furnishing services to
the Trust pursuant to any contract described in Article IV, Section 7(a)
hereof;
(n) "NATIONAL FINANCIAL EMERGENCY" shall mean the whole or any part of
any period set forth in Section 22(e) of the 1940 Act. The Board of Trustees
may, in its discretion, declare that the suspension relating to a national
financial emergency shall terminate, as the case may be, on the first business
day on which the New York Stock Exchange shall have reopened or the period
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specified in Section 22(e) of the 1940 Act shall have expired (as to which, in
the absence of an official ruling by the Commission, the determination of the
Board of Trustees shall be conclusive);
(o) "PERSON" shall include, in its own or any representative capacity, a
natural person, partnership, limited partnership, trust, estate, association,
joint venture, corporation, custodian, nominee or any other individual or
entity, whether or not a legal entity, and governments and agencies and
political subdivisions thereof, whether domestic or foreign;
(p) "PRINCIPAL UNDERWRITER" shall have the meaning given such term in the
1940 Act;
(q) "SERIES" shall refer to each series of Shares of the Trust
established and designated under or in accordance with the provisions of
Article III hereof, and shall mean an entity such as that described in Section
18(f)(2) of the 1940 Act, and subject to Rule 18f-2 thereunder;
(r) "SHARES" shall mean the outstanding shares of beneficial interest
into which the beneficial interest of each Series of the Trust or Class
thereof in the Trust shall be divided from time to time, and may include
fractional and whole shares;
(s) "SHAREHOLDER" shall mean a record owner of Shares;
(t) "TRUST" shall refer to the
Delaware business trust established under
the DBTA by this Agreement and
Declaration of Trust, as amended from time to
time and the filing of the Certificate of Trust in the office of the Secretary
of State of the State of
Delaware;
(u) "TRUST PROPERTY" shall mean any and all property, real or personal,
tangible or intangible, which is owned or held by or for the account of the
Trust or one or more of any Series, including, without limitation, the rights
referenced in Article VIII, Section 2 hereof;
(v) "TRUSTEE" or "TRUSTEES" shall refer to each signatory to this
Declaration of Trust as a trustee, so long as such signatory continues in
office in accordance with the terms hereof, and all other Persons who may,
from time to time, be duly elected or appointed, qualified and serving on the
Board of Trustees in accordance with the provisions hereof. Reference herein
to a Trustee or the Trustees shall refer to such Person or Persons in their
capacity as trustees hereunder.
ARTICLE II.
PURPOSE OF TRUST
The purpose of the Trust is to conduct, operate and carry on the business
of an open-end registered management investment company registered under the
1940 Act through one or more Series investing primarily in securities and to
carry on such other business as the Trustees may from time to time determine
pursuant to their authority under this
Declaration of Trust, and, in addition
to any authority given by law, to exercise all of the powers and to do any and
all of the things as fully and to the same extent as any private corporation
organized for profit under the general
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corporation law of the State of
Delaware, now or hereafter in force,
including, without limitation, the following powers:
(a) To invest and reinvest cash and other property, to hold cash and
other property uninvested instruments, and to subscribe for, invest in,
reinvest in, purchase or otherwise acquire, own, hold, pledge, sell, assign,
mortgage, transfer, exchange, distribute, write options on, lend or otherwise
deal in or dispose of contracts for the future acquisition or delivery of
fixed income or other securities, and securities, property or instruments of
every nature and kind, including, without limitation, all types of bonds,
debentures, stocks, preferred stocks, negotiable or non-negotiable
instruments, obligations, evidences of indebtedness, certificates of deposit
or indebtedness, commercial paper, repurchase agreements, bankers'
acceptances, currency (including foreign currency) and other securities,
property and instruments of any kind, issued, created, guaranteed, or
sponsored by any and all Persons, including, without limitation, states,
territories, and possessions of the United States and the District of Columbia
and any political subdivision, agency, or instrumentality thereof, any foreign
government or any political subdivision of the U.S. Government or any foreign
government, or any international instrumentality, or by any bank or savings
institution, or by any corporation or organization organized under the laws of
the United States or of any state, territory, or possession thereof, or by any
corporation or organization organized under any foreign law, or in "when
issued" contracts for any such securities, property or instruments, to change
the investments of the assets of the Trust;
(b) To exercise any and all rights, powers and privileges with reference
to or incident to ownership or interest, use and enjoyment of any of such
securities and other instruments or property of every kind and description,
including, but without limitation, the right, power and privilege to own,
vote, hold, purchase, sell, negotiate, assign, exchange, lend, transfer,
mortgage, hypothecate, lease, pledge or write options with respect to or
otherwise deal with, dispose of, use, exercise or enjoy any rights, title,
interest, powers or privileges under or with reference to any of such
securities and other instruments or property, the right to consent and
otherwise act with respect thereto, with power to designate one or more
Persons, to exercise any of said rights, powers, and privileges in respect of
any of said instruments, and to do any and all acts and things for the
preservation, protection, improvement and enhancement in value of any of such
securities and other instruments or property;
(c) To sell, exchange, lend, pledge, mortgage, hypothecate, lease or
write options (including, options on futures contracts) with respect to, or
otherwise deal in any property rights relating to, any or all of the assets of
the Trust or any Series, subject to any requirements of the 1940 Act;
(d) To vote or give assent, or exercise any rights of ownership, with
respect to stock or other securities or property; and to execute and deliver
proxies or powers of attorney to such person or persons as the Trustees shall
deem proper, granting to such person or persons such power and discretion with
relation to securities or property as the Trustees shall deem proper;
(e) To exercise powers and right of subscription or otherwise which in
any manner arise out of ownership of securities;
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(f) To hold any security or property in a form not indicating that it is
trust property, whether in bearer, unregistered or other negotiable form, or
in its own name or in the name of a custodian or subcustodian or a nominee or
nominees or otherwise or to authorize the custodian or a subcustodian or a
nominee or nominees to deposit the same in a securities depository, subject in
each case to proper safeguards according to the usual practice of investment
companies or any rules or regulations applicable thereto;
(g) To consent to, or participate in, any plan for the reorganization,
consolidation or merger of any corporation or issuer of any security which is
held in the Trust; to consent to any contract, lease, mortgage, purchase or
sale of property by such corporation or issuer; and to pay calls or
subscriptions with respect to any security held in the Trust;
(h) To join with other security holders in acting through a committee,
depositary, voting trustee or otherwise, and in that connection to deposit any
security with, or transfer any security to, any such committee, depositary or
trustee, and to delegate to them such power and authority with relation to any
security (whether or not so deposited or transferred) as the Trustees shall
deem proper, and to agree to pay, and to pay, such portion of the expenses and
compensation of such committee, depositary or trustee as the Trustees shall
deem proper;
(i) To compromise, arbitrate or otherwise adjust claims in favor of or
against the Trust or any matter in controversy, including but not limited to
claims for taxes;
(j) To enter into joint ventures, general or limited partnerships and any
other combinations or associations;
(k) To endorse or guarantee the payment of any notes or other obligations
of any Person; to make contracts of guaranty or suretyship, or otherwise
assume liability for payment thereof and to mortgage and pledge the Trust
property or any part thereof to secure any of or all of such
obligations;
(l) To purchase and pay for entirely out of Trust Property such insurance
as the Trustees may deem necessary or appropriate for the conduct of the
business, including, without limitation, insurance policies insuring the
assets of the Trust or payment of distributions and principal on its portfolio
investments, and insurance policies insuring the Shareholders, Trustees,
officers, employees, agents, Managers, Principal Underwriters, or independent
contractors of the Trust, individually against all claims and liabilities of
every nature arising by reason of, holding, being or having held any such
office or position, or by reason of any action alleged to have been taken or
omitted by any such Person as Trustee, officer, employee, agent, Manager,
Principal Underwriter, or independent contractor, including any action taken
or omitted that may be determined to contribute negligence whether or not the
Trust would have the power to indemnify such Person against liability; and
(m) To adopt, establish and carry out pension, profit-sharing, Share
bonus, Share purchase, savings, thrift and other retirement, incentive and
benefit plans, trusts and provisions,
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including the purchasing of life insurance and annuity contracts as a means of
providing such retirement and other benefits, for any or all of the Trustees,
officers, employees and agents of the Trust.
(n) To purchase or otherwise acquire, own, hold, sell, negotiate,
exchange, assign, transfer, mortgage, pledge or otherwise deal with, dispose
of, use, exercise or enjoy, property of all kinds.
(o) To buy, sell, mortgage, encumber, hold, own, exchange, rent or
otherwise acquire and dispose of, and to develop, improve, manage, subdivide,
and generally to deal and trade in real property, improved and unimproved, and
wheresoever situated; and to build, erect, construct, alter and maintain
buildings, structures, and other improvements on real property.
(p) To borrow or raise moneys in the name of the Trust, exclusively for
any of the purposes of the Trust, and to mortgage or pledge the whole or any
part of the property and franchises of the Trust, real, personal, and mixed,
tangible or intangible, and wheresoever situated.
(q) To enter into, make and perform contracts and undertakings of every
kind for any lawful purpose, without limit as to amount.
(r) To issue, purchase, sell and transfer, reacquire, hold, trade and
deal in Shares, bonds, debentures and other securities, instruments or other
property of the Trust, from time to time, to such extent as the Board of
Trustees shall, consistent with the provisions of this Declaration of Trust,
determine; and to repurchase, re-acquire and redeem, from time to time, its
Shares or, if any, its bonds, debentures and other securities.
(s) To employ as custodian of any assets of the Trust one or more banks,
trust companies or companies that are members of a national securities
exchange or such other entities as the Commission may permit as custodians of
the Trust, subject to any conditions set forth in this Declaration of Trust or
in the Bylaws;
(t) To employ auditors, counsel or other agents of the Trust, subject to
any conditions set forth in this Declaration of Trust or in the Bylaws;
(u) To interpret the investment policies, practices, or limitations of
any Series or Class;
(v) To establish separate and distinct Series with separately defined
investment objectives and policies and distinct investment purposes, and with
separate Shares representing beneficial interests in such Series, and to
establish separate Classes, all in accordance with the provisions of Article
III;
(w) To the full extent permitted by Section 3804 of the
Delaware Act, to
allocate assets, liabilities and expenses of the Trust to a particular Series
and liabilities and expenses to a particular Class or to apportion the same
between or among two or more Series or Classes, provided that any
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liabilities or expenses incurred by a particular Series or Class shall be
payable solely out of the assets belonging or attributable to that Series or
Class as provided for in Article III;
(x) To establish, from time to time, a minimum investment for
Shareholders in the Trust or in one or more Series or Classes, and to require
the redemption of the Shares of any Shareholders whose investment is less than
such minimum, or who does not satisfy any other criteria the Trustees may set
from time to time, upon giving any requisite notice to such Shareholder; and
(y) Subject to the 1940 Act, to engage in any other lawful act or
activity in which a business trust organized under the Delaware Act may engage.
The Trust shall not be limited to investing in obligations maturing
before the possible dissolution of the Trust or one or more of its Series.
The Trust shall not in any way be bound or limited by any present or future
law or custom in regard to investment by fiduciaries. Neither the Trust nor
the Trustees shall be required to obtain any court order to deal with any
assets of the Trust or take any other action hereunder.
The foregoing clauses shall each be construed as purposes, objects and
powers, and it is hereby expressly provided that the foregoing enumeration of
specific purposes, objects and powers shall not be held to limit or restrict
in any manner the powers of the Trust, and that they are in furtherance of,
and in addition to, and not in limitation of, the general powers conferred
upon the Trust by the DBTA and the other laws of the State of Delaware or
otherwise; nor shall the enumeration of one thing be deemed to exclude
another, although it be of like nature, not expressed.
ARTICLE III.
SHARES
Section 1. DIVISION OF BENEFICIAL INTEREST. The beneficial interest in
the Trust shall be divided into one or more Series. The Trustees may divide
each Series into two or more Classes. Subject to the further provisions of
this Article III and any applicable requirements of the 1940 Act, the Trustees
shall have full power and authority, in their sole discretion, and without
obtaining any authorization or vote of the Shareholders of any Series or Class
thereof, (i) to divide the beneficial interest in each Series or Class thereof
into Shares, with or without par value as the Trustees shall determine, (ii)
to issue Shares in addition to the then issued and Outstanding Shares and
Shares held in the treasury of the Trust without limitation as to number
(including fractional Shares) to such Persons and for such amount and type of
consideration, subject to any restriction set forth in the Bylaws and
applicable law, including cash or securities, at such time or times and on
such terms as the Trustees may deem appropriate, and may in such manner
acquire other assets (including the acquisition of assets subject to, and in
connection with, the assumption of liabilities) and businesses, (iii) to
establish and designate and to change in any manner any Series or Class
thereof
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and to fix such preferences, voting powers, rights, duties and privileges and
business purpose of each Series or Class thereof as the Trustees may from time
to time determine, which preferences, voting powers, rights, duties and
privileges may be senior or subordinate to (or in the case of business
purpose, different from) any existing Series or Class thereof and may be
limited to specified property or obligations of the Trust or profits and
losses associated with specified property or obligations of the Trust, (iv) to
divide or combine the Shares of any Series or Class thereof into a greater or
lesses number without thereby materially changing the proportionate beneficial
interest of the Shares of such Series or Class thereof in the assets held with
respect to that Series, (v) to classify or reclassify any issued Shares of any
Series or Class thereof into Shares of one or more Series or Classes, (vi) to
change the name of any Series or Class thereof, (vii) to abolish any one or
more Series or Classes thereof, and (viii) to take such action with respect to
the Shares as the Trustees may deem desirable.
The Board of Trustees may hold as treasury shares, reissue for such
consideration and on such terms as they may determine, or cancel, at their
discretion from time to time, any Shares of any Series reacquired by the
Trust. The Board of Trustees may classify or reclassify any unissued Shares
or any Shares previously issued and reacquired of any Series or Class into one
or more Series or Classes that may be established and designated from time to
time. Notwithstanding the foregoing, the Trust and any Series thereof may
acquire, hold, sell and otherwise deal in, for purposes of investment or
otherwise, the Shares of any other Series of the Trust or Shares of the Trust,
and such Shares shall not be deemed treasury shares or cancelled.
Subject to the provisions of Section 7 of this Article III, each Share
shall have voting rights as provided in Article V hereof, and the Shareholders
of any Series shall be entitled to receive dividends and distributions, when,
if and as declared with respect thereto in the manner provided in Article IV,
Section 3 hereof. No Share shall have any priority or preference over any
other Share of the same Series or Class with respect to dividends or
distributions paid in the ordinary course of business or distributions upon
dissolution of the Trust or of such Series or Class made pursuant to Article
VIII, Section 2 hereof. All dividends and distributions shall be made ratably
among all Shareholders of a particular Class of Series from the Trust Property
held with respect to such Series according to the number of Shares of such
Class of such Series held of record by such Shareholders on the record date
for any dividend or distribution. Shareholders shall have no preemptive or
other right to subscribe to new or additional Shares or other securities
issued by the Trust or any Series. The Trustees may from time to time divide
or combine the Shares of any particular Series into a greater or lesser number
of Shares of that Series. Such division or combination may not materially
change the proportionate beneficial interests of the Shares of that Series in
the Trust Property held with respect to that Series or materially affect the
rights of Shares of any other Series.
Subject to the distinctions permitted among Classes of the same Series as
established by the Trustees, consistent with the requirements of the 1940 Act,
each Share of a Series of the Trust shall represent a equal beneficial
interest in the net assets of such Series, and each holder of Shares of a
Series shall be entitled to receive such holder's pro rata share of
distributions of income and capital gains, if any, made with respect to such
Series. Upon redemption of the Shares of any Series, the applicable
Shareholder shall be paid solely out of the funds and property of such Series
of the Trust.
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All references to Shares in this Declaration of Trust shall be deemed to
be Shares of any or all Series or Classes thereof, as the context may require.
All provisions herein relating to the Trust shall apply equally to each
Series of the Trust and each Class thereof, except as the context otherwise
requires.
All Shares issued hereunder, including, without limitation, Shares issued
in connection with a dividend in Shares or a split or reverse split of Shares,
shall be fully paid and non-assessable.
Any Trustee, officer or other agent of the Trust, and any organization in
which any such Person is interested, may acquire, own, hold and dispose of
Shares of the Trust to the same extent as if such Person were not a Trustee,
officer or other agent of the Trust; and the Trust may issue and sell or cause
to be issued and sold and may purchase Shares from any such Person or any such
organization subject only to the general limitations, restrictions or other
provisions applicable to the sale or purchase of such Shares generally.
Section 2. OWNERSHIP OF SHARES. The ownership of Shares shall be
recorded on the books of the Trust kept by the Trust or by a transfer or
similar agent for the Trust, which books shall be maintained separately for
the Shares of each Series or Class of the Trust. No certificates certifying
the ownership of Shares shall be issued except as the Trustees may otherwise
determine from time to time. The Trustees may make such rules as they
consider appropriate for the issuance of Share certificates, the transfer of
Shares of each Series or Class of the Trust and similar matters. The record
books of the Trust as kept by the Trust or any transfer or similar agent, as
the case may be, shall be conclusive as to who are the Shareholders of each
Series or Class thereof and as to the number of Shares of each Series or Class
thereof held from time to time by each such Shareholder. The Trust may decline
to accept any offer for the purchase of shares of any Series or Class with or
without cause.
Section 3. TRANSFER OF SHARES. Except as otherwise provided by the
Trustees, Shares shall be transferable on the books of the Trust only by the
record holder thereof or by his or her duly authorized agent upon delivery to
the Trustees or the Trust's transfer agent of a duly executed instrument of
transfer, together with a Share certificate if one is outstanding, and such
evidence of the genuineness of each such execution and authorization and of
such other matters as may be required by the Trustees. Upon such delivery,
and subject to any further requirements specified by the Trustees or contained
in the Bylaws, the transfer shall be recorded on the books of the Trust.
Until a transfer is so recorded, the Shareholder of record of Shares shall be
deemed to be the holder of such Shares for all purposes hereunder and neither
the Trustees nor the Trust, nor any transfer agent or registrar or any
officer, employee, or agent of the Trust, shall be affected by any notice of a
proposed transfer.
Section 4. INVESTMENTS IN THE TRUST. Investments may be accepted by the
Trust from such Persons, at such times, on such terms, and for such
consideration as the Board of Trustees may, from time to time, authorize.
Section 5. STATUS OF SHARES AND LIMITATION OF PERSONAL LIABILITY.
Shares shall be deemed to be personal property giving only the rights provided
in this Declaration of Trust. Every
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Shareholder by virtue of having become a Shareholder shall be held to have
expressly assented and agreed to the Board by the terms hereof. The death,
incapacity, dissolution, termination or bankruptcy of a Shareholder during the
existence of the Trust shall not operate to dissolve the Trust or any Series,
nor entitle the representative of each such Shareholder to an accounting or to
take any action in court or elsewhere against the Trust or the Trustees or any
Series, but entitles such representative only to the rights of said
Shareholder under this Declaration of Trust. Ownership of Shares shall not
entitle the Shareholder to any title in or to the whole or any part of the
Trust Property or right to call for a partition or division of the same or for
an accounting, nor shall the ownership of Shares constitute the Shareholders
as partners. No Shareholder shall be personally liable for the debts,
liabilities, obligations, and expenses incurred by, contracted for, or
otherwise existing with respect to the Trust or any Series. Neither the Trust
nor the Trustees, nor any officer, employee or agent of the Trust, shall have
any power to bind personally any Shareholder, nor, except as specifically
provided herein, to call upon any Shareholder for the payment of any sum of
money or assessment whatsoever other than such as the Shareholder may at any
time personally agree to pay. All Shares when issued on the terms determined
by the Board of Trustees, shall be fully paid and nonassessable. As provided
in the DBTA, Shareholders of the Trust shall be entitled to the same
limitation of personal liability extended to stockholders of a private
corporation organized for profit under the general corporation law of the
State of Delaware.
Section 6. POWER OF BOARD OF TRUSTEES TO CHANGE PROVISIONS RELATING TO
SHARES. Notwithstanding any other provisions of this Declaration of Trust and
without limiting the power of the Board of Trustees to amend this Declaration
of Trust or the Certificate of Trust as provided elsewhere herein, the Board
of Trustees shall have the power to amend this Declaration of Trust, or the
Certificate of Trust, at any time and from time to time, in such manner as the
Board of Trustees may determine in its sole discretion, without the need for
Shareholder action, so as to add to, delete, replace or otherwise modify any
provisions relating to the Shares contained in this Declaration of Trust,
provided that before adopting any such amendment without Shareholder approval,
the Board of Trustees shall determine that it is consistent with the fair and
equitable treatment of all Shareholders and that Shareholder approval is not
otherwise required by the 1940 Act or other applicable law. If Shares have
been issued, Shareholder approval shall be required to adopt any amendments to
this Declaration of Trust which would adversely affect to a material degree
the rights and preferences of the Shares of any Series or Class already
issued; provided, however, that in the event that the Board of Trustees
determines that the Trust shall no longer be operated as an investment company
in accordance with the provisions of the 1940 Act, the Board of Trustees may
adopt such amendments to this Declaration of Trust to delete those terms the
Board of Trustees identifies as being required by the 1940 Act.
Subject to the foregoing Paragraph, the Board of Trustees may amend the
Declaration of Trust to amend any of the provisions set forth in paragraphs
(a) through (i) of Section 6 of this Article III.
The Board of Trustees shall have the power, in its discretion, to make
such elections as to the tax status of the Trust as may be permitted or
required under the Code as presently in effect or as amended, without the vote
of any Shareholder.
10
Section 7. ESTABLISHMENT AND DESIGNATION OF SERIES. The establishment
and designation of any Series or Class of Shares of the Trust shall be
effective upon the adoption by a majority of the then Board of Trustees,
adopting a resolution which sets forth such establishment and designation and
the relative rights and preferences of such Series or Class of the Trust
whether directly in such resolution or otherwise provided in such resolution.
Each such resolution shall be incorporated herein by reference upon adoption.
Each Series shall be separate and distinct from any other Series and
shall maintain separate and distinct records on the books of the Trust, and
the assets and liabilities belonging to any such Series shall be held and
accounted for separately from the assets and liabilities of the Trust or any
other Series.
Shares of each Series or Class of the Trust established pursuant to this
Section 6, unless otherwise provided in the resolution establishing such
Series, shall have the following relative rights and preferences:
(a) ASSETS HELD WITH RESPECT TO A PARTICULAR SERIES. All consideration
received by the Trust for the issue or sale of Shares of a particular Series,
together with all assets in which such consideration is invested or
reinvested, all income, earnings, profits, and proceeds thereof from whatever
source derived, including, without limitation, any proceeds derived from the
sale, exchange or liquidation of such assets, and any funds or payments
derived from any reinvestment of such proceeds in whatever form the same may
be, shall irrevocably be held with respect to that Series for all purposes,
subject only to the rights of creditors with respect to that Series, and shall
be so recorded upon the books of account of the Trust. Such consideration,
assets, income, earnings, profits and proceeds thereof, from whatever source
derived, including, without limitation, any proceeds derived from the sale,
exchange or liquidation of such assets, and any funds or payments derived from
any reinvestment of such proceeds, in whatever form the same may be, are
herein referred to as "assets held with respect to" that Series. In the event
that there are any assets, income, earnings, profits and proceeds thereof,
funds or payments which are not readily identifiable as assets held with
respect to any particular Series (collectively "General Assets"), the Board of
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 Board of Trustees,
in its sole discretion, deems fair and equitable, and any General Asset so
allocated to a particular Series shall be held with respect to that Series.
Each such allocation by the Board of Trustees shall be conclusive and binding
upon the Shareholders of all Series for all purposes.
(b) LIABILITIES HELD WITH RESPECT TO A PARTICULAR SERIES. The assets of
the Trust held with respect to each particular Series shall be charged against
the liabilities of the Trust held with respect to that Series and all
expenses, costs, charges and reserves attributable to that Series, except that
liabilities and expenses accounted solely to a particular Class shall be borne
by that Class. Any liabilities, expenses, costs, charges and reserves of the
Trust which are not readily identifiable as being held with respect to any
particular Series or Class (collectively "General Liabilities") shall be
allocated and charged by the Board of Trustees to and among any one or more of
the Series or Classes in such manner and on such basis as the Board of
Trustees in its sole discretion deems fair and equitable. The liabilities,
expenses, costs, charges, and reserves so charged to a Series or Class
11
are herein referred to as "liabilities held with respect to" that Series or
Class. Each allocation of liabilities, expenses, costs, charges and reserves
by the Board of Trustees shall be conclusive and binding upon the Shareholders
of all Series or Classes for all purposes. All Persons who have extended
credit which has been allocated to a particular Series or Class, or who have a
claim or contract which has been allocated to any particular Series or Class,
shall look, and shall be required by contract to look exclusively, to the
assets of that particular Series or Class for payment of such credit, claim,
or contract. In the absence of an express contractual agreement so limiting
the claims of such creditors, claimants and contract providers, each creditor,
claimant and contract provider will be deemed nevertheless to have impliedly
agreed to such limitation unless an express provision to the contrary has been
incorporated in the written contract or other document establishing the
claimant relationship.
Subject to the right of the Board of Trustees in its discretion to
allocate General Liabilities as provided herein, the debts, liabilities,
obligations and expenses incurred, contracted for or otherwise existing with
respect to a particular Series, whether such Series is now authorized and
existing pursuant to this Declaration of Trust or is hereafter authorized and
existing pursuant to this Declaration of Trust, shall be enforceable against
the assets held with respect to that Series only, and not against the assets
of any other Series or the Trust generally and none of the debts, liabilities,
obligations and expenses incurred, contracted for or otherwise existing with
respect to the Trust generally or any other Series thereof shall be
enforceable against the assets held with respect to such Series. Notice of
this limitation on liabilities between and among Series shall be set forth in
the Certificate of Trust of the Trust (whether originally or by amendment) as
filed or to be filed in the Office of the Secretary of State of the State of
Delaware pursuant to the DBTA, and upon the giving of such notice in the
Certificate of Trust, the statutory provisions of Section 3804 of the DBTA
relating to limitations on liabilities between and among Series (and the
statutory effect under Section 3804 of setting forth such notice in the
Certificate of Trust) shall become applicable to the Trust and each Series.
(c) DIVIDENDS, DISTRIBUTIONS, REDEMPTIONS AND REPURCHASES.
Notwithstanding any other provisions of this Declaration of Trust, including,
without limitation, Article VI, no dividend or distribution including, without
limitation, any distribution paid upon dissolution of the Trust or of any
Series or Class with respect to, nor any redemption or repurchase of, the
Shares of any Series or Class shall be effected by the Trust other than from
the assets held with respect to such Series, nor, except as specifically
provided in Section 7 of this Article III, shall any Shareholder of any
particular Series or Class otherwise have any right or claim against the
assets held with respect to any other Series or the Trust generally except to
the extent that such Shareholder has such a right or claim hereunder as a
Shareholder of such other Series. The Board of Trustees shall have full
discretion, to the extent not inconsistent with the 1940 Act, to determine
which items shall be treated as income and which items as capital; and each
such determination and allocation shall be conclusive and binding upon the
Shareholders.
(d) VOTING. All Shares of the Trust entitled to vote on a matter shall
vote on the matter in aggregate, subject to: (1) where the 1940 Act requires
all Shares of the Trust to be voted by individual Series and/or Classes; and
(2) if any matter affects only the interests of some but not all
12
Series or Classes, then only the Shareholders of such affected Series or
Classes shall be entitled to vote on the matter.
(e) EQUALITY. All Shares of each particular Series shall represent an
equal proportionate undivided beneficial interest in the assets held with
respect to that Series (subject to the liabilities held with respect to that
Series or Class thereof and such rights and preferences as may have been
established and designated with respect to any Class within such Series), and
each Share of any particular Series shall be equal to each other Share of that
Series with respect to any Class of a Series, each such Class shall represent
interests in the assets of that Series and have identical voting, dividend,
liquidation and other rights and the same terms and conditions, except that
expenses allocated to a Class may be born solely by such Class as determined
by the Trustees, and voting rights of each Series or Class shall be determined
in accordance with Article V.
(f) FRACTIONS. Any fractional Share of a Series or Class thereof, shall
carry proportionately all the rights and obligations of a whole Share of that
Series or Class, including rights with respect to voting, receipt of dividends
and distributions, redemption of Shares and dissolution of the Trust or that
Series.
(g) EXCHANGE PRIVILEGE. The Board of Trustees shall have the authority
to provide that the holders of Shares of any Series or Class shall have the
right to exchange said Shares for Shares of one or more other Series of Shares
or Class of Shares of the Trust or of other Investment Companies registered
with the 1940 Act in accordance with such requirements and procedures as may
be established by the Board of Trustees, and in accordance with the 1940 Act
and the rules and regulations thereunder.
(h) COMBINATION OF SERIES. The Board of Trustees shall have the
authority, without the approval of the Shareholders of any Series or Class
unless otherwise required by applicable law, to combine the assets and
liabilities held with respect to any two or more Series or Class into assets
and liabilities held with respect to a single Series or Class.
(i) ELIMINATION OF SERIES. At any time that there are no Shares
outstanding of any particular Series or Class previously established and
designated, the Board of Trustees may by resolution of a majority of the then
Board of Trustees abolish that Series or Class and rescind the establishment
and designation thereof.
Section 7. INDEMNIFICATION OF SHAREHOLDERS. If any Shareholder or
former Shareholder shall be exposed to liability by reason of a claim or
demand relating solely to his or her being or having been a Shareholder of the
Trust (or by having been a Shareholder of a particular Series), and not
because of such Person's acts or omissions, the Shareholder or former
Shareholder (or, in the case of a natural person, 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 to be held harmless from and indemnified out of the assets of the
Trust or out of the assets of the applicable Series (as the case may be)
against all loss and expense arising from such claim or demand; PROVIDED,
HOWEVER, there shall be no liability or obligation of the Trust (or any
particular Series) arising hereunder to reimburse any Shareholder for taxes
paid by reason of such
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Shareholder's ownership of any Shares. The Trust, on behalf of the affected
Series shall, upon request of the Shareholder, assume the defense of any claim
made against the Shareholder for any act or obligation of the Series and
satisfy any judgment thereon from the assets of the Series.
Section 8. ASSERT TO TRUST INSTRUMENT. Every Shareholder, by virtue of
having purchased a Share, shall become a Shareholder and shall be entitled to
have expressly asserted and agreed to be bound by the terms thereof.
ARTICLE IV.
The Board of Trustees
Section 1. NUMBER, ELECTION AND TENURE. The number of Trustees shall
initially be two, who shall be Xxxxxxx X. Xxxxx and Xxxxxxx X. Xxxx.
Thereafter, the number of Trustees constituting the Board of Trustees may be
fixed from time to time by a written instrument signed, or by resolution
approved at a duly constituted meeting, by a majority of the Board of
Trustees, provided, however, that the number of Trustees shall in no event be
less than one (1) nor more than fifteen (15). The Board of Trustees, by action
of a majority of the then Trustees at a duly constituted meeting, may fill
vacancies in the Board of Trustees or remove any Trustee with or without
cause. To the extent required by applicable law, the Shareholders may elect
Trustees, including filling any vacancies in the Board of Trustees, at any
meeting of Shareholders called by the Board of Trustees for that purpose. A
meeting of Shareholders for the purpose of electing one or more Trustees may
be called by the Board of Trustees or, to the extent provided by the 1940 Act
and the rules and regulations thereunder, by the Shareholders. Shareholders
shall have the power to remove a Trustee only to the extent provided by the
1940 Act and the rules and regulations thereunder.
Each Trustee shall serve during the continued lifetime of the Trust until
he or she dies, resigns, has reached the mandatory retirement age as set by
the Trustees, is declared bankrupt or incompetent by a court of appropriate
jurisdiction, or is removed, or, if sooner than any of such events, until the
next meeting of Shareholders called for the purpose of electing Trustees and
until the election and qualification of his or her successor. Any Trustee may
resign at any time by written instrument signed by him or her and delivered to
any officer of the Trust or to a meeting of the Board of Trustees. Such
resignation shall be effective upon receipt unless specified to be effective
at some later time. Except to the extent expressly provided in a written
agreement with the Trust, no Trustee resigning and no Trustee removed shall
have any right to any compensation for any period following any such event or
any right to damages on account of such events or any actions taken in
connection therewith following his or her resignation or removal.
Section 2. EFFECT OF DEATH, RESIGNATION, REMOVAL, ETC. OF A TRUSTEE.
The death, declination to serve, resignation, retirement, removal, declaration
as bankrupt or incapacity of one or more Trustees, or of all of them, shall
not operate to dissolve the Trust or any Series or to revoke any existing
agency created pursuant to the terms of this Declaration of Trust. Whenever a
vacancy in the Board of Trustees shall occur, until such vacancy is filled as
provided in this Article IV, Section 1, the Trustee(s) in office, regardless
of the number, shall have all the powers granted to the Board of Trustees and
shall discharge all the duties imposed upon the Board of Trustees by this
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Declaration of Trust. In the event of the death, declination, resignation,
retirement, removal, declaration as bankrupt or incapacity of all of the then
Trustees within a short period of time and without the opportunity of at least
one Trustee being able to appoint additional Trustees to replace those no
longer serving, the Trust's Manager(s) is (are) empowered to appoint new
Trustees subject to the provisions of Section 16(a) of the 1940 Act. In that
case, any officer of the Trust may call a Shareholder meeting for the election
of Trustees.
Section 3. POWERS. Subject to the provisions of this Declaration of
Trust, the business of the Trust shall be managed by the Board of Trustees,
and such Board of Trustees shall have all powers necessary or convenient to
carry out that responsibility, including, without limitation, the power to
engage in securities or other transactions of all kinds on behalf of the
Trust. The Board of Trustees shall have full power and authority to do any
and all acts and to make and execute any and all contracts and instruments
that it may consider necessary or appropriate in connection with the
administration of the Trust. The Trustees shall not be bound or limited by
present or future laws or customs with regard to investment by trustees or
fiduciaries, but shall have full authority and absolute power and control over
the assets of the Trust and the business of the Trust to the same extent as if
the Trustees were the sole owners of the assets of the Trust and the business
in their own right, including such authority, power and control to do all acts
and things as they, in their sole discretion, shall deem proper to accomplish
the purposes of this Trust. Without limiting the foregoing, the Trustees may:
(1) adopt, amend and repeal By-Laws not inconsistent with this Declaration of
Trust providing for the regulation and management of the affairs of the Trust;
(2) fill vacancies in or remove from their number in accordance with this
Declaration of Trust or the By-Laws, and may elect and remove, with or without
cause, such officers and appoint and terminate such agents as they consider
appropriate; (3) appoint from their own number and establish and terminate one
or more committees consisting of two or more Trustees which may exercise the
powers and authority of the Board of Trustees to the extent that the Board of
Trustees determine; (4) employ one or more custodians of the Trust Property
and may authorize such custodians to employ subcustodians and to deposit all
or any part of such Trust Property in a system or systems for the central
handling of securities or with a Federal Reserve Bank; (5) retain a transfer
agent, dividend disbursing agent, a shareholder servicing agent or
administrative services agent, or all of them; (6) employ an administrator for
the Trust and may authorize sub-administrator to employ sub-administrators;
(7) provide for the issuance and distribution of Shares by the Trust directly
or through one or more Principal Underwriters or otherwise; (8) retain one or
more Manager(s); (9) redeem, repurchase and transfer Shares pursuant to
applicable law; (10) set record dates for the determination of Shareholders
with respect to various matters, in the manner provided in Article V, Section
5 of this Declaration of Trust; (11) declare and pay dividends and
distributions to Shareholders of each Series from the assets of such Series;
(12) establish from time to time, in accordance with the provisions of Article
III, Section 6 hereof, any Series or Class of Shares, each such Series to
operate as a separate and distinct investment medium and with separately
defined investment objectives and policies and distinct investment purposes;
and (13) in general delegate such authority as they consider desirable to any
officer of the Trust, to any committee of the Board of Trustees and to any
agent or employee of the Trust or to any such custodian, transfer, dividend
disbursing or shareholder servicing agent or Manager. Any determination as to
what is in the best interests of the Trust made by the Board of Trustees in
good faith shall be conclusive.
15
In construing the provisions of this Declaration of Trust, the
presumption shall be in favor of a grant of power to the Trustees. Unless
otherwise specified herein or required by law, any action by the Board of
Trustees shall be deemed effective if approved or taken by a majority of the
Trustees then in office.
Any action required or permitted to be taken by the Board of Trustees, or
a committee thereof, may be taken without a meeting if a majority of the
members of the Board of Trustees, or committee thereof, as the case may be,
shall individually or collectively consent in writing to that action. Such
action by written consent shall have the same force and effect as a majority
vote of the Board of Trustees, or committee thereof, as the case may be. Such
written consent or consents shall be filed with the minutes of the proceedings
of the Board of Trustees, or committee thereof, as the case may be.
The Trustees shall devote to the affairs of the Trust such time as may be
necessary for the proper performance of their duties hereunder, but neither
the Trustees nor the officers, directors, shareholders or partners of the
Trustees, shall be expected to devote their full time to the performance of
such duties. The Trustees, or any Affiliate shareholder, officer, director,
partner or employee thereof, or any Person owning a legal or beneficial
interest therein, may engage in or possess an interest in any other business
or venture of any nature and description, independently or with or for the
account of others.
Section 4. PAYMENT OF EXPENSES BY THE TRUST. The Board of Trustees is
authorized to pay or cause to be paid out of the principal or income of the
Trust or any particular Series or Class, or partly out of the principal and
partly out of the income of the Trust or any particular Series or Class, and
to charge or allocate the same to, between or among such one or more of the
Series or Classes that may be established or designated pursuant to Article
III, Section 6, as it deems fair, all expenses, fees, charges, taxes and
liabilities incurred by or arising in connection with the maintenance or
operation of the Trust or a particular Series or Class, or in connection with
the management thereof, including, but not limited to, the Trustees'
compensation and such expenses, fees, charges, taxes and liabilities for the
services of the Trust's officers, employees, Manager, Principal Underwriter,
auditors, counsel, custodian, sub-custodian (if any), transfer agent, dividend
disbursing agent, shareholder servicing agent, and such other agents or
independent contractors and such other expenses, fees, charges, taxes and
liabilities as the Board of Trustees may deem necessary or proper to incur.
Section 5. PAYMENT OF EXPENSES BY SHAREHOLDERS. The Board of Trustees
shall have the power, as frequently as it may determine, to cause each
Shareholder of the Trust, or each Shareholder of any particular Series, to pay
directly, in advance or arrears, expenses of the Trust as discussed in Section
4 of this Article IV ("Expenses") in an amount fixed from time to time by the
Board of Trustees, by setting off such Expenses due from such Shareholder from
declared but unpaid dividends or distributions owed such Shareholder and/or by
reducing the number of Shares in the account of such Shareholder by that
number of full and/or fractional Shares which represents the outstanding
amount of such Expenses due from such Shareholder, provided that the direct
payment of such Expenses by Shareholders is permitted under applicable law.
16
Section 6. OWNERSHIP OF TRUST PROPERTY. Legal title to all of the Trust
Property shall at all times be considered to be vested in the Trust, except
that the Board of Trustees shall have the power to cause legal title to any
Trust Property to be held by or in the name of one or more of the Trustees or
in the name of the Trust, or in the name of any Person as nominee, on such
terms as the Board of Trustees may determine, in accordance with applicable
law. The right, title and interest of the Trustees in the Trust Property
shall vest automatically in each Person who may hereafter become a Trustee.
Upon the resignation, removal or death of a Trustee, he or she will
automatically choose to have any right, title or interest in any of the Trust
Property, and the right, title and interest of such Trustee in the Trust
Property shall vest automatically in the remaining Trustees. Such vesting and
assumption of title shall be effective whether or not conveyancing documents
have been executed and delivered.
Section 7. SERVICE CONTRACTS.
(a) Subject to such requirements and restrictions as may be set forth
under federal and/or state law, and in the By-Laws including, without
limiation Section 15 of the 1940 Act, the Board of Trustees may, at any time
and from time to time, contract for exclusive or nonexclusive advisory,
management and/or administrative services for the Trust or for any Series (or
Class thereof) with any Person, corporation, trust, association or other
organization, including any Affiliate (each a "Manager"). Any such contract
may contain such other terms as the Board of Trustees may determine, including
without limitation, authority for the Manager to determine from time to time
without prior consultation with the Board of Trustees what securities and
other instruments or property shall be purchased or otherwise acquired, owned,
held, invested or reinvested in, sold, exchanged, transferred, mortgaged,
pledged, assigned, negotiated, or otherwise dealt with or disposed of, and
what portion, if any, of the Trust Property shall be held uninvested and to
make changes in the Trust's or a particular Series' investments, authority for
a Manager to delegate certain or all of its duties under such contracts to
qualified investment advisers and administrators (each a sub-Manager); and
authority to conduct such other activities as may specifically be delegated to
such party.
(b) The Board of Trustees may also, at any time and from time to time,
contract with any corporation, trust, association or other organization,
including any Affiliate, appointing it or them as the exclusive or
nonexclusive distributor for the Shares of the Trust or one or more of the
Series or Classes thereof or for other securities to be issued by the Trust,
or appointing it or them to act as the custodian, transfer agent, dividend
disbursing agent and/or Shareholder servicing agent for the Trust or one or
more of the Series or Classes thereof.
(c) The Board of Trustees is further empowered, at any time and from time
to time, to contract with any Persons to provide such other services to the
Trust or one or more of its Series, as the Board of Trustees determines to be
in the best interests of the Trust and the applicable Series.
(d) The fact that:
(i) any of the Shareholders, Trustees, employees or officers of
the Trust is a shareholder, director, officer, partner, trustee,
employee, Manager, adviser,
17
distributor, or Affiliate or agent of or for any corporation, trust,
association, or other organization, or for any parent or Affiliate of
any organization with which an advisory, management or administration
contract, or Principal Underwriter's or distributor's contract, or
custodian, transfer agent, dividend disbursing, shareholder servicing
agents or other type of service contract may have been or may
hereafter be made, or that any such organization, or any parent or
Affiliate thereof, is a Shareholder or has an interest in the Trust,
or that
(ii) any corporation, trust, association or other organization
with which an advisory, management or administration contract or
Principal Underwriter's or distributor's contract, or custodian,
transfer agent, dividend disbursing, shareholder servicing or other
type of service contract may have been or may hereafter be made also
has an advisory, management or administration contract, or Principal
Underwriter's or distributor's contract, or custodian, transfer,
dividend disbursing, shareholder servicing or other service contract
with one or more other corporations, trusts, associations, or other
organizations, or has other business or interests, shall not affect
the validity of any such contract or disqualify any Shareholder,
Trustee, employee 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 that the establishment of and
performance under each such contract is made pursuant to the
requirements of the 1940 Act.
(e) Every contract referred to in this Section 7 shall comply with such
requirements and restrictions as may be set forth in the By-Laws, the 1940 Act
or stipulated by resolution of the Board of Trustees; and any such contract
may contain such other terms as the Board of Trustees may determine.
Section 8. TRUSTEES AND OFFICERS AS SHAREHOLDERS. Any Trustee, officer
or agent of the Trust may acquire, own and dispose of Shares to the same
extent as if he or she were not a Trustee, officer or agent; and the Trustees
may issue and sell and cause to be issued and sold Share to, and redeem such
Shares from, any such Person or any firm or company in which such Person is
interested, subject only to the general limitations contained herein or in the
Bylaws relating to the sale and redemption of such Shares.
Section 9. PRINCIPAL TRANSACTION. Except to the extent prohibited by
applicable law, the Trustees may, on behalf of the Trust, buy any securities
from or sell any securities to, or lend any assets of the Trust to, any
Trustee or officer of the Trust or any firm of which any such Trustee or
officer is a member acting as principal, or have any such dealings with any
investment adviser, administrator, distributor or transfer agent for the
Trust, with any Interested Person of such person or with any person of which
such person is an Interested Person; and the Trust may employ any such person,
or firm or company in which such person is an Interested Person, as broker,
legal counsel, registrar, investment adviser, administrator, distributor,
transfer agent, dividend disbursing agent, custodian or in any other capacity.
18
Section 10. INDEPENDENT TRUSTEES. In accordance with Section 3801(h) of
the Delaware Act, a Trustee is an independent Trustee if the Trustee is not an
Interested Person of the Trust; provided that the receipt of compensation for
service as an independent Trustee of the Trust and also for service as an
independent Trustee of one or more other investment companies managed by a
single investment adviser (or an affiliated person, as defined in Section
2(a)(3) of the 1940 Act, of such investment adviser) shall not affect the
status of the Trustee as an independent Trustee under the Delaware Act. An
independent Trustee shall be deemed to be independent and disinterested for
all purposes.
ARTICLE V.
SHAREHOLDERS' VOTING POWERS AND MEETINGS
Section 1. VOTING POWERS. Subject to the provisions of Article III,
Section 6(d), the Shareholders shall have power to vote only (i) for the
election or removal of Trustees, including the filling of any vacancies in the
Board of Trustees, as provided in Article IV, Section 1 hereof; (ii) with
respect to such additional matters relating to the Trust as may be required by
applicable law, this Declaration of Trust, the By-Laws, or any registration
statement of the Trust filed with the Commission or any successor agency; and
(iii) on such other matters as the Board of Trustees may consider necessary or
desirable. The Shareholder of record (as of the record date established
pursuant to Section 5 of this Article V) of each whole Share shall be entitled
to one vote for each full Share as to any matter on which it is entitled to
vote, and each fractional Share shall be entitled to a proportionate
fractional vote. Shareholders shall not be entitled to cumulative voting in
the election of Trustees or on any other matter. Shares may be voted in
person or by proxy.
A proxy may be given by any means acceptable under applicable law,
including by an electronic or telecommunications device if so authorized by
the Trustees. Notwithstanding anything else contained herein or in the
Bylaws, in the event a proposal by anyone other than the officers or Trustees
of the Trust is submitted to a vote of the Shareholders of one or more Series
or Classes thereof or of the Trust, or in the event of any proxy context or
proxy solicitation or proposal in opposition to any proposal by the officers
or Trustees of the Trust, Shares may be voted only by written proxy or in
person at a meeting. Until Shares are issued, the Trustees may exercise all
rights of Shareholders and may take any action required by law, this
Declaration of Trust or the Bylaws to be taken by the Shareholders, Meetings
of the Shareholders shall be called and notice thereof and record dates
therefore shall be given and set as provided in the Bylaws.
Section 2. MEETINGS. Meetings of the Shareholders may be called by the
Board of Trustees for the purpose of electing Trustees as provided in Article
IV, Section 1 and for such other purposes as may be prescribed by law, by this
Declaration of Trust or by the By-Laws. Meetings of the Shareholders may also
be called by the Board of Trustees from time to time for the purpose of taking
action upon any other matter deemed by the Board of Trustees to be necessary
or desirable.
Section 3. QUORUM AND REQUIRED VOTE. Except when a larger quorum is
required by applicable law, by the By-Laws or by this Declaration of Trust,
thirty-three and one-third percent
19
(33-1/3%) of the Shares present in person or represented by proxy and entitled
to vote at a Shareholders' meeting shall constitute a quorum at such meeting.
When any one or more Series or Classes is required to vote as a single Series
(or Class) separate from any other Shares , thirty-three and one-third percent
(33-1/3%) of the Shares of each such Series or Class present in person or
represented by proxy and entitled to vote shall constitute a quorum at a
Shareholders' meeting of such Series or Class. Except when a larger vote is
required by any provision of this Declaration of Trust or the Bylaws or by
applicable law, when a quorum is present at any meeting, a majority of the
Shares voted shall decide any questions and a plurality of the Shares voted
shall elect a Trustee, provided that where any provision of law or of this
Declaration of Trust requires, or the Trustees of the Trust, in their sole
discretion determine, that the holders of any Series shall vote as a Series
(or that holders of a Class shall vote as a Class), then a majority of the
Shares of that Series (or Class) voted on the matter (or a plurality with
respect to the election of a Trustee) shall decide that matter insofar as that
Series (or Class) is concerned.
Section 4. SHAREHOLDER ACTION BY WRITTEN CONSENT WITHOUT A MEETING. Any
action which may be taken at any meeting of Shareholders may be taken without
a meeting and without prior notice if a consent in writing setting forth the
action so taken is signed by the holders of Shares having not less than the
minimum number of votes that would be necessary to authorize or take that
action at a meeting at which all Shares entitled to vote on that action were
present and voted. All such consents shall be filed with the secretary of the
Trust and shall be maintained in the Trust's records. Any Shareholder giving a
written consent or the Shareholder's proxy holders or a transferee of the
Shares or a personal representative of the Shareholder or its respective
proxy-holder may revoke the consent by a writing received by the secretary of
the Trust before written consents of the number of Shares required to
authorize the proposed action have been filed with the secretary.
If the consents of all Shareholders entitled to vote have not been
solicited in writing and if the unanimous written consent of all such
Shareholders shall not have been received, the secretary shall give prompt
notice of the action taken without a meeting to such Shareholders. This notice
shall be given in the manner specified in the By-Laws.
Section 5. RECORD DATES. For purposes of determining the Shareholders
entitled to notice of any meeting or to vote or entitled to give consent to
action without a meeting, the Board of Trustees may fix in advance a record
date which shall not be more than one hundred eighty (180) days nor less than
seven (7) days before the date of any such meeting.
If the Board of Trustees does not so fix a record date:
(a) The record date for determining Shareholders entitled to notice of or
to vote at a meeting of Shareholders shall be at the close of business on the
business day next preceding the day on which notice is given or, if notice is
waived, at the close of business on the business day which is five (5)
business days next preceding to the day on which the meeting is held.
(b) The record date for determining Shareholders entitled to give consent
to action in writing without a meeting, (i) when no prior action by the Board
of
20
Trustees has been taken, shall be the day on which the first written consent
is given, or (ii) when prior action of the Board of Trustees has been taken,
shall be at the close of business on the day on which the Board of Trustees
adopts the resolution taking such prior action or the seventy-fifth (75th) day
before the date of such other action, whichever is later.
For the purpose of determining the Shareholders of any Series or Class
who are entitled to receive payment of any dividend or of any other
distribution, the Board of Trustees may from time to time fix a date, which
shall be before the date for the payment of such dividend or such other
distribution, as the record date for determining the Shareholders of such
Series or Class having the right to receive such dividend or distribution.
Without fixing a record date, the Trustees may for distribution purposes close
the register or transfer books for one in each Series (or Classes) at anytime
prior to the payment of a distribution. Nothing in this Section shall be
construed as precluding the Board of Trustees from setting different record
dates for different Series or classes.
Section 6. ADDITIONAL PROVISIONS. The By-Laws may include further
provisions for Shareholders' votes, meetings and related matters.
ARTICLE VI.
NET ASSET VALUE, DISTRIBUTIONS AND REDEMPTIONS
Section 1. DETERMINATION OF NET ASSET VALUE, NET INCOME AND
DISTRIBUTIONS. Subject to Article III, Section 6 hereof, the Board of
Trustees shall have the power to fix an initial offering price for the Shares
of any Series or Class thereof which shall yield to such Series or Class not
less than the net asset value thereof, at which price the Shares of such
Series or Class shall be offered initially for sale, and to determine from
time to time thereafter the offering price which shall yield to such Series or
Class not less than the net asset value thereof from sales of the Shares of
such Series or Class; PROVIDED, HOWEVER, that no Shares of a Series or Class
thereof shall be issued or sold for consideration which shall yield to such
Series or Class less than the net asset value of the Shares of such Series or
Class next determined after the receipt of the order (or at such other times
set by the Board of Trustees), except in the case of Shares of such Series or
Class issued in payment of a dividend properly declared and payable.
Subject to Article III, Section 6 hereof, the Board of Trustees, in their
absolute discretion, may prescribe and shall set forth in the By-laws or in a
duly adopted vote of the Board of Trustees such bases and time for determining
the per Share or net asset value of the Shares of any Series or Class or net
income attributable to the Shares of any Series or Class, or the declaration
and payment of dividends and distributions on the Shares of any Series or
Class, as they may deem necessary or desirable.
Section 2. REDEMPTIONS AT THE OPTION OF A SHAREHOLDER. Unless otherwise
provided in the prospectus of the Trust relating to the Shares, as such
prospectus may be amended from time to time ("Prospectus"):
(a) The Trust shall purchase such Shares as are offered by any
Shareholder for redemption, upon the presentation of a proper instrument of
transfer together with a request directed
21
to the Trust or a Person designated by the Trust that the Trust purchase such
Shares or in accordance with such other procedures for redemption as the
Trustees may from time to time authorize; and the Trust will pay therefore the
net asset value thereof as determined by the Trustees (or on their behalf),
subject to any applicable redemption fee, contingent deferred sales charge, or
other fee, expense or charge applicable to the redemption, in accordance with
the applicable provisions of the By-Laws and applicable law. Payment for said
Shares shall be made by the Trust to the Shareholder in accordance with the
1940 Act and any rules and regulations thereunder or as otherwise required by
the Commission. The obligation set forth in this Section 2 is subject to the
provision that in the event that any time the New York Stock Exchange (the
"Exchange") is closed for other than weekends or holidays, or if permitted by
the Rules and regulations or an order of the Commission during periods when
trading on the Exchange is restricted or during any National Financial
Emergency which makes it impracticable for the Trust to dispose of the
investments of the applicable Series or to determine fairly the value of the
net assets held with respect to such Series or during any other period
required or permitted by order of the Commission for the protection of
investors, such obligations may be suspended or postponed by the Trustees. In
the case of a suspension of the right of redemption as provided herein, a
Shareholder may either withdraw the request for redemption or receive payment
based on the net asset value per Share next determined after the termination
of such suspension. If certificates have been issued to a Shareholder, any
such request by such Shareholder must be accompanied by surrender of any
outstanding certificate or certificates for such Shares in form for transfer,
together with such proof of the authenticity of signatures as may reasonably
be required on such Shares and accompanied by proper stock transfer stamps, if
applicable.
(b) Payments for Shares so redeemed by the Trust shall be made in cash,
except payment for such Shares may, at the option of the Board of Trustees, or
such officer or officers as it may duly authorize in its complete discretion,
be made in kind or partially in cash and partially in kind. In case of any
payment in kind, the Board of Trustees, or its delegate, shall have absolute
discretion as to what security or securities of the Trust shall be distributed
in kind and the amount of the same; and the securities shall be valued for
purposes of distribution at the value at which they were appraised in
computing the then current net asset value of the Shares, provided that any
Shareholder who cannot legally acquire securities so distributed in kind by
reason of the prohibitions of the 1940 Act or the provisions of the Employee
Retirement Income Security Act ("ERISA") shall receive cash. Shareholders
shall bear the expenses of in-kind transactions, including, but not limited
to, transfer agency fees, custodian fees and costs of disposition of such
securities.
(c) Payment for any Shares which are presented for redemption so redeemed
by the Trust shall be made by the Trust as provided above within seven days
after the date on which the redemption request is received in good order or
such longer period as provided above or as otherwise may be required. If
payment shall be made other than exclusively in cash, any securities to be
delivered as part of such payment shall be delivered as promptly as any
necessary transfers of such securities on the books of the several
corporations whose securities are to be delivered practicably can be made,
which may not necessarily occur within such seven day period. Moreover,
redemptions may be suspended in the event of a National Financial Emergency.
In no case shall the Trust be liable for any delay of any corporation or other
Person in transferring securities selected for
22
delivery as all or part of any payment in kind. Subject to the foregoing, the
fair value, selection and quantity of securities or other property so paid or
delivered as all or part of the redemption price may be determined by or under
authority of the Trustees in accordance with any procedures adopted by the
Board of Trustees.
(d) The right of Shareholders to receive dividends or other distributions
on Shares may be set forth in a Plan adopted by the Board of Trustees and
amended from time to time pursuant to Rule 18f-3 of the 1940 Act. The right
of any Shareholder of the Trust to receive dividends or other distributions on
Shares redeemed and all other rights of such Shareholder with respect to the
Shares so redeemed by the Trust, except the right of such Shareholder to
receive payment for such Shares, shall cease at the time as of which the
purchase price of such Shares shall have been fixed, as provided above.
(e) If the Trustees shall, at any time and in good faith, determine that
direct or indirect ownership of Shares of any Series or Class thereof has or
may become concentrated in any Person to an extent that would disqualify any
Series as a regulated investment company under the Internal Revenue Code of
1986, as amended (or any successor statute thereto), then the Trustees shall
have the power (but not the obligation) by such means as they deem equitable
(i) to call for the 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, (ii) to refuse to transfer or issue Shares of any Series or
Class thereof to such Person whose acquisition of the Shares in question would
result in such disqualification, or (iii) to take such other actions as they
deem necessary and appropriate to avoid such disqualification. Any such
redemption shall be effected at the redemption price and in the manner
provided in this Article VI.
(f) The holders of Shares shall upon demand disclose to the Trustees in
writing such information with respect to direct and indirect ownership of
Shares as the Trustees deem necessary to comply with the provisions of the
Internal Revenue Code of 1986, as amended (or any successor statute thereto),
or to comply with the requirements of any other taxing authority.
Section 3. REDEMPTIONS AT THE OPTION OF THE TRUST. The Board of
Trustees may, from time to time, without the vote or consent of the
Shareholders, and subject to the 1940 Act, redeem Shares or authorize the
closing of any Shareholder account, subject to such conditions as may be
established by the Board of Trustees.
ARTICLE VII.
COMPENSATION AND LIMITATION OF LIABILITY OF
OFFICERS AND TRUSTEES
Section 1. COMPENSATION. The Board of Trustees shall be entitled to
reasonable compensation from the Trust and they may, from time to time, fix
the amount of compensation. Nothing herein shall in any way prevent the
employment of any Trustee for advisory, management, legal, accounting,
investment banking or other services and payment for the same by the Trust.
23
Section 2. INDEMNIFICATION AND LIMITATION OF LIABILITY.
(a) To the fullest extent that limitations on the liability of Trustees and
officers are permitted by the DBTA, the officers and Trustees shall not be
responsible or liable to any Person, other than the Trust or a sub-adviser to
the extent provided in this Article VII for any act, omission or obligation
of: the Trust, any agent or employee of the Trust; any Manager, sub-Manager,
or Principal Underwriter of the Trust; or with respect to each Trustee and
officer, the act or omission or obligation of any other Trustee or officer,
respectively. The Trust, out of the Trust Property, shall indemnify and hold
harmless each and every officer and Trustee from and against any and all
claims and demands whatsoever arising out of or related to such officer's or
Trustee's performance of his or her duties as an officer or Trustee of the
Trust. This limitation on liability applies to events occurring at the time a
Person serves as a Trustee or officer of the Trust whether or not such Person
is a Trustee or officer at the time of any proceeding in which liability is
asserted. Nothing herein contained shall indemnify, hold harmless or protect
any officer or Trustee from or against any liability to the Trust or any
Shareholder to which such Person would otherwise be subject by reason of
willful misfeasance, bad faith, gross negligence or reckless disregard of the
duties involved in the conduct of such Person's office provided, however, that
a Trustee shall not be liable for errors of judgment in mistakes of fact or
law.
All persons extending credit to, contracting with or having any claim
against the Trust or the Trustees shall look only to the assets of the
appropriate Series of the Trust or Class thereof to which such credit,
contract or claim relates, for payment under such credit, contract, or claim;
and neither the Trustees nor the Shareholders, nor any of the Trust's
officers, employees, or agents, whether past, present, or future, shall be
personally liable therefore.
(b) Every note, bond, contract, instrument, certificate or undertaking
and every other act or document whatsoever issued, executed or done by or on
behalf of the Trust, the officers or the Trustees or any of them in connection
with the Trust shall be conclusively deemed to have been issued, executed or
done only in such Person's capacity as Trustee and/or as officer, and such
Trustee or officer, as applicable, shall not be personally liable therefore,
except as described in the last sentence of the first paragraph of this
Section 2 of this Article VII. At the Trustees' discretion, any note, bond,
contract, instrument, certificate or undertaking made or issued by the
Trustees or by any officer or officers may give notice that the Certificate of
Trust is on file in the office of the Secretary of State of the State of
Delaware and that a limitation on liability of Series exists and such note,
bond, contract, instrument, certificate or undertaking may, if the Trustees so
determine, recite that the same was executed or made on behalf of the Trust by
a Trustee or Trustees in such capacity and not individually and that the
obligations of such instrument are not binding upon any of them or the
Shareholders individually but are binding only on the assets and property of
the Trust or a Series thereof, and may contain such further recital as such
Person or Persons may deem appropriate. The omission of any such notice or
recital shall in no way operate to bind any Trustee, officer, or Shareholder
individually.
24
Section 3. OFFICERS AND TRUSTEES' GOOD FAITH ACTION, EXPERT ADVICE, NO
BOND OR SURETY. The exercise by the Trustees of their powers and discretions
hereunder shall be binding upon everyone interested. An officer or Trustee
shall be liable to the Trust and to any Shareholder solely for such officer's
or Trustee's own willful misfeasance, bad faith, gross negligence or reckless
disregard of the duties involved in the conduct of the office of such officer
or Trustee, and for nothing else, and shall not be liable for errors of
judgment or mistakes of fact or law. The officers and Trustees may obtain the
advice of counsel or other experts with respect to the meaning and operation
of this Declaration of Trust and their duties as officers or Trustees. No
such officer or Trustee shall be liable for any act or omission in accordance
with such advice and no inference concerning liability shall arise from a
failure to follow such advice. The officers and Trustees shall not be
required to give any bond as such, nor any surety if a bond is required.
Section 4. INSURANCE. The Trustees shall be entitled and empowered to
the fullest extent permitted by applicable law to purchase with Trust
Property, insurance for liability and for all expenses reasonably incurred or
paid or expected to be paid by a Trustee or officer in connection with any
claim, action, suit or proceeding in which such Person becomes involved by
virtue of such Person's capacity or former capacity with the Trust, whether or
not the Trust would have the power to indemnify such Person against such
liability under the provisions of this Article.
ARTICLE VIII.
MISCELLANEOUS
Section 1. LIABILITY OF THIRD PERSONS DEALING WITH TRUSTEES. No person
dealing with the Trustees shall be bound to make any inquiry concerning the
validity of any actions made or to be made by the Trustees or to see to the
application of any payments made or property transferred to the Trust or upon
its order.
Section 2. DISSOLUTION OF TRUST OR SERIES. Unless dissolved as provided
herein, the Trust shall have perpetual existence. The Trust may be dissolved
at any time by vote of a majority of the Shares of each Series entitled to
vote, voting separately by Series, subject to approval of a majority of the
Trustees or by approval of a majority of the Trustees by written notice to the
Shareholders. Any Series of Shares or Class thereof may be dissolved at any
time by vote of a majority of the Shares of that Series or Class entitled to
vote, subject to approval by a majority of the Trustees or by approval of a
majority of the Trustees by written notice to the Shareholders of that Series
of Shares or Class thereof.
Upon dissolution of the Trust (or a particular Series or Class, as the
case may be), the Trustees shall (in accordance with Section 3808 of the DBTA)
pay or make reasonable provision to pay all claims, charges, taxes, expenses,
distributions and obligations of each Series (or the particular Series or
25
Class, as the case may be), including all contingent, conditional or unmatured
claims, charges, taxes, expenses, liabialities, and obligations known to the
Trust, and all claims and obligations which are known to the Trust but for
which the identity of the claimant is unknown. If there are sufficient assets
held with respect to each Series of the Trust (or the particular Series or
Class, as the case may be), such claims and obligations shall be paid in full
and any such provisions for payment shall be made in full. If there are
insufficient assets held with respect to each Series of the Trust (or the
particular Series or Class, as the case may be), such claims and obligations
shall be paid or provided for according to their priority and, among claims
and obligations of equal priority, ratably to the extent of assets available
therefore. The Trust shall in accordance with such procedures as the Trustees
may consider appropriate reduce the remaining assets of the Trust or if the
affected Series or Class distributable in the form of cash or shares (if any
Series remain) or other securities, in any combination thereof, and
distributable proceeds to the Shareholders of such Series or Class involved ,
ratably according to the number of Shares of such Series or Class held by the
Shareholders of such Series or Class on the date of distribution. Thereupon,
the Trust in any affected Series or Class shall terminate and the Trustees and
the Trust shall be discharged of any and all further liabilities and duties
relating thereto or arising therefrom, and the right, title, and interest of
all parties with respect to the Trust in such Series or Class shall be
cancelled and discharged. Upon termination of the Trust, following completion
of winding up of its business, the Trustees shall cause a certificate of
cancellation of the Trust's Certificate of Trust to be filed in accordance
with the DBTA, which certificate of cancellation may be signed by any one
Trustee.
Section 3. MERGER AND CONSOLIDATION; CONVERSION.
(a) MERGER AND CONSOLIDATION. Pursuant to an agreement of merger or
consolidation, the Trust, or any one or more Series, may, by act of a majority
of the Board of Trustees, merge or consolidate with or into one or more
business trusts or other business entities formed or organized or existing
under the laws of the State of Delaware or any other state or the United
States or any foreign country or other foreign jurisdiction. Any such merger
or consolidation shall not require the vote of the Shareholders affected
thereby, unless such vote is required by the 1940 Act, or unless such merger
or consolidation would result in an amendment of this Declaration of Trust
which would otherwise require the approval of such Shareholders. In
accordance with Section 3815(f) of the DBTA, an agreement of merger or
consolidation 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 the
Trust if the Trust is the surviving or resulting business trust. Upon
completion of the merger or consolidation, the Trustees shall file a
certificate of merger or consolidation in accordance with Section 3810 of the
DBTA.
(b) CONVERSION. A majority of the Board of Trustees may, without the
vote or consent of the Shareholders, cause (i) the Trust to convert to a
common-law trust, a general partnership, limited partnership or a limited
liability company organized, formed or created under the laws of the State of
Delaware as permitted pursuant to Section 3821 of the DBTA; (ii) the Shares of
the Trust or any Series to be converted into beneficial interests in another
business trust (or series thereof) created pursuant to this Section 3 of this
Article VIII, or (iii) the Shares to be exchanged under or pursuant to any
state or federal statute to the extent permitted by law; provided, however,
that if required by the 1940 Act, no such statutory conversion, Share
conversion or Share exchange shall be effective unless the terms of such
transaction shall first have been approved at a meeting called for that
purpose by the "vote of a majority of the outstanding voting securities," as
such
25
phrase is defined in the 1940 Act, of the Trust or Series, as applicable;
provided, further, that in all respects not governed by statute or applicable
law, the Board of Trustees shall have the power to prescribe the procedure
necessary or appropriate to accomplish a sale of assets, merger or
consolidation including the power to create one or more separate business
trusts to which all or any part of the assets, liabilities, profits or losses
of the Trust may be transferred and to provide for the conversion of Shares of
the Trust or any Series into beneficial interests in such separate business
trust or trusts (or series thereof).
Section 4. REORGANIZATION.
A majority of the Board of Trustees may cause the Trust to sell, lease,
charge, pledge, convey, transfer or otherwise dispose of all or substantially
all of Trust Property, or all or substantially all of the assets associated
with any one or more Series or Class, including its goodwill, to another
trust, business trust, partnership, limited 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 "vote of a majority
of the outstanding voting securities," as such phrase is defined in the 1940
Act, of that Series. Following such sale, conveyance and transfer, the Board
of 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.
Section 5. AMENDMENTS.
Except as specifically provided in this Section 5, the Trustees may,
without Shareholder vote, restate, and/or amend or otherwise supplement this
Declaration of Trust at any time by an instrument in writing signed by a
majority of the then Board of Trustees. Shareholders shall have the right to
vote in accordance with Article V, Section 3 hereof, on (i) any amendment that
would affect their right to vote granted in Article V, Section 1 hereof, (ii)
any amendment that requires their vote under applicable law or by the Trust's
registration statement, as filed with the Commission, (iii) any amendment
submitted to them for their vote by the Trustees, and (iv) any amendment to
this Section 5 of this Article VII affecting their rights.
27
Any amendment required or permitted to be submitted to the Shareholders,
that, as the Trustees determine, shall affect the Shareholders of one or more
Series shall be authorized by a vote of the Shareholders of each Series
affected and no vote of Shareholders of a Series not affected shall be
required. Any such restatement and/or amendment hereto shall be effective
immediately upon execution and approval or upon such future date and time as
may be stated therein.
The Certificate of Trust of the Trust may be restated and/or amended by a
similar procedure, and any such restatement and/or amendment shall be
effective immediately upon filing with the Office of the Secretary of State of
the State of Delaware or upon such future date as may be stated therein.
Notwithstanding the above, the Board of Trustees expressly reserves the
right to amend or repeal any provisions contained in this Declaration of Trust
or the Certificate of Trust, in accordance with the provisions of Section 5 of
Article III hereof, and all rights, contractual and otherwise, conferred upon
Shareholders are granted subject to such reservation. The Board of Trustees
further expressly reserves the right to amend or repeal any provision of the
By-Laws pursuant to Article X of the By-Laws.
Notwithstanding anything else herein, no amendment hereof shall affect
the rights to indemnification or insurance provided by Article VII hereof with
respect to any acts or omissions of Persons covered thereby prior to such
amendment.
Section 6. FILING OF COPIES, REFERENCES, HEADINGS. The original or a
copy of this Declaration of Trust and of each restatement and/or amendment
hereto shall be kept at the principal executive office of the Trust where it
may be inspected by any Shareholder. Anyone dealing with the Trust may rely
on a certificate by an officer of the Trust as to whether or not any such
restatements and/or amendments have been made and as to any matters in
connection with the Trust hereunder; and, with the same effect as if it were
the original, may rely on a copy certified by an officer of the Trust to be a
copy of this instrument or of any such restatements and/or amendments. In
this Declaration of Trust and in any such restatements and/or amendments,
references to this instrument, and all expressions of similar effect to
"herein," "hereof" and "hereunder," shall be deemed to refer to this
instrument as amended or affected by any such restatements and/or amendments.
Headings are placed herein for convenience of reference only and shall not be
taken as a part hereof or control or affect the meaning, construction or
effect of this instrument. Whenever the singular number is used herein, the
same shall include the plural; and the neuter, masculine and feminine genders
shall include each other, as applicable. This instrument may be executed in
any number of counterparts, each of which shall be deemed an original.
Section 7. APPLICABLE LAW. This Declaration of Trust is created under
and is to be governed by and construed and administered according to the laws
of the State of Delaware and the applicable provisions of the 1940 Act and
Code. The Trust shall be a Delaware business trust pursuant to the DBTA, and
without limiting the provisions hereof, the Trust may exercise all powers or
privileges which are afforded to business trusts in activities that may be
engaged in by business trusts under the DBTA, and the absence of a specific
reference hereto for any such prior privilege or action shall not imply that
the Trust may not exercise such power or privilege or take
28
a such action.
Notwithstanding the first sentence of Section 7 of this Article VIII,
there shall not be applicable to the Trust, the Trustees, or this Declaration
of Trust either the provisions of Section 3540 of Title 12 of the Delaware
Code or any provisions of the laws (statutory or common) of the State of
Delaware (other than the Delaware Act) pertaining to trusts that relate to or
regulate: (i) the filing with any court or governmental body or agency of
trustee accounts or schedules of trustee fees and charges; (ii) affirmative
requirements to post bonds for trustees, officers, agents, or employees of a
trust; (iii) the necessity for obtaining a court or other governmental
approval concerning the acquisition, holding, or disposition of real or
personal property; (iv) fees or other sums applicable to trustees, officers,
agents or employees of a trust; (v) the allocation of receipts and
expenditures to income or principal; (vi) restrictions or limitations on the
permissible nature, amount, or concentration of trust investments or
requirements relating to the titling, storage, or other manner of holding of
trust assets; or (vii) the establishment of fiduciary or other standards or
responsibilities or limitations on the acts or powers or liabilities or
authorities and powers of trustees that are inconsistent with the limitations
or liabilities or authorities and powers of Trustees set forth or referenced
in this Declaration of Trust.
Section 8. PROVISIONS IN CONFLICT WITH LAW OR REGULATIONS.
(a) The provisions of this Declaration of Trust are severable, and if the
Board of Trustees shall determine, with the advice of counsel, that any of
such provisions is in conflict with the 1940 Act, the Code, the DBTA, or with
other applicable laws and regulations, the conflicting provision shall be
deemed not to have constituted a part of this Declaration of Trust from the
time when such provisions became inconsistent with such laws or regulations;
provided, however, that such determination shall not affect any of the
remaining provisions of this Declaration of Trust or render invalid or
improper any action taken or omitted prior to such determination.
(b) If any provision of this Declaration of Trust shall be held invalid
or unenforceable in any jurisdiction, such invalidity or unenforceability
shall attach only to such provision in such jurisdiction and shall not in any
manner affect such provision in any other jurisdiction or any other provision
of this Declaration of Trust in any jurisdiction.
Section 9. BUSINESS TRUST ONLY. It is the intention of the Trustees to
create a business trust pursuant to the DBTA, and thereby to create the
relationship of trustee and beneficial owners within the meaning of the DBTA
between the Trustees and each Shareholder. It is not the intention of the
Trustees to create a general or limited partnership, limited liability
company, joint stock association, corporation, bailment, or any form of legal
relationship other than a business trust pursuant to the DBTA. Nothing in
this Declaration of Trust shall be construed to make the shareholders, either
by themselves or with the Trustees, partners or members of a joint stock
association.
Section 10. WRITINGS. To the fullest extent permitted by applicable
laws and regulations, all requirements in this Declaration of Trust or in the
Bylaws that any action be taken by means
29
of any writing, including, without limitation, any written instrument, and
written consent or any written agreement, shall be deemed to be satisfied by
means of any electronic record in such form that is acceptable to the
Trustees; and all requirements in this Declaration of Trust or in the Bylaws
that any writing be signed shall be deemed to be satisfied by any electronic
signature in such form that is acceptable to the Trustees.
Section 11. FISCAL YEAR. The fiscal year of the Trust shall end on a
specified date as set forth in the Bylaws, provided, however, that the Trust
may, without Shareholder approval, change the fiscal year of the Trust.
IN WITNESS WHEREOF, the Trustees named below do hereby make and enter
into this Declaration of Trust as of the 1st day of February, 2003.
/s/ Xxxxxxx X. Xxxxx /s/ Xxxxxxx X. Xxxx
-------------------------------- --------------------------------
Xxxxxxx X. Xxxxx Xxxxxxx X. Xxxx
Initial Trustee, and not individually Initial Trustee, and not individually
0000 X. Xxxxxxx Xxxxxx 0000 X. Xxxxxxx Xxxxxx
Xxxx Xxxxx, Xxxxxxx 00000 Xxxx Xxxxx, Xxxxxxx 00000
The Principal Place of Business of the Trust is:
0000 X. Xxxxxxx Xxxxxx
Xxxx Xxxxx, Xxxxxxx 00000
30
