AGREEMENT AND DECLARATION OF TRUST
OF
AXA PREMIER VIP TRUST
A DELAWARE BUSINESS TRUST
TABLE OF CONTENTS
Page
ARTICLE I Name and Definitions................................................1
Section 1. Name...........................................................1
Section 2. Definitions....................................................1
ARTICLE II Purpose of Trust...................................................3
ARTICLE III Shares............................................................3
Section 1. Division of Beneficial Interest................................3
Section 2. Ownership of Shares............................................4
Section 3. Investments in the Trust.......................................4
Section 4. Status of Shares and Limitation of Personal Liability..........4
Section 5. Establishment and Designation of Series or Class...............5
Section 6. Assent to Agreement............................................7
ARTICLE IV Trustees...........................................................7
Section 1. Number, Election and Tenure....................................8
Section 2. Vacancies; Appointment of Trustees.............................8
Section 3. Temporary Vacancy or Absence...................................8
Section 4. Effect of Trustees Not Serving.................................8
Section 5. Powers.........................................................9
Section 6. Payment of Expenses by the Trust..............................13
Section 7. Ownership of Assets of the Trust..............................13
Section 8. Certain Transactions..........................................13
Section 9. Trustees and Officers as Shareholders.........................14
Section 10. Compensation..................................................14
ARTICLE V Shareholders' Voting Powers and Meetings...........................14
Section 1. Voting Powers, Meetings, Notice, and Record Dates.............14
Section 2. Quorum and Required Vote......................................15
ARTICLE VI Contracts With Service Providers..................................15
Section 1. Investment Adviser............................................15
Section 2. Principal Underwriter.........................................15
Section 3. Transfer Agency, Shareholder Services, and
Administration Agreements...................................15
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Section 4. Custodian.....................................................16
Section 5. Parties to Contracts with Service Providers...................16
ARTICLE VII Net Asset Value, Distributions and Redemptions...................16
Section 1. Distributions.................................................16
Section 2. Determination of Net Asset Value..............................16
Section 3. Redemptions and Repurchases...................................17
Section 4. Suspension of Right of Redemption.............................17
ARTICLE VIII Limitation of Liability and Indemnification.....................18
Section 1. Limitation of Liability.......................................18
Section 2. Indemnification of Covered Persons............................18
Section 3. Indemnification of Shareholder................................18
ARTICLE IX Miscellaneous.....................................................19
Section 1. Liability of Third Persons Dealing with Trustees..............19
Section 2. Trustee's Good Faith Action, Expert Advice, No Bond
or Surety...................................................19
Section 3. Termination of the Trust or Any Series or Class...............19
Section 4. Reorganization................................................20
Section 5. Amendments....................................................20
Section 6. Filing of Copies, References, Headings........................21
Section 7. Applicable Law................................................21
Section 8. Provisions in Conflict with Law or Regulations................22
Section 9. Business Trust Only...........................................22
Section 10. Taxation......................................................23
Section 11. Shareholders' Right to Inspect Shareholder List...............23
Section 12. Fiscal Year...................................................23
Section 13. Severability..................................................23
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AGREEMENT AND DECLARATION OF TRUST
OF
AXA PREMIER VIP TRUST
THIS AGREEMENT AND DECLARATION OF TRUST is made and entered into as of
the date set forth below by the Trustees named hereunder for the purpose of
forming a Delaware business trust in accordance with the provisions hereinafter
set forth.
WHEREAS, the Trustees desire to create a business trust pursuant to the
Delaware Act for the investment and reinvestment of funds contributed thereto;
NOW, THEREFORE, the Trustees hereby direct that the Certificate of
Trust be filed with the Office of the Secretary of State of the State of
Delaware and do hereby declare that the Trustees will hold IN TRUST all cash,
securities, and other assets which the Trust now possesses or may hereafter
acquire from time to time in any manner and manage and dispose of the same upon
the following terms and conditions for the benefit of the holders of Shares of
this Trust.
ARTICLE I
NAME AND DEFINITIONS
SECTION 1. NAME. This Trust shall be known as the AXA Premier VIP Trust
and the Trustees shall conduct the business of the Trust under that name or any
other name as they may from time to time determine. However, should the Trustees
determine that the use of the name of the Trust is not advisable, they may
select such other name for the Trust as they deem proper and the Trust may hold
its property and conduct its activities under such other name. Any name change
shall become effective upon the execution by a majority of the then Trustees of
an instrument setting forth the new name and the filing of a certificate of
amendment pursuant to Section 3810(b) of the Delaware Act. Any such instrument
shall not require the approval of the Shareholders, but shall have the status of
an amendment to this Declaration of Trust. The Trust shall constitute a Delaware
business trust in accordance with the Delaware Act and this Declaration of Trust
shall constitute the governing instrument of the Trust.
SECTION 2. DEFINITIONS. Whenever used herein, unless otherwise required
by the context or specifically provided:
(a) "By-Laws" shall mean the By-Laws of the Trust as amended
from time to time, which By-Laws are expressly herein incorporated by
reference as part of the "governing instrument" within the meaning of
the Delaware Act;
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(b) "Certificate of Trust" means the certificate of trust, as
amended or restated from time to time, filed by the Trustees in the
Office of the Secretary of State of the State of Delaware in accordance
with the Delaware Act;
(c) "Class" means a class of Shares of a Series of the Trust
established in accordance with the provisions of Article III hereof;
(d) "Commission" shall have the meaning given such term in the
1940Act;
(e) "Covered Person" means every person who is, or has been, a
Trustee or an officer or employee of the Trust;
(f) "Declaration of Trust" means this Agreement and
Declaration of Trust, as amended or restated from time to time;
(g) "Delaware Act" means Chapter 38 of Title 12 of the
Delaware Code, as amended from time to time;
(h) "Interested Person" shall have the meaning given such term
in Section 2(a) of the 1940 Act;
(i) "Net Asset Value" means the net asset value of each Series
of the Trust, determined as provided in Article VII, Section 2;
(j) "Outstanding Shares" means Shares shown on the books of
the Trust or its transfer agent as then issued and outstanding, but
does not include Shares which have been repurchased or redeemed by the
Trust;
(k) "Person" means and includes individuals, corporations,
partnerships, trusts, associations, joint ventures, estates, and other
entities, whether or not legal entities, and governments and agencies
and political subdivisions thereof, whether domestic or foreign;
(l) "Registered Investment Company" means a company registered
as a management investment company under the 1940 Act;
(m) "Principal Underwriter" shall have the meaning given such
term in Section 2(a) of the 1940 Act;
(n) "Series" means each Series of Shares established and
designated under or in accordance with the provisions of Article III
hereof;
(o) "Shareholder" means a record owner of outstanding Shares;
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(p) "Shares" means the shares of beneficial interest into
which the beneficial interest in the Trust shall be divided from time
to time and includes fractions of Shares as well as whole Shares;
(q) "Trust" means the Delaware Business Trust established
under the Delaware Act by this Declaration of Trust and the filing of
the Certificate of Trust in the Office of the Secretary of State of the
State of Delaware;
(r) "Trustees" means the "Person" or "Persons" who have signed
this Declaration of Trust and all other Persons who may from time to
time be duly elected or appointed to serve as Trustees in accordance
with the provisions hereof, in each case so long as such Person shall
continue in office in accordance with the terms of this Declaration of
Trust, and reference herein to a Trustee or the Trustees shall refer to
such Person or Persons in his or her or their capacity as Trustees
hereunder; and
(s) "Trust Property" means any and all property, real or
personal, tangible or intangible, which is from time to time owned or
held by or for the account of the Trust or any Series or the Trustees
on behalf of the Trust or any Series.
(t) "1940 Act" means the Investment Company Act of 1940 and
the rules and regulations thereunder, all as amended from time to time;
ARTICLE II
PURPOSE OF TRUST
The purpose of the Trust is to conduct, operate and carry on the
business of a management investment company registered under the 1940 Act
through one or more Series investing primarily in securities, and to carry on
such other business as the Trustees may from time to time determine pursuant to
their authority under this Declaration of Trust. In furtherance of the
foregoing, it shall be the purpose of the Trust to do everything necessary,
suitable, convenient or proper for the conduct, promotion and attainment of any
businesses and purposes which at any time may be incidental or may appear
conducive or expedient for the accomplishment of the business of an investment
company registered under the 1940 Act and which may be engaged in or carried on
by a trust organized under the Delaware Act, and in connection therewith the
Trust shall have and may exercise all of the powers conferred by the laws of the
State of Delaware upon a Delaware business trust.
ARTICLE III
SHARES
SECTION 1. DIVISION OF BENEFICIAL INTEREST. The beneficial interest in
the Trust shall be divided into Shares of one or more Series or Classes
established by the Trustees. The number of Shares of the Trust and of each
Series and Class is unlimited and each Share shall have a par
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value of $0.001 per Share. All Shares issued hereunder, including Shares issued
in connection with a dividend or other distribution in Shares or a split or
reverse split of Shares, shall be fully paid and nonassessable. Shareholders
shall have no preemptive or other right to subscribe to any additional Shares or
other securities issued by the Trust. The Trustees shall have full power and
authority, in their sole discretion and without obtaining Shareholder approval:
to issue original or additional Shares and fractional Shares at such times and
on such terms and conditions as they deem appropriate; to establish and to
change in any manner Shares of any Series or Class with such preferences, terms
of conversion, voting powers, rights and privileges as the Trustees may
determine (but the Trustees may not change Outstanding Shares in a manner
materially adverse to the Shareholders of such Shares); to divide or combine the
Shares of any Series or Class into a greater or lesser number; to classify or
reclassify any unissued Shares of any Series or Class into one or more Series or
Classes of Shares; to abolish any one or more Series or Class of Shares; to
issue Shares to acquire other assets (including assets subject to, and in
connection with, the assumption of liabilities) and businesses; and to take such
other action with respect to the Shares as the Trustees may deem desirable.
SECTION 2. OWNERSHIP OF SHARES. The Ownership of Shares shall be
recorded on the books of the Trust or those of a transfer or similar agent for
the Trust, which books shall be maintained separately for the Shares of each
Series or Class of the Trust. No certificates certifying the ownership of Shares
shall be issued except as the Trustees may otherwise determine from time to
time. The Trustees may make such rules as they consider appropriate for the
issuance of Share certificates, the transfer of Shares of each Series or Class
of the Trust and similar matters. The record books of the Trust as kept by the
Trust or any transfer or similar agent, as the case may be, shall be conclusive
as to the identity of the Shareholders of each Series or Class of the Trust and
as to the number of Shares of each Series or Class of the Trust held from time
to time by each Shareholder.
SECTION 3. INVESTMENTS IN THE TRUST. Investments may be accepted by the
Trust from such Persons, at such times, on such terms, and for such
consideration, which may consist of cash or tangible or intangible property or a
combination thereof, as the Trustees from time to time may authorize. At the
Trustees' sole discretion, such investments, subject to applicable law, may be
in the form of cash or securities in which the affected Series is authorized to
invest, valued as provided in applicable law. Investments in a Series shall be
credited to each Shareholder's account in the form of full and fractional Shares
at the Net Asset Value per Share next determined after the investment is
received or accepted in good form as may be determined by the Trustees;
provided, however, that the Trustees may, in their sole discretion, (a) impose a
sales charge upon investments in any Series or Class, or (b) determine the Net
Asset Value per Share of the initial capital contribution. The Trustees shall
have the right to refuse to accept investments in any Series at any time without
any cause or reason therefor whatsoever.
SECTION 4. STATUS OF SHARES AND LIMITATION OF PERSONAL LIABILITY.
Shares shall be deemed to be personal property giving only the rights provided
in this instrument. Every Shareholder by virtue of having become a Shareholder
shall be held to have expressly assented and agreed to the terms hereof. The
death, incapacity, dissolution, termination, or bankruptcy of a Shareholder
during the existence of the Trust shall not operate to terminate the Trust, nor
entitle
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the representative of any such Shareholder to an accounting or to take any
action in court or elsewhere against the Trust or the Trustees, but entitles
such representative only to the rights of such Shareholder under this Trust.
Ownership of Shares shall not entitle the Shareholder to any title in or to the
whole or any part of the Trust Property or right to call for a participation or
division of the same or for an accounting, nor shall the ownership of Shares
constitute the Shareholders as partners. No Shareholder shall be personally
liable for the debts, liabilities, obligations and expenses incurred by,
contracted for, or otherwise existing with respect to, the Trust or any Series.
Neither the Trust nor the Trustees, nor any officer, employee, or agent of the
Trust shall have any power to bind personally any Shareholders, nor, except as
specifically provided herein, to call upon any Shareholder for the payment of
any sum of money or assessment whatsoever other than such as the Shareholder may
at any time personally agree to pay. The Shareholders shall be entitled, to the
fullest extent permitted by applicable law, to the same limitation of personal
liability as is extended under the Delaware General Corporation Law to
stockholders of private corporations for profit. Every note, bond, contract, or
other undertaking issued by or on behalf of the Trust or the Trustees relating
to the Trust or to any Series shall include a recitation limiting the obligation
represented thereby to the Trust and its assets or to one or more Series and the
assets belonging thereto (but the omission of such a recitation shall not
operate to bind any Shareholder or Trustee of the Trust).
SECTION 5. ESTABLISHMENT AND DESIGNATION OF SERIES OR CLASS. The
Trustees hereby establish the Series listed in Schedule A attached hereto and
made a part hereof. The establishment and designation of each additional Series
or Class of Shares of the Trust shall be effective upon the adoption by a
majority of the then Trustees of a resolution that sets forth such establishment
and designation and the relative rights and preferences of such Series or Class
of the Trust, whether directly in such resolution or by reference to another
document including, without limitation, any registration statement of Trust, or
as otherwise provided in such resolution. Shares of each Series or Class of the
Trust established pursuant to this Article III, unless otherwise provided in the
resolution establishing such Series or Class, shall have the following relative
rights and preferences:
(a) Assets Held with Respect to a Particular Series. All
consideration received by the Trust for the issue or sale of Shares of
a particular Series, together with all assets in which such
consideration is invested or reinvested, all income, earnings, profits,
and proceeds thereof from whatever source derived (including, without
limitation, any proceeds derived from the sale, exchange or liquidation
of such assets and any funds or payments derived from any reinvestment
of such proceeds in whatever form the same may be) shall irrevocably be
held separately with respect to that Series for all purposes, subject
only to the rights of creditors of such Series, from the assets of the
Trust and every other Series, and shall be so recorded upon the books
of account of the Trust. Such consideration, assets, income, earnings,
profits and proceeds thereof, from whatever source derived, (including,
without limitation, any proceeds derived from the sale, exchange or
liquidation of such assets, and any funds or payments derived from any
reinvestment of such proceeds), in whatever form the same may be, are
herein referred to as "assets held with respect to" that Series. In the
event that there are any assets, income, earnings, profits and proceeds
thereof, funds or payments which are not readily
5
identifiable as assets held with respect to any particular Series
(collectively "General Assets"), the Trustees shall allocate such
General Assets to, between or among any one or more of the Series in
such manner and on such basis as the Trustees, in their sole
discretion, deem fair and equitable, and any General Assets so
allocated to a particular Series shall be held with respect to that
Series. Each such allocation by the Trustees shall be conclusive and
binding upon the Shareholders of all Series for all purposes. Separate
and distinct records shall be maintained for each Series and the assets
held with respect to each Series shall be held and accounted for
separately from the assets held with respect to all other Series and
the General Assets of the Trust not allocated to such Series.
(b) Liabilities with Respect to a Particular Series. The
assets of the Trust held with respect to each particular Series shall
be charged against the liabilities of the Trust with respect to that
Series and all expenses, costs, charges, and reserves attributable to
that Series, except that liabilities and expenses allocated solely to a
particular Class shall be borne by that Class. Any general liabilities
of the Trust which are not readily identifiable as being with respect
to any particular Series or Class shall be allocated and charged by the
Trustees to and among any one or more of the Series or Classes in such
manner and on such basis as the Trustees in their sole discretion deem
fair and equitable. All liabilities, expenses, costs, charges, and
reserves so charged to a Series or Class are herein referred to as
"liabilities with respect to" that Series or Class. Each allocation of
liabilities, expenses, costs, charges, and reserves by the Trustees
shall be conclusive and binding upon the shareholders of all Series or
Classes for all purposes. Without limiting the foregoing, but subject
to the right of the Trustees to allocate general liabilities, expenses,
costs, charges or reserves as herein provided, the debts, liabilities,
obligations and expenses incurred, contracted for or otherwise existing
with respect to a particular Series shall be enforceable against the
assets held with respect to such Series only and not against the assets
of the Trust generally or against the assets held with respect to any
other Series. Notice of this contractual limitation on liabilities
among Series shall be set forth in the certificate of trust of the
Trust (whether originally or by amendment) as filed or to be filed in
the Office of the Secretary of State of the State of Delaware pursuant
to the Delaware Act, and upon the giving of such notice in the
certificate of trust, the statutory provisions of Section 3804 of the
Delaware Act relating to limitations on liabilities among Series (and
the statutory effect under Section 3804 of setting forth such notice in
the certificate of trust) shall become applicable to the Trust and each
Series. Any person extending credit to, contracting with or having any
claim against any Series may look only to the assets of that Series to
satisfy or enforce any debt, with respect to that Series. No
Shareholder or former Shareholder of any Series shall have a claim on
or any right to any assets allocated or belonging to any other Series.
(c) Dividends, Distributions, Redemptions, and Repurchases.
Notwithstanding any other provisions of this Declaration of Trust,
including, without limitation, Article VII, no dividend or
distribution, including, without limitation, any distribution paid upon
termination of the Trust or of any Series or Class with respect to, nor
any redemption or repurchase of, the Shares of any Series or Class,
shall be effected by the Trust other than from the assets held with
respect to such Series, nor shall any Shareholder or any
6
particular Series or Class otherwise have any right or claim against
the assets held with respect to any other Series except to the extent
that such Shareholder has such a right or claim hereunder as a
Shareholder of such other Series. The Trustees shall have full
discretion, to the extent not inconsistent with the 1940 Act, to
determine which items shall be treated as income and which items as
capital, and each such determination and allocation shall be conclusive
and binding upon the Shareholders.
(d) Equality. All the Shares of each particular Series shall
represent an equal proportionate interest in the assets held with
respect to that Series (subject to the liabilities with respect to that
Series or Class thereof and such rights and preferences as may have
been established and designated with respect to any Class within such
Series), and each Share of any particular Series shall be equal to each
other Share of that Series. With respect to any Class of a Series, each
such Class shall represent interests in the assets of that Series and
have identical voting, dividend, liquidation and other rights and the
same terms and conditions, except that expenses allocated to a Class
may be borne solely by such Class as determined by the Trustees and a
Class may have exclusive voting rights with respect to matters
affecting only that Class.
(e) Fractions. Any fractional Share of a Series or Class
thereof, shall carry proportionately all the rights and obligations of
a whole Share of that Series or Class, including rights with respect to
voting, receipt of dividends and distributions, redemption of Shares
and termination of the Trust.
(f) Exchange Privilege. The Trustees shall have the authority
to provide that the holders of Shares of any Series or Class shall have
the right to exchange said Shares for Shares of one or more other
Series of Shares or Class of Shares of the Trust or of other investment
companies registered under the 1940 Act in accordance with such
requirements and procedures as may be established by the Trustees.
(g) Combination of Series. The Trustees shall have the
authority, without the approval of the Shareholders of any Series or
Class unless otherwise required by applicable law, to combine the
assets and liabilities with respect to any two or more Series or
Classes into assets and liabilities with respect to a single Series or
Class.
SECTION 6. ASSENT TO AGREEMENT. Every Shareholder, by virtue of having
purchased a Share, shall be held to have expressly assented to, and agreed to be
bound by, the terms hereof. The death of a Shareholder during the continuance of
the Trust shall not operate to terminate the same nor entitle the representative
of any deceased Shareholder to an accounting or to take any action in court or
elsewhere against the Trust or the Trustees, but only to rights of said decedent
under this Trust.
ARTICLE IV
TRUSTEES
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SECTION 1. NUMBER, ELECTION AND TENURE. The number of Trustees shall
initially be three (3), who shall be Xxxxxx X. Xxxxx, Xxxxxxx X. Xxxxxxxxx and
Xxxxxxxx Xxxxx. Hereafter, the number of Trustees shall at all times be at least
two (2) and no more than twelve (12) as determined, from time to time, by the
Trustees pursuant to Section 5 of this Article IV. The Shareholders shall elect
the Trustees (other than the initial Trustees) on such dates as the Trustees may
fix from time to time. Shareholders shall not be required to elect Trustees
except as required by the 1940 Act or under this Declaration of Trust.
Each Trustee shall hold office for life or until his or her successor
is elected or the Trust terminates; except that (a) any Trustee may resign by
delivering to the other Trustees or to any Trust officer a written resignation
effective upon such delivery or a later date specified therein; (b) any Trustee
may be removed with or without cause at any time by a written instrument signed
by at least two-thirds of the other Trustees, specifying the effective date of
removal; (c) any Trustee who requests to be retired, or who has become
physically or mentally incapacitated or is otherwise unable to serve, may be
retired by a written instrument signed by a majority of the other Trustees,
specifying the effective date of retirement; and (d) any Trustee may be removed
at any meeting of the Shareholders by a vote of at least two-thirds of the
Outstanding Shares.
SECTION 2. VACANCIES; APPOINTMENT OF TRUSTEES. Whenever a vacancy shall
exist in the Board of Trustees, regardless of the reason for such vacancy, the
remaining Trustees shall appoint any person as they determine in their sole
discretion to fill that vacancy, consistent with the limitations under the 1940
Act. Such appointment shall be made by a written instrument signed by a majority
of the Trustees or by a resolution of the Trustees, duly adopted and recorded in
the records of the Trust, specifying the effective date of the appointment. The
Trustees may appoint a new Trustee as provided above in anticipation of a
vacancy expected to occur because of the retirement, resignation, or removal of
a Trustee, or an increase in number of Trustees, provided that such appointment
shall become effective only at or after the expected vacancy occurs. Upon the
appointment and/or election of a successor Trustee, the trust estate shall vest
in the new Trustee, together with the continuing Trustees, without any further
act or conveyance, and he or she shall be deemed a Trustee hereunder. The power
of appointment is subject to Section 16(a) of the 1940 Act.
SECTION 3. TEMPORARY VACANCY OR ABSENCE. Whenever a vacancy in the
Board of Trustees shall occur, until such vacancy is filled, or while any
Trustee is absent from his or her domicile (unless that Trustee has made
arrangements to be informed about, and to participate in, the affairs of the
Trust during such absence), or is physically or mentally incapacitated, the
remaining Trustees shall have all the powers hereunder and their certificate as
to such vacancy, absence, or incapacity shall be conclusive.
SECTION 4. EFFECT OF TRUSTEES NOT SERVING. The death, resignation,
retirement, removal, incapacity, or inability or refusal to serve of the
Trustees, or any one of them, shall not operate to annul the Trust or to revoke
any existing agency created pursuant to the terms of this Declaration of Trust.
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SECTION 5. POWERS. Subject to the provisions of this Declaration of
Trust, the business of the Trust shall be managed by the Trustees. The Trustees
shall have exclusive and absolute control over the Trust Property and over the
business of the Trust to the same extent as if the Trustees were the sole owners
of the Trust Property and business in their own right, but with such powers of
delegation as may be permitted by this Declaration of Trust. The Trustees shall
have power to conduct the business of the Trust and carry on its operations in
any and all of its branches and maintain offices both within and without the
State of Delaware, in any and all states of the United States of America, in the
District of Columbia, in any and all commonwealths, territories, dependencies,
colonies, or possessions of the United States of America, and in any and all
foreign jurisdictions and to do all such other things and execute all such
instruments as they deem necessary, proper or desirable in order to promote the
interests of the Trust although such things are not herein specifically
mentioned. Any determination as to what is in the interests of the Trust made by
the Trustees in good faith shall be conclusive. In construing the provisions of
this Declaration of Trust, the presumption shall be in favor of a grant of power
to the Trustees.
The enumeration of any specific power in this Declaration of Trust
shall not be construed as limiting the aforesaid power. The powers of the
Trustees may be exercised without order of or resort to any court or other
authority.
Unless otherwise specified herein or in the By-Laws or required by law,
any action by the Trustees shall be deemed effective if approved or taken by a
majority of the Trustees present at a duly called meeting of Trustees (including
a meeting by telephonic or other electronic means, unless the 1940 Act requires
that a particular action be taken only at a meeting of the Trustees in person)
at which a quorum of Trustees is present or by unanimous written consent of the
Trustees (or by written consent of a majority of the Trustees if the President
of the Trust or, in his absence, the Chairman or any two Trustees determines
that such exceptional circumstances exist, and are of such urgency, as to make
unanimous written consent impossible or impractical, which determination shall
be conclusive and binding on all Trustees and not otherwise subject to
challenge) without a meeting. A majority of the Trustees shall constitute a
quorum at any meeting. Meetings of the Trustees may be called orally or in
writing by the President of the Trust or by any two Trustees. Notice of the
time, date, and place of all meetings of the Trustees shall be given to each
Trustee by telephone, facsimile, electronic-mail, or other electronic mechanism
sent to his or her home or business address at least twenty-four hours in
advance of the meeting or in person at another meeting of the Trustees or by
written notice mailed to his or her home or business address at least
seventy-two hours in advance of the meeting. Notice need not be given to any
Trustee who attends the meeting without objecting to the lack of notice or who
signs a waiver of notice either before or after the meeting. Subject to the
requirements of the 1940 Act, the Trustees by majority vote may delegate to any
Trustee or Trustees authority to approve particular matters or take particular
actions on behalf of the Trust. Any written consent or waiver may be provided
and delivered to the Trust by any means by which notice may be given to a
Trustee.
Without limiting the foregoing and subject to any applicable limitation
in this Declaration of Trust or the By-Laws, the Trustees shall have the power
and authority to cause the Trust (or to act on behalf of the Trust):
9
(a) To operate as and carry on the business of a Registered
Investment Company, and exercise all the powers necessary and proper to
conduct such a business;
(b) To subscribe for, invest in, reinvest in, purchase, or
otherwise acquire, hold, pledge, sell, assign, transfer, exchange,
distribute, or otherwise deal in or dispose of any form of property,
including cash (U.S. currency), foreign currencies and related
instruments, and securities (including common and preferred stocks,
warrants, bonds, debentures, time notes, and all other evidences of
indebtedness, negotiable or non-negotiable instruments, obligations,
certificates of deposit or indebtedness, commercial paper, repurchase
agreements, reverse repurchase agreements, dollar rolls, convertible
securities, forward contracts, options, futures contracts, swaps, and
other financial contracts or derivative instruments) issued,
guaranteed, or sponsored by any state, territory, or possession of the
United States or the District of Columbia or their political
subdivisions, agencies, or instrumentalities, or by the U.S.
government, any foreign government, or any agency, instrumentality, or
political subdivision thereof, or by any international instrumentality,
or by any bank, savings institution, corporation, or other business
entity organized under the laws of the United States (including a
Registered Investment Company or any series thereof, subject to the
provisions of the 0000 Xxx) or under foreign laws, without regard to
whether any such securities mature before or after the possible
termination of the Trust; to exercise any and all rights, powers, and
privileges of ownership or interest in respect of any and all such
investments of every kind and description; and to hold cash or other
property uninvested, without in any event being bound or limited by any
current or future law or custom concerning investments by trustees;
(c) To adopt By-Laws not inconsistent with this Declaration of
Trust providing for the conduct of the business of the Trust and to
amend and repeal them to the extent such right is not reserved to the
Shareholders;
(d) To sell, exchange, or otherwise dispose of any or all of
the assets of the Trust or any Series subject to Article IX, Section 3
of this Declaration of Trust;
(e) To vote or give assent, or exercise any rights of
ownership, with respect to securities or property; and to execute and
deliver proxies or powers of attorney to such Person or Persons as the
Trustees shall deem proper, granting to such Person or Persons such
power and discretion with relation to securities or property as the
Trustees shall deem proper;
(f) To exercise powers and right of subscription or otherwise
which in any manner arise out of ownership or securities;
(g) To hold any security or property in a form not indicating
any trust, whether in bearer, unregistered or other negotiable form, or
in its own name or in the name of a custodian or subcustodian or a
nominee or nominees or otherwise, subject in either case to safeguards
according to the usual practice of business trusts or investment
companies;
10
(h) To consent to or participate in any plan for the
reorganization, consolidation or merger of any corporation or issuer of
any security which is held in the Trust; to consent to any contract,
lease, mortgage, purchase or sale of property by such corporation or
issuer; and to pay calls or subscriptions with respect to any security
held in the Trust;
(i) To compromise, arbitrate or otherwise adjust claims in
favor of or against the Trust or any matter in controversy, including,
but not limited to, claims for taxes;
(j) To borrow money or otherwise obtain credit and to secure
the same by mortgaging, pledging, or otherwise subjecting as security
any assets of the Trust, including the lending of portfolio securities,
and to endorse, guarantee or undertake the performance of any
obligation, contract, or engagement of any other person, firm,
association, or corporation;
(k) To purchase, and pay for, out of Trust Property or the
assets belonging to any appropriate Series, insurance policies insuring
the Shareholders, Trustees, officers, employees, agents, and/or
independent contractors of the Trust (including the investment adviser
of any Series) against all claims arising by reason of holding any such
position or by reason of any action taken or omitted by any such person
in such capacity, whether or not the Trust would have the power to
indemnify such person against such claim;
(l) To establish committees for such purposes, with such
membership, and with such responsibilities as the Trustees may consider
proper, including a committee consisting of fewer than all of the
Trustees then in office, which may act for and bind the Trustees and
the Trust with respect to the institution, prosecution, dismissal,
settlement, review or investigation of any legal action, suit or
proceeding, pending or threatened to be brought before any court,
administrative agency, or other adjudicatory body;
(m) To establish a registered office and have a registered
agent in the State of Delaware;
(n) To issue, sell, repurchase, redeem, cancel, retire,
acquire, hold, resell, reissue, dispose of and otherwise deal in
Shares; to establish terms and conditions regarding the issuance, sale,
repurchase, redemption, cancellation, retirement, acquisition, holding,
resale, reissuance, disposition of or dealing in Shares; and, subject
to Articles III and VI, to apply to any such repurchase, redemption,
retirement, cancellation or acquisition of Shares any funds or property
of the Trust or of the particular Series with respect to which such
Shares are issued;
(o) To declare and make distributions of income and of capital
gains to Shareholders in the manner hereinafter provided for;
(p) To establish, from time to time, a minimum total
investment for Shareholders in the Trust or in one or more Series or
Classes, and to require the
11
redemption of the Shares of any Shareholders whose investment is less
than such minimum or take such other action as the Trustees in their
discretion shall determine;
(q) To adopt, establish and carry out pension, profit-sharing,
share bonus, share purchase, savings, thrift and other retirement,
incentive and benefit plans and trusts, including the purchasing of
life insurance and annuity contracts as a means of providing such
retirement and other benefits, for any or all of the Trustees,
officers, employees and agents of the Trust;
(r) To enter into contracts of any kind and description;
(s) To employ as custodian of any assets of the Trust one or
more banks, trust companies or companies that are members of a national
securities exchange or such other entities as the Commission may permit
as custodians of the Trust, subject to any conditions set forth in this
Declaration of Trust or in the By-Laws;
(t) To elect and remove such officers and appoint and
terminate such agents as they deem appropriate;
(u) To retain one or more transfer agents and Shareholder
servicing agents, or both;
(v) To provide for the distribution of Shares either through a
Principal Underwriter as provided herein or by the Trust itself, or
both, or pursuant to a distribution plan of any kind;
(w) To set record dates in the manner provided for herein or
in the By-Laws;
(x) To delegate such authority as they consider desirable to
any officers of the Trust and to any agent, independent contractor,
manager, investment adviser, custodian, administrator, underwriter or
other service provider;
(y) To employ auditors, counsel or other agents of the Trust,
subject to any conditions set forth in this Declaration of Trust or in
the By-Laws;
(z) To interpret the investment policies, practices, or
limitations of any Series or Class;
(aa) To establish separate and distinct Series with separately
defined investment objectives and policies and distinct investment
purposes, and with separate Shares representing beneficial interests in
such Series, and to establish separate Classes, all in accordance with
the provisions of Article III;
(bb) To the full extent permitted by Section 3804 of the
Delaware Act, to allocate assets, liabilities and expenses of the Trust
to a particular Series and liabilities and expenses to a particular
Class or to apportion the same between or among two or
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more Series or Classes, provided that any liabilities or expenses
incurred by a particular Series or Class shall be payable solely out of
the assets belonging to that Series or Class as provided for in Article
III; and
(cc) Subject to the 1940 Act, to engage in any other lawful
act or activity in which a business trust organized under the Delaware
Act may engage.
The Trust shall not be limited to investing in obligations maturing
before the possible termination of the Trust or one or more of its Series. The
Trust shall not in any way be bound or limited by any present or future law or
custom in regard to investment by fiduciaries. The Trust shall not be required
to obtain any court order to deal with any assets of the Trust or take any other
action hereunder.
SECTION 6. PAYMENT OF EXPENSES BY THE TRUST. The Trustees are
authorized to pay or cause to be paid out of the principal or income of the
Trust or any Series, or partly out of the principal and partly out of income,
and to charge or allocate to, between or among such one or more Series (or
Classes), as they deem fair, all expenses, fees, charges, taxes and liabilities
incurred or arising in connection with the Trust or Series (or Class), or in
connection with the management thereof, including, but not limited to, the
Trustees' compensation and such expenses and charges for the services of the
Trust's officers, employees, investment adviser or manager, administrator,
Principal Underwriter, auditors, counsel, custodian, transfer agent, shareholder
servicing agent, and such other agents or independent contractors and such other
expenses and charges as the Trustees may deem necessary or proper to incur,
which expenses, fees, charges, taxes and liabilities shall be allocated in
accordance with Article III, Section 6 hereof.
SECTION 7. OWNERSHIP OF ASSETS OF THE TRUST. Title to all of the assets
of the Trust shall at all times be considered as vested in the Trust, except
that the Trustees shall have power to cause legal title to any Trust Property to
be held by or in the name of one or more of the Trustees, or in the name of the
Trust, or in the name of any other Person as nominee, on such terms as the
Trustees may determine. The right, title and interest of the Trustees in the
Trust Property shall vest automatically in each Person who may hereafter become
a Trustee. Upon the resignation, removal or death of a Trustee, he or she shall
automatically cease to have any right, title or interest in any of the Trust
Property, and the right, title and interest of such Trustee in the Trust
Property shall vest automatically in the remaining Trustees. Such vesting and
cessation of title shall be effective whether or not conveyancing documents have
been executed and delivered.
SECTION 8. CERTAIN TRANSACTIONS. Except as prohibited by applicable
law, the Trustees may, on behalf of the Trust, buy any securities from or sell
any securities to, or lend any assets of the Trust to, any Trustee or officer of
the Trust or any firm of which any such Trustee or officer is a member acting as
principal, or have any such dealings with any investment adviser, administrator,
distributor or transfer agent for the Trust or with any Interested Person of
such person. The Trust may employ any such person or entity in which such person
is an Interested Person, as broker, legal counsel, registrar, investment
adviser, administrator, distributor, transfer agent, dividend disbursing agent,
custodian or in any other capacity upon customary terms.
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SECTION 9. TRUSTEES AND OFFICERS AS SHAREHOLDERS. Any Trustee, officer
or agent of the Trust may acquire, own and dispose of Shares to the same extent
as if he were not a Trustee, officer or agent; and the Trustees may issue and
sell and cause to be issued and sold Shares to, and redeem such Shares from, any
such Person or any firm or company in which such Person is interested, subject
only to the general limitations contained herein or in the By-Laws relating to
the sale and redemption of such Shares.
SECTION 10. COMPENSATION. The Trustees in such capacity shall be
entitled to reasonable compensation from the Trust and they may fix the amount
of such compensation. However, the Trust will not compensate those Trustees who
are Interested Persons of the Trust, its Manager, subadvisers, distributor or
Principal Underwriter. Nothing herein shall in any way prevent the employment of
any Trustee for advisory, management, legal, accounting, investment banking or
other services and payment for such services by the Trust.
ARTICLE V
SHAREHOLDERS' VOTING POWERS AND MEETINGS
SECTION 1. VOTING POWERS, MEETINGS, NOTICE, AND RECORD DATES. The
Shareholders shall have power to vote only with respect to (a) the election of
Trustees as provided in Section 2 of this Article and Section 1 of Article IV;
(b) the removal of Trustees as provided in Article IV, Section 1(d); (c) any
investment advisory or management contract as provided in Article VI, Section 1;
(d) any termination of the Trust as provided in Article VIII, Section 3; (e) the
amendment of this Declaration of Trust to the extent and as provided in Article
VIII, Section 5; and (f) such additional matters relating to the Trust as may be
required or authorized by law, this Declaration of Trust, or the By-Laws or any
registration of the Trust with the Commission or any State, or as the Trustees
may consider desirable.
Each whole Share shall be entitled to one vote as any matter on which
it is entitled to vote and each fractional Share shall be entitled to a
proportionate fractional vote. Notwithstanding any other provision of this
Declaration of Trust, on any matters submitted to a vote of the Shareholders,
all Shares of the Trust then entitled to vote shall be voted in aggregate,
except: (i) when required by the 1940 Act, Shares shall be voted by individual
Series; (ii) when the matter involves the termination of a Series or any other
action that the Trustees have determined will affect only the interests of one
or more Series, then only Shareholders of such Series shall be entitled to vote
thereon; and (iii) when the matter involves any action that the Trustees have
determined will affect only the interests of one or more Classes, then only the
Shareholders of such Class or Classes shall be entitled to vote thereon. There
shall be no cumulative voting in the election of Trustees. Shares may be voted
in person or by proxy or in any manner provided for in the By-Laws. A proxy may
be given in writing. The By-Laws may provide that proxies may also, or may
instead, be given by an electronic or telecommunications device or in any other
manner. Notwithstanding anything else contained herein or in the By-Laws, in the
event a proposal by anyone other than the officers or Trustees of the Trust is
submitted to a vote of the Shareholders of one or more Series or Classes thereof
or of the Trust, or in the event of any proxy contest or proxy solicitation or
proposal in opposition to any proposal by the officers or Trustees of the
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Trust, Shares may be voted only by written proxy or in person at a meeting.
Until Shares are issued, the Trustees may exercise all rights of Shareholders
and may take any action required by law, this Declaration of Trust or the
By-Laws to be taken by the Shareholders. Meetings of the Shareholders shall be
called and notice thereof and record dates therefor shall be given and set as
provided in the By-Laws.
SECTION 2. QUORUM AND REQUIRED VOTE. Except when a larger quorum is
required by applicable law, by the By-Laws or by this Declaration of Trust,
thirty-three and one-third percent (33-1/3%) of the Shares entitled to vote
shall constitute a quorum at a Shareholders' meeting. When any one or more
Series (or Class) is to vote as a single Series (or Class) separate from any
other Shares, thirty-three and one-third percent (33-1/3%) of the Shares of each
such Series (or Class) entitled to vote shall constitute a quorum at a
Shareholders' meting of that Series (or Class). Except when a larger vote is
required by any provision of this Declaration of Trust or the By-Laws or by
applicable law, when a quorum is present at any meeting, a majority of the
Shares voted shall decide any questions and a plurality of the Shares voted
shall elect a Trustee, provided that where any provision of law or of this
Declaration of Trust requires that the holders of any Series shall vote as a
Series (or that holders of a Class shall vote as a Class), then a majority of
the Shares of that Series (or Class) voted on the matter shall decide that
matter insofar as that Series (or Class) is concerned.
ARTICLE VI
CONTRACTS WITH SERVICE PROVIDERS
SECTION 1. INVESTMENT ADVISER. The Trustees may enter into one or more
investment advisory or management contracts on behalf of the Trust or any
Series, providing for investment advisory services, statistical and research
facilities and services, and other facilities and services to be furnished to
the Trust or Series on terms and conditions acceptable to the Trustees. Any such
contract may provide for the investment adviser to effect purchases, sales or
exchanges of portfolio securities or other Trust Property on behalf of the
Trustees or may authorize any officer or agent of the Trust to effect such
purchases, sales or exchanges pursuant to recommendations of the investment
adviser. The Trustees may authorize the investment adviser to employ one or more
sub-advisers or servicing agents.
SECTION 2. PRINCIPAL UNDERWRITER. The Trustees may enter into contracts
on behalf of the Trust or any Series or Class, providing for the distribution
and sale of Shares by the other party, either directly or as sales agent, on
terms and conditions acceptable to the Trustees. The Trustees may adopt a plan
or plans of distribution with respect to Shares of any Series or Class and enter
into any related agreements, whereby the Series or Class finances directly or
indirectly any activity that is primarily intended to result in sales of its
Shares, subject to the requirements of Section 12 of the 1940 Act, Rule 12b-1
thereunder, and other applicable rules and regulations.
SECTION 3. TRANSFER AGENCY, SHAREHOLDER SERVICES, AND ADMINISTRATION
AGREEMENTS. The Trustees, on behalf of the Trust or any Series or Class, may
enter into transfer agency
15
agreements, Shareholder service agreements, and administration and management
agreements with any party or parties on terms and conditions acceptable to the
Trustees.
SECTION 4. CUSTODIAN. The Trustees shall at all times place and
maintain the securities and similar investments of the Trust and of each Series
with a custodian meeting the requirements of Section 17(f) of the 1940 Act and
the rules thereunder or as otherwise permitted by the Commission or its staff.
The Trustees, on behalf of the Trust or any Series, may enter into an agreement
with a custodian on terms and conditions acceptable to the Trustees, providing
for the custodian, among other things, (a) to hold the securities owned by the
Trust or any Series and deliver the same upon written order or oral order
confirmed in writing, (b) to receive and give a receipt for money paid for any
moneys due to the Trust or any Series and on behalf of the Trust or any Series,
deposit the same in its own banking department or elsewhere, (c) to disburse
such funds upon orders or vouchers, and (d) to employ one or more
sub-custodians.
SECTION 5. PARTIES TO CONTRACTS WITH SERVICE PROVIDERS. The Trustees
may enter into any contracts with any entity, although one or more of the
Trustees or officers of the Trust may be an officer, director, trustee, partner,
shareholder, or member of such entity and no such contract shall be invalidated
or rendered void or voidable because of such relationship. No person having such
a relationship shall be disqualified from voting on or executing a contract in
his or her capacity as Trustee and/or Shareholder, or be liable merely by reason
of such relationship for any loss or expense to the Trust with respect to such a
contract or accountable for any profit realized directly or indirectly
therefrom; provided, that the contract was reasonable and fair and not
inconsistent with this Declaration of Trust or the By-Laws.
ARTICLE VII
NET ASSET VALUE, DISTRIBUTIONS AND REDEMPTIONS
SECTION 1. DISTRIBUTIONS. The Trustees may declare and pay dividends
and other distributions, including dividends on Shares of a particular Series
and other distributions from the assets belonging to that Series. The amount and
payment of dividends or distributions and their form, whether they are in cash,
Shares or other Trust Property, shall be determined by the Trustees. Dividends
and other distributions may be paid pursuant to a standing resolution adopted
once or more often as the Trustees determine. All dividends and other
distributions on Shares of a particular Series shall be distributed pro rata to
the Shareholders of that Series in proportion to the number of Shares of that
Series they held on the record date established for such payment, except that
such dividends and distributions shall appropriately reflect expenses allocated
to a particular Class of such Series. The Trustees may adopt and offer to
Shareholders such dividend reinvestment plans, cash dividend payout plans or
similar plans as the Trustees deem appropriate.
SECTION 2. DETERMINATION OF NET ASSET VALUE. The Trustees shall cause
the Net Asset Value of Shares of each Series or Class to be determined from time
to time in a manner consistent with applicable laws and regulations. The
Trustees may delegate the power and duty to determine Net Asset Value per Share
to one or more Trustees or officers of the Trust or to an
16
investment manager, administrator or investment adviser, custodian, depository
or other agent appointed for such purpose. The Net Asset Value of Shares shall
be determined separately for each Series or Class at such times as may be
prescribed by the Trustees or, in the absence of action by the Trustees as of
the close of regular trading on the New York Stock Exchange on each day for all
or part of which such Exchange is open for regular trading.
SECTION 3. REDEMPTIONS AND REPURCHASES.
(a) The Trust shall purchase such Shares as are offered by
any Shareholder for redemption, upon the presentation of a proper
instrument of transfer together with a request directed to the Trust,
or a Person designated by the Trust, that the Trust purchase such
Shares or in accordance with such other procedures for redemption as
the Trustees may from time to time authorize; and the Trust will pay
therefor the net asset value thereof as determined by the Trustees (or
on their behalf), in accordance with any applicable provisions of the
By-Laws and applicable law and subject to any applicable charges, fees
or loads. Unless extraordinary circumstances exist, payment for said
Shares shall be made by the Trust to the Shareholder in accordance
with the 1940 Act and any rules and regulations thereunder or as
otherwise required by the Commission. The obligation set forth in this
Section 3 is subject to the provision that, in the event that any time
the New York Stock Exchange (the "Exchange") is closed for other than
weekends or holidays, or if permitted by the rules and regulations or
an order of the Commission during periods when trading on the Exchange
is restricted or during any emergency which makes it impracticable for
the Trust to dispose of the investments of the applicable Series or to
determine fairly the value of the net assets held with respect to such
Series or during any other period permitted by order of the Commission
for the protection of investors, such obligation may be suspended or
postponed by the Trustees. In the case of a suspension of the right of
redemption as provided herein, a Shareholder may either withdraw the
request for redemption or receive payment based on the net asset value
per share next determined after the termination of such suspension.
(b) The redemption price may in any case or cases be paid
wholly or partly in kind if the Trustees determine that such payment is
advisable in the interest of the remaining Shareholders of the Series
or Class thereof for which the Shares are being redeemed. Subject to
the foregoing, the fair value, selection and quantity of securities or
other property so paid or delivered as all or part of the redemption
price may be determined by or under authority of the Trustees. In no
case shall the Trust be liable for any delay of any Manager or other
Person in transferring securities selected for delivery as all or part
of any payment-in-kind.
SECTION 4. SUSPENSION OF RIGHT OF REDEMPTION. If, as referred to in
Section 3 of this Article, the Trustees postpone payment of the redemption price
and/or suspend the right of Shareholders to redeem their Shares, such suspension
shall take effect at the time the Trustees shall specify, but not later than the
close of business on the business day next following the declaration of
suspension. Thereafter Shareholders shall have no right of redemption or payment
until the Trustees declare the end of the suspension. If the right of redemption
is suspended, a
17
Shareholder may either withdraw his request for redemption or receive payment
based on the Net Asset Value per Share next determined after the suspension
terminates.
ARTICLE VIII
LIMITATION OF LIABILITY AND INDEMNIFICATION
SECTION 1. LIMITATION OF LIABILITY. A Trustee, when acting in such
capacity, shall not be personally liable to any Person, other than the Trust or
a Shareholder to the extent provided in this Article VIII, for any act, omission
or obligation of the Trust, of such Trustee or of any other Trustee; provided,
however, that nothing contained herein or in the Delaware Act shall protect any
Trustee against any liability to the Trust or to any Shareholder to which he
would otherwise be subject by reason of willful misfeasance, bad faith, gross
negligence, or reckless disregard of the duties involved in the conduct of the
office of the Trustee hereunder.
All persons extending credit to, contracting with or having any claim
against the Trust or a particular Series shall look only to the assets of the
Trust or such Series for payment under such contract or claim; and neither the
Trustees nor any of the Trust's officers, employees or agents, whether past,
present or future, shall be personally liable therefor. Provided they have
exercised reasonable care and have acted under the reasonable belief that their
actions are in the best interest of the Trust, the Trustees and officers of the
Trust shall not be responsible or liable for any act or omission or for neglect
or wrongdoing of them or any officer, agent, employee, Manager, or Principal
Underwriter of the Trust, but nothing contained in this Declaration of Trust or
in the Delaware Act shall protect any Trustee or officer of the Trust against
liability to the Trust or to Shareholders to which he or she would otherwise be
subject by reason of willful misfeasance, bad faith, gross negligence or
reckless disregard of the duties involved in the conduct of his or her office.
Every note, bond, contract, instrument, certificate or undertaking and
every other act or thing whatsoever executed or done by or on behalf of the
Trust or the Trustees by any of them in connection with the Trust shall
conclusively be deemed to have been executed or done only in or with respect to
his or their capacity as Trustee or Trustees, and such Trustee or Trustees shall
not be personally liable thereon.
SECTION 2. INDEMNIFICATION OF COVERED PERSONS. Every Covered Person
shall be indemnified by the Trust to the fullest extent permitted by the
Delaware Act and other applicable law.
SECTION 3. INDEMNIFICATION OF SHAREHOLDER. If any Shareholder or former
Shareholder of any Series shall be held personally liable solely by reason of
his or her being or having been a Shareholder and not because of his or her acts
or omissions or for some other reason, the Shareholder or former Shareholder (or
his or her heirs, executors, administrators or other legal representatives or in
the case of any entity, its general successor) shall be entitled out of the
assets belonging to the applicable Series to be held harmless from and
indemnified against all loss and expense arising from such liability. The Trust,
on behalf of the affected Series, shall, upon request by such Shareholder,
assume the defense of any claim made against such
18
Shareholder for any act or obligation of the Series and satisfy any judgment
thereon from the assets of the Series.
ARTICLE IX
MISCELLANEOUS
SECTION 1. LIABILITY OF THIRD PERSONS DEALING WITH TRUSTEES. No Person
dealing with the Trustees shall be bound to make any inquiry concerning the
validity of any transaction made or to be made by the Trustees or to see to the
application of any payments made or property transferred to the Trust or upon
its order.
SECTION 2. TRUSTEE'S GOOD FAITH ACTION, EXPERT ADVICE, NO BOND OR
SURETY. The exercise by the Trustees of their powers and discretions hereunder
shall be binding upon everyone interested. A Trustee shall be liable to the
Trust and to any Shareholder solely for his or her own willful misfeasance, bad
faith, gross negligence or reckless disregard of the duties involved in the
conduct of the office of Trustee, and shall not be liable for errors of judgment
or mistakes of fact or law. The Trustees may take advice of counsel or other
experts with respect to the meaning and operation of this Declaration of Trust,
and shall have no liability for any act or omission in accordance with such
advice or for failing to follow such advice. The Trustees shall not be required
to give any bond as such, nor any surety if a bond is required.
SECTION 3. TERMINATION OF THE TRUST OR ANY SERIES OR CLASS.
(a) Unless terminated as provided herein, the Trust shall
continue without limitation of time. The Trust may be terminated at any
time by vote of a majority of the Shares of each Series entitled to
vote, voting separately by Series, or by the Trustees by written notice
to the Shareholders. Any Series of Shares or Class thereof may be
terminated at any time by vote of a majority of the Shares of such
Series or Class entitled to vote or by the Trustees by written notice
to the Shareholders of such Series or Class.
(b) Upon the requisite Shareholder vote or action by the
Trustees to terminate the Trust or any one or more Series of Shares or
any Class thereof, after paying or otherwise providing for all charges,
taxes, expenses, and liabilities, whether due or accrued or
anticipated, of the Trust or of the particular Series or any Class
thereof as may be determined by the Trustees, the Trust shall in
accordance with such procedures as the Trustees may consider
appropriate reduce the remaining assets of the Trust or of the affected
Series or Class to distributable form in cash or Shares (if any Series
remain) or other securities, or any combination thereof, and distribute
the proceeds to the Shareholders of the Series or Classes involved,
ratably according to the number of Shares of such Series or Class held
by the Shareholders of such Series or Class on the date of
distribution. Thereupon, the Trust or any affected Series or Class
shall terminate and the Trustees and the Trust shall be discharged of
any and all further liabilities and duties relating thereto or arising
therefrom, and the right, title, and interest of all parties with
respect to the Trust or such Series or Class shall be canceled and
discharged.
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(c) Upon termination of the Trust, following completion of
winding up of its business, the Trustees shall cause a certificate of
cancellation of the Trust's Certificate of Trust to be filed in
accordance with the Delaware Act, which Certificate of Cancellation may
be signed by any one Trustee.
SECTION 4. REORGANIZATION.
(a) Notwithstanding anything else herein, the Trustees may,
without Shareholder approval unless such approval is required by
applicable law, (i) cause the Trust to merge or consolidate with or
into one or more trusts (or series thereof to the extent permitted by
law), partnerships, associations, corporations or other business
entities (including trusts, partnerships, associations, corporations or
other business entities created by the Trustees to accomplish such
merger or consolidation) so long as the surviving or resulting entity
is an investment company as defined in the 1940 Act, or is a series
thereof, that will succeed to or assume the Trust's registration under
the 1940 Act and that is formed, organized, or existing under the laws
of the United States or of a state, commonwealth, possession or colony
of the United States, unless otherwise permitted under the 1940 Act,
(ii) cause any one or more Series (or Classes) of the Trust to merge or
consolidate with or into any one or more other Series (or Classes) of
the Trust, one or more trusts (or series or classes thereof to the
extent permitted by law), partnerships, associations, corporations,
(iii) cause the Shares to be exchanged under or pursuant to any state
or federal statute to the extent permitted by law or (iv) cause the
Trust to reorganize as a corporation, limited liability company or
limited liability partnership under the laws of Delaware or any other
state or jurisdiction. Any agreement of merger or consolidation or
exchange or certificate or merger may be signed by a majority of the
Trustees and facsimile signatures conveyed by electronic or
telecommunication means shall be valid.
(b) Pursuant to and in accordance with the provisions of
Section 3815(f) of the Delaware Act, and notwithstanding anything to
the contrary contained in this Declaration of Trust, an agreement of
merger or consolidation approved by the Trustees in accordance with
this Section 4 may (i) effect any amendment to the governing instrument
of the Trust or (ii) effect the adoption of a new governing instrument
of the Trust if the Trust is the surviving or resulting trust in the
merger or consolidation.
(c) The Trustees may create one or more business trusts to
which all or any part of the assets, liabilities, profits, or losses of
the Trust or any Series or Class thereof may be transferred and may
provide for the conversion of Shares in the Trust or any Series or
Class thereof into beneficial interests in any such newly created trust
or trusts or any series of classes thereof.
SECTION 5. AMENDMENTS. Except as specifically provided in this Section
5, the Trustees may, without Shareholder vote, restate, amend, or otherwise
supplement this Declaration of Trust. Shareholders shall have the right to vote
on (i) any amendment that would affect their right
20
to vote granted in Article V, Section 1 hereof, (ii) any amendment to this
Section 5; (iii) any amendment that may require their vote under applicable law
or by the Trust's registration statement, as filed with the Commission, and (iv)
any amendment submitted to them for their vote by the Trustees. Any amendment
required or permitted to be submitted to the Shareholders that, as the Trustees
determine, shall affect the Shareholders of one or more Series shall be
authorized by a vote of the Shareholders of each Series affected and no vote of
Shareholders of a Series not affected shall be required. Notwithstanding
anything else herein, no amendment hereof shall limit the rights to insurance
with respect to any acts or omissions of Persons covered thereby prior to such
amendment nor shall any such amendment limit the rights to indemnification
referenced in Article VIII, Section 2 hereof as provided in the By-Laws with
respect to any actions or omissions of Persons covered thereby prior to such
amendment. The Trustees may, without Shareholder vote, restate, amend, or
otherwise supplement the Certificate of Trust as they deem necessary or
desirable.
SECTION 6. FILING OF COPIES, REFERENCES, HEADINGS. The original or a
copy of this instrument and of each restatement and/or amendment hereto shall be
kept at the office of the Trust where it may be inspected by any Shareholder.
Anyone dealing with the Trust may rely on a certificate by an officer of the
Trust as to whether or not any such restatements and/or amendments have been
made and as to any matters in connection with the Trust hereunder; and, with the
same effect as if it were the original, may rely on a copy certified by an
officer of the Trust to be a copy of this instrument or of any such restatements
and/or amendments. In this instrument and in any such restatements and/or
amendments, references to this instrument, and all expressions such as "herein,"
"hereof," and "hereunder," shall be deemed to refer to this instrument as
amended or affected by any such restatements and/or amendments. Headings are
placed herein for convenience of reference only and shall not be taken as a part
hereof or control or affect the meaning, construction or effect of this
instrument. Whenever the singular number is used herein, the same shall include
the plural; and the neuter, masculine and feminine genders shall include each
other, as applicable. This instrument may be executed in any number of
counterparts each of which shall be deemed an original.
SECTION 7. APPLICABLE LAW.
(a) The Trust is created under, and this Declaration of Trust
is to be governed by, and construed and enforced in accordance with,
the laws of the State of Delaware. The Trust shall be of the type
commonly called a business trust, and without limiting the provisions
hereof, the Trust specifically reserves the right to exercise any of
the powers or privileges afforded to business trusts or actions that
may be engaged in by business trusts under the Delaware Act, and the
absence of a specific reference herein to any such power, privilege, or
action shall not imply that the Trust may not exercise such power or
privilege or take such actions.
(b) Notwithstanding the first sentence of Section 7(a) of this
Article IX, there shall not be applicable to the Trust, the Trustees,
or this Declaration of Trust either the provisions of Section 3540 of
Title 12 of the Delaware Code or any provisions of the laws (statutory
or common) of the State of Delaware (other than the Delaware Act)
pertaining
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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 the Trustees set forth or referenced in this
Declaration of Trust.
SECTION 8. PROVISIONS IN CONFLICT WITH LAW OR REGULATIONS.
(a) The provisions of this Declaration of Trust are severable,
and if the Trustees shall determine, with the advice of counsel, that
any such provision is in conflict with the 1940 Act, the regulated
investment company provisions of the Internal Revenue Code of 1986, as
amended (or any successor statute thereto), and the regulations
thereunder, the Delaware Act or with other applicable laws and
regulations, the conflicting provision shall be deemed never to have
constituted a part of this Declaration of Trust; provided, however,
that such determination shall not affect any of the remaining
provisions of this Declaration of Trust or render invalid or improper
any action taken or omitted prior to such determination.
(b) If any provision of this Declaration of Trust shall be
held invalid or unenforceable in any jurisdiction, such invalidity or
unenforceability shall attach only to such provision in such
jurisdiction and shall not in any manner affect such provision in any
other jurisdiction or any other provision of this Declaration of Trust
in any jurisdiction.
SECTION 9. BUSINESS TRUST ONLY. It is the intention of the Trustees to
create a business trust pursuant to the Delaware Act. It is not the intention of
the Trustees to create a general partnership, limited partnership, joint stock
association, corporation, bailment, or any form of legal relationship other than
a business trust pursuant to the Delaware Act. Nothing in this Declaration of
Trust shall be construed to make the Shareholders, either by themselves or with
the Trustees, partners, or members of a joint stock association.
No Trustee hereunder shall have any power to bind personally either
the Trust's officers, its other Trustees or any Shareholder. All persons
extending credit to, contracting with or having any claim against the Trust or
the Trustees shall look only to the assets of the appropriate Series or, until
the Trustees shall have established any separate Series, of the Trust for
payment under such credit, contract, or claim; and neither the Shareholders nor
the Trustee, nor any of their agents, whether past, present, or future, shall be
personally liable therefor.
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SECTION 10. TAXATION. It is intended that the Trust, or each Series if
there is more than one Series, be classified for income tax purposes as an
association taxable as a corporation, and the Trustees shall do all things that
they, in their sole discretion, determine are necessary to achieve that
objective, including (if they so determine) electing such classification on
Internal Revenue Form 8832. Any Trustee is hereby authorized to sign such form
on behalf of the Trust or any Series, and the Trustees may delegate such
authority to any executive officer(s) of any Series' investment adviser. The
Trustees, in their sole discretion and without the vote or consent of the
Shareholders, may amend this Declaration of Trust to ensure that this objective
is achieved.
SECTION 11. SHAREHOLDERS' RIGHT TO INSPECT SHAREHOLDER LIST. The
Shareholders, as beneficial owners of the Trust, shall have such inspection
rights as required by applicable law.
SECTION 12. FISCAL YEAR. The fiscal year of the Trust shall end on a
specified date as set forth in the By-Laws or by resolution. The Trustees may
change the fiscal year of the Trust without Shareholder approval.
SECTION 13. SEVERABILITY. The provisions of this Declaration of Trust
are severable. If the Trustees determine, with the advice of counsel, that any
provision hereof conflicts with the 1940 Act, the Internal Revenue Code or with
other applicable laws and regulations, the conflicting provision shall be deemed
never to have constituted a part of this Declaration of Trust; provided,
however, that such determination shall not affect any of the remaining
provisions of this Declaration of Trust or render invalid or improper any action
taken or omitted prior to such determination. If any provision hereof shall be
held invalid or unenforceable in any jurisdiction, such invalidity or
unenforceability shall attach only to such provision only in such jurisdiction
and shall not affect such provision in any other jurisdiction or any other
provision of this Declaration of Trust.
IN WITNESS WHEREOF, the Trustees named below do hereby make and enter
into this Agreement and Declaration of Trust as of the 2nd day of October 2001.
/s/ Xxxxxx X. Xxxxx
-----------------------
Xxxxxx X. Xxxxx, as Trustee
/s/ Xxxxxxx X. Xxxxxxxxx
-----------------------
Xxxxxxx X. Xxxxxxxxx, as Trustee
/s/ Xxxxxxxx Xxxxx
-----------------------
Xxxxxxxx Xxxxx, as Trustee
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THE PRINCIPAL PLACE OF BUSINESS OF THE TRUST IS:
1290 Avenue of the Americas
Xxx Xxxx, Xxx Xxxx 00000
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