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EXHIBIT (1)(a)
GOVERNOR FUNDS AGREEMENT AND
DECLARATION OF TRUST
Dated: September 3, 1998
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TABLE OF CONTENTS
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ARTICLE I NAME AND DEFINITIONS ................................................ 1
Section 1.1 Name ................................................................ 1
Section 1.2 Definitions ......................................................... 1
ARTICLE II BENEFICIAL INTEREST ................................................. 2
Section 2.1 Shares of Beneficial Interest........................................ 2
Section 2.2 Issuance of Shares................................................... 3
Section 2.3 Register of Shares and Share Certificates............................ 3
Section 2.4 Transfer of Shares................................................... 3
Section 2.5 Treasury Shares...................................................... 4
Section 2.6 Establishment of Series and Classes.................................. 4
Section 2.7 Investment in the Trust.............................................. 4
Section 2.8 Assets and Liabilities Belonging to Series........................... 5
Section 2.9 No Preemptive Rights................................................. 6
Section 2.10 Conversion Rights.................................................... 6
Section 2.11 Legal Proceedings.................................................... 6
Section 2.12 Status of Shares..................................................... 6
ARTICLE III THE TRUSTEES ........................................................ 7
Section 3.1 Management of the Trust.............................................. 7
Section 3.2 Term of Office of Trustees........................................... 7
Section 3.3 Vacancies and Appointment of Trustees................................ 7
Section 3.4 Temporary Absence of Trustee......................................... 8
Section 3.5 Number of Trustees................................................... 8
Section 3.6 Effect of Death, Resignation, Etc. of a Trustee...................... 8
Section 3.7 Ownership of Assets of the Trust..................................... 8
Section 3.8 Series of Trustees................................................... 9
Section 3.9 No Accounting ....................................................... 9
ARTICLE IV POWERS OF THE TRUSTEES .............................................. 9
Section 4.1 Powers .............................................................. 9
Section 4.2 Issuance and Repurchase of Shares.................................... 13
Section 4.3 Trustees and Officers as Shareholders................................ 13
Section 4.4 Action by the Trustees and Committees................................ 13
Section 4.5 Chairman of the Trustees............................................. 14
Section 4.6 Principal Transactions............................................... 14
ARTICLE V INVESTMENT ADVISOR, INVESTMENT SUB-ADVISOR,
PRINCIPAL UNDERWRITER, ADMINISTRATOR,
TRANSFER AGENT, CUSTODIAN AND OTHER
CONTRACTORS.......................................................... 14
Section 5.1 Certain Contracts.................................................... 14
ARTICLE VI SHAREHOLDER VOTING POWERS AND MEETINGS............................... 16
Section 6.1 Voting .............................................................. 16
Section 6.2 Meetings ............................................................ 17
Section 6.3 Quorum and Required Vote............................................. 17
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TABLE OF CONTENTS
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Section 6.4 Action by Written Consent............................................ 17
ARTICLE VII DISTRIBUTIONS AND REDEMPTIONS........................................ 18
Section 7.1 Distributions ....................................................... 18
Section 7.2 Redemption by Shareholder............................................ 18
Section 7.3 Redemption by Trust.................................................. 19
Section 7.4 Net Asset Value...................................................... 19
ARTICLE VIII LIMITATION OF LIABILITY AND INDEMNIFICATION.......................... 20
Section 8.1 Limitation of Liability.............................................. 20
Section 8.2 Indemnification...................................................... 20
Section 8.3 Indemnification Determinations....................................... 21
Section 8.4 Indemnification Not Exclusive........................................ 21
Section 8.5 Shareholders ........................................................ 21
ARTICLE IX MISCELLANEOUS ....................................................... 22
Section 9.1 Trust Not a Partnership.............................................. 22
Section 9.2 Trustees' Good Faith Action, Expert Advice, No Bond or Surety........ 22
Section 9.3 Establishment of Record Dates........................................ 22
Section 9.4 Termination of Trust or Series....................................... 23
Section 9.5 Merger, Consolidation, Incorporation................................. 24
Section 9.6 Filing of Copies, References, Headings............................... 24
Section 9.7 Applicable Law ...................................................... 24
Section 9.8 Amendments .......................................................... 25
Section 9.9 Fiscal Year ......................................................... 25
Section 9.10 Provisions in Conflict with Law...................................... 25
Section 9.11 Allocation of Certain Expenses....................................... 26
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GOVERNOR FUNDS AGREEMENT AND DECLARATION OF TRUST
AGREEMENT AND DECLARATION OF TRUST of Governor Funds, a Delaware
statutory business trust, made as of September 3, 1998, by the undersigned
Trustee.
WHEREAS, the undersigned Trustee desires to establish a trust for
the investment and reinvestment of funds contributed thereto;
WHEREAS, the Trustee desires that the beneficial interest in the
trust assets be divided into transferable shares of beneficial interest, as
hereinafter provided;
WHEREAS, the Trustee declares that all money and property
contributed to the trust established hereunder shall be held and managed in
trust for the benefit of the holders of the shares of beneficial interest issued
hereunder and subject to the provisions hereof;
NOW, THEREFORE, in consideration of the foregoing, the
undersigned Trustee hereby declares that all money and property contributed to
the trust hereunder shall be held and managed in trust under this Declaration of
Trust ("Trust Instrument") as herein set forth below.
ARTICLE I
NAME AND DEFINITIONS
Section 1.1 Name. The name of the trust continued hereby is the
"Governor Funds."
Section 1.2 Definitions. Wherever used herein, unless otherwise
required by the context or specifically provided:
(a) "Act" means the Delaware Business Trust Act, 12 Del. C.
Sections 3801 et seq., as from time to time amended;
(b) "By-laws" means the By-laws referred to in Section
4.1(e) hereof, as from time to time amended;
(c) The terms "Affiliated Person," "Assignment,"
"Commission," "Interested Person" and "Principal Underwriter" shall have the
meanings given them in the 1940 Act. "Majority Shareholder Vote" shall have the
same meaning as the term "vote of a majority of the outstanding voting
securities" is given in the 1940 Act;
(d) "Class" means any division of Shares within a Series,
which Class is or has been established in accordance with the provisions of
Article II.
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(e) "Net Asset Value" means the net asset value of each
Series of the Trust determined in the manner provided in Section 7.4 hereof;
(f) "Outstanding Shares" means those Shares recorded from
time to time in the books of the Trust or its transfer agent as then issued and
outstanding, but shall not include Shares which have been redeemed or
repurchased by the Trust and which are at the time held in the treasury of the
Trust;
(g) "Series" means a series of Shares of the Trust
established in accordance with the provisions of Section 2.6 hereof;
(h) "Shareholder" means a record owner of Outstanding Shares
of the Trust;
(i) "Shares" means the equal proportionate transferable
units of beneficial interest into which the beneficial interest of each Series
of the Trust or Class thereof shall be divided and may include fractions of
Shares as well as whole Shares;
(j) "Trust" refers to Governor Funds and reference to the
Trust, when applicable to one or more Series of the Trust, shall refer to any
such Series;
(k) "Trustee" or "Trustees" means the person or persons who
has or have signed this Trust Instrument, so long as such person or persons
shall continue in office in accordance with the terms hereof, and all other
persons who may from time to time be duly qualified and serving as Trustees in
accordance with the provisions of Article III hereof and reference herein to a
Trustee or to the Trustees shall refer to the individual Trustees in their
capacity as Trustees hereunder;
(l) "Trust Property" means any and all property, real or
personal, tangible or intangible, which is owned or held by or for the account
of one or more of the Trust or any Series, or the Trustees on behalf of the
Trust or any Series.
(m) The "1940 Act" refers to the Investment Company Act of
1940 and the Rules and Regulations thereunder, all as may be amended from time
to time.
ARTICLE II
BENEFICIAL INTEREST
Section 2.1 Shares of Beneficial Interest. The beneficial
interest in the Trust shall be divided into such transferable Shares of one or
more separate and distinct Series or Classes as the Trustees shall from time to
time create and establish. The number of Shares of each Series and Class
authorized hereunder is unlimited. Each Share shall have a par value of $.0001
per Share, unless otherwise determined by the Trustees in connection with the
creation and establishment of a Series or Class. All Shares issued hereunder,
including without limitation
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or Class Shares issued in connection with a dividend in Shares or a split or
reverse split of Shares, shall be fully paid and nonassessable.
Section 2.2 Issuance of Shares. The Trustees in their discretion
may, from time to time, without vote of the Shareholders, issue Shares of each
Series and Class to such party or parties and for such amount and type of
consideration (or for no consideration if pursuant to a Share dividend or
split-up), subject to applicable law, including cash or securities (including
Shares of a different Series or Class), 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 acquisitions of assets subject to, and in connection with,
the assumption of liabilities) and businesses. In connection with any issuance
of Shares, the Trustees may issue fractional Shares and Shares held in the
treasury. The Trustees may from time to time divide or combine the Shares into a
greater or lesser number without thereby changing the proportionate beneficial
interests in the Trust. The 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.
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 any Series or Class 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
of any Series or Class 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 Shares of such Series or Class generally.
Section 2.3 Register of Shares and Share Certificates. A register
shall be kept at the principal office of the Trust or an office of the Trust's
transfer agent which shall contain the names and addresses of the Shareholders
of each Series and Class, the number of Shares of that Series and Class thereof
held by them respectively and a record of all transfers thereof. As to Shares
for which no certificate has been issued, such register shall be conclusive as
to who are the holders of the Shares and who shall be entitled to receive
dividends or other distributions or otherwise to exercise or enjoy the rights of
Shareholders. No Shareholder shall be entitled to receive payment of any
dividend or other distribution, nor to have notice given to him as herein or in
the By-laws provided, until he has given his address to the transfer agent or
such other officer or agent of the Trust as shall keep the said register for
entry thereon. The Trustees, in their discretion, may authorize the issuance of
share certificates and promulgate appropriate rules and regulations as to their
use. In the event that one or more certificates are issued, whether in the name
of a Shareholder or a nominee, such certificate or certificates shall constitute
evidence of ownership of Shares for all purposes, including transfer, assignment
or sale of such Shares, subject to such limitations as the Trustees may, in
their discretion, prescribe.
Section 2.4 Transfer of Shares. Except as otherwise provided by
the Trustees, Shares shall be transferable on the records of the Trust only by
the record holder thereof or by his agent thereunto duly authorized in writing,
upon delivery to the Trustees or the Trust's
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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 the transfer shall be recorded on the register
of the Trust. Until such record is made, the Shareholder of record 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 nor any officer,
employee or agent of the Trust shall be affected by any notice of the proposed
transfer.
Section 2.5 Treasury Shares. Shares held in the treasury shall,
until reissued pursuant to Section 2.2 hereof, not confer any voting rights on
the Trustees, nor shall such Shares be entitled to any dividends or other
distributions declared with respect to the Shares.
Section 2.6 Establishment of Series and Classes. The Trust
continued hereby shall consist of one or more Series and Classes and separate
and distinct records shall be maintained by the Trust for each Series and Class.
The Trustees shall have full power and authority, in their sole discretion, and
without obtaining any prior authorization or vote of the Shareholders of any
Series or Class of the Trust, to establish and designate and to change in any
manner any initial or additional Series or Classes and to fix such preferences,
voting powers, rights and privileges of such Series or Classes as the Trustees
may from time to time determine, to divide or combine the Shares or any Series
or Classes into a greater or lesser number, to classify or reclassify any issued
Shares or any Series or Classes into one or more Series or Classes of Shares,
and to take such other action with respect to the Shares as the Trustees may
deem desirable. Unless another time is specified by the Trustees, the
establishment and designation of any Series or Class shall be effective upon the
adoption of a resolution by the Trustees setting forth such establishment and
designation and the preferences, powers, rights and privileges of the Shares of
such Series or Class. The Trust may issue any number of Shares of each Series or
Class and need not issue Shares.
All references to Shares in this Trust Instrument shall be deemed
to be Shares of any or all Series or Classes as the context may require. All
provisions herein relating to the Trust shall apply equally to each Series and
Class of the Trust except as the context otherwise requires.
All Shares of each Class of a particular Series shall represent
an equal proportionate interest in the assets belonging to that Series (subject
to the liabilities belonging to that Class), and each Share of any Class of a
particular Series shall be equal to each other Share of that Class; but the
provisions of this sentence shall not restrict any distinctions permissible
under this Section 2.6.
Section 2.7 Investment in the Trust. The Trustees shall accept
investments in any Series of the Trust from such persons and on such terms as
they may from time to time authorize. At the Trustees' 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
Section 7.4 hereof. Unless the Trustees otherwise determine, investments in a
Series shall be credited to each Shareholder's account in the form of full
Shares at the Net
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Asset Value per Share next determined after the investment is received. Without
limiting the generality of the foregoing, the Trustees may, in their sole
discretion, (a) fix the Net Asset Value per Share of the initial capital
contribution, (b) impose sales or other charges upon investments in the Trust or
(c) issue fractional Shares.
Section 2.8 Assets and Liabilities Belonging to 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,
including any proceeds derived from the sale, exchange or liquidation of such
assets, and any funds or payments derived from any reinvestment of such proceeds
in whatever form the same may be, shall be held and accounted for separately
from the other assets of the Trust and of every other Series and may be referred
to herein as "assets belonging to" that Series. The assets belonging to a
particular Series shall belong to that Series for all purposes, and to no other
Series, subject only to the rights of creditors of that Series. In addition, any
assets, income, earnings, profits or funds, or payments and proceeds with
respect thereto, which are not readily identifiable as belonging to any
particular Series shall be allocated by the Trustees between and among one or
more of the Series in such manner as the Trustees, in their sole discretion,
deem fair and equitable. Each such allocation shall be conclusive and binding
upon the Shareholders of all Series for all purposes, and such assets, income,
earnings, profits or funds, or payments and proceeds with respect thereto shall
be assets belonging to that Series. The assets belonging to a particular Series
shall be so recorded upon the books of the Trust, and shall be held by the
Trustees in trust for the benefit of the holders of Shares of that Series.
The assets belonging to each particular Series shall be
charged with the liabilities of that Series and all expenses, costs, charges and
reserves attributable to that Series. Any general liabilities, expenses, costs,
charges or reserves of the Trust which are not readily identifiable as belonging
to any particular Series shall be allocated and charged by the Trustees between
or among any one or more of the Series in such manner as the Trustees in their
sole discretion deem fair and equitable. Each such allocation shall be
conclusive and binding upon the Shareholders of all Series for all purposes. The
liabilities, expenses, costs, charges and reserves allocated and so charged to a
Series are herein referred to as "liabilities belonging to" that Series. Except
as provided in the next sentence or otherwise required or permitted by
applicable law or any rule or order of the Commission, each Class of a Series
shall bear a pro rata portion of the "liabilities belonging to" such Series. To
the extent permitted by rule or order of the Commission the Trustees may
allocate all or a portion of any liabilities, expenses, costs, charges and
reserves belonging to a Series to a particular Class or Classes (collectively,
"Class Expenses") as the Trustees may from time to time determine is
appropriate.
Without limitation of the foregoing provisions of this Section
2.8, but subject to the right of the Trustees in their discretion 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 belonging to such Series only, and not against the assets of
the Trust generally. Notice of this contractual limitation on inter-Series
liabilities shall be set forth in the certificate of trust of the Trust (whether
originally or by amendment) as filed or to be filed
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in the Office of the Secretary of State of the State of Delaware pursuant to the
Act, and upon the giving of such notice in the certificate of trust, the
statutory provisions of Section 3804 of the Act relating to limitations on
inter-Series liabilities (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 satisfy or enforce any debt, liability,
obligation or expense incurred, contracted for or otherwise existing with
respect to that Series from the assets of that Series only. 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.
Section 2.9 No Preemptive Rights. Shareholders shall have no
preemptive or other right to subscribe to any additional Shares or other
securities issued by the Trust or the Trustees, whether of the same or another
Series or Class.
Section 2.10 Conversion Rights. The Trustees shall have the
authority to provide from time to time that the holders of Shares of any Series
or Class shall have the right to convert or exchange said Shares for or into
Shares of one or more other Series or Classes in accordance with such
requirements and procedures as may be established from time to time by the
Trustees.
Section 2.11 Legal Proceedings. No person, other than a Trustee,
who is not a Shareholder of a particular Series or Class shall be entitled to
bring any derivative action, suit or other proceeding on behalf of or with
respect to such Series or Class. No Shareholder of a Series or a Class may
maintain a derivative action with respect to such Series or Class unless holders
of a least ten percent (10%) of the outstanding Shares of such Series or Class
join in the bringing of such action. Except as otherwise provided in Section
3816 of the Act and the foregoing provisions of this Section 2.11, all matters
relating to the bringing of derivative actions in the right of the Trust shall
be governed by the General Corporation Law of the State of Delaware relating to
derivative actions, and judicial interpretations thereunder, as if the Trust
were a Delaware Corporation and the Shareholders were shareholders of a Delaware
corporation.
Section 2.12 Status of Shares. 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 of a Shareholder
during the continuance of the Trust shall not operate to terminate the Trust nor
entitle the representative of any deceased Shareholder to an accounting or to
take any action in court or elsewhere against the Trust or the Trustees, but
only to the rights of said decedent 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 partition or division of the same or for
an accounting, nor shall the ownership of Shares constitute the Shareholders
partners.
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ARTICLE III
THE TRUSTEES
Section 3.1 Management of the Trust. The Trustees shall have
exclusive and absolute control over the Trust Property and over the business of
the Trust to the 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 Trust Instrument. 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 foreign
jurisdiction 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 Trust
Instrument, the presumption shall be in favor of a grant of power to the
Trustees.
The enumeration of any specific power in this Trust Instrument
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.
Except for the Trustees named herein or Trustees appointed to
fill vacancies pursuant to Section 3.3 hereof, the Trustees shall be elected by
the Shareholders owning of record a plurality of the Shares voting at a meeting
of Shareholders.
Section 3.2 Term of Office of Trustees. Each Trustee shall hold
office during the existence of this Trust, and until its termination as herein
provided; except: (a) that any Trustee may resign his trust by written
instrument signed by him and delivered to the Chairman, President, Secretary, or
other Trustee of the Trust, which shall take effect upon such delivery or upon
such later date as is specified therein; (b) that any Trustee may be removed at
any time by written instrument, signed by at least two-thirds of the number of
Trustees prior to such removal, specifying the date when such removal shall
become effective; (c) that any Trustee who requests in writing to be retired or
who has died, become physically or mentally incapacitated by reason of disease
or otherwise, or is otherwise unable to serve, may be retired by written
instrument signed by a majority of the other Trustees, specifying the date of
his retirement; and (d) that a Trustee may be removed at any meeting of the
Shareholders of the Trust by a vote of Shareholders owning at least two-thirds
of the outstanding Shares of all Series.
Section 3.3 Vacancies and Appointment of Trustees. In case of the
declination to serve, death, resignation, retirement, removal, physical or
mental incapacity by reason of disease or otherwise of a Trustee, or a Trustee
is otherwise unable to serve, or an increase in the number of Trustees, a
vacancy shall occur. Whenever a vacancy in the Board of Trustees
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shall occur, until such vacancy is filled, the other Trustees shall have all the
powers hereunder and the certificate of the other Trustees of such vacancy shall
be conclusive. In the case of an existing vacancy, the remaining Trustee or
Trustees shall fill such vacancy by appointing such other person as such Trustee
or Trustees in their discretion shall see fit consistent with the limitations
under the 1940 Act, unless such Trustee or Trustees determine, in accordance
with Section 3.5, to decrease the size of the Board to the number of remaining
Trustees.
An appointment of a Trustee may be made by the Trustees then in
office in anticipation of a vacancy to occur by reason of retirement,
resignation or increase in number of Trustees effective at a later date,
provided that said appointment shall become effective only at or after the
effective date of said retirement, resignation or increase in number of
Trustees.
An appointment of a Trustee shall be effective upon the
acceptance of the person so appointed to serve as trustee, except that any such
appointment in anticipation of a vacancy shall become effective at or after the
date such vacancy occurs.
Section 3.4 Temporary Absence of Trustee. Any Trustee may, by
power of attorney, delegate his power for a period not exceeding six months at
any one time to any other Trustee or Trustees, provided that in no case shall
less than two Trustees personally exercise the other powers hereunder except as
herein otherwise expressly provided or unless there is only one or two Trustees.
Section 3.5 Number of Trustees. The number of Trustees shall be
one, or such other number as shall be fixed from time to time by the Trustees.
Section 3.6 Effect of Death, Resignation, Etc. of a Trustee. The
declination to serve, death, resignation, retirement, removal, incapacity, or
inability of the Trustees, or any one of them, shall not operate to terminate
the Trust or to revoke any existing agency created pursuant to the terms of this
Trust Instrument.
Section 3.7 Ownership of Assets of the Trust. Legal title in and
beneficial ownership of all of the assets of the Trust shall at all times be
considered as vested in the Trust, except that the Trustees may cause legal
title in and beneficial ownership of any Trust Property to be held by, or in the
name of one or more of the Trustees acting for and on behalf of the Trust, or in
the name of any person as nominee acting for and on behalf of the Trust. No
Shareholder shall be deemed to have a severable ownership interest in any
individual asset of the Trust or of any Series or Class, or any right of
partition or possession thereof, but each Shareholder shall have, except as
otherwise provided for herein, a proportionate undivided beneficial interest in
each Series the Shares of which are owned by such Shareholders. The Shares shall
be personal property giving only the rights specifically set forth in this Trust
Instrument. The Trust, or at the determination of the Trustees, one or more of
the Trustees or a nominee acting for and on behalf of the Trust, shall be deemed
to hold legal title and beneficial ownership of any income earned on securities
of the Trust issued by any business entities formed, organized, or existing
under the laws of any jurisdiction, including the laws of any foreign country.
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Section 3.8 Series of Trustees. In connection with the
establishment of one or more Series or Classes, the Trustees establishing such
Series or Class may appoint, to the extent permitted by the 1940 Act, separate
Trustees with respect to such Series or Classes (the "Series Trustees"). Series
Trustees may, but are not required to, serve as Trustees of the Trust of any
other Series or Class of the Trust. To the extent provided by the Trustees in
the appointment of Series Trustees, the Series Trustees may have, to the
exclusion of any other Trustee of the Trust, all the powers and authorities of
Trustees hereunder with respect to such Series or Class, but may have no power
or authority with respect to any other Series or Class. Any provision of this
Trust Instrument relating to election of Trustees by Shareholders only shall
entitle the Shareholders of a Series or Class for which Series Trustees have
been appointed to vote with respect to the election of such Series Trustees and
the Shareholders of any other Series or Class shall not be entitled to
participate in such vote. In the event that Series Trustees are appointed, the
Trustees initially appointing such Series Trustees shall, without the approval
of any Outstanding Shares, amend either this Trust Instrument or the By-laws to
provide for the respective responsibilities of the Trustees and the Series
Trustees in circumstances where an action of the Trustees or Series Trustees
affects all Series of the Trust or two or more Series represented by different
Trustees.
Section 3.9 No Accounting. Except to the extent required by the
1940 Act or, if determined to be necessary or appropriate by the other Trustees
under circumstances which would justify his or her removal for cause, no person
ceasing to be a Trustee for reasons including, but not limited to, death,
resignation, retirement, removal or incapacity (nor the estate of any such
person) shall be required to make an accounting to the Shareholders or remaining
Trustees upon such cessation.
ARTICLE IV
POWERS OF THE TRUSTEES
Section 4.1 Powers. The Trustees in all instances shall act as
principals, and are and shall be free from the control of the Shareholders. The
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 they may consider
necessary or appropriate in connection with the management of the Trust. The
Trustees shall have full authority and power to make any and all investments
which they, in their sole discretion, shall deem proper to accomplish the
purpose of this Trust. Subject to any applicable limitation in this Trust
Instrument, the Trustees shall have power and authority:
(a) To invest and reinvest cash and other property, and to
hold cash or other property uninvested, and to sell, exchange, lend, pledge,
mortgage, hypothecate, write options on and lease any or all of the assets of
the Trust;
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(b) To operate as and carry on the business of an investment
company, and exercise all the powers necessary and appropriate to the conduct of
such operators, including the power to invest all or any part of its assets in
the securities of another investment company;
(c) To borrow money and in this connection issue notes or
other evidence of indebtedness; to secure borrowings by mortgaging, pledging or
otherwise subjecting as security the Trust Property; to endorse, guarantee, or
undertake the performance of an obligation, liability or engagement of any
person and to lend Trust Property;
(d) To provide for the distribution of interests of the
Trust either through a Principal Underwriter in the manner hereinafter provided
for or by the Trust itself, or both, or otherwise pursuant to a plan of
distribution of any kind;
(e) To adopt By-laws not inconsistent with this Trust
Instrument providing for the conduct of the business of the Trust and to amend
and repeal them to the extent that they do not reserve that right to the
Shareholders, which By-laws shall be deemed a part of this Trust Instrument and
are incorporated herein by reference;
(f) To elect and remove such officers and appoint and
terminate such agents and contractors as they consider appropriate, any of whom
may be a Trustee, and may provide for the compensation of all of the foregoing;
(g) To employ one or more banks, trust companies or
companies that are members of a national securities exchange or such other
entities as custodians of any assets of the Trust, subject to the 1940 Act and
to any conditions set forth in this Trust Instrument;
(h) To retain one or more transfer agents and shareholder
servicing agents, or both;
(i) To set record dates in the manner provided herein or in
the By-laws;
(j) To delegate such authority (which delegation may include
the power to subdelegate) as they consider desirable to any officers of the
Trust and to any investment adviser, manager, administrator, custodian,
underwriter or other agent or independent contractor;
(k) To join with other holders of any securities or debt
instruments in acting through a committee, depository, voting trustee or
otherwise, and in that connection to deposit any security or debt instrument
with, or transfer any security or debt instrument to, any such committee,
depository or trustee, and to delegate to them such power and authority with
relation to any security or debt instrument (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, depository or
trustee as the Trustees shall deem proper;
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(l) To enter into joint ventures, general or limited
partnerships and any other combinations or associations;
(m) To pay pensions for faithful service, as deemed
appropriate by the Trustees, and to adopt, establish and carry out pension,
profit-sharing, share bonus, share purchase, savings, thrift and other
retirement, incentive and benefit plans, trusts and provisions, including the
purchasing of life insurance and annuity contracts as a means of providing such
retirement and other benefits, for any or all of the Trustees, officers,
employees and agents of the Trust.
(n) To the extent permitted by law, indemnify any person
with whom the Trust or any Series or Class has dealings.
(o) To engage in and to prosecute, defend, compromise,
abandon, or adjust by arbitration, or otherwise, any actions, suits,
proceedings, disputes, claims and demands relating to the Trust, and out of the
assets of the Trust or any Series or Class thereof to pay or to satisfy any
debts, claims or expenses incurred in connection therewith, including those of
litigation, and such power shall include without limitation the power of the
Trustees or any appropriate committee thereof, in the exercise of their or its
good faith business judgment, to dismiss any action, suit, proceeding, dispute,
claim or demand, derivative or otherwise, brought by any person, including a
Shareholder in its own name or the name of the Trust, whether or not the Trust
or any of the Trustees may be named individually therein or the subject matter
arises by reason of business for or on behalf of the Trust.
(p) To purchase and pay for entirely out of Trust Property
such insurance as they may deem necessary or appropriate for the conduct of the
business of the Trust, including, without limitation, insurance policies
insuring the Trust Property and payment of distributions and principal on its
investments, and insurance policies insuring the Shareholders, Trustees,
officers, representatives, employees, agents, investment advisers, managers,
administrators, custodians, 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 in
such capacity, including any action taken or omitted that may be determined to
constitute negligence, whether or not the Trust would have the power to
indemnify such person against such liability.
(q) To sell, exchange, lend, pledge, mortgage, hypothecate,
write options on and lease any or all of the assets of the Trust, subject to the
provisions of Section 9.4(b) hereof;
(r) To vote or give assent, or exercise any rights of
ownership, with respect to stock or other securities, debt instruments or
property; and to execute and deliver 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, debt instruments or
property as the Trustees shall deem proper;
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(s) To exercise powers and rights of subscription or
otherwise which in any manner arise out of ownership of securities or debt
instruments;
(t) To hold any security or property in a form not
indicating any trust, whether in bearer, book entry, unregistered or other
negotiable form; or either in the name of the Trustees or of the Trust or in the
name of a custodian, subcustodian or other depository or a nominee or nominees
or otherwise;
(u) To establish separate and distinct Series with
separately defined investment objectives and policies and distinct investment
purposes in accordance with the provisions of Article II hereof and to establish
Classes thereof having relative rights, powers and duties as they may provide
consistent with applicable law;
(v) To consent to or participate in any plan for the
reorganization, consolidation or merger of any corporation, issuer or concern,
any security or debt instrument of which is held in the Trust; to consent to any
contract, lease, mortgage, purchase or sale of property by such corporation,
issuer or concern, and to pay calls or subscriptions with respect to any
security or debt instrument held in the Trust;
(w) 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;
(x) To make distributions of income and of capital gains to
Shareholders in the manner herein provided;
(y) 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 upon giving notice to such Shareholder;
(z) To cause each Shareholder, or each Shareholder of any
particular Series of Class, to pay directly, in advance or arrears, for charges
of the Trust's custodian or transfer, shareholder servicing or similar agent, an
amount fixed from time to time by the Trustees, by setting off such charges due
from such Shareholder from declared but unpaid dividends 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 charges due from such Shareholder;
(aa) To establish one or more committees comprised of one or
more of the Trustees, and to delegate any of the powers of the Trustees to said
committees;
(bb) To interpret the investment policies, practices or
limitations of any Series or Class;
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(cc) To establish a registered office and have a registered
agent in the State of Delaware;
(dd) To compensate or provide for the compensation of the
Trustees, officers, advisers, administrators, custodians, other agents,
consultants, contractors and employees of the Trust or the Trustees on such
terms as they deem appropriate; and
(ee) In general, to carry on any other business in
connection with or incidental to any of the foregoing powers, to do everything
necessary, suitable or proper for the accomplishment of any purpose or the
attainment of any object or the furtherance of any power herein set forth,
either alone or in association with others, and to do every other act or thing
incidental or appurtenant to or growing out of or connected with the aforesaid
business or purposes, objects or powers.
The foregoing clauses shall be construed both as objects and
powers, and the foregoing enumeration of specific powers shall not be held to
limit or restrict in any manner the general powers of the Trustees. Any action
by one or more of the Trustees in their capacity as such hereunder shall be
deemed an action on behalf of the Trust or the applicable Series or Class, and
not an action in an individual capacity.
No one dealing with the Trustees shall be under any obligation to
make any inquiry concerning the authority of the Trustees, or to see to the
application of any payments made or property transferred to the Trustees or upon
their order.
Section 4.2 Issuance and Repurchase of Shares. The Trustees shall
have the power to issue, sell, repurchase, redeem, retire, cancel, acquire,
hold, resell, reissue, dispose of, exchange, and otherwise deal in Shares and,
subject to the provisions set forth in Article II and Article VII, to apply to
any such repurchase, redemption, retirement, cancellation or acquisition of
Shares any funds or property of the Trust, or the particular Series or Class of
the Trust, with respect to which such Shares are issued.
Section 4.3 Trustees and Officers as Shareholders. Any Trustee,
officer or other agent of the Trust may acquire, own and dispose of Shares to
the same extent as if such person were not a Trustee, officer or agent; and the
Trustees may issue and sell or cause to be issued and sold Shares to and buy
such Shares from any such person or any firm or company in which such person
invested, subject to the general limitations herein contained as to the sale and
purchase of such Shares.
Section 4.4 Action by the Trustees and Committees. The Trustees
(and any committee thereof) may act at a meeting held in person or in whole or
in part by conference telecommunications equipment. One-third, but not less than
two, of the Trustees shall constitute a quorum at any meeting unless there is
only one Trustee. Except as the Trustees may otherwise determine, one-third of
the members of any committee shall constitute a quorum at any meeting. The vote
of a majority of the Trustees (or committee members) present at a meeting at
which a quorum is present shall be the act of the Trustees (or any
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committee thereof). The Trustees (and any committee thereof) may also act by
written consent signed by a majority of the Trustees (or committee members).
Regular meetings of the Trustees may be held at such places and at such times as
the Trustees may from time to time determine. Special meetings of the Trustees
(and meetings of any committee thereof) may be called orally or in writing by
the Chairman of the Board of Trustees (or the chairman of any committee thereof)
or by any two other Trustees. Notice of the time, date and place of all meetings
of the Trustees (or any committee thereof) shall be given by the party calling
the meeting to each Trustee (or committee member) by telephone, telefax, or
telegram sent to the person's home or business address at least twenty-four
hours in advance of the meeting or by written notice mailed to the person's home
or business address at least seventy-two hours in advance of the meeting. Notice
of all proposed written consents of Trustees (or committees thereof) shall be
given to each Trustee (or committee member) by telephone, telefax, telegram, or
first class mail sent to the person's home or business address. Notice need not
be given to any person who attends a meeting without objecting to the lack of
notice or who executes a written consent or a written waiver of notice with
respect to a meeting. Written consents or waivers may be executed in one or more
counterparts. Execution of a written consent or waiver and delivery thereof may
be accomplished by telefax or other electronic means approved by the Trustees.
Section 4.5 Chairman of the Trustees. The Trustees may appoint
one of their number to be Chairman of the Board of Trustees. The Chairman shall
preside at all meetings of the Trustees at which he is present and may be (but
is not required to be) the chief executive officer of the Trust.
Section 4.6 Principal Transactions. 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
Affiliated Person of the Trust, investment adviser, investment sub-adviser,
distributor or transfer agent for the Trust or with any Interested Person of
such Affiliated Person or other person; and the Trust may employ any such
Affiliated Person or other person, or firm or company in which such Affiliated
Person or other person is an Interested Person, as broker, legal counsel,
registrar, investment advisor, investment sub-advisor, distributor, transfer
agent, dividend disbursing agent, custodian or in any other capacity upon
customary terms.
ARTICLE V
INVESTMENT ADVISOR, INVESTMENT SUB-ADVISOR,
PRINCIPAL UNDERWRITER, ADMINISTRATOR, TRANSFER AGENT,
CUSTODIAN AND OTHER CONTRACTORS
Section 5.1 Certain Contracts. Subject to compliance with the
provisions of the 1940 Act, but notwithstanding any limitations of present and
future law or custom in regard to delegation of powers by trustees generally,
the Trustees may, at any time and from time to time and without limiting the
generality of their powers and authority otherwise set forth
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herein, enter into one or more contracts with any one or more corporations,
trusts, associations, partnerships, limited partnerships, other type of
organizations, or individuals to provide for the performance and assumption of
some or all of the following services, duties and responsibilities to, for or of
the Trust and/or the Trustees, and to provide for the performance and assumption
of such other services, duties and responsibilities in addition to those set
forth below as the Trustees may determine to be appropriate:
(a) Investment Adviser and Investment Sub-Adviser. The
Trustees may in their discretion, from time to time, enter into an investment
advisory or management contract or contracts with respect to the Trust or any
Series whereby the other party or parties to such contract or contracts shall
undertake to furnish the Trust with such management, investment advisory,
statistical and research facilities and services and such other facilities and
services, if any, and all upon such terms and conditions, as the Trustees may in
their discretion determine. Notwithstanding any other provision of this Trust
Instrument, the Trustees may authorize any investment adviser (subject to such
general or specific instructions as the Trustees may from time to time adopt) to
effect purchases, sales or exchanges of portfolio securities, other investment
instruments of the Trust, or other Trust Property on behalf of the Trustees, or
may authorize any officer, agent, or Trustee to effect such purchases, sales or
exchanges pursuant to recommendations of the investment adviser (and all without
further action by the Trustees). Any such purchases, sales and exchanges shall
be deemed to have been authorized by the Trustees.
The Trustees may authorize, subject to applicable requirements of
the 1940 Act, the investment adviser to employ, from time to time, one or more
sub-advisers to perform such of the acts and services of the investment adviser,
and upon such terms and conditions, as may be agreed upon between the investment
adviser and sub-adviser. Any reference in this Trust Instrument to the
investment adviser shall be deemed to include such sub-advisers, unless the
context otherwise requires.
(b) Principal Underwriter. The Trustees may in their
discretion from time to time enter into an exclusive or non-exclusive
underwriting contract or contracts providing for the sale of Shares, whereby the
Trust may either agree to sell Shares to the other party to the contract or
appoint such other party its sales agent for such Shares. In either case, the
contract may also provide for the repurchase or sale of Shares by such other
party as principal or as agent of the Trust.
(c) Administrator. The Trustees may in their discretion from
time to time enter into one or more contracts whereby the other party or parties
shall undertake to furnish the Trust with administrative services. The contract
or contracts shall be on such terms and conditions as the Trustees may in their
discretion determine.
(d) Transfer Agent. The Trustees may in their discretion
from time to time enter into one or more transfer agency and Shareholder service
contracts whereby the other party or parties shall undertake to furnish the
Trustees with transfer agency and Shareholder
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services. The contract or contracts shall be on such terms and conditions as the
Trustees may in their discretion determine.
(e) Administrative Service and Distribution Plans. The
Trustees may, on such terms and conditions as they may in their discretion
determine, adopt one or more plans pursuant to which compensation may be paid
directly or indirectly by the Trust for Shareholder servicing, administration
and/or distribution services with respect to one or more Series or Classes
including without limitation, plans subject to Rule 12b-1 under the 1940 Act,
and the Trustees may enter into agreements pursuant to such plans.
(f) Fund Accounting. The Trustees may in their discretion
from time to time enter into one or more contracts whereby the other party or
parties undertakes to handle all or any part of the Trust's accounting
responsibilities, whether with respect to the Trust's properties, Shareholders
or otherwise.
(g) Custodian and Depository. The Trustees may in their
discretion from time to time enter into one or more contracts whereby the other
party or parties undertakes to act as depository for and to maintain custody of
the property of the Trust or any Series or Class and accounting records in
connection therewith.
(h) Parties to Contract. Any contract described in this
Article V hereof may be entered into with any corporation, firm, partnership,
trust or association, although one or more of the Trustees or officers of the
Trust may be an officer, director, trustee, shareholder, or member of such other
party to the contract, and no such contract shall be invalidated or rendered
void or voidable by reason of the existence of any relationship, nor shall any
person holding such relationship be disqualified from voting on or executing the
same in his capacity as Shareholder and/or Trustee, nor shall any person holding
such relationship be liable merely by reason of such relationship for any loss
or expense to the Trust under or by reason of said contract or accountable for
any profit realized directly or indirectly therefrom, provided that the contract
when entered into was not inconsistent with the provisions of this Article V.
The same person (including a firm, corporation, partnership, trust, or
association) may be the other party to contracts entered into pursuant to this
Article V, and any individual may be financially interested or otherwise
affiliated with persons who are parties to any or all of the contracts mentioned
in this Section 5.1.
ARTICLE VI
SHAREHOLDER VOTING POWERS AND MEETINGS
Section 6.1 Voting. The Shareholders shall have power to
vote only: (a) for the election of one or more Trustees in order to comply with
the provisions of the 1940 Act (including Section 16(a) thereof); (b) with
respect to any contract entered into pursuant to Article V to the extent
required by the 1940 Act; (c) with respect to termination of the Trust or a
Series or Class thereof to the extent required by applicable law; (d) with
respect to any plan adopted pursuant to Rule 12b-1 (or any successor rule) under
the 1940 Act, and related
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matters, to the extent required under the 1940 Act; and (e) with respect to such
additional matters relating to the Trust as may be required by this Trust
Instrument, the By-laws or any registration of the Trust or Series as an
investment company under the 1940 Act with the Commission (or any successor
agency) or as the Trustees may consider necessary or desirable.
On each matter submitted to a vote of Shareholders, unless the
Trustees determine otherwise, all Shares of all Series and Classes shall vote as
a single class; provided, however, that: (a) as to any matter with respect to
which a separate vote of any Series or Class is required by the 1940 Act or
other applicable law or is required by attributes applicable to any Series or
Class, such requirements as to a separate vote by that Series or Class shall
apply; (b) unless the Trustees determine that this clause (b) shall not apply in
a particular case, to the extent that a matter referred to in clause (a) above
affects more than one Series or Class and the interests of each such Series or
Class in the matter are identical, then the Shares of all such affected Series
or Classes shall vote as a single class; and (c) as to any matter which does not
affect the interests of a particular Series or Class, only the holders of Shares
of the one or more affected Series or Classes shall be entitled to vote. Each
whole Share shall be entitled to one vote as to any matter on which it is
entitled to vote, and each fractional Share shall be entitled to a proportionate
fractional vote. There shall be no cumulative voting in the election of
Trustees. Shares may be voted in person or by proxy or in any manner provided
for in the By-laws. A proxy may be given in writing, by telefax, or in any other
manner provided for in the By-laws. Anything in this Trust Instrument to the
contrary notwithstanding, 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
the Trust or one or more Series or Classes thereof, or in the event of any proxy
contest or proxy solicitation or proposal in opposition to any proposal by the
officers or Trustees of the Trust, Shares may be voted only in person or by
written proxy. Until Shares are issued, the Trustees may exercise all rights of
Shareholders and may take any action required or permitted by law, this Trust
Instrument or any of the By-laws of the Trust to be taken by Shareholders.
Section 6.2 Meetings. Meetings of Shareholders (including
meetings involving only the holders of Shares of one or more but less than all
Series or Classes) may be called by the Trustees from time to time to be held at
such place within or without the State of Delaware, and on such date as may be
designated in the call thereof for the purpose of taking action upon any matter
as to which the vote or authority of the Shareholders is required or permitted
as provided in Section 6.1. Special meetings of the Shareholders of any Series
may be called by the Trustees and shall be called by the Trustees upon the
written request of Shareholders owning at least a majority of the Outstanding
Shares entitled to vote, except to the extent that a lesser percentage is
prescribed by the 1940 Act. Notice shall be sent, postage prepaid, by mail or
such other means determined by the Trustees, at least 7 days prior to any such
meeting.
Section 6.3 Quorum and Required Vote. Unless a larger percentage
is required by law, by any provision of this Trust Instrument or by the
Trustees, one-third of the Shares entitled to vote in person or by proxy on a
particular matter shall be a quorum for the transaction of business at a
Shareholders' meeting with respect to that matter. Any lesser number shall be
sufficient for adjournments. Any adjourned session or sessions may be held
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without the necessity of further notice. Except when a larger vote is required
by law, by any provision of this Trust Instrument or by the Trustees, a majority
of the Shares voted in person or by proxy on a particular matter at a meeting at
which a quorum is present shall decide any questions with respect to that matter
and a plurality shall elect a Trustee.
Section 6.4 Action by Written Consent. Subject to the provisions
of the 1940 Act and other applicable law, any action taken by Shareholders may
be taken without a meeting if a majority of the Shares entitled to vote on the
matter (or such larger proportion thereof as shall be required by law, by any
provision of this Trust Instrument or by the Trustees) consent to the action in
writing. Such consent shall be treated for all purposes as a vote taken at a
meeting of Shareholders.
ARTICLE VII
DISTRIBUTIONS AND REDEMPTIONS
Section 7.1 Distributions.
(a) The Trustees may from time to time declare and pay
dividends or other distributions with respect to any Series or Class. The amount
of such dividends or distributions and the payment of them and whether they are
in cash or any other Trust Property shall be wholly in the discretion of the
Trustees.
(b) Dividends and other distributions may be paid or made to
the Shareholders of record at the time of declaring a dividend or other
distribution or among the Shareholders of record at such other date or time or
dates or times as the Trustees shall determine, which dividends or
distributions, at the election of the Trustees, may be paid pursuant to a
standing resolution or resolutions adopted only once or with such frequency as
the Trustees may determine. All dividends and other distributions on Shares of a
particular Class shall be distributed pro rata to the Shareholders of that Class
in proportion to the number of Shares of that Class they held on the record date
established for such payment, except that in connection with any dividend or
distribution program or procedure the Trustees may determine that no dividend or
distribution shall be payable on Shares as to which the Shareholder's purchase
order and/or payment in the prescribed form has not been received by the time or
times established by the Trustees under such program or procedure. The Trustees
may adopt and offer to Shareholders such dividend reinvestment plans, cash
dividend payout plans or related plans as the Trustees shall deem appropriate.
(c) Anything in this Trust Instrument to the contrary
notwithstanding, the Trustees may at any time declare and distribute a stock
dividend pro rata among the Shareholders of a particular Series, or Class
thereof, as of the record date of that Series or Class fixed as provided in
Section (b) hereof. The Trustees shall have full discretion, to the extent not
inconsistent with the 1940 Act, to determine which items shall be treated as
income
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and which items as capital; and each such determination and allocation shall be
conclusive and binding upon the Shareholders.
Section 7.2 Redemption by Shareholder
(a) Unless the Trustees otherwise determine with respect to
a particular Series or Class at the time of establishing and designating the
same, each holder of Shares of a particular Series or Class thereof shall have
the right at such times as may be permitted by the Trust, but no less frequently
than once each week, to require the Trust to redeem (out of the assets belonging
to the applicable Series) all or any part of his Shares at a redemption price
equal to the Net Asset Value per Share of that Series or Class next determined
in accordance with Section 7.4 after the Shares are properly tendered for
redemption, less such redemption fee or other charge, if any, as may be fixed by
the Trustees. Except as otherwise provided in this Trust Instrument, payment of
the redemption price shall be in cash; provided, however, that to the extent
permitted by applicable law, the Trustees may authorize the Trust to make
payment wholly or partly in securities or other assets belonging to the
applicable Series at the value of such securities or assets used in such
determination of Net Asset Value.
(b) Notwithstanding the foregoing, the Trust may postpone
payment of the redemption price and may suspend the right of the holders of
Shares of any Series or Class to require the Trust to redeem Shares of that
Series or Class during any period or at any time when and to the extent
permissible under the 1940 Act.
(c) In the event that a Shareholder shall submit a request
for the redemption of a greater number of Shares than are then allocated to such
Shareholder, such request shall not be honored.
Section 7.3 Redemption by Trust. Unless the Trustees otherwise
determine with respect to a particular Series or Class at the time of
establishing and designating the same, each Share of each Series or Class
thereof that has been established and designated is subject to redemption (out
of the assets belonging to the applicable Series) by the Trust at the redemption
price which would be applicable if such Share was then being redeemed by the
Shareholder pursuant to Section 7.2 at any time if the Trustees determine in
their sole discretion that failure to so redeem may have materially adverse
consequences to the holders of the Shares, or any Series or Class of the Trust,
and upon such redemption the holders of the Shares so redeemed shall have no
further right with respect thereto other than to receive payment of such
redemption price. In addition, the Trustees, in their sole discretion, may cause
the Trust to redeem (out of the assets belonging to the applicable Series) all
of the Shares of one or more Series or Classes held by (a) any Shareholder if
the value of such Shares held by such Shareholder is less than the minimum
amount established from time to time by the Trustees, (b) all Shareholders of
one or more Series or Classes if the value of such Shares held by all
Shareholders is less than the minimum amount established from time to time by
the Trustees or (c) any Shareholder to reimburse the Trust for any loss or
expense it has sustained or incurred by reason of the failure of such
Shareholder to make full payment for Shares purchased by such Shareholder, or by
reason of any defective redemption request, or by reason of
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indebtedness incurred because of such Shareholder as described in Section 9.11
or to collect any charge relating to a transaction effected for the benefit of
such Shareholder or as provided in the prospectus relating to such Shares.
Section 7.4 Net Asset Value. The Net Asset Value per Share of any
Series or Class thereof shall be the quotient obtained by dividing the value of
the net assets of that Series or Class (being the value of the assets belonging
to that Series or Class less the liabilities belonging to that Series or Class)
by the total number of Shares of that Series or Class outstanding, all
determined in accordance with the methods and procedures, including without
limitation those with respect to rounding, established by the Trustees from time
to time.
The Trustees may determine to maintain the Net Asset Value
per Share of any Series at a designated constant dollar amount and in connection
therewith may adopt procedures not inconsistent with the 1940 Act for the
continuing declarations of income attributable to that Series or Class thereof
as dividends payable in additional Shares of that Series or Class thereof at the
designated constant dollar amount and for the handling of any losses
attributable to that Series or Class thereof. Such procedures may, among other
things, provide that in the event of any loss each Shareholder of a Series or
Class thereof shall be deemed to have contributed to the capital of the Trust
attributable to that Series or Class thereof his pro rata portion of the total
number of Shares required to be cancelled in order to permit the Net Asset Value
per Share of that Series or Class thereof to be maintained, after reflecting
such loss, at the designated constant dollar amount. Each Shareholder of the
Trust shall be deemed to have agreed, by his investment in the Trust, to make
the contribution referred to in the preceding sentence in the event of any such
loss.
ARTICLE VIII
LIMITATION OF LIABILITY AND INDEMNIFICATION
Section 8.1 Limitation of Liability. Neither a Trustee nor an
officer of the Trust, when acting in such capacity, shall be personally liable
to any person other than the Trust or a beneficial owner for any act, omission
or obligation of the Trust, any Trustee or any officer of the Trust. Neither a
Trustee nor an officer of the Trust shall be liable for any act or omission in
his capacity as Trustee or as an officer of the Trust, or for any act or
omission of any officer (or other officer) or employee of the Trust or of any
other person or party, provided that nothing contained herein or in the Act
shall protect any Trustee or officer against any liability to the Trust or to
Shareholders 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 Trustee or the duties of such officer
hereunder.
Section 8.2 Indemnification. The Trust shall indemnify each of
its Trustees and officers and persons who serve at the Trust's request as
directors, officers or trustees of another organization in which the Trust has
any interest as a shareholder, creditor, or otherwise and may indemnify any
trustee, director or officer of a predecessor organization
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("Covered Person") against all liabilities and expenses (including amounts paid
in satisfaction of judgments, in compromise, as fines and penalties, and
expenses including reasonable accountants' and counsel fees) reasonably incurred
in connection with the defense or disposition of any action, suit or other
proceeding, whether civil or criminal, before any court or administrative or
legislative body, in which he may be involved or with which he may be
threatened, while as a Covered Person or thereafter, by reason of being or
having been such a Covered Person, except that no Covered Person shall be
indemnified against any liability to the Trust or its Shareholders to which such
Covered Person would otherwise be subject by reason of bad faith, willful
misfeasance, gross negligence or reckless disregard of his duties involved in
the conduct of such Covered Person's office (such willful misfeasance, bad
faith, gross negligence or reckless disregard being referred to herein as
"Disabling Conduct"). Expenses, including accountants' and counsel fees so
incurred by any such Covered Person (but excluding amounts paid in satisfaction
of judgments, in compromise or as fines or penalties), may be paid from time to
time by the Trust in advance of the final disposition of any such action, suit
or proceeding upon receipt of (a) an undertaking by or on behalf of such Covered
Person to repay amounts so paid to the Trust if it is ultimately determined that
indemnification of such expenses is not authorized under this Article VIII and
either (b) such Covered Person provides security for such undertaking,(c) the
Trust is insured against losses arising by reason of such payment, or (d) a
majority of a quorum of disinterested, non-party Trustees, or independent legal
counsel in a written opinion, determines, based on a review of readily available
facts, that there is reason to believe that such Covered Person ultimately will
be found entitled to indemnification.
Section 8.3 Indemnification Determinations. Indemnification of a
Covered Person pursuant to Section 8.2 shall be made if (a) the court or body
before whom the proceeding is brought determines, in a final decision on the
merits, that such Covered Person was not liable by reason of Disabling Conduct
or (b) in the absence of such a determination, a majority of a quorum of
disinterested, non-party Trustees or independent legal counsel in a written
opinion make a reasonable determination, based upon a review of the facts, that
such Covered Person was not liable by reason of Disabling Conduct.
Section 8.4 Indemnification Not Exclusive. The right of
indemnification provided by this Article VIII shall not be exclusive of or
affect any other rights to which any such Covered Person may be entitled. As
used in this Article VIII, "Covered Person" shall include such person's heirs,
executors and administrators, and a "disinterested, non-party Trustee" is a
Trustee who is neither an Interested Person of the Trust nor a party to the
proceeding in question.
Section 8.5 Shareholders. Each Shareholder of the Trust and of
each Series shall not be personally liable for the debts, liabilities,
obligations and expenses incurred by, contracted for, or otherwise existing with
respect to, the Trust or by or on behalf of any Series. The Trustees shall have
no power to bind any Shareholder personally or to call upon any Shareholder for
the payment of any sum of money or assessment whatsoever other than such as the
Shareholder may at any time personally agree to pay by way of subscription for
any Shares or otherwise.
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In case any Shareholder or former Shareholder of any Series shall
be held to be personally liable solely by reason of his being or having been a
Shareholder of such Series and not because of his acts or omissions or for some
other reason, the Shareholder or former Shareholder (or his heirs, executors,
administrators or other legal representatives, or, in the case of a corporation
or other entity, its corporate or other 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 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.
The indemnification and reimbursement required by the preceding sentence shall
be made only out of assets of the one or more Series whose Shares were held by
said Shareholder at the time the act or event occurred which gave rise to the
claim against or liability of said Shareholder. The rights accruing to a
Shareholder under this Section shall not impair any other right to which such
Shareholder may be lawfully entitled, nor shall anything herein contained
restrict the right of the Trust or any Series thereof to indemnify or reimburse
a Shareholder in any appropriate situation even though not specifically provided
herein.
ARTICLE IX
MISCELLANEOUS
Section 9.1 Trust Not a Partnership. It is hereby expressly
declared that a trust and not a partnership is created hereby. All persons
extending credit to, contracting with or having any claim against any Series of
the Trust shall look only to the assets of such Series for payment under such
credit, contract or claim; and neither the Shareholders nor the Trustees, nor
any of the Trust's officers, employees or agents, whether past, present or
future, shall be personally liable therefor. Every note, bond, contract or other
undertaking issued by or on behalf of the Trust or the Trustees relating to the
Trust or to a Series shall include a recitation limiting the obligations
represented thereby to the Trust or to one or more Series and its or their
assets (but the omission of such a recitation shall not operate to bind any
Shareholder, Trustee, officer, employee or agent of the Trust).
Section 9.2 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. Subject to the provisions
of Article VIII: (i) the Trustees shall not be responsible or liable in any
event for any neglect or wrongdoing of any officer, agent, employee, consultant,
adviser, administrator, distributor or principal underwriter, custodian or
transfer, dividend disbursing, Shareholder servicing or accounting agent of the
Trust, nor shall any Trustee be responsible for the act or omission of any other
Trustee; (ii) the Trustees may take advice of counsel or other experts with
respect to the meaning and operation of this Trust Instrument and their duties
as Trustees, and shall be under no liability for any act or omission in
accordance with such advice or for failing to follow such advice; and (iii) in
discharging their duties, the Trustees, when acting in good faith, shall be
entitled to rely upon the books of
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account of the Trust and upon written reports made to the Trustees by any
officer appointed by them, any independent public accountant, and (with respect
to the subject matter of the contract involved) any officer, partner or
responsible employee of a contracting party appointed by the Trustees. The
Trustees as such shall not be required to give any bond or surety or any other
security for the performance of their duties.
Section 9.3 Establishment of Record Dates. The Trustees may close
the Share transfer books of the Trust for a period not exceeding one hundred
twenty (120) days preceding the date of any meeting of Shareholders, or the date
for the payment of any dividends or other distributions, or the date for the
allotment of rights, or the date when any change or conversion or exchange of
Shares shall go into effect; or in lieu of closing the stock transfer books as
aforesaid, the Trustees may fix in advance a date, not exceeding one hundred
twenty (120) days preceding the date of any meeting of Shareholders, or the date
for payment of any dividend or other distribution, or the date for the allotment
of rights, or the date when any change or conversion or exchange of Shares shall
go into effect, as a record date for the determination of the Shareholders
entitled to notice of, and to vote at, any such meeting, or entitled to receive
payment of any such dividend or other distribution, or to any such allotment of
rights, or to exercise the rights in respect of any such change, conversion or
exchange of Shares, and in such case such Shareholders and only such
Shareholders as shall be Shareholders of record on the date so fixed shall be
entitled to such notice of, and to vote at, such meeting, or to receive payment
of such dividend or other distribution, or to receive such allotment or rights,
or to exercise such rights, as the case may be, notwithstanding any transfer of
any Shares on the books of the Trust after any such record date fixed as
aforesaid.
Section 9.4 Termination of Trust or Series.
(a) This Trust shall continue without limitation of time but
subject to the provisions of sub-sections (b) and (c) of this Section 9.4.
(b) Notwithstanding anything in Section 9.5 to the contrary,
the Trustees may without Shareholder approval (unless such approval is required
by the 1940 Act)
(i) sell and convey all or substantially all of the
assets of the Trust or any Series or Class to
another trust, partnership, limited liability
company, association or corporation, or to a
separate Series or Class of shares thereof,
organized under the laws of any state or
jurisdiction, for adequate consideration which may
include the assumption of all outstanding
obligations, taxes and other liabilities, accrued
or contingent, of the Trust or any Series or
Class, and which may include shares of beneficial
interest, stock or other ownership interests of
such trust, partnership, limited liability
company, association or corporation or of a series
thereof; or
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(ii) at any time sell and convert into money all of the
assets of the Trust or any Series or Class.
Upon reasonable provision, in the determination of the Trustees,
for the payment of all such liabilities in either (i) or (ii), by such
assumption or otherwise, the Shareholders of each Class of a Series involved in
such sale or conversion shall be entitled to receive, as a Class, when and as
declared by the Trustees, the excess of the assets belonging to that Series that
are allocated to such Class over the liabilities belonging to that Series that
are allocated to such Class. The assets so distributable to the Shareholders of
any particular Class of a Series shall be distributed among such Shareholders in
proportion to the number of Shares of that Class held by them and recorded on
the books of the Trust. In the event a series is not divided into Classes, the
foregoing provisions shall be applied on a Series by Series basis.
(c) Upon completion of the distribution of the remaining
proceeds or the remaining assets as provided in sub-section (b), the Trust (in
the case of a sale or conversion with respect to the Trust as a whole or the
last remaining Series) 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 hereunder and the right, title and interest of all parties with
respect to the Trust or such affected 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 Act, which
certificate of cancellation may be signed by any one Trustee.
Section 9.5 Merger, Consolidation, Incorporation. Anything in
this Trust Instrument to the contrary notwithstanding, the Trustees, in order to
change the form of organization and/or domicile of the Trust, may, without prior
Shareholder approval, (i) cause the Trust to merge or consolidate with or into
one or more trusts, partnerships, limited liability companies, associations or
corporations which is formed, organized or existing under the laws of a state,
commonwealth possession or colony of the United States, or (ii) cause the Trust
to incorporate under the laws of Delaware. Any agreement of merger or
consolidation or certificate of merger may be signed by a majority of the
Trustees. Pursuant to and in accordance with the provisions of Section 3815(f)
of the Act, and notwithstanding anything to the contrary contained in this Trust
Instrument, an agreement of any merger or consolidation approved in accordance
with this Section 9.5 may effect any amendment to the Trust Instrument or effect
the adoption of a new trust instrument of the Trust if it is the surviving or
resulting trust in the merger or consolidation. Any merger or consolidation of
the Trust other than as described in the foregoing provisions of this Section
9.5 shall, in addition to the approval of the Trustees, require a Majority
Shareholder Vote. Nothing in this Section 9.5 shall require, however,
Shareholder approval of any transaction whereby the Trust or any Series thereof
acquires or assumes all or any part of the assets and liabilities of any other
entity.
Section 9.6 Filing of Copies, References, Headings. The original
or a copy of this Trust Instrument and of each amendment hereof or Trust
Instrument supplemental hereto shall
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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 or Trustee
of the Trust as to whether or not any such amendments or supplements 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 or Trustee of the Trust to be a copy of this Trust Instrument or of any
such amendment or supplemental Trust Instrument. In this Trust Instrument or in
any such amendment or supplemental Trust Instrument, references to this Trust
Instrument, and all expressions like "herein," "hereof" and "hereunder," shall
be deemed to refer to this Trust Instrument as amended or affected by any such
supplemental Trust Instrument. All expressions like "his", "he" and "him", shall
be deemed to include the feminine and neuter, as well as masculine, genders.
Headings are placed herein for convenience of reference only and in case of any
conflict, the text of this Trust Instrument rather than the headings, shall
control. This Trust Instrument may be executed in any number of counterparts
each of which shall be deemed an original.
Section 9.7 Applicable Law. The trust set forth in this
instrument is made in the State of Delaware, and the Trust and this Trust
Instrument, and the rights and obligations of the Trustees and Shareholders
hereunder, are to be governed by and construed and administered according to the
Act and the laws of said State; provided, however, that there shall not be
applicable to the Trust, the Trustees or this Trust Instrument (a) the
provisions of Section 3540 of Title 12 of the Delaware Code or (b) any
provisions of the laws (statutory or common) of the State of Delaware (other
than the Act) pertaining to trusts which relate to or regulate: (i) the filing
with any court or governmental body or agency of trustee accounts or schedules
of trustee fees and charges, (ii) affirmative requirements to post bonds for
trustees, officers, agents or employees of a trust, (iii) the necessity for
obtaining court or other governmental approval concerning the acquisition,
holding or disposition of real or personal property, (iv) fees or other sums
payable to trustees, officers, agents or employees of a trust, (v) the
allocation of receipts and expenditures to income or principal, (vi)
restrictions or limitations on the permissible nature, amount or concentration
of trust investments or requirements relating to the titling, storage or other
manner of holding of trust assets, or (vii) the establishment of fiduciary or
other standards or responsibilities or limitations on the acts or powers of
trustees, which are inconsistent with the limitations or liabilities or
authorities and powers of the Trustees set forth or referenced in this Trust
Instrument. The Trust shall be of the type commonly called a "business trust",
and without limiting the provisions hereof, the Trust may exercise all powers
which are ordinarily exercised by such a trust under Delaware law. The Trust
specifically reserves the right to exercise any of the powers or privileges
afforded to trusts or actions that may be engaged in by trusts under the 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.
Section 9.8 Amendments. Except as specifically provided herein,
the Trustees may, without Shareholder vote, amend or otherwise supplement this
Trust Instrument by making an amendment, a Trust Instrument supplemental hereto
or an amended and restated trust instrument. Shareholders shall have the right
to vote: (i) on any amendment which would affect their right to vote granted in
Section 6.1, (ii) on any amendment to this Section 9.8, (iii)
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on any amendment for which such vote is required by law and (iv) on any
amendment submitted to them by the Trustees. Any amendment required or permitted
to be submitted to Shareholders which, as the Trustees determine, shall affect
the Shareholders of one or more Series or Classes shall be authorized by vote of
the Shareholders of each Series or Class affected and no vote of shareholders of
a Series or Class not affected shall be required. Anything in this Trust
Instrument to the contrary notwithstanding, any amendment to Article VIII hereof
shall not limit the rights to indemnification or insurance provided therein with
respect to action or omission of any persons protected thereby prior to such
amendment.
Section 9.9 Fiscal Year. The fiscal year of the Trust shall end
on a specified date as determined from time to time by the Trustees.
Section 9.10 Provisions in Conflict with Law. The provisions of
this Trust Instrument are severable, and if the Trustees shall determine, with
the advice of counsel, that any of such provisions is in conflict with the 1940
Act, the regulated investment company provisions of 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 Trust Instrument; provided,
however, that such determination shall not affect any of the remaining
provisions of this Trust Instrument or render invalid or improper any action
taken or omitted prior to such determination. If any provision of this Trust
Instrument 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 provisions in any other
jurisdiction or any other provision of this Trust Instrument in any
jurisdiction.
Section 9.11 Allocation of Certain Expenses. Each Shareholder
will, at the discretion of the Trustees, indemnify the Trust against all
expenses and losses resulting from indebtedness incurred in connection with
facilitating (i) requests pending receipt of the collected funds from
investments sold on the date of such Shareholder's redemption request; (ii)
redemption requests from such Shareholder who has also notified the Trust of its
intention to deposit funds in its accounts on the date of said redemption
request; or (iii) the purchase of investments pending receipt of collected funds
from such Shareholder who has notified the Trust of its intention to deposit
funds in its accounts on the date of the purchase of the investments.
IN WITNESS WHEREOF, the undersigned, being the Trustee of the
Trust, has executed this Declaration of Trust as of the 3rd day of September,
1998.
/s/ XXXXXX X. XXXXX
------------------------------
Xxxxxx X. Xxxxx
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