DECLARATION AND AGREEMENT OF TRUST
OF
LORD XXXXXX BLEND TRUST
DECLARATION AND AGREEMENT OF TRUST made on , 2001 by and among
the individuals executing this Declaration and Agreement of Trust as Trustees
and the holders from time to time of the shares of beneficial interest issued
hereunder.
WHEREAS, the Trustees desire to establish a business trust for the
investment and reinvestment of funds contributed thereto and the carrying on of
business and dividing the gains therefrom; and
WHEREAS, the Trustees desire that the beneficial interest in the trust
assets be divided into transferable shares of beneficial interest, as
hereinafter provided;
NOW THEREFORE, the Trustees hereby declare that all money and property
contributed to the trust established hereunder and all proceeds thereof shall be
held and managed in trust for the pro rata benefit of the holders, from time to
time, of the shares of beneficial interest issued hereunder and subject to the
provisions hereof.
ARTICLE I
NAME AND DEFINITIONS
Section I.1. NAME. The name of the trust created hereby is "Lord Xxxxxx
Blend Trust," in which name the Trustees shall conduct the business and
activities of the Trust and execute all documents and take all actions
authorized herein.
Section I.2. DEFINITIONS. Wherever they are used herein, the following
terms have the following meanings:
"Affiliated Person" shall have the meaning set forth in
Section 2(a)(3) of the 1940 Act.
"Code" shall mean the Internal Revenue Code of 1986, as
amended.
"Commission" shall mean the Securities and Exchange
Commission.
"Declaration" shall mean this Declaration and Agreement of
Trust as amended from time to time. This Declaration and any By-laws
of the Trust shall constitute the governing instrument of the Trust.
"Delaware Act" shall mean Chapter 38 of Title 12 of the
Delaware Code entitled "Treatment of Delaware Business Trusts," as it
may be amended from time to time.
"Distributor" shall have the meaning set forth in Section 3.1.
"Interested Person" shall have the meaning set forth in
Section 2(a)(19) of the 1940 Act.
"Investment Adviser" shall have the meaning set forth in
Section 3.2.
"Majority Shareholder Vote" or "Series Majority Shareholder's
Vote" shall mean the vote of a majority of the outstanding voting
securities, as defined in Section 2(a)(42) of the 1940 Act, of the
Trust, PROVIDED that if there are two or more Series of Shares
outstanding, then "Series Majority Shareholder Vote" shall have, when
used with respect to any matter required to be submitted to the holders
of the outstanding Shares of any Series pursuant to this Declaration or
the 1940 Act, the meaning set forth in Rule 18f-2 under the 1940 Act.
"1940 Act" shall mean the Investment Company Act of 1940, as
amended from time to time.
"Person" shall mean an individual, a company, a corporation,
partnership, trust, or association, a joint venture, an organization, a
business, a firm or other entity, whether or not a legal entity, or a
country, a state, municipality or other political subdivision or any
governmental agency or instrumentality.
"Principal Underwriter" shall have the meaning set forth in
Section 2(a)(29) of the 0000 Xxx.
"Series" shall mean the one or more separate series of Shares
authorized by Section 5.2 of this Declaration.
"Shareholder" shall mean a record owner of Shares.
"Shares" shall mean the units of interest into which the
beneficial interest in the Trust (or, if more than one Series or more
than one class of Series is authorized, in each Series and class
thereof) shall be divided from time to time and includes fractions of
Shares as well as whole Shares. All references to Shares shall be
deemed to refer to Shares of any or all Series, or classes thereof, as
the context may require.
"Trust" shall mean the Delaware business trust established
under the Delaware Act by this Declaration, as from time to time
amended. All provisions herein relating to the Trust shall apply
equally to each Series of the Trust, and each class thereof, except as
the context otherwise requires.
"Trustees" shall mean the individuals who have signed this
Declaration, so long as they shall continue in office in accordance
with the terms hereof, and all other individuals who may from time to
time be duly elected or appointed, qualified and serving as Trustees in
accordance with the provisions of Article II hereof, and
reference herein to a Trustee or the Trustees shall refer to such
person or persons in his or her capacity or their capacities as
trustees hereunder.
"Trust Property" shall mean any and all property, real or
personal, tangible or intangible, which is owned or held by or for the
account of the Trust or the Trustees, including any and all assets of
or allocated to any Series, as the context may require.
Section I.3. PURPOSES. This Trust is formed for the following purpose
or purposes:
(a) to conduct, operate and carry on the business of an
investment company;
(b) to subscribe for, invest in, reinvest in, purchase or
otherwise acquire, hold, pledge, sell, assign, transfer, lend, write
options on, exchange, distribute or otherwise dispose of and deal in
and with securities of every nature, kind, character, type and form,
including, without limitation of the generality of the foregoing, all
types of stocks, shares, futures contracts, bonds, debentures, notes,
bills and other negotiable or non-negotiable instruments, obligations,
evidences of interest, certificates of interest, certificates of
participation, certificates, interests, evidences of ownership,
guarantees, warrants, options or evidences of indebtedness issued or
created by or guaranteed as to principal and interest by any state or
local government or any agency or instrumentality thereof, by the
United States Government or any agency, instrumentality, territory,
district or possession thereof, by any foreign government or any
agency, instrumentality, territory, district or possession thereof, by
any foreign government or any agency, instrumentality, territory,
district or possession thereof, by any corporation organized under the
laws of any state, the United States or any territory or possession
thereof or under the laws of any foreign
country, bank certificates of deposit, bank time deposits, bankers'
acceptances and commercial paper; to pay for the same in cash or by
the issue of stock, including treasury stock, bonds or notes of the
Trust or otherwise; and 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, including, without
limitation, the right to consent and otherwise act with respect
thereto, with power to designate one or more persons, firms,
associations or corporations to exercise any said rights, powers, and
privileges in respect to any said instruments;
(c) to borrow money or otherwise obtain credit and to secure
the same by mortgaging, pledging or otherwise subjecting as security
the assets of the Trust;
(d) to issue, sell, repurchase, redeem, retire, cancel,
acquire, hold, resell, reissue, dispose of, and otherwise deal in,
Shares including Shares in fractional denominations, and to apply to
any such repurchase, redemption, retirement, cancellation or
acquisition of Shares any funds or other assets of the appropriate
Series or class of Shares, whether capital or surplus or otherwise, to
the full extent now or hereafter permitted by the laws of the State of
Delaware;
(e) to conduct its business, promote its purposes, 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, and in any
other parts of the world; and
(f) to do all and everything necessary, suitable, convenient,
or proper for the conduct, promotion, and attainment of any of the
businesses and purposes herein specified or which at any time may be
incidental thereto or may appear conducive to or expedient for the
accomplishment of any such businesses and purposes and which
might be engaged in or carried on by a Trust organized under the
Delaware Act, and to have and exercise all of the powers conferred by
the laws of the State of Delaware upon a Delaware business trust.
The foregoing provisions of this Section I.3 shall be
construed both as purposes and powers and each as an independent
purpose and power.
ARTICLE II
TRUSTEES
Section II.1. POWERS. The Trustees, subject only to the specific
limitations contained in this Declaration, shall have exclusive and absolute
power, control and authority over the Trust Property and over the conduct of the
affairs of the Trust set forth in Section I.3 hereof, including such power,
control and authority to do all such acts and things as in their sole judgment
and discretion are necessary, incidental, convenient or desirable for the
carrying out of or conducting of the business of the Trust or in order to
promote the interests of the Trust, but with such powers of delegation as may be
permitted by this Declaration. The enumeration of any specific power, control or
authority herein shall not be construed as limiting the aforesaid power, control
and authority or any other specific power, control or authority. The Trustees
shall have power to conduct and carry on the business of the Trust, or any part
thereof, to have one or more offices and to exercise any or all of its trust
powers and rights, in the State of Delaware, in any other states, territories,
districts, colonies and dependencies of the United States and in any foreign
countries. In construing the provisions of this Declaration, the presumption
shall be in favor of a grant of power to the Trustees. Such powers of the
Trustees may be exercised without order of or resort to any court.
Without limiting the foregoing, the Trustees shall have the power:
(a) To enter into contracts of any nature related to the
business of the Trust.
(b) To appoint agents and employees of the Trust, which agents
and employees may be designated as officers of the Trust with
corresponding titles as the Trustees may determine in their discretion.
(c) To exercise all rights, powers and privileges of ownership
or interest in all securities included in the Trust Property, including
the right to vote, give assent, execute and deliver proxies or powers
of attorney to such person or persons as the Trustees shall deem proper
and otherwise act with respect thereto and to do all acts for the
preservation, protection, improvement and enhancement in value of all
such securities and to delegate, assign, waive or otherwise dispose of
any of such rights, powers or privileges.
(d) To exercise powers and rights of subscription or otherwise
which in any manner arise out of the Trust's ownership of securities.
(e) To declare (from interest, dividends or other income
received or accrued, from accruals of original issue or other discounts
on obligations held, from capital or other profits whether realized or
unrealized and from any other lawful sources) dividends and
distributions on the Shares and to credit the same to the account of
Shareholders, or at the election of the Trustees to accrue income to
the account of Shareholders, on such dates (which may be as frequently
as every day) as the Trustees may determine. Such dividends,
distributions or accruals shall be payable in cash, property or Shares
as the Trustees may determine and at such intervals as the Trustees may
determine at any time in advance of such payment or accrual, whether or
not the amount of such dividend, distribution or accrual can at the
time of declaration be determined or must be calculated subsequent to
declaration and prior to payment or accrual by reference to amounts or
other factors not yet determined at the time of declaration (including
but not limited to the amount of a dividend or distribution to be
determined by reference to what is sufficient to enable the Trust to
qualify as a regulated investment company under the Code or to avoid
liability for Federal income or excise taxes).
The power granted by this Subsection (e) shall include,
without limitation, and if otherwise lawful, the power (A) to declare
dividends or distributions or to accrue income to the account of
Shareholders by means of a formula or other similar method of
determination whether or not the amount of such dividend or
distribution can be calculated at the time of such declaration; (B) to
establish record or payment dates for, dividends or distributions on
any basis, including the power to establish a number of record or
payment dates subsequent to the declaration of any dividend or
distribution; (C) to establish the same payment date for any number of
dividends or distributions declared prior to such date; (D) to provide
for payment of dividends or distributions declared and as yet unpaid,
or unpaid accrued income, to shareholders redeeming Shares prior to the
payment date otherwise applicable; and (E) to provide in advance for
conditions under which any dividend or distribution may be payable in
Shares to all or less than all of the Shareholders.
(f) To acquire (by purchase, lease or otherwise) and to hold,
use, maintain, develop and dispose of (by sale, lease or otherwise) any
property, real or personal, and any interest therein.
(g) To borrow money, and in this connection to issue notes or
other evidences of indebtedness; to secure borrowings by mortgaging,
pledging or
otherwise subjecting to security interests the Trust Property; and to
lend Trust Property.
(h) To aid by further investment any Person, if any obligation
of or interest in such Person is included in the Trust Property or if
the Trustees have any direct or indirect interest in the affairs of
such Person; to do anything designed to preserve, protect, improve or
enhance the value of such obligation or interest; and to endorse or
guarantee or become surety on any or all of the contracts, stocks,
bonds, notes, debentures and other obligations of any such Person; and
to mortgage the Trust Property or any part thereof to secure any of or
all such obligations.
(i) To enter into joint ventures, general or limited
partnerships and any other combinations or associations.
(j) To purchase and pay for entirely out of Trust Property
liability, casualty, property and other insurance, including, without
limitation, insurance policies insuring the Shareholders, Trustees,
officers, employees and agents of the Trust, the Investment Adviser,
the Distributor and dealers or independent contractors of the Trust
against all claims and liabilities of every nature arising by reason of
holding or having held any such position or by reason of any action
taken or omitted by any such Person in such capacity, whether or not
constituting negligence, to the extent the Trust would have the power,
under provisions of applicable law, to indemnify such Person against
such liability; provided, however that such policy or policies shall be
purchased solely at the cost of the Series to which it or they pertain.
(k) To establish and carry out pension, profit-sharing, share
purchase, share bonus, savings, thrift and other retirement, incentive
and benefit plans for any Trustees, officers, employees or agents of
the Trust.
(l) To the extent permitted by law and determined by the
Trustees, to indemnify any Person with whom the Trust has dealings,
including, without limitation, the Shareholders, the Trustees, the
officers, employees and agents of the Trust, the Investment Adviser,
the Distributor, the transfer agent, the custodian and dealers.
(m) To incur and pay any charges, taxes and expenses which in
the opinion of the Trustees are necessary or incidental to or proper
for carrying out any of the purposes of this Trust, and to pay from the
funds of the Trust Property to themselves as Trustees reasonable
compensation and reimbursement for expenses.
(n) To prosecute or abandon and 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.
(o) To exercise the right to consent, and to enter into
releases, agreements and other instruments, including, but not limited
to, the right to consent or participate in any plan for the
reorganization, consolidation or merger of any corporation or issuer
any security of which is or was held by the Trust; to consent to any
contract, lease, mortgage, purchase or sale of such property by said
corporation or issuer, and to pay calls or subscriptions with respect
to securities held by the Trust.
(p) To employ or contract with such Persons as the Trustees
may deem desirable for the transaction of the business of the Trust.
(q) To adopt a seal for the Trust, but the absence of such
seal shall not impair the validity of any instrument executed on behalf
of the Trust.
(r) To employ one or more custodians of the assets of the
Trust and authorize such custodians to employ subcustodians and to
deposit all or any part of such assets in a system or systems for the
central handling of securities.
(s) To take such actions as are authorized, incidental or
required to be taken by the Trustees pursuant to other provisions of
this Declaration.
The foregoing enumeration of specific powers shall not be held
to limit or restrict in any manner the general powers of the Trustees.
The Trustees shall not be limited by any law now or hereafter
in effect limiting the investments which may be made or retained by fiduciaries,
but they shall have full power and authority to make any and all investments
within the limitation of this Declaration that they, in their sole and absolute
discretion, shall determine, and without liability for loss even though such
investments do not or may not produce income or are of a character or in an
amount not considered proper for the investment of trust funds.
Section II.2. LEGAL TITLE. Legal title to all the Trust Property shall
be vested in the Trust as a separate legal entity under the Delaware Act,
PROVIDED 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 with
suitable reference to their trustee status, or in the name of any Series of the
Trust, or in a form not indicating any trust, whether in bearer, unregistered or
other negotiable form, or in the name of a custodian or subcustodian or a
nominee or nominees or otherwise.
Section II.3. NUMBER OF TRUSTEES; TERM OF OFFICE. The number of
Trustees shall be two, which number may be increased or decreased from time to
time by written instrument signed by a majority of the Trustees, PROVIDED that
the number of Trustees shall not be fewer than two nor more than 15. Each of the
two Trustees executing this Declaration
of Trust and each Trustee thereafter appointed or elected (whenever such
election occurs) shall hold office until his successor is elected and
qualified or until the earlier occurrence of any of the events specified in
the first sentence of Section II.6 hereof.
Section II.4. ELECTION OF TRUSTEES. Trustees may succeed themselves in
office. Trustees may be elected at a Shareholders' meeting. At such a
Shareholders' meeting, Trustees shall be elected by a plurality of the votes
validly cast. The election of any Trustee (other than an individual who was
serving as a Trustee immediately prior thereto) shall not become effective,
however, until the individual named shall have accepted in writing such election
and agreed in writing to be bound by the terms of this Declaration. Trustees
need not own Shares.
Section II.5. RESIGNATION AND REMOVAL. Any Trustee may resign his trust
(without need for prior or subsequent accounting) by an instrument in writing
signed by him and delivered to the Chairman of the Board, or the Secretary or
any Assistant Secretary, and such resignation shall be effective upon such
delivery, or at any later date specified in the instrument. Any of the Trustees
may be removed (i) with cause by the affirmative vote of two-thirds of the
remaining Trustees (provided that the aggregate number of Trustees after such
removal shall not be less than two) or (ii) by the Shareholders pursuant to
Section V.16 hereof.
Section II.6. VACANCIES. The term of office of a Trustee shall
terminate and a vacancy shall occur in the event of the death, retirement,
resignation or removal (whether pursuant to Section II.5 hereof or otherwise),
bankruptcy, adjudication of incompetence or other incapacity to perform the
duties of the office of a Trustee. A vacancy shall also occur upon an increase
in the number of Trustees in accordance with Section II.3 hereof. No vacancy
shall operate to annul this Declaration or to revoke any existing agency created
pursuant to the terms of the Declaration. In the case of an existing vacancy,
including a vacancy existing by reason of an increase in the authorized number
of Trustees, the remaining Trustees shall fill such vacancy by the appointment
of such individual as they in their sole and absolute discretion shall see fit,
made by a written instrument signed by a majority of the Trustees then in
office, PROVIDED that such power of appointment shall be subject to and limited
by all applicable provisions of the 1940 Act and no such appointment shall
become effective until the person named shall have accepted in writing such
appointment and agreed in writing to be bound by the terms of this Declaration.
Whenever a vacancy in the number of Trustees shall occur, until such vacancy is
filled as provided in Section II.4 or this Section II.6, the Trustees in office,
regardless of their number, shall have all the powers granted to the Trustees
and shall discharge all the duties imposed upon the Trustees by the Declaration.
Section II.7. COMMITTEES; DELEGATION. The Trustees shall have the power
to appoint from their own number, and terminate, any one or more committees
consisting of two or more Trustees, including an executive committee which may
exercise some or all of the power and authority of the Trustees as the Trustees
may determine (including but not limited to the power to determine net asset
value and net income), subject to any limitations contained in the By-Laws, and
in general to delegate from time to time to one or more of their number or to
officers, employees or agents of the Trust such power and authority and the
doing of such things and the execution of such instruments, either in the name
of the Trust or the names of the Trustees or otherwise, as the Trustees may deem
expedient, PROVIDED that no committee shall have the power
(a) to change the principal office of the Trust;
(b) to amend the By-Laws;
(c) to issue Shares of any Series;
(d) to elect or remove from office any Trustee or the Chairman
of the Board, the President, the Chief Financial Officer, the Treasurer
or the Secretary of the Trust;
(e) to increase or decrease the number of Trustees;
(f) to declare a dividend or other distribution on the Shares
of any Series;
(g) to authorize the repurchase of Shares of any Series; or
(h) to authorize any merger, consolidation or sale, lease or
exchange of all or substantially all of the Trust Property.
Section II.8. QUORUM; VOTING. At all meetings of the Trustees, the
presence of one-third of the total number of Trustees authorized, but not less
than two, shall constitute a quorum for the transaction of business. When a
quorum is present at any meeting, a majority of Trustees present may take any
action, except when a larger vote is required by this Declaration, the By-laws
or the 1940 Act.
Section II.9. ACTION WITHOUT A MEETING; PARTICIPATION BY CONFERENCE
TELEPHONE. Unless the 1940 Act requires that a particular action must be taken
only at a meeting of Trustees, any action required or permitted to be taken at
any meeting of the Trustees (or of any committee of the Trustees) may be taken
without a meeting if written consents thereto are signed by a majority of the
Trustees then in office (or by a majority of the members of such committee) and
such written consents are filed with the records of the meetings. Unless the
1940 Act requires that Trustees must be present in person at a meeting of
Trustees, Trustees may participate in a meeting of the Trustees (or of any
committee of the Trustees) by means of a conference telephone or similar
communications equipment if all individuals
participating can hear each other at the same time. Participation in a
meeting by these means shall constitute presence at the meeting.
Section II.10. BY-LAWS. The Trustees may adopt By-Laws not inconsistent
with this Declaration or law to provide for the conduct of the business of the
Trust, and may amend or repeal such By-Laws.
Section II.11. NO BOND REQUIRED. No Trustee shall be obliged to give
any bond or other security for the performance of any of his duties hereunder.
Section II.12. RELIANCE ON EXPERTS, ETC. Each Trustee, officer, agent
and employee of the Trust or any Series thereof shall, in the performance of his
duties, be fully and completely justified and protected by relying in good faith
upon the books of account or other records of the Trust, or upon reports made to
the Trustees (a) by any of the officers or employees of the Trust or any Series
thereof, (b) by the Investment Adviser, the Distributor, the custodian or the
transfer agent, or (c) by any accountants, selected dealers or appraisers or
other agents, experts or consultants selected with reasonable care by the
Trustees, regardless of whether such agent, expert or consultant may also be a
Trustee. The Trustees, officers, agents and employees of the Trust or any Series
thereof may take advice of counsel with respect to the meaning and operation of
this Declaration and with respect to other legal matters or questions, and shall
be under no liability for any act or omission in accordance with such advice or
for failing to follow such advice.
Section II.13. STANDARD OF CARE OF TRUSTEES. The exercise by the
Trustees of their powers and discretion hereunder and the construction in good
faith by the Trustees of the meaning or effect of any provision of this
Declaration shall be binding upon everyone interested. A Trustee, officer, agent
or employee shall be liable to the Trust or the Shareholders for his own willful
misfeasance, bad faith, gross negligence or reckless
disregard of the duties involved in the conduct of his office, and for
nothing else, and shall not be liable for errors of judgment or mistakes of
fact or law.
ARTICLE III
CONTRACTS
Section III.1. DISTRIBUTION CONTRACT. The Trust may from time to time
enter into a distribution contract with another Person (the "Distributor")
providing for the sale of Shares, pursuant to which the Trust may agree to sell
Shares of one or more Series or classes of Series to the Distributor or appoint
the Distributor its sales agent for the Shares. Such contract may provide that
the Distributor may enter into contracts with other persons to sell the Shares
on behalf of the Distributor and the Trust. Such contract may also provide for
the repurchase of Shares by the Distributor as agent of the Trust and shall
contain such terms and conditions, if any, as may be prescribed in the By-Laws
and such further terms and conditions not inconsistent with the provisions of
this Article III or of the By-Laws as the Trustees may in their discretion
determine.
Section III.2. ADVISORY OR MANAGEMENT CONTRACTS. Subject to approval by
a Majority Shareholder Vote or, where appropriate pursuant to Section V.11
hereof, a Series Majority Shareholder Vote, the Trust may from time to time
enter into investment advisory or management contracts with one or more other
Persons (the "Investment Advisers") pursuant to which the Investment Adviser or
Advisers shall agree to furnish to the Trust management, investment advisory,
statistical and research facilities or other services with respect to one or
more Series of the Trust. Such contract shall contain such other terms and
conditions, if any, as may be prescribed in the By-Laws and such further terms
and conditions not inconsistent with the provisions of this Article III, the
By-Laws or applicable
law as the Trustees may in their discretion determine, including the grant of
authority to the Investment Adviser to determine what securities shall be
purchased or sold by each such Series and what portion of its assets shall be
uninvested and to implement such determinations by making changes in the
Series' investments.
Section III.3. AFFILIATIONS OF TRUSTEES OR OFFICERS, ETC. The fact that
any Shareholder, Trustee, officer, agent or employee of the Trust or any Series
thereof is a shareholder, member, director, officer, partner, trustee, employee,
manager, adviser or distributor of or for any Person or of or for any parent or
affiliate of any Person with which an investment advisory or management
contract, principal underwriter or distributor contract or custodian, transfer
agent, disbursing agent or similar agency contract may have been or may
hereafter be made, or that any such Person, or any parent or affiliate thereof,
is a Shareholder of or has any other interest in the Trust or any Series
thereof, or that any such Person also has any one or more similar contracts with
one or more other such Persons, or has other businesses or interests, shall not
affect the validity of any such contract made or that may hereafter be made with
the Trust or disqualify any Shareholder, Trustee, officer, agent or employee of
the Trust or any Series thereof from voting upon or executing the same or create
any liability or accountability to the Trustees, the Trust, any Series thereof
or the Shareholders.
ARTICLE IV
LIMITATION OF LIABILITY; INDEMNIFICATION
Section IV.1. NO PERSONAL LIABILITY OF SHAREHOLDERS, TRUSTEES, ETC. No
Shareholder shall be subject to any personal liability whatsoever to any Person
in connection with Trust Property or the acts, obligations or affairs of the
Trust or any Series thereof. No Trustee shall
have any power to bind personally any Shareholder 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. All Persons extending credit
to, contracting with or having any claim against the Trust or any Series
thereof shall look only to the assets of the Trust or of any affected 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.
No Trustee shall be subject to any personal liability whatsoever to any
person other than the Trust or the Shareholders in connection with the Trust
Property or the acts, obligations or affairs of the Trust or any Series
thereof. The Trustees shall not be responsible or liable to the Trust or the
Shareholders for any neglect or wrongdoing of any officer, employee or agent
(including, without limitation, the Investment Advisers, the Distributor, the
custodian and the transfer agent) of the Trust or any Series thereof, nor
shall any Trustee be responsible or liable for the act or omission of any
other Trustee.
Section IV.2. EXECUTION OF DOCUMENTS; NOTICE; APPARENT AUTHORITY. 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 any Series
thereof or the Trustees or any of them in connection with the Trust or any
Series thereof shall be conclusively deemed to have been executed or done only
in or with respect to their or his or her capacity as Trustees or Trustee, and
such Trustees or Trustee shall not be personally liable thereon. Every note,
bond, contract, instrument, certificate or undertaking made or issued by the
Trustees or by any officers or officer shall recite that the obligations of such
instruments are not binding upon any of the Trustees, Shareholders, officers,
employees or agents of the Trust individually but are binding only upon the
assets and property of the Trust or of one or more
Series, but the omission thereof shall not operate to bind any Trustees,
Shareholders or officers, employees and agents of the Trust individually. No
purchaser, lender, transfer agent or other Person dealing with the Trustees
or any officer, employee or agent of the Trust shall be bound to make any
inquiry concerning the validity of any transaction purporting to be made by
the Trustees or by such officer, employee or agent or make inquiry concerning
or be liable for the application of money or property paid, loaned or
delivered to or on the order of the Trustees or of such officer, employee or
agent.
Section IV.3. INDEMNIFICATION OF TRUSTEES, OFFICERS, ETC. The Trust
shall indemnify each of its Trustees, officers, employees and agents (including
any individual who serves at its request as director, officer, partner, trustee
or the like of another organization in which it has any interest as a
shareholder, creditor or otherwise) against all liabilities and expenses,
including but not limited to amounts paid in satisfaction of judgments, in
compromise or as fines and penalties, and counsel fees reasonably incurred by
him or her 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 or she may be or may have been involved as a
party or otherwise or with which he or she may be or may have been threatened,
while acting as Trustee or as an officer, employee or agent of the Trust or the
Trustees, as the case may be, or thereafter, by reason of his or her being or
having been such a Trustee, officer, employee or agent, except with respect to
any matter as to which he or she shall have been adjudicated not to have acted
in good faith in the reasonable belief that his or her action was in the best
interests of the Trust or any Series thereof. Notwithstanding anything herein to
the contrary, if any matter which is the subject of indemnification hereunder
relates only to one Series (or to more than one but not all of the Series of the
Trust), then the indemnity shall be paid only out of the assets of the affected
Series. No
individual shall be indemnified hereunder against any liability to the Trust
or any Series thereof or the Shareholders by reason of willful misfeasance,
bad faith, gross negligence or reckless disregard of the duties involved in
the conduct of his or her office. In addition, no such indemnity shall be
provided with respect to any matter disposed of by settlement or a compromise
payment by such Trustee, officer, employee or agent, pursuant to a consent
decree or otherwise, either for said payment or for any other expenses unless
there has been a determination that such compromise is in the best interests
of the Trust or, if appropriate, of any affected Series thereof and that such
Person appears to have acted in good faith in the reasonable belief that his
or her action was in the best interests of the Trust or, if appropriate, of
any affected Series thereof, and did not engage in willful misfeasance, bad
faith, gross negligence or reckless disregard of the duties involved in the
conduct of his or her office. All determinations that the applicable
standards of conduct have been met for indemnification hereunder shall be
made by (a) a majority vote of a quorum consisting of disinterested Trustees
who are not parties to the proceeding relating to indemnification, or (b) if
such a quorum is not obtainable or, even if obtainable, if a majority vote of
such quorum so directs, by independent legal counsel in a written opinion, or
(c) a vote of Shareholders (excluding Shares owned of record or beneficially
by such individual). In addition, unless a matter is disposed of with a court
determination (i) on the merits that such Trustee, officer, employee or agent
was not liable or (ii) that such Person was not guilty of willful
misfeasance, bad faith, gross negligence or reckless disregard of the duties
involved in the conduct of his or her office, no indemnification shall be
provided hereunder unless there has been a determination by independent legal
counsel in a written opinion that such Person did not engage in willful
misfeasance, bad faith, gross negligence or reckless disregard of the duties
involved in the conduct of his or her office.
The Trustees may make advance payments out of the assets of the Trust
or, if appropriate, of the affected Series in connection with the expense of
defending any action with respect to which indemnification might be sought under
this Section 4.3. The indemnified Trustee, officer, employee or agent shall give
a written undertaking to reimburse the Trust or the Series in the event it is
subsequently determined that he or she is not entitled to such indemnification
and (a) the indemnified Trustee, officer, employee or agent shall provide
security for his or her undertaking, (b) the Trust shall be insured against
losses arising by reason of lawful advances, or (c) a majority of a quorum of
disinterested Trustees or an independent legal counsel in a written opinion
shall determine, based on a review of readily available facts (as opposed to a
full trial-type inquiry), that there is reason to believe that the indemnitee
ultimately will be found entitled to indemnification. The rights accruing to any
Trustee, officer, employee or agent under these provisions shall not exclude any
other right to which he or she may be lawfully entitled and shall inure to the
benefit of his or her heirs, executors, administrators or other legal
representatives.
Section IV.4. INDEMNIFICATION OF SHAREHOLDERS. In case any Shareholder
or former Shareholder shall be held to be personally liable solely by reason of
his or her being or having been a Shareholder and not because of 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 a corporation or other entity, its corporate or other general
successor) shall be entitled out of the assets of the Trust or, if there are two
or more Series of the Trust, the assets of the affected Series of which such
Shareholder held Shares, to be held harmless from and indemnified against all
loss and expense, including legal expenses reasonably incurred, arising from
such liability. The rights accruing to a Shareholder under this Section 4.4
shall not exclude any other right to which such
Shareholder may be lawfully entitled, nor shall anything contained herein
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 V
SHARES OF BENEFICIAL INTEREST
Section V.1. BENEFICIAL INTEREST. The interest of the beneficiaries
hereunder shall be divided into transferable shares of beneficial interest
("Shares"), without par value. 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 number of Shares authorized
hereunder is unlimited. All Shares issued hereunder, including without
limitation Shares issued in connection with a dividend in Shares or a split in
Shares, shall be fully paid and nonassessable. No Shares shall have any
approval, conversion or preemptive rights. The Trustees shall have full power
and authority, without Shareholder approval, to establish or change from time to
time the par value of Shares as the Trustees shall determine, provided the
rights of outstanding Shares shall not thereby be impaired in any material way.
The Trustees may hold as treasury Shares (of the same or some other Series),
reissue for such consideration and on such terms as they may determine, or
cancel any Shares of any series repurchased or redeemed by the Trust at their
discretion from time to time.
Section V.2. ADDITIONAL SERIES; CLASSES. The Trustees may, without
Shareholder approval, from time to time authorize multiple Series with separate
investment objectives and policies and distinct investment purposes and one or
more separate classes of any Series. 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 of the Trust, to
establish and designate and to change in any manner any such Series, or any
classes thereof, to fix such preferences, voting powers, rights and privileges
of such Series, or classes thereof, as the Trustees may from time to time
determine, to classify or reclassify any issued
Shares of any Series, or classes thereof, into one or more Series or classes,
and to take such other action with respect to the Shares as the Trustees may
deem desirable. Prior to the first classification of unissued Shares into
additional Series, all outstanding Shares shall be of a single Series, and
prior to the first classification of a Series into additional classes, all
outstanding Shares of such Series shall be of a single class. Notwithstanding
any other provision of this Declaration of Trust, upon the first
classification of unissued Shares into additional Series, the Trustees shall
specify a legal name for the outstanding Series, as well as for the new
Series, and upon the first classification of a Series into additional
classes, the Trustees shall specify a legal name for the outstanding class,
as well as for the new class or classes. The establishment and designation of
any Series additional to the initial Series of Shares or the establishment
and designation of any class of a Series additional to the initial class
shall be effective upon the execution by a majority of the Trustees of an
instrument setting forth the establishment and designation of such Series or
classes thereof (which instrument shall have the status of an amendment to
this Declaration). All Shares of any Series or any classes thereof shall have
equal voting, distribution, redemption, liquidation and other rights and
shall be entitled to a preference over Shares of other Series or any classes
thereof with respect to the assets of or allocated (pursuant to subsection
V.4.1) to such Series or any classes thereof. Notwithstanding the foregoing,
the Trustees may establish variations between different Series, and classes
of any Series, as to purchase price, determination of net asset value, the
price, terms and manner of redemption and special and relative rights as to
dividends on liquidation, conditions under which the several Series (and
classes of any Series) shall have separate voting rights and such other
matters as the Trustees may determine. The number of Shares of each Series
and each class that may be issued shall be unlimited.
Section V.3. INITIAL DESIGNATION OF CLASSES. Subject to the designation
of additional classes pursuant to Section 5.2, the Shares of the initial Series
shall constitute five classes, hereby designated as Class A Shares, Class B
Shares, Class C Shares, Class P Shares, and Class Y Shares of the initial Series
of the Trust.
Section V.4. SERIES ASSETS, LIABILITIES AND EXPENSES.
Section V.4.1. SERIES ASSETS. 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,
loan, 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 belong to that Series for all purposes, subject only to the rights
of creditors, and shall be so recorded upon the books of account of the Trust.
In the event that there are any assets, income, earnings, profits, and proceeds
thereof, funds, or payments which are not readily identifiable as belonging to
any particular Series, the Trustees shall allocate them among any one or more of
the Series established and designated from time to time in such manner and on
such basis as they, in their sole discretion, deem fair and equitable. 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 by the Trustees for each such series and the assets associated with
any such series shall be held and accounted for separately from the other assets
of the Trust, or any other series thereof.
Section V.4.2. SERIES LIABILITIES AND EXPENSES. The assets belonging
to each particular Series shall be charged with the liabilities of the Trust
in respect of that Series and all expenses, costs, charges and reserves
attributable to that Series, and 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 to and 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. Each such allocation by the Trustees shall be conclusive and
binding upon the Shareholders of all Series for all purposes. Without
limitation of the foregoing, the liabilities existing with respect to a
particular Series shall be enforceable against the assets of such Series only
and not against the assets of the Trust generally. Any person extending
credit to, contracting with or otherwise having any claim against any Series
may look only to the assets of that Series to satisfy any such obligation or
claim. No Shareholder or former Shareholder of any Series shall have any
claim on or any right to any assets allocated to or belonging to any other
Series. Notice of this limitation on Series liabilities may, in the Trustees'
sole discretion, 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
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.
Section V.4.3. TERMINATION OF A SERIES. Any Series may be terminated by
the affirmative vote of at least a majority of the Shares of such Series
outstanding or, when authorized by a Series Majority Shareholder Vote, by an
instrument in writing signed by a majority of the Trustees. Upon the termination
of a Series, the Series shall carry on no business except for the purpose of
winding up its affairs, and the Trustees shall proceed to
wind up the affairs of the Series, having with respect to such Series all
powers contemplated by Section VIII.1 of this Declaration in the event of the
termination of the Trust.
At any time that there are no Shares outstanding of any particular
Series previously established, the Trustees may, by an instrument executed by a
majority of their number, abolish the Series.
Section V.5. RIGHTS OF SHAREHOLDERS. Shares shall be deemed to be
personal property giving only the rights provided in this Declaration. Every
Shareholder by virtue of having become a Shareholder shall be held to have
expressly assented and agreed to the terms hereof and to have become a party
hereto. The right to conduct any business hereinbefore described are vested
exclusively in the Trustees, and the Shareholders shall have no interest therein
other than the beneficial interest conferred by their Shares, and they shall
have no right to call for any partition or division of any property, profits,
rights or interests of the Trust or any Series thereof nor can they be called
upon to share or assume any losses of the Trust or any Series thereof or suffer
an assessment of any kind by virtue of their ownership of Shares. The death of a
Shareholder during the continuance of the Trust shall not operate to terminate
the Trust or any Series thereof nor to entitle the legal representative of such
shareholder to an accounting or to take any action in any court or otherwise
against other Shareholders or the Trustees or the Trust Property, but only to
the rights of such Shareholder hereunder. The Shares shall not entitle the
holder to preference, preemptive, appraisal, conversion or exchange rights.
Section V.6. TRUST ONLY. The Trust shall be a Delaware business
trust organized under the Delaware Act. It is the intention of the Trustees
to create only the relationship of Trustee and beneficiary between the
Trustees and each Shareholder from time to time. 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 trust. Nothing in this Declaration shall be construed to make
the Shareholders, either by themselves or with the Trustees, partners or
members of a joint stock association.
Section V.7. ISSUANCE OF SHARES.
Section V.7.1. GENERAL. The Trustees may from time to time without vote
of the Shareholders issue and sell or cause to be issued and sold Shares of any
Series, except that only Shares previously contracted to be sold may be issued
during any period when the right of redemption is suspended pursuant to the
provisions of Section VI.6 hereof. All such Shares, when issued in accordance
with the terms of this Section V.7, shall be fully paid and nonassessable.
Section V.7.2. PRICE. No Shares of any Series shall be issued or sold
by the Trustees for less than an amount which would result in proceeds to the
Trust, before taxes and other expenses payable by the Trust in connection with
such transaction, of at least the net asset value per share of Shares of such
Series determined as set forth in Article VII hereof as of the time specified in
the prospectus of the Trust at the time in effect.
Section V.7.3. ON MERGER OR CONSOLIDATION. In connection with the
acquisition of assets (including the acquisition of assets subject to, and in
connection with the assumption of, liabilities), businesses or stock of another
Person, the Trustees may issue or cause to be issued Shares of any Series and
accept in payment therefor, in lieu of cash, such assets or businesses at their
market value (as determined by the Trustees) or such stock at the market value
(as determined by the Trustees) of the assets held by such other Person, either
with or without adjustment for contingent costs or liabilities, PROVIDED that
the funds of the Trust are permitted by law to be invested in such assets,
businesses or stock.
Section V.7.4. FRACTIONAL SHARES. The Trustees may issue and sell
fractions of Shares of any Series, to three decimal places, having pro rata all
the rights of full Shares of such Series, including, without limitation, the
right to vote and to receive dividends and distributions.
Section V.8. REGISTER OF SHARES. A register shall be kept at the
principal office of the Trust or an office of the transfer agent of the Trust
which shall contain the names and addresses of the Shareholders of each Series,
the number of Shares of each such Series held by them respectively, a record of
all transfers thereof and any other information required by the Code, United
States Treasury Regulations or any other taxing authority with respect to
regulated investment companies. Such register shall be conclusive as to who are
the holders of the Shares and who shall be entitled to receive dividends or
distributions or otherwise to exercise or enjoy the rights of Shareholders of
each Series. No Shareholder shall be entitled to receive payment of any dividend
or 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.
Section V.9. SHARE CERTIFICATES. No certificates certifying ownership
of Shares shall be issued except as the Trustees may otherwise determine from
time to time.
Section V.10. TRANSFER OF SHARES. Shares of any Series shall be
transferable on the records of the Trust upon delivery to the Trust or its
transfer agent or agents of appropriate evidence of assignment, transfer,
succession or authority to transfer accompanied by any certificate or
certificates representing such Shares previously issued to the transferor. Upon
such delivery the transfer shall be recorded on the register of the appropriate
Series. Until such record is made, the Trustees, the transfer agent, and the
officers, employees and agents of the Trust or any Series shall not be entitled
or required to treat the assignee or transferee
of any Share as the absolute owner thereof for any purpose, and accordingly
shall not be bound to recognize any legal, equitable or other claim or
interest in such Share on the part of any Person, other than the holder of
record, whether or not any of them shall have express or other notice of such
claim or interest.
Section V.11. VOTING POWERS. The Shareholders shall have power to vote
only: (A) for the election of Trustees as provided in Section II.4 hereof; (B)
with respect to any investment advisory or management contract entered into
pursuant to Section III.2 hereof; (C) with respect to the removal of Trustees
pursuant to Section V.16 hereof; (D) with respect to any termination of the
Trust, as provided in Section VIII.1 hereof; (E) with respect to any amendment
of this Declaration to the extent and as provided in Section VIII.2 hereof; and
(F) with respect to such additional matters relating to the Trust as may be
required by this Declaration or the By-Laws or by reason of the registration of
the Trust or the Shares with the Commission or any State or by any applicable
law or any regulation or order of the Commission or any State or as the Trustees
may consider necessary or desirable. On any matter submitted to a vote of
Shareholders, all Shares issued and outstanding shall, subject to applicable
law, be voted as a single class in the aggregate and not by Series, except with
respect to: (i) any matter determined by the Trustees to affect the Shareholders
of any particular Series in a material respect different from the Shareholders
of other Series; and (ii) such matters as may be otherwise required by this
Declaration or by the By-Laws or by reason of the registration of the Trust or
the Shares of such Series with the Commission or any State or by any applicable
law (including the 0000 Xxx) or any regulation or order of the Commission or any
State or as the Trustees may consider necessary or desirable. With respect to
such matters, the Shareholders of each affected Series shall have the power to
vote as a separate Series or as a class of separate Series, as determined by the
Trustees, and, if so
determined by the Trustees, the other shareholders shall not be entitled to
vote. Each whole Share shall be entitled to one vote as to any matter on
which Shareholders are 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. Until Shares are issued, the Trustees may exercise all rights of
Shareholders (including, without limitation, the right to amend this
Declaration) and may take any action required by law, the By-Laws or this
Declaration to be taken by Shareholders. The By-Laws may include further
provisions for Shareholders' votes and related matters.
Section V.12. MEETINGS OF SHAREHOLDERS. Meetings of the Shareholders
may be called at any time by the Chairman of the Board, the President or any
Vice President of the Trust, or by a majority of the Trustees for the purpose of
taking action upon any matter requiring the vote or authority of the
Shareholders as herein provided or upon any other matters deemed to be necessary
or desirable. Without limiting the provisions of Section V.14 hereof, a special
meeting of Shareholders may also be called at any time upon the written request
of a holder or the holders of not less than 25% of all of the Shares entitled to
be voted at such meeting, PROVIDED that the Shareholder or Shareholders
requesting such meeting shall have paid to the Trust the reasonably estimated
cost of preparing and mailing the notice thereof, which the Secretary shall
determine and specify to such Shareholder or Shareholders.
Section V.13. ACTION WITHOUT A MEETING. Any action which may be taken
by Shareholders may be taken without a meeting if such proportion of
Shareholders as is required to vote for approval of the matter by law, this
Declaration or the By-Laws consents to the action in writing and the written
consents are filed with the records of Shareholders'
meetings. Such consents shall be treated for all purposes as a vote taken at
a Shareholders' meeting.
Section V.14. QUORUM AND REQUIRED VOTE. One-third (33 1/3%) of the
outstanding Shares shall be a quorum for the transaction of business at a
Shareholders' meeting, except that where any provision of law or this
Declaration permits or requires that holders of any series or class shall vote
as a series or class, then one-third percent (33 1/3%) of the aggregate number
of Shares of that series or class entitled to vote shall be necessary to
constitute a quorum for the transaction of business by that series or class. Any
lesser number, however, shall be sufficient for adjournment and any adjourned
session or sessions may be held within 90 days after the date set for the
original meeting without the necessity of further notice. Except when a larger
vote is required by any provision of this Declaration of Trust or the By-Laws of
the Trust and subject to any applicable requirements of law, a majority of the
Shares voted shall decide any question, PROVIDED that where any provision of law
or of this Declaration of Trust permits or requires that the holders of any
series or class shall vote as a series or 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.
Section V.15. ADDITIONAL PROVISIONS. The By-Laws may include further
provisions for Shareholders' votes and meetings and related matters.
Section V.16. REMOVAL OF TRUSTEES BY SHAREHOLDERS. No Trustee shall
serve as trustee of the Trust after the holders of record of not less than
two-thirds of the outstanding Shares of the Trust have declared that such
Trustee be removed from office either by a declaration in writing filed with the
Secretary of the Trust or by votes cast in person or by proxy at a meeting
called for such purpose. Notwithstanding the provisions of Section V.12 hereof,
the Trustees shall comply at all times with the provisions of the 1940 Act,
including
without limitation Section 16(c) thereof or any successor section,
pertaining to the removal of Trustees by Shareholders.
Section V.17. DERIVATIVE SUITS. No action may be brought by a
Shareholder on behalf of the Trust or a Series unless (i) the Shareholders have
requested the Trustees to take such action and the Trustees have failed or
refused to do so for a period of 60 days and (ii) Shareholders owning not less
than fifty percent (50%) of the then outstanding Shares of the Trust or such
Series join in the bringing of such action.
ARTICLE VI
REDEMPTION AND REPURCHASE OF SHARES
Section VI.1. REDEMPTION OF SHARES. The Trustees shall redeem Shares of
any Series, subject to the conditions and at the price determined in accordance
with this Declaration, upon proper application of the record holder thereof at
such office or agency as may be designated from time to time for that purpose by
the Trustees. The Trustees shall have power to determine from time to time the
form and the other accompanying documents which shall be necessary to constitute
a proper application for redemption.
Section VI.2. PRICE. Shares shall be redeemed for an amount equal to
the net asset value of such Shares next determined pursuant to Article VII
hereof after receipt of a proper application for redemption, less a charge, if
and as fixed by resolution of the Board of Trustees from time to time.
Section VI.3. PAYMENT. Payment for such Shares redeemed shall be made
to the Shareholder of record within 7 days after the date upon which proper
application is received, subject to the Trustees or their designated agent being
satisfied that the purchase price of such Shares has been collected and to the
provisions of Section VI.4 hereof. Such payment shall be made in cash or other
assets of the Trust or both, as the Trustees shall prescribe. For the purposes
of such payment for Shares redeemed, the value of assets delivered shall be
determined as set forth in Article VII hereof as of the same time as of which
the per share net asset value of such Shares is determined.
Section VI.4. EFFECT OF SUSPENSION OF RIGHT OF REDEMPTION. If, pursuant
to Section VI.6 hereof, the Trustees shall declare a suspension of the right of
redemption, the rights of Shareholders (including those who shall have applied
for redemption pursuant to Section 6.1 hereof but who shall not yet have
received payment) to have Shares redeemed and paid for
by the Trust shall be suspended until the time specified in Section VI.6. Any
record holder who shall have his redemption right so suspended may, during
the period of such suspension, by appropriate written notice of revocation at
the office or agency where application was made, revoke any application for
redemption not honored. The redemption price of Shares for which redemption
applications have not been revoked shall not exceed the net asset value of
such Shares next determined as set forth in Article VII hereof after the
termination of such suspension, and payment shall be made within 7 days after
the date upon which the application was made plus the period after such
application during which the determination of net asset value was suspended.
Section VI.5. REPURCHASE BY AGREEMENT. The Trust may repurchase Shares
directly, or through the Distributor or another agent designated for the
purpose, by agreement with the owner thereof, or an agent designated by such
owner, at a price not exceeding the net asset value per share determined as set
forth in Article VII hereof as of the time specified in the prospectus of the
Trust at the time in effect.
Section VI.6. SUSPENSION OF RIGHT OF REDEMPTION. The Trustees may
declare a suspension of the right of redemption or postpone the date of payment
or redemption as permitted by the 1940 Act and regulations and orders from time
to time in effect thereunder. Such suspension shall take effect at such time as
the Trustees shall specify, which shall not be later than the close of business
on the business day next following the declaration, and thereafter there shall
be no determination of net asset value until the Trustees shall declare the
suspension at an end, except that the suspension shall terminate in any event on
the first day on which (i) the condition giving rise to the suspension shall
have ceased to exist and (ii) no other condition exists under which suspension
is authorized under this Section 6.6. Each declaration by the Trustees pursuant
to this shall be consistent with such applicable rules and
regulations, if any, relating to the subject matter thereof as shall have
been promulgated by the Commission or any other governmental body having
jurisdiction over the Trust and as shall be in effect at the time. To the
extent not inconsistent with such rules and regulations, the determination of
the Trustees shall be conclusive.
Section VI.7. INVOLUNTARY REDEMPTION OF SHARES; DISCLOSURE OF HOLDING.
(a) If the Trustees shall, at any time and in good faith, be of the opinion that
direct or indirect ownership of Shares or other securities of the Trust or any
Series thereof has or may become concentrated in any Person to an extent which
would disqualify the Trust or any Series thereof as a regulated investment
company under the Code or would cause the Trust or any Series thereof to be
treated as a personal holding company under the Code, then the Trustees shall
have the power by lot or other means deemed equitable by them
(i) to call for redemption a number, or principal amount, of
Shares sufficient in the opinion of the Trustees to (A) maintain or
bring the direct or indirect ownership of Shares into conformity with
the requirements for such qualification or (B) avoid or to continue to
avoid the treatment of the Trust or any Series thereof as a personal
holding company under the Code, and
(ii) to refuse to transfer or issue Shares to any Person whose
acquisition of the Shares in question would in the opinion of the
Trustees result in such disqualification or treatment.
Any redemption pursuant to this Section VI.7(a) shall be
effected at a redemption price determined in accordance with Section VI.2
hereof.
(b) The holders of Shares of the Trust or any Series thereof
shall, upon request, disclose to the Trustees in writing such information with
respect to direct and indirect ownership of Shares of the Trust or any Series
thereof as the Trustees deem
necessary to comply with the provisions of the Code, United States Treasury
Regulations, or with the requirements of any other taxing authority.
(c) The Trustees shall have the power to redeem Shares of any
series in any Shareholder's account at a redemption price determined in
accordance with Section VI.2 hereof if at any time the total number of Shares of
such Series held in such account is fewer than an established minimum selected
by the Trustees, in which event the Shareholder shall be notified that the
number of Shares in the account is fewer than the minimum and shall be allowed a
period, fixed by the Trustees, in which to avoid such redemption by increasing
the account to at least the established minimum.
ARTICLE VII
DETERMINATION OF NET ASSET VALUE; DISTRIBUTIONS
Section VII.1. BY WHOM DETERMINED. The Trustees shall have the power
and duty to determine from time to time the net asset value per share of the
Shares of each Series. They may appoint one or more Persons to assist them in
the determination of the value of securities in the portfolio of each Series and
to make the actual calculations pursuant to their directions. Any determination
made pursuant to this Article VII shall be binding on all parties concerned.
Section VII.2. WHEN DETERMINED. The net asset value shall be determined
at such times as the Trustees shall prescribe in accordance with the applicable
provisions of the 1940 Act and regulations and orders from time to time in
effect thereunder. The Trustees may suspend the daily determination of net asset
value to the extent permitted by the 1940 Act or the regulations and orders from
time to time in effect thereunder.
Section VII.3. COMPUTATION OF PER SHARE NET ASSET VALUE.
Section VII.3.1. NET ASSET VALUE PER SHARE. The net asset value of each
Share of each Series as of any particular time shall be the quotient obtained by
dividing the value of the net assets of such Series (determined in accordance
with Section VII.3.2.) by the total number of outstanding Shares of that Series.
If any Series is divided into classes, the net asset value of Shares of
each class of such Series may be otherwise determined in any manner, to the
extent permitted by applicable law, determined by the Trustees and disclosed in
a prospectus relating to such class.
Section VII.3.2. VALUE OF THE NET ASSETS OF A SERIES. The value of the
net assets of any Series as of any particular time shall be the value of that
Series' assets less its liabilities, determined and computed as follows:
(1) ASSETS. The assets of any Series shall be deemed to
include the following assets relating to that Series: (A) all cash on
hand or on deposit, including any interest accrued thereon, (B) all
bills and demand notes and accounts receivable, (C) all securities
owned or contracted for by the Trustees, (D) all stock and cash
dividends and cash distributions payable to but not yet received by the
Trustees (when the valuation of the underlying security is being
determined ex-dividend), (E) all interest accrued on any
interest-bearing securities owned by the Trustees (except accrued
interest included in the valuation of the underlying security) and (F)
all other property of every kind and nature, including prepaid
expenses, but not any insurance policy of the kind referred to in
Section II.1 (1) (ii) until such time as any amount payable thereunder
becomes due and payable to the Trust.
(2) VALUATION OF ASSETS. Determination of the value of such
assets shall be made, with respect to securities for which market
quotations are readily available,
at the market value of such securities; and with respect to other
securities and assets, at the fair value as determined in good faith
by the Trustees.
(3) LIABILITIES. The liabilities of any Series shall not be
deemed to include any Shares of that Series and surplus, but they shall
be deemed to include the following liabilities relating to that Series:
(A) all bills and accounts payable, (B) all administrative expenses
accrued and unpaid, (C) all contractual obligations for the payment of
money or property, including the amount of any declared but unpaid
dividends upon Shares of that Series and the amount of all income
accrued to the account of but not paid to Shareholders of that Series,
(D) all reserves established in accordance with generally accepted
accounting principles, for taxes or contingencies and (E) all other
liabilities of whatsoever kind and nature except any liabilities
represented by Shares of that Series and surplus.
The Board of Trustees is empowered, in its discretion, to establish other
methods for determining net asset value whenever such other methods are deemed
by it to be necessary or desirable, including, but without limiting the
generality of the foregoing, any method deemed necessary or desirable in order
to enable the Trust to comply with any provision of the 1940 Act or any rule or
regulation thereunder.
Section VII.4. INTERIM DETERMINATIONS. Any determination of net asset
value other than as of the close of trading on the New York Stock Exchange may
be made either by appraisal or by calculation or estimate. Any such calculation
or estimate shall be based on changes in the market value of representative or
selected securities or on changes in recognized market averages since the last
closing appraisal and made in a manner which in the opinion of the Trustees will
fairly reflect the changes in the net asset value.
Section VII.5. OUTSTANDING SHARES. For the purposes of this Article
VII, outstanding Shares of any Series shall mean those Shares shown from time to
time on the books of such Series or the transfer agent of the Trust as then
issued and outstanding, adjusted as follows:
(a) Shares sold shall be deemed to be outstanding Shares from
the time as of which the Trust has agreed to such sale and the sale
price in currency has been determined.
(b) Shares distributed pursuant to Section VII.6 shall be
deemed to be outstanding as of the time that Shareholders who shall
receive the distribution are determined.
(c) Shares for which a proper application for redemption has
been made or which are subject to repurchase by the Trustees shall be
deemed to be outstanding Shares up to and including the time as of
which the redemption or repurchase price is determined. After such
time, they shall be deemed to be no longer outstanding Shares and the
redemption or repurchase price until paid shall be deemed to be a
liability of the Trust.
Section VII.6. DISTRIBUTIONS TO SHAREHOLDERS. Without limiting the
powers of the Trustees under Subsection (f) of Section II.1 of Article II
hereof, the Trustees may at any time and from time to time, as they may
determine, allocate or distribute to Shareholders of a Series such income and
capital gains of the Series, accrued or realized, as the Trustees may determine,
after providing for actual, accrued or estimated expenses and liabilities
(including reserves) determined in accordance with generally accepted accounting
practices. The Trustees shall have full discretion to determine which items
shall be treated as income and which items as capital and their determination
shall be binding upon the Shareholders. Such distributions shall be made in
cash, property or Shares of the appropriate Series or any
combination thereof as determined by the Trustees. Any such distribution paid
in Shares shall be paid at the net asset value thereof as determined pursuant
to this Article VII. 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. Inasmuch as the computation of net
income and gains for Federal income and excise tax purposes may vary from the
computation thereof on the books of the Trust, the above provisions shall be
interpreted to give the Trustees the power in their discretion to allocate or
distribute for any fiscal year as ordinary dividends and as capital gains
distributions, respectively, additional amounts sufficient to enable the
Trust to avoid or reduce liability for taxes after amended or modified.
ARTICLE VIII
DURATION; DISSOLUTION AND TERMINATION
OF TRUST; AMENDMENT; MERGERS, ETC.
Section VIII.1. DURATION AND TERMINATION. (a) Unless dissolved and
terminated as provided herein, the Trust shall continue without limitation of
time. The Trust may be dissolved and terminated by the affirmative vote of at
least a majority of the Shares outstanding or by the Trustees. Upon the
termination of the Trust,
(i) The Trust shall carry on no business except for the
purpose of winding up its affairs.
(ii) The Trustees shall proceed to wind up the affairs of the
Trust and all of the powers of the Trustees under this Declaration
shall continue until the affairs of the Trust shall have been wound up,
including the power to fulfill or discharge the contracts of the Trust,
collect its assets, sell, convey, assign, exchange, transfer or
otherwise dispose of all or any part of the remaining Trust Property to
one or more
persons at public or private sale for consideration which
may consist in whole or in part of cash, securities or other property
of any kind, discharge or pay its liabilities, and do all other acts
appropriate to liquidate its business, PROVIDED that any sale,
conveyance, assignment, exchange, transfer or other disposition of all
or substantially all the Trust Property that requires Shareholder
approval under Section 8.3 hereof shall receive the approval so
required.
(iii) After paying or adequately providing for the payment of
all liabilities, and upon receipt of such releases, indemnities and
refunding agreements as they deem necessary for their protection, the
Trustees may distribute the remaining Trust Property, in cash or in
kind or partly each, among the Shareholders according to their
respective rights.
(b) After termination of the Trust and distribution to the
Shareholders as herein provided, the Trustees shall provide for the making of
all filings and applications required by law, and shall execute and lodge among
the records of the Trust an instrument in writing setting forth the fact of such
termination. Thereupon, the Trustees shall be discharged from all further
liabilities and duties hereunder, and the rights and interests of all
Shareholders shall thereupon cease.
Section VIII.2. AMENDMENT PROCEDURE. (a) Except as specifically
provided herein, the Trustees may, without Shareholder vote, amend this
Declaration by an instrument in writing or an amended and restated Declaration
signed by a majority of the Trustees. Such an amendment shall be authorized by a
Majority Shareholder Vote, or subject to the provisions of Section V.11, a
Series Majority Shareholder Vote, if it would limit the right of Shareholders to
vote under Section V.11 or amend this Section VIII.2 or if Shareholder
authorization is required by the 1940 Act. Notwithstanding anything else herein,
no
amendment to this Declaration shall (i) limit the rights of indemnification
provided in Article IV hereof with respect to actions or omissions of Persons
covered thereby prior to such amendment, (II) impair the exemption from personal
liability of the Shareholders, Trustees, officers, employees and agents of the
Trust or any Series thereof or (ii) permit assessments upon Shareholders.
(b) An instrument in writing setting forth the amendment or an
amended and restated Declaration, executed by a majority of the Trustees, shall
be conclusive evidence of such amendment when lodged among the records of the
Trust. Subject to the foregoing, any such amendment shall be effective as
provided in the instrument containing the terms of such amendment or, if there
is no provision therein with respect to effectiveness, upon the execution of
such instrument by a majority of the Trustees (or by an officer of the Trust
pursuant to a vote of a majority of the Trustees).
Section VIII.3. MERGER, CONSOLIDATION AND SALE OF ASSETS.
Notwithstanding anything else contained herein, the Trustees may, without prior
Shareholder approval, cause the Trust or any successor thereto to merge or
consolidate with or into, or sell and convey all or substantially all of the
assets of the Trust or any Series to one or more trusts, partnerships,
associations or corporations so long as the surviving or resulting or transferee
entity is an open-end management investment company under the 1940 Act, or is a
series thereof, that will succeed to or assume that Trust's registration under
the Act and which is formed, organized or existing under the laws of a state,
commonwealth possession or colony of the United States. Any agreement of merger
or consolidation or certificate of merger may be signed by a majority of
Trustees. 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, an agreement of merger or consolidation approved by the
Trustees in
accordance with this Section VIII.3 may effect any amendment to the
Declaration 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.
Section VIII.4. INCORPORATION. Notwithstanding anything else contained
herein, the Trustees may, without prior Shareholder approval, (i) cause to be
organized or assist in organizing under the laws of any jurisdiction a
corporation or corporations or any other trust, partnership, association or
other organization to take over all or less than all of the Trust Property or to
carry on any business in which the Trust shall directly or indirectly have any
interest, and may sell, convey and transfer Trust Property to any such
corporation, trust, partnership, association or other organization in exchange
for the shares or securities thereof or otherwise, and may lend money to,
subscribe for the shares or securities of, and enter into any contracts with any
such corporation, trust, partnership, association or other organization, or any
corporation, partnership, trust, association or other organization in which the
Trust holds or is about to acquire shares or any other interest or (ii) cause
the Trust to incorporate under the laws of Delaware.
ARTICLE IX
MISCELLANEOUS
Section IX.1. REGISTERED AGENT; REGISTERED OFFICE. The Registered Agent
of the Trust within the State of Delaware for service of process, and the
Registered Office of the Trust within the State of Delaware, shall be
Corporation Service Company, 0000 Xxxxxxxxxxx Xxxx, Xxxxx 000, Xxxxxxxxxx,
Xxxxxxxx 00000, or such other agent or place, respectively, as the Trustees may
designate from time to time by any supplement to this Declaration of Trust.
Section IX.2. GOVERNING LAW. The Trust and this Declaration, and the
rights and obligations of the Trustees and Shareholders hereunder, are to be
governed by and construed and administered according to the Delaware Act and the
laws of the State of Delaware; provided, however, that there shall not be
applicable to the Trust, the Trustees or this Declaration (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 Delaware 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 Declaration. 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 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.
Section IX.3. COUNTERPARTS. This Declaration may be simultaneously
executed in several counterparts, each of which shall be deemed to be an
original, and such counterparts, together, shall constitute one and the same
instrument, which shall be sufficiently evidenced by any such original
counterpart.
Section IX.4. RELIANCE BY THIRD PARTIES. Any certificate executed by an
officer of the Trust or a Trustee certifying to: (a) the number or identity of
Trustees or Shareholders, (b) the due authorization of the execution of any
instrument or writing, (c) the form of any vote passed at a meeting of Trustees
or Shareholders, (d) the fact that the number of Trustees or Shareholders
present at any meeting or executing any written instrument satisfies the
requirements of this Declaration, (e) the form of any By-Laws adopted by or the
identity of any officers elected by the Trustees or (f) the existence of any
fact or facts which in any manner relate to the affairs of the Trust or any
Series thereof, shall be conclusive evidence as to the matters so certified in
favor of any Person dealing with the Trustees and their successors.
Section IX.5. PROVISIONS IN CONFLICT WITH LAW OR REGULATIONS. (a) The
provisions of this Declaration are severable, and if the Trustees shall
determine, with the advice of counsel, that any of such provisions is in
conflict with requirements of the 1940 Act, would be inconsistent with any of
the conditions necessary for qualification of the Trust as a regulated
investment company under the Code or is inconsistent with other applicable laws
and regulations, such provision shall be deemed never to have constituted a part
of this Declaration, PROVIDED that such determination shall not affect any of
the remaining provisions of this Declaration or render invalid or improper any
action taken or omitted prior to such determination.
(b) If any provision of this Declaration 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 in any jurisdiction.
Section IX.6. USE OF NAME. The Trust is adopting its name through
permission of the firm of Lord, Xxxxxx & Co., which is entering into a
management or advisory contract with the Trust. Such contract shall make
appropriate provisions that upon the termination of such contract for any cause,
or if such firm, or a subsidiary, affiliate or successor thereof, deems it
advisable to withdraw the right to the use of its name, the Trust will, at the
request of such firm, or of a subsidiary, affiliate or successor thereof
lawfully using the name, take such action as may be necessary to change its name
to eliminate all use of or reference to the words "Lord Xxxxxx" in any form and
will not use the registered service xxxx of Lord, Xxxxxx & Co. without the
written consent of such firm, subsidiary, affiliate or successor. The Trust
shall also agree in such contract that investment companies other than the Trust
for which such firm or a subsidiary or successor thereof may act as investment
adviser, and other companies affiliated with Lord, Xxxxxx & Co., may be formed
with the words "Lord Xxxxxx" in their corporate titles. Such agreements on the
part of the Trust are hereby made binding upon it, its Trustees, officers,
shareholders, creditors and all other persons claiming under or through it.
Section IX.7. SECTION HEADINGS; INTERPRETATION. Section headings in
this Declaration are for convenience of reference only, and shall not limit or
otherwise affect the meaning hereof. References in this Declaration to "this
Declaration" shall be deemed to refer to this Declaration as from time to time
amended, and all expressions such as "hereof", "herein" and
"hereunder" shall be deemed to refer to this Declaration as from time to
time amended and not exclusively to the article or section in which such
words appear.
IN WITNESS WHEREOF, the undersigned have executed this instrument this
XX day of May , 2001.
/s/
--------------------------
Trustee
/s/
--------------------------
Trustee
STATE OF NEW JERSEY )
)
COUNTY OF XXXXXX ) JERSEY CITY, NEW JERSEY
On May , 2001 there personally appeared before me the above-named Xxxx
X. Xxxxxxx and Xxxxxxxxx X. Xxxxxxx who severally acknowledged the foregoing
instrument to be their free act and deed.
Before me
-------------------------
Xxxxxxxx X. XxXxxxxxxx
Notary Public
LORD XXXXXX BLEND TRUST
-----------------
DECLARATION AND AGREEMENT OF TRUST
May , 2001
-----------------
TABLE OF CONTENTS
ARTICLE I NAME AND DEFINITIONS..................................................1
Section I.1. Name..................................................................1
Section I.2. Definitions...........................................................2
Section I.3. Purposes..............................................................4
ARTICLE II TRUSTEES..............................................................6
Section II.1. Powers................................................................6
Section II.2. Legal Title..........................................................11
Section II.3. Number of Trustees; Term of Office...................................11
Section II.4. Election of Trustees.................................................12
Section II.5. Resignation and Removal..............................................12
Section II.6. Vacancies............................................................12
Section II.7. Committees; Delegation...............................................13
Section II.8. Quorum; Voting.......................................................14
Section II.9. Action Without a Meeting; Participation by Conference Telephone......14
Section II.10. By-Laws..............................................................14
Section II.11. No Bond Required.....................................................14
Section II.12. Reliance on Experts, Etc.............................................15
Section II.13. Standard of Care of Trustees.........................................15
ARTICLE III CONTRACTS............................................................15
Section III.1. Distribution Contract................................................15
Section III.2. Advisory or Management Contracts.....................................16
Section III.3. Affiliations of Trustees or Officers, Etc............................16
ARTICLE IV LIMITATION OF LIABILITY; INDEMNIFICATION.............................17
Section IV.1. No Personal Liability of Shareholders, Trustees, Etc.................17
Section IV.2. Execution of Documents; Notice; Apparent Authority...................18
Section IV.3. Indemnification of Trustees, Officers, Etc...........................18
Section IV.4. Indemnification of Shareholders......................................21
ARTICLE V SHARES OF BENEFICIAL INTEREST........................................21
Section V.1. Beneficial Interest..................................................21
Section V.2. Additional Series; Classes...........................................22
Section V.3. Initial Designation of Classes.......................................23
Section V.4. Series Assets, Liabilities and Expenses..............................23
Section V.4.1. Series Assets........................................................23
Section V.4.2. Series Liabilities and Expenses......................................24
Section V.4.3. Termination of a Series..............................................25
Section V.5. Rights of Shareholders...............................................25
Section V.6. Trust Only...........................................................26
Section V.7. Issuance of Shares...................................................26
Section V.7.1. General..............................................................26
Section V.7.2. Price................................................................26
Section V.7.3. On Merger or Consolidation...........................................27
i
Section V.7.4. Fractional Shares....................................................27
Section V.8. Register of Shares...................................................27
Section V.9. Share Certificates...................................................27
Section V.10. Transfer of Shares...................................................28
Section V.11. Voting Powers........................................................28
Section V.12. Meetings of Shareholders.............................................29
Section V.13. Action Without a Meeting.............................................30
Section V.14. Quorum and Required Vote.............................................30
Section V.15. Additional Provisions................................................30
Section V.16. Removal of Trustees by Shareholders..................................30
Section V.17. Derivative Suits.....................................................31
ARTICLE VI REDEMPTION AND REPURCHASE OF SHARES..................................31
Section VI.1. Redemption of Shares.................................................31
Section VI.2. Price................................................................31
Section VI.3. Payment..............................................................31
Section VI.4. Effect of Suspension of Right of Redemption..........................32
Section VI.5. Repurchase by Agreement..............................................32
Section VI.6. Suspension of Right of Redemption....................................33
Section VI.7. Involuntary Redemption of Shares; Disclosure of Holding..............33
ARTICLE VII DETERMINATION OF NET ASSET VALUE; DISTRIBUTIONS......................34
Section VII.1. By Whom Determined...................................................34
Section VII.2. When Determined......................................................35
Section VII.3. Computation of Per Share Net Asset Value.............................35
Section VII.3.1. Net Asset Value Per Share............................................35
Section VII.3.2. Value of the Net Assets of a Series..................................35
Section VII.4. Interim Determinations...............................................37
Section VII.5. Outstanding Shares...................................................37
Section VII.6. Distributions to Shareholders........................................37
ARTICLE VIII DURATION; DISSOLUTION AND TERMINATION OF TRUST;
AMENDMENT; MERGERS, ETC.................................................................38
Section VIII.1. Duration and Termination.............................................38
Section VIII.2. Amendment Procedure..................................................39
Section VIII.3. Merger, Consolidation and Sale of Assets.............................40
Section VIII.4. Incorporation........................................................41
ARTICLE IX MISCELLANEOUS............................................................41
Section IX.1. Registered Agent; Registered Office..................................41
Section IX.2. Governing Law........................................................42
Section IX.3. Counterparts.........................................................43
Section IX.4. Reliance by Third Parties............................................43
Section IX.5. Provisions in Conflict with Law or Regulations.......................43
Section IX.6. Use of Name..........................................................44
Section IX.7. Section Headings; Interpretation.....................................44
ii
