EXHIBIT 99(a)
XXXXXXXXX & XXXXX FUND TRUST
RESTATED AGREEMENT AND DECLARATION OF TRUST
JUNE 7, 1999, AS AMENDED SEPTEMBER 8, 1999
TABLE OF CONTENTS
Page
Article I NAME AND DEFINITIONS...........................................................1
Section 1. Name...........................................................................1
Section 2. Definitions....................................................................1
Article II THE TRUSTEES...................................................................3
Section 1. Management of the Trust........................................................3
Section 2. Powers.........................................................................3
Section 3. Certain Transactions...........................................................8
Section 4. Initial Trustee, Number of Trustees............................................8
Section 5. Term of Office of Trustees.....................................................8
Section 6. Vacancies; Appointment of Trustees.............................................8
Section 7. Ownership of Trust Property....................................................8
Section 8. Effect of Trustees Not Serving.................................................9
Section 9. Trustees, etc. as Shareholders.................................................9
Article III CONTRACTS WITH SERVICE PROVIDERS...............................................9
Section 1. Underwriting Contract..........................................................9
Section 2. Advisory or Management Contract...............................................10
Section 3. Administration Agreement......................................................10
Section 4. Service Agreement.............................................................10
Section 5. Transfer Agent................................................................10
Section 6. Custodian.....................................................................10
Section 7. Affiliations of Trustees or Officers, Etc.....................................11
Article IV COMPENSATION, LIMITATION OF LIABILITY AND INDEMNIFICATION.....................11
Section 1. Compensation..................................................................11
Section 2. Limitation of Liability.......................................................12
Section 3. Indemnification...............................................................12
Section 4. Indemnification of Shareholders...............................................13
Section 5. No Bond Required of Trustees..................................................13
Section 6. No Duty of Investigation; Notice in Trust Instruments, Etc....................14
Section 7. Reliance on Experts, etc......................................................14
Article V SERIES; CLASSES; SHARES.......................................................14
Section 1. Establishment of Series or Class..............................................14
Section 2. Shares........................................................................15
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TABLE OF CONTENTS
Page
Section 3. Investment in the Trust.......................................................16
Section 4. Assets and Liabilities of Series..............................................16
Section 5. Ownership and Transfer of Shares..............................................17
Section 6. Status of Shares; Limitation of Shareholder Liability.........................17
Article VI DISTRIBUTIONS AND REDEMPTIONS.................................................18
Section 1. Distributions.................................................................18
Section 2. Redemptions...................................................................19
Section 3. Determination of Net Asset Value..............................................19
Section 4. Suspension of Right of Redemption.............................................20
Section 5. Repurchase by Agreement.......................................................20
Article VII SHAREHOLDERS' VOTING POWERS AND MEETINGS......................................20
Section 1. Voting Powers.................................................................20
Section 2. Quorum; Required Vote.........................................................21
Section 3. Abstentions and Broker Non-Votes..............................................21
Section 4. Action Without Meeting........................................................21
Section 5. Record Dates..................................................................22
Section 6. Additional Provisions.........................................................22
Article VIII EXPENSES OF THE TRUST.........................................................22
Section 1. Payment of Expenses by the Trust..............................................22
Section 2. Payment of Expenses by Shareholders...........................................23
Article IX MISCELLANEOUS.................................................................23
Section 1. Trust Not a Partnership.......................................................23
Section 2. Trustee Action................................................................23
Section 3. Termination of the Trust......................................................23
Section 4. Reorganization................................................................24
Section 5. Declaration of Trust..........................................................25
Section 6. Applicable Law................................................................25
Section 7. Amendments....................................................................26
Section 8. Derivative Actions............................................................26
Section 9. Fiscal Year...................................................................27
Section 10. Severability..................................................................27
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XXXXXXXXX & XXXXX FUND TRUST
AGREEMENT AND
DECLARATION OF TRUST
This Restated AGREEMENT AND DECLARATION OF TRUST (this "Declaration") was
made on June 7, 1999 by the undersigned Trustee (together with all other
persons from time to time duly elected, qualified and serving as Trustees in
accordance with the provisions of Article II hereof, the "Trustees"), as
amended by the Trustees on September 8, 1999.
NOW, THEREFORE, the Trustees declare that all money and property
contributed to the Trust shall be held and managed in trust pursuant to this
Declaration.
ARTICLE I
NAME AND DEFINITIONS
Section 1. NAME. The name of the Trust created by this Declaration is
"Xxxxxxxxx & Xxxxx Fund Trust."
Section 2. DEFINITIONS. Unless otherwise provided or required by the
context:
(a) "ADMINISTRATOR" means the party, other than the Trust, to the
contract described in Article III, Section 3 hereof.
(b) "BY-LAWS" means the By-laws of the Trust adopted by the
Trustees, as amended from time to time, which By-laws are expressly herein
incorporated by reference as part of the "governing instrument" within the
meaning of the Delaware Act.
(c) "CLASS" means a class of Shares of a Series established pursuant
to Article V.
(d) "COMMISSION," "ELIGIBLE FOREIGN CUSTODIAN," "QUALIFIED FOREIGN
BANK" and "INTERESTED PERSON" have the meanings provided in the 1940 Act.
Except as such term may be otherwise defined by the Trustees in conjunction
with the establishment of any Series of Shares, the term "MAJORITY
SHAREHOLDER VOTE" shall have the same meaning as is assigned to the term
"VOTE OF A MAJORITY OF THE OUTSTANDING VOTING SECURITIES" in the 1940 Act.
(e) "COVERED PERSON" means a Person so defined in Article IV,
Section 3.
(f) "CUSTODIAN" means any Person other than the Trust who has
custody of any Trust Property as required by Section 17(f) of the 1940 Act,
but does not include a system for the central handling of securities
described in said Section 17(f).
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(g) "DECLARATION" shall mean this Declaration, as amended or
restated from time to time. Reference in this Declaration of Trust to
"Declaration," "hereof," "herein" and "hereunder" shall be deemed to refer to
this Declaration rather than exclusively to the article or section in which
such words appear.
(h) "DELAWARE ACT" means Chapter 38 of Title 12 of the Delaware Code
entitled "Treatment of Delaware Business Trusts," as amended from time to
time.
(i) "FUND COMPLEX" has the meaning provided in Schedule 14A under
the Securities Exchange Act of 1934, as amended.
(j) "DISTRIBUTOR" means the party, other than the Trust, to the
contract described in Article III, Section 1 hereof.
(k) "HIS" shall include the feminine and neuter, as well as the
masculine, genders.
(l) "INVESTMENT ADVISER" means the party, other than the Trust, to
the contract described in Article III, Section 2 hereof.
(m) "NET ASSET VALUE" means the net asset value of each Series or
Class of the Trust, determined as provided in Article VI, Section 3.
(n) "PERSON" means and includes individuals, corporations,
partnerships, trusts, associations, limited liability companies, joint
ventures, estates and other entities, and governments and agencies and
political subdivisions thereof, whether domestic or foreign.
(o) "SERIES" means a series of Shares established pursuant to
Article V.
(p) "SHAREHOLDER" means a record owner of Outstanding Shares.
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(q) "SHARES" means the equal proportionate transferable units of
interest into which the beneficial interest of each Series or Class is
divided from time to time (including whole Shares and fractions of Shares).
"Outstanding Shares" means Shares shown in the books of the Trust or its
Transfer Agent as then issued and outstanding, but does not include Shares
which have been repurchased or redeemed by the Trust.
(r) "TRANSFER AGENT" means any Person other than the Trust who
maintains the Shareholder records of the Trust, such as the list of
Shareholders, the number of Shares credited to each account, and the like.
(s) "TRUST" means Xxxxxxxxx & Xxxxx Fund Trust established hereby,
and reference to the Trust, when applicable to one or more Series, refers to
that Series.
(t) "TRUSTEES" means the persons who have signed this Declaration
and all other persons who may from time to time be duly qualified and serving
as Trustees in accordance with Article II, in all cases so long as they shall
continue in office in accordance with the terms hereof.
(u) "TRUST PROPERTY" means any and all property, real or personal,
tangible or intangible, which is owned or held by or for the Trust or any
Series or the Trustees on behalf of the Trust or any Series.
(v) "1940 ACT" means the Investment Company Act of 1940 and the
Rules and Regulations thereunder, all as amended from time to time.
ARTICLE II
THE TRUSTEES
Section 1. MANAGEMENT OF THE TRUST. The business and affairs of the Trust
shall be managed by or under the direction of the Trustees, and they shall
have all powers necessary or desirable to carry out that responsibility. The
Trustees may execute all instruments and take all action they deem necessary
or desirable to promote the interests of the Trust. Any determination made by
the Trustees in good faith as to what is in the interests of the Trust shall
be conclusive. In construing the provisions of this Declaration, the
presumption shall be in favor of a grant of power to the Trustees.
Section 2. POWERS. The Trustees in all instances shall act as principals,
free of the control of the Shareholders. The Trustees shall have full power
and authority to take or refrain from taking any action and to execute any
contracts and instruments that they may consider necessary or desirable in
the management of the Trust. The Trustees shall not in any way be bound or
limited by current or future laws or customs applicable to trust investments,
but shall have full power and authority to make any investments which they,
in their sole discretion, deem proper to accomplish the purposes of the
Trust. The Trustees may exercise all of their powers without recourse to any
court or other authority.
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Subject to any applicable limitation herein or in the By-laws or resolutions
of the Trust, the Trustees shall have power and authority, without limitation:
(a) To operate as and carry on the business of an investment
company, and exercise all the powers necessary and appropriate to the conduct
of such operations.
(b) To invest in, hold for investment, or reinvest in, cash;
securities, including common, preferred and preference stocks; warrants;
subscription rights; profit-sharing interests or participations and all other
contracts for or evidences of equity interests; bonds, debentures, bills,
time notes and all other evidences of indebtedness; negotiable or
non-negotiable instruments; government securities, including securities of
any state, municipality or other political subdivision thereof, or any
governmental or quasi-governmental agency or instrumentality; money market
instruments, including bank certificates of deposit, finance paper,
commercial paper, bankers' acceptances and all kinds of repurchase
agreements, of any corporation, company, trust, association, firm or other
business organization however established, and of any country, state,
municipality or other political subdivision, or any governmental or
quasi-governmental agency or instrumentality; or any other security, property
or instrument in which the Trust or any of its Series shall be authorized to
invest.
(c) To acquire (by purchase, subscription or otherwise), to hold, to
trade in and deal in, to acquire any rights or options to purchase or sell,
to sell or otherwise dispose of, to lend and to pledge any such securities;
to enter into repurchase agreements, reverse repurchase agreements, firm
commitment agreements and forward foreign currency exchange contracts; to
purchase and sell options on securities, securities indices, currency and
other financial assets, futures contracts, options on futures contracts,
swaps, collars, caps, floors and swaptions of all descriptions; and to engage
in all types of hedging and risk-management transactions.
(d) To exercise all rights, powers and privileges of ownership or
interest in all securities and repurchase agreements included in the Trust
Property, including the right to vote thereon 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 repurchase agreements.
(e) To acquire (by purchase, lease or otherwise) and to hold, use,
maintain, develop and dispose of (by sale or otherwise) any property, real or
personal, including cash or foreign currency, and any interest therein.
(f) To borrow money or other property in the name of the Trust
exclusively for Trust purposes and in this connection issue notes or other
evidences of indebtedness; to secure borrowings by mortgaging, pledging or
otherwise subjecting as security the Trust Property; and to endorse,
guarantee, or undertake the performance of any obligation or engagement of
any other Person and to lend Trust Property.
(g) To aid by further investment any corporation, company, trust,
association or firm, any obligation of or interest in which is included in
the Trust Property
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or in the affairs of which the Trustees have any direct or indirect interest;
to do all acts and things designed to protect, preserve, improve or enhance
the value of such obligation or interest; and to guarantee or become surety
on any or all of the contracts, stocks, bonds, notes, debentures and other
obligations of any such corporation, company, trust, association or firm.
(h) To adopt By-laws not inconsistent with this Declaration
providing for the conduct of the business of the Trust and to amend and
repeal them to the extent such right is not reserved to the Shareholders.
(i) To elect and remove such officers and appoint and terminate such
agents as they deem appropriate.
(j) To employ as Custodian of any assets of the Trust, subject to
any provisions herein or in the By-laws, one or more banks, trust companies
or companies that are members of a national securities exchange, or other
entities permitted by the Commission to serve as such.
(k) To retain one or more Transfer Agents and shareholder servicing
agents, or both.
(l) To provide for the distribution of Shares either through a
Distributor as provided herein or by the Trust itself, or both, or pursuant
to a distribution plan of any kind.
(m) To set record dates in the manner provided for herein or in the
By-laws.
(n) To delegate such authority as they consider desirable to any
officers of the Trust and to any agent, independent contractor, manager,
Administrator, Investment Adviser, Custodian or underwriter.
(o) To hold any security or other property (i) in a form not
indicating any trust, whether in bearer, book entry, unregistered or other
negotiable form, or (ii) either in the Trust's or Trustees' own name or in
the name of a custodian or a nominee or nominees, subject to safeguards
according to the usual practice of business trusts or investment companies.
(p) To establish separate and distinct Series with separately
defined investment objectives and policies and distinct investment purposes,
and with separate Shares representing beneficial interests in such Series,
and to establish separate Classes, all in accordance with the provisions of
Article V.
(q) To the full extent permitted by Section 3804 of the Delaware
Act, to allocate assets, liabilities and expenses of the Trust to a
particular Series and assets, liabilities and expenses to a particular Class
or to apportion the same between or among two or more Series or Classes,
provided that any liabilities or expenses incurred by a
5
particular Series or Class shall be payable solely out of the assets
belonging to that Series or Class as provided for in Article V, Section 4.
(r) To consent to or participate in any plan for the reorganization,
consolidation or merger of any corporation or concern whose securities are
held by the Trust; to consent to any contract, lease, mortgage, purchase, or
sale of property by such corporation or concern; and to pay calls or
subscriptions with respect to any security held in the Trust.
(s) 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.
(t) To make distributions of income, capital gains, returns of
capital (if any) and redemption proceeds to Shareholders in the manner
hereinafter provided for.
(u) To establish committees for such purposes, with such membership,
and with such responsibilities as the Trustees may consider proper, including
a committee consisting of fewer than all of the Trustees then in office,
which may act for and bind the Trustees and the Trust with respect to the
institution, prosecution, dismissal, settlement, review or investigation of
any legal action, suit or proceeding, pending or threatened.
(v) To issue, sell, repurchase, redeem, cancel, retire, acquire,
hold, resell, reissue, dispose of and otherwise deal in Shares; to establish
terms and conditions regarding the issuance, sale, repurchase, redemption,
cancellation, retirement, acquisition, holding, resale, reissuance,
disposition of or dealing in Shares; and, subject to Articles V and VI, to
apply to any such repurchase, redemption, retirement, cancellation or
acquisition of Shares any funds or property of the Trust or of the particular
Series with respect to which such Shares are issued.
(w) To invest part or all of the Trust Property (or part or all of
the assets of any Series), or to dispose of part or all of the Trust Property
(or part or all of the assets of any Series) and invest the proceeds of such
disposition, in securities issued by one or more other investment companies
registered under the 1940 Act, all without any requirement of approval by
Shareholders. Any such other investment company may (but need not) be a trust
(formed under the laws of the State of Delaware or of any other state) which
is classified as a partnership for federal income tax purposes.
(x) To sell or exchange any or all of the assets of the Trust,
subject to Article IX, Section 4.
(y) To enter into joint ventures, partnerships and other
combinations and associations.
(z) To join with other security holders in acting through a
committee, depositary, voting trustee or otherwise, and in that connection to
deposit any security with, or transfer any security to, any such committee,
depositary or trustee, and to
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delegate to them such power and authority with relation to any security
(whether or not so deposited or transferred) as the Trustees shall deem
proper, and to agree to pay, and to pay, such portion of the expenses and
compensation of such committee, depositary or trustee as the Trustees shall
deem proper.
(aa) To purchase and pay for entirely out of Trust Property such
insurance as the Trustees may deem necessary or appropriate for the conduct
of the business, including, without limitation, insurance policies insuring
the assets of the Trust or payment of distributions and principal on its
portfolio investments, and, subject to applicable law and any restrictions
set forth in the By-laws, insurance policies insuring the Shareholders,
Trustees, officers, employees, agents, Investment Advisers, Distributors or
independent contractors of the Trust, individually, against all claims and
liabilities of every nature arising by reason of holding Shares, holding,
being or having held any such office or position, or by reason of any action
alleged to have been taken or omitted by any such Person as Trustee, officer,
employee, agent, Investment Adviser, Distributor or independent contractor,
including any action taken or omitted that may be determined to constitute
negligence, whether or not the Trust would have the power to indemnify such
Person against liability.
(bb) To adopt, establish and carry out pension, profit-sharing,
share bonus, share purchase, savings, thrift and other retirement, incentive
and benefit plans and trusts, including the purchasing of life insurance and
annuity contracts as a means of providing such retirement and other benefits,
for any or all of the Trustees, officers, employees and agents of the Trust.
(cc) To enter into contracts of any kind and description.
(dd) To interpret the investment policies, practices or limitations
of any Series or Class.
(ee) To guarantee indebtedness and contractual obligations of others.
(ff) To carry on any other business in connection with or incidental
to any of the foregoing powers, to do everything necessary or desirable to
accomplish any purpose or to further any of the foregoing powers, and to take
every other action incidental to the foregoing business or purposes, objects
or powers.
The clauses above shall be construed as objects and powers, and the
enumeration of specific powers shall not limit in any way the general powers
of the Trustees. Any action by one or more of the Trustees in their capacity
as such hereunder shall be deemed an action on behalf of the Trust or the
applicable Series, and not an action in an individual capacity. No one
dealing with the Trustees shall be under any obligation to make any inquiry
concerning the authority of the Trustees, or to see to the application of any
payments made or property transferred to the Trustees or upon their order. In
construing this Declaration, the presumption shall be in favor of a grant of
power to the Trustees.
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Section 3. CERTAIN TRANSACTIONS. Except as prohibited by applicable law,
the Trustees may, on behalf of the Trust, buy any securities from or sell any
securities to, or lend any assets of the Trust to, any Trustee or officer of
the Trust or any firm of which any such Trustee or officer is a member acting
as principal, or have any such dealings with any Investment Adviser,
Administrator, Distributor or Transfer Agent for the Trust or with any
Interested Person of such Person. The Trust may employ any such Person or
entity in which such Person is an Interested Person, as broker, legal
counsel, registrar, Investment Adviser, Administrator, Distributor, Transfer
Agent, dividend disbursing agent, Custodian or in any other capacity upon
customary terms.
Section 4. INITIAL TRUSTEE, NUMBER OF TRUSTEES. The initial Trustee shall
be the person signing this Declaration. The number of Trustees shall be fixed
from time to time by a majority of the Trustees; provided, that there shall
be at least one (1) Trustee.
Section 5. TERM OF OFFICE OF TRUSTEES. Each Trustee shall hold office for
life or until his successor is duly elected and qualified or the Trust
terminates; except that (a) any Trustee may resign by delivering to the other
Trustees or to any Trust officer a written resignation effective upon such
delivery or a later date specified therein; (b) any Trustee may be removed
with or without cause at any time by a written instrument signed by at least
a majority of the then Trustees, specifying the effective date of removal;
(c) any Trustee who requests to be retired, who has reached any mandatory
retirement age established by the Trustees, or who is declared bankrupt or
has become physically or mentally incapacitated or is otherwise unable to
serve, may be retired by a written instrument signed by a majority of the
other Trustees, specifying the effective date of retirement; and (d) any
Trustee may be removed at any meeting of the Shareholders by a vote of at
least two-thirds of the Outstanding Shares.
Section 6. VACANCIES; APPOINTMENT OF TRUSTEES. Whenever a vacancy shall
exist in the Trustees, regardless of the reason for such vacancy, the
remaining Trustees shall appoint any person as they determine in their sole
discretion to fill that vacancy, consistent with the limitations under the
1940 Act. Such appointment shall be made by a written instrument signed by a
majority of the Trustees or by a resolution of the Trustees, duly adopted and
recorded in the records of the Trust, specifying the effective date of the
appointment. The Trustees may appoint a new Trustee as provided above in
anticipation of a vacancy expected to occur because of the retirement,
resignation or removal of a Trustee, or an increase in the number of
Trustees, provided that such appointment shall become effective only at or
after the expected vacancy occurs and provided further that any new Trustee
shall have reached the age of majority in the state in which he resides. As
soon as any such Trustee has accepted his appointment, the trust estate shall
vest in the new Trustee, together with the continuing Trustees, without any
further act or conveyance, and he shall be deemed a Trustee hereunder.
Whenever a vacancy in the number of Trustees shall occur, until such vacancy
is filled as provided in this Article II, 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 7. OWNERSHIP OF TRUST PROPERTY. The Trust Property of the Trust
and of each Series shall be held separate and apart from any assets now or
hereafter held in any
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capacity other than as Trustee hereunder by the Trustees or any successor
Trustees. Legal title in and beneficial ownership of all of the assets of the
Trust shall at all times be considered as vested in the Trust, except that
the Trustees may cause legal title in and beneficial ownership of any Trust
Property to be held by, or in the name of, one or more of the Trustees acting
for and on behalf of the Trust, or in the name of any person as nominee
acting for and on behalf of the Trust. No Shareholder shall be deemed to have
a severable ownership in any individual asset of the Trust or of any Series
or Class or any right of partition or possession thereof, but each
Shareholder shall have, as provided in Article V, a proportionate undivided
beneficial interest in the Trust or Series or Class thereof represented by
Shares. The Shares shall be personal property giving only the rights
specifically set forth in this Trust Instrument. The Trust, or at the
determination of the Trustees one or more of the Trustees or a nominee acting
for and on behalf of the Trust, shall be deemed to hold legal title and
beneficial ownership of any income earned on securities of the Trust issued
by any business entities formed, organized, or existing under the laws of any
jurisdiction, including the laws of any foreign country. Upon the resignation
or removal of a Trustee, or his otherwise ceasing to be a Trustee, he shall
execute and deliver such documents as the remaining Trustees shall require
for the purpose of conveying to the Trust or the remaining Trustees any Trust
Property held in the name of the resigning or removed Trustee. Upon the
incapacity or death of any Trustee, his legal representative shall execute
and deliver on his behalf such documents as the remaining Trustees shall
require as provided in the preceding sentence.
Section 8. EFFECT OF TRUSTEES NOT SERVING. The death, resignation,
retirement, removal, incapacity or inability or refusal to serve of the
Trustees, or any one of them, shall not operate to annul the Trust or to
revoke any existing agency created pursuant to the terms of this Declaration.
Section 9. TRUSTEES, ETC. AS SHAREHOLDERS. Subject to any restrictions in
the By-laws, any Trustee, officer, agent or independent contractor of the
Trust may acquire, own and dispose of Shares to the same extent as any other
Shareholder. The Trustees may issue and sell Shares to and buy Shares from
any such Person or any firm or company in which such Person is interested,
subject only to any general limitations herein.
ARTICLE III
CONTRACTS WITH SERVICE PROVIDERS
Section 1. UNDERWRITING CONTRACT. The Trustees may in their discretion
from time to time enter into an exclusive or non-exclusive underwriting
contract or contracts providing for the sale of the Shares whereby the
Trustees may either agree to sell the Shares to the other party to the
contract or appoint such other party as their sales agent for the Shares, and
in either case on such terms and conditions, if any, as may be prescribed in
the By-laws, and such further terms and conditions as the Trustees may in
their discretion determine not inconsistent with the provisions of this
Article III or of the
9
By-laws; and such contract may also provide for the repurchase of the Shares
by such other party as agent of the Trustees.
Section 2. ADVISORY OR MANAGEMENT CONTRACT. The Trustees may in their
discretion from time to time enter into one or more investment advisory or
management contracts or, if the Trustees establish multiple Series, separate
investment advisory or management contracts with respect to one or more
Series whereby the other party or parties to any such contracts shall
undertake to furnish the Trust or such Series management, investment
advisory, administration, accounting, legal, statistical and research
facilities and services, promotional or marketing activities, and such other
facilities and services, if any, as the Trustees shall from time to time
consider desirable and all upon such terms and conditions as the Trustees may
in their discretion determine. Notwithstanding any provisions of the
Declaration, the Trustees may authorize any such Investment Adviser or
Persons to whom such Investment Adviser delegates certain or all of their
duties, or any of them, under any such contracts (subject to such general or
specific instructions as the Trustees may from time to time adopt) to effect
purchases, sales, loans or exchanges of portfolio securities and other
investments of the Trust on behalf of the Trustees or may authorize any
officer, employee or Trustee to effect such purchases, sales, loans or
exchanges pursuant to recommendations of such Investment Adviser, or any of
them (and all without further action by the Trustees). Any such purchases,
sales, loans and exchanges shall be deemed to have been authorized by all of
the Trustees.
Section 3. ADMINISTRATION AGREEMENT. The Trustees may in their discretion
from time to time enter into an administration agreement or, if the Trustees
establish multiple Series or Classes, separate administration agreements with
respect to each Series or Class, whereby the other party to such agreement
shall undertake to manage the business affairs of the Trust or of a Series or
Class thereof and furnish the Trust or a Series or a Class thereof with
office facilities, and shall be responsible for the ordinary clerical,
bookkeeping and recordkeeping services at such office facilities, and other
facilities and services, if any, and all upon such terms and conditions as
the Trustees may in their discretion determine.
Section 4. SERVICE AGREEMENT. The Trustees may in their discretion from
time to time enter into service agreements with respect to one or more Series
or Classes of Shares whereby the other parties to such service agreements
will provide administration and/or support services pursuant to
administration plans and service plans, and all upon such terms and
conditions as the Trustees in their discretion may determine.
Section 5. TRANSFER AGENT. The Trustees may in their discretion from time
to time enter into a transfer agency and shareholder services contract
whereby the other party to such contract shall undertake to furnish transfer
agency and shareholder services to the Trust. The contract shall have such
terms and conditions as the Trustees may in their discretion determine. Such
services may be provided by one or more Persons.
Section 6. CUSTODIAN. The Trustees may appoint or otherwise engage one or
more banks or trust companies, each having aggregate capital, surplus and
undivided profits (as
10
shown in its last published report) of at least two million dollars
($2,000,000), or any other entity satisfying the requirements of the 1940
Act, to serve as Custodian with authority as its agent, but subject to such
restrictions, limitations and other requirements, if any, as may be contained
in the By-laws of the Trust. The Trustees may also authorize the Custodian to
employ one or more subcustodians as meets the requirements of applicable
provisions of the 1940 Act, and upon such terms and conditions as may be
agreed upon between the Custodian and such sub-custodian, to hold securities
and other assets of the Trust and to perform the acts and services of the
Custodian, subject to applicable provisions of law and resolutions adopted by
the Trustees. The Trustees may delegate to the Trust's officers, Investment
Adviser, Custodian or a Qualified Foreign Bank the responsibility to select
Eligible Foreign Custodians in accordance with the provisions of the 1940 Act
or any rule, regulation or order of the Commission thereunder.
Section 7. AFFILIATIONS OF TRUSTEES OR OFFICERS, ETC. The fact that:
(a) any of the Shareholders, Trustees or officers of the Trust or
any Series thereof is a shareholder, director, officer, partner, trustee,
employee, manager, adviser or distributor of or for any partnership,
corporation, trust, association or other organization, or of or for any
parent or affiliate of any organization, with which a contract of the
character described in this Article III or for services as Custodian,
Transfer Agent or disbursing agent or for related services may have been or
may hereafter be made, or that any such organization, or any parent or
affiliate thereof, is a Shareholder of or has an interest in the Trust, or
that
(b) any partnership, corporation, trust, association or other
organization with which a contract of the character described in this Article
III or for services as Custodian, Transfer Agent or disbursing agent or for
related services may have been or may hereafter be made also has any one or
more of such contracts with one or more other partnerships, corporations,
trusts, associations or other organizations, or has other business or
interests,
shall not affect the validity of any such contract or disqualify any
Shareholder, Trustee or officer of the Trust from voting upon or executing
the same or create any liability or accountability to the Trust or its
Shareholders.
ARTICLE IV
COMPENSATION, LIMITATION OF LIABILITY AND INDEMNIFICATION
Section 1. COMPENSATION. The Trustees as such shall be entitled to
reasonable compensation from the Trust, and they may fix the amount of such
compensation. Nothing herein shall in any way prevent the employment of any
Trustee for advisory, management, legal, accounting, investment banking or
other services and payment for the same by the Trust.
11
Section 2. LIMITATION OF LIABILITY. All Persons contracting with or
having any claim against the Trust or a particular Series shall look only to
the assets of all Series or such particular Series for payment under such
contract or claim; and neither the Trustees nor, when acting in such
capacity, any of the Trust's officers, employees or agents, whether past,
present or future, shall be personally liable therefor. Provided they have
exercised reasonable care and have acted under the reasonable belief that
their actions are in the best interest of the Trust, the Trustees and
officers of the Trust shall not be responsible or liable for any act or
omission or for neglect or wrongdoing of them or any officer, agent,
employee, Investment Adviser or independent contractor of the Trust, but
nothing contained in this Declaration or in the Delaware Act shall protect
any Trustee or officer of the Trust against liability to the Trust or to
Shareholders to which he would otherwise be subject by reason of willful
misfeasance, bad faith, gross negligence or reckless disregard of the duties
involved in the conduct of his office.
Section 3. INDEMNIFICATION. (a) Subject to the exceptions and limitations
contained in subsection (b) below:
(i) every Person who is, or has been, a Trustee or an officer,
employee or agent of the Trust (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) ("Covered Person") shall be indemnified by the Trust or the
appropriate Series to the fullest extent permitted by law against
liability and against all expenses reasonably incurred or paid by him in
connection with any claim, action, suit or proceeding in which he becomes
involved as a party or otherwise by virtue of his being or having been a
Covered Person and against amounts paid or incurred by him in the
settlement thereof; and
(ii) as used herein, the words "claim," "action," "suit" or
"proceeding" shall apply to all claims, actions, suits or proceedings
(civil, criminal or other, including appeals), actual or threatened, and
the words "liability" and "expenses" shall include, without limitation,
attorneys' fees, costs, judgments, amounts paid in settlement, fines,
penalties and other liabilities.
(b) No indemnification shall be provided hereunder to a Covered Person:
(i) who shall have been adjudicated by a court or body before
which the proceeding was brought (A) to be liable to the Trust or its
Shareholders by reason of willful misfeasance, bad faith, gross
negligence or reckless disregard of the duties involved in the conduct of
his office, or (B) not to have acted in good faith in the reasonable
belief that his action was in the best interest of the Trust; or
(ii) in the event of a settlement, unless there has been a
determination that such Covered Person did not engage in willful
misfeasance, bad faith, gross negligence or reckless disregard of the
duties involved in the conduct of his office: (A) by the court or other
body approving the settlement; (B) by at least a majority of those
Trustees who are neither Interested Persons of the Trust nor are parties
to the matter based upon a review of readily available facts (as opposed
to a
12
full trial-type inquiry); (C) by written opinion of independent legal
counsel based upon a review of readily available facts (as opposed to a
full trial-type inquiry) or (D) by a vote of a majority of the
Outstanding Shares entitled to vote (excluding any Outstanding Shares
owned of record or beneficially by such individual).
(c) The rights of indemnification herein provided may be insured
against by policies maintained by the Trust, shall be severable, shall not be
exclusive of or affect any other rights to which any Covered Person may now
or hereafter be entitled, and shall inure to the benefit of the heirs,
executors and administrators of a Covered Person.
(d) To the maximum extent permitted by applicable law, expenses in
connection with the preparation and presentation of a defense to any claim,
action, suit or proceeding of the character described in subsection (a) of
this Section may be paid by the Trust or applicable Series from time to time
prior to final disposition thereof upon receipt of an undertaking by or on
behalf of such Covered Person that such amount will be paid over by him to
the Trust or applicable Series if it is ultimately determined that he is not
entitled to indemnification under this Section; provided, however, that
either (i) such Covered Person shall have provided appropriate security for
such undertaking, (ii) the Trust is insured against losses arising out of any
such advance payments or (iii) either a majority of the Trustees who are
neither Interested Persons of the Trust nor parties to the matter, or
independent legal counsel in a written opinion, shall have determined, based
upon a review of readily available facts (as opposed to a full trial-type
inquiry) that there is reason to believe that such Covered Person will not be
disqualified from indemnification under this Section.
(e) Any repeal or modification of this Article IV by the
Shareholders, or adoption or modification of any other provision of the
Declaration or By-laws that would be inconsistent with this Article, shall be
prospective only, to the extent that such repeal or modification would, if
applied retrospectively, adversely affect any limitation on the liability of
any Covered Person or indemnification available to any Covered Person with
respect to any act or omission which occurred prior to such repeal,
modification or adoption.
Section 4. INDEMNIFICATION OF SHAREHOLDERS. If any Shareholder or former
Shareholder of any Series shall be held personally liable solely by reason of
his being or having been a Shareholder and not because of his acts or
omissions or for some other reason, the Shareholder or former Shareholder (or
his heirs, executors, administrators or other legal representatives or in the
case of any entity, its general successor) shall be entitled out of the
assets belonging to the applicable Series to be held harmless from and
indemnified against all loss and expense arising from such liability. The
Trust, on behalf of the affected Series, shall, upon request by such
Shareholder, assume the defense of any claim made against such Shareholder
for any act or obligation of the Series and satisfy any judgment thereon from
the assets of the Series.
Section 5. NO BOND REQUIRED OF TRUSTEES. No Trustee shall be obligated
to give any bond or other security for the performance of any of his duties
hereunder.
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Section 6. NO DUTY OF INVESTIGATION; NOTICE IN TRUST INSTRUMENTS, ETC. No
purchaser, lender, Transfer Agent or other Person dealing with the Trustees
or any officer, employee or agent of the Trust or a Series thereof shall be
bound to make any inquiry concerning the validity of any transaction
purporting to be made by the Trustees or by said officer, employee or agent
or be liable for the application of money or property paid, loaned or
delivered to or on the order of the Trustees or of said officer, employee or
agent. Every obligation, contract, instrument, certificate, Share, other
security of the Trust or a Series thereof or undertaking, and every other act
or thing whatsoever executed in connection with the Trust, shall be
conclusively presumed to have been executed or done by the executors thereof
only in their capacity as Trustees under this Declaration or in their
capacity as officers, employees or agents of the Trust or a Series thereof.
Every written obligation, contract, instrument, certificate, Share, other
security of the Trust or a Series thereof or undertaking made or issued by
the Trustees or officers may recite that the same is executed or made by them
not individually, but as Trustees under the Declaration, and that the
obligations of the Trust or a Series thereof under any such instrument are
not binding upon any of the Trustees, officers, employees, agents or
Shareholders individually, but bind only the Trust Property or the Trust
Property of the applicable Series, and may contain any further recital which
they may deem appropriate, but the omission of such recital shall not operate
to bind the Trustees individually.
Section 7. RELIANCE ON EXPERTS, ETC. Each Trustee, officer or employee of
the Trust or a Series thereof shall, in the performance of his duties, powers
and discretion hereunder be fully and completely justified and protected with
regard to any act or any failure to act resulting from reliance in good faith
upon the books of account or other records of the Trust or a Series thereof,
upon an opinion of counsel, or upon reports made to the Trust or a Series
thereof by any of its officers or employees, by the Investment Adviser, the
Administrator, the Distributor, the Transfer Agent or by dealers,
accountants, appraisers or other experts or consultants selected with
reasonable care by the Trustees, officers or employees of the Trust,
regardless of whether such counsel or Person may also be a Trustee.
ARTICLE V
SERIES; CLASSES; SHARES
Section 1. ESTABLISHMENT OF SERIES OR CLASS. The Trust shall consist of
one or more Series. Without limiting the authority of the Trustees to
establish and designate any further Series, the Trustees hereby establish one
Series which shall be designated as H&Q IPO & Emerging Company Fund.
Each additional Series shall be established and is effective upon the
adoption of a resolution of a majority of the Trustees or any alternative
date specified in such resolution. The Trustees shall designate the relative
rights and preferences of the Shares of each Series. The Trustees may divide
the Shares of any Series into Classes. Without limiting the authority of the
Trustees to establish and designate any further Classes, the Trustees hereby
establish, with respect to H&Q IPO & Emerging Company Fund, three
Classes of Shares which shall initially be designated,
14
respectively, as Class A Shares, Class B Shares and Common Class Shares. The
Classes of Shares of the Series herein established and designated and any
Shares of any further Series and Classes that may from time to time be
established and designated by the Trustees shall be established and
designated, and the variations in the relative rights and preferences as
between the different Series or Classes shall be fixed and determined, by the
Trustees; provided, that all Shares shall be identical except for such
variations as shall be fixed and determined between different Series or
Classes by the Trustees in establishing and designating such Series or Class.
Such designation of Series or Classes may be directly set forth by resolution
or may be made by a resolution referring to, or authorizing or approving of,
another document that sets forth such relative rights and preferences of such
Series or Class including, without limitation, any registration statement,
prospectus or statement of additional information of the Trust, or as
otherwise provided in such resolution.
All references to Shares in this Declaration shall be deemed to be
Shares of any or all Series or Classes as the context may require. The Trust
shall maintain separate and distinct records for each Series and hold and
account for the assets thereof separately from the other assets of the Trust
or of any other Series. A Series may issue any number of Shares of any Class
thereof and need not issue Shares. Each Share of a Series shall represent an
equal beneficial interest in the net assets of such Series. Each holder of
Shares of a Series or a Class thereof shall be entitled to receive his pro
rata share of all distributions made with respect to such Series or Class.
Upon redemption of his Shares, such Shareholder shall be paid solely out of
the funds and property of such Series. The Trustees may adopt and change the
name of any Series or Class.
Section 2. SHARES. The beneficial interest in the Trust shall be divided
into transferable Shares of one or more separate and distinct Series or
Classes established by the Trustees. The number of Shares of each Series and
Class is unlimited and each Share shall have a par value of $0.001 per Share
or such other amount as the Trustees may establish. All Shares issued
hereunder, including, without limitation, Shares issued in connection with a
dividend in Shares or a split or reverse split of Shares, shall be fully paid
and nonassessable. Except as otherwise provided by the Trustees, Shareholders
shall have no preemptive or other right to subscribe to any additional Shares
or other securities issued by the Trust. Subject to the further provisions of
this Article V and any applicable requirements of the 1940 Act, the Trustees
shall have full power and authority, in their sole discretion and without
obtaining Shareholder approval, to issue original or additional Shares at
such times and on such terms and conditions as they deem appropriate; to
issue fractional Shares; to establish and to change in any manner Shares of
any Series or Classes with such preferences, terms of conversion, voting
powers, rights and privileges as the Trustees may determine (but the Trustees
may not change Outstanding Shares in a manner materially adverse to the
Shareholders of such Shares); to divide or combine the Shares of any Series
or Classes into a greater or lesser number; to classify or reclassify any
unissued Shares of any Series or Classes into one or more Series or Classes
of Shares; to abolish any one or more Series or Classes of Shares; to issue
Shares to acquire other assets (including assets subject to, and in
connection with, the assumption of liabilities) and businesses; and to take
such other action with respect to the Shares as the Trustees may deem
desirable.
15
Section 3. INVESTMENT IN THE TRUST. The Trustees shall accept investments
in any Series or Class from such Persons and on such terms as they may from
time to time authorize. At the Trustees' discretion, such investments,
subject to applicable law, may be in the form of cash or securities in which
that Series is authorized to invest, valued as provided in Article VI,
Section 3. Investments in a Series shall be credited to each Shareholder's
account in the form of full Shares at the Net Asset Value per Share next
determined after the investment is received or accepted as may be determined
by the Trustees; provided, however, that the Trustees may, in their sole
discretion, (a) impose a sales charge upon investments in any Series or
Class, (b) issue fractional Shares, (c) determine the Net Asset Value per
Share of the initial capital contribution or (d) authorize the issuance of
Shares at a price other than Net Asset Value to the extent permitted by the
1940 Act or any rule, order or interpretation of the Commission thereunder.
The Trustees shall have the right to refuse to accept investments in any
Series at any time without any cause or reason therefor whatsoever.
Section 4. ASSETS AND LIABILITIES OF SERIES. All consideration received
by the Trust for the issue or sale of Shares of a particular Series, together
with all assets in which such consideration is invested or reinvested, all
income, earnings, profits, and proceeds thereof (including any proceeds
derived from the sale, exchange or liquidation of such assets, and any funds
or payments derived from any reinvestment of such proceeds in whatever form
the same may be), shall be held and accounted for separately from the assets
of every other Series and are referred to as "assets belonging to" that
Series. The assets belonging to a Series shall belong only to that Series for
all purposes, subject only to the rights of creditors of that Series, and to
no other Series. Any assets, income, earnings, profits, and proceeds thereof
which are not readily identifiable as belonging to any particular Series
shall be allocated by the Trustees between and among one or more Series as
the Trustees deem fair and equitable. Each such allocation shall be
conclusive and binding upon the Shareholders of all Series for all purposes,
and such assets, earnings, income, profits and proceeds thereof shall be
referred to as assets belonging to that Series. The assets belonging to a
Series shall be so recorded upon the books of the Trust, and shall be held by
the Trustees in trust for the benefit of the Shareholders of that Series. The
assets belonging to a Series shall be charged with the liabilities of that
Series and all expenses, costs, charges and reserves attributable to that
Series, except that liabilities and expenses allocated solely to a particular
Class shall be borne by that Class. Any general liabilities, expenses, costs,
charges or reserves of the Trust which are not readily identifiable as
belonging to any particular Series or Class shall be allocated and charged by
the Trustees between or among any one or more of the Series or Classes in
such manner as the Trustees deem fair and equitable. Each such allocation
shall be conclusive and binding upon the Shareholders of all Series or
Classes for all purposes.
Without limiting the foregoing, but subject to the right of the
Trustees to allocate general liabilities, expenses, costs, charges or
reserves as herein provided, and subject to the statutory provision of
Section 3804 of the Delaware Act referred to below, the debts, liabilities,
obligations and expenses incurred, contracted for or otherwise 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 or any
other Series, and none
16
of the debts, liabilities, obligations and expenses incurred, contracted for
or otherwise existing with respect to the Trust generally or any other Series
shall be enforceable against the assets of such Series. Notice of this
contractual limitation on liabilities among Series may, in the Trustees'
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
liabilities among Series (and the statutory effect under Section 3804 of
setting forth such notice in the certificate of trust) shall become
applicable to the Trust and each Series. Any Person extending credit to,
contracting with or having any claim against any Series may look only to the
assets of that Series to satisfy or enforce any debt with respect to that
Series. No Shareholder or former Shareholder of any Series shall have a claim
on or any right to any assets allocated or belonging to any other Series.
Section 5. OWNERSHIP AND TRANSFER OF SHARES. The Trust or a Transfer
Agent or similar agent for the Trust shall maintain a register containing the
names and addresses of the Shareholders of each Series and Class thereof, the
number of Shares of each Series and Class held by such Shareholders, and a
record of all Share transfers. The register shall be conclusive as to the
identity of Shareholders of record and the number of Shares held by them from
time to time. The Trustees may authorize the issuance of certificates
representing Shares and adopt rules governing their use. The Trustees may
make rules governing the transfer of Shares, whether or not represented by
certificates. Except as otherwise provided by the Trustees, Shares shall be
transferable on the books of the Trust only by the record holder thereof or
by his duly authorized agent upon delivery to the Trustees or the Transfer
Agent of a duly executed instrument of transfer, together with a Share
certificate if one is outstanding, and such evidence of the genuineness of
each such execution and authorization and of such other matters as may be
required by the Trustees. Upon such delivery, and subject to any further
requirements specified by the Trustees or contained in the By-laws, the
transfer shall be recorded on the books of the Trust. Until a transfer is so
recorded, the Shareholder of record of Shares shall be deemed to be the
holder of such Shares for all purposes hereunder and neither the Trustees nor
the Trust, nor any Transfer Agent or registrar or any officer, employee or
agent of the Trust, shall be affected by any notice of a proposed transfer.
Without limitation of the foregoing, the Trust or its agent may issue
certificates representing Shares and transfer such certificates to a
governmental unit, agency, authority or authorized depository without prior
notice to a Shareholder and without liability to such Shareholder, to the
extent such action is taken (1) in the response to a notice of xxxx, xxxx or
similar action from the Internal Revenue Service or a state tax authority,
(2) in compliance with state laws governing escheat or abandonment of
property, or (3) otherwise in compliance with any applicable legal obligation.
Section 6. STATUS OF SHARES; LIMITATION OF SHAREHOLDER LIABILITY. Shares
shall be deemed to be personal property giving Shareholders only the rights
provided in this Declaration. Every Shareholder, by virtue of having acquired
a Share, shall be held expressly to have assented to and agreed to be bound
by the terms of this Declaration and to have become a party hereto. No
Shareholder shall be personally liable for the debts,
17
liabilities, obligations and expenses incurred by, contracted for, or
otherwise existing with respect to, the Trust or any Series. The death,
incapacity, dissolution, termination or bankruptcy of a Shareholder during
the existence of the Trust shall not operate to terminate the Trust, nor
entitle the representative of any such Shareholder to an accounting or to
take any action in court or elsewhere against the Trust or the Trustees, but
entitles such representative only to the rights of such Shareholder under
this Trust. Ownership of Shares shall not entitle the Shareholder to any
title in or to the whole or any part of the Trust Property or right to call
for a partition or division of the same or for an accounting, nor shall the
ownership of Shares constitute the Shareholders as partners. Neither the
Trust nor the Trustees shall have any power to bind any Shareholder
personally or to demand payment from any Shareholder for anything, other than
as agreed by the Shareholder. Shareholders shall have the same limitation of
personal liability as is extended to shareholders of a private corporation
for profit incorporated in the State of Delaware. Every written obligation of
the Trust or any Series may contain a statement to the effect that such
obligation may only be enforced against the assets of the appropriate Series
or all Series; however, the omission of such statement shall not operate to
bind or create personal liability for any Shareholder or Trustee.
ARTICLE VI
DISTRIBUTIONS AND REDEMPTIONS
Section 1. DISTRIBUTIONS. The Trustees, or a committee of one or more
Trustees or of one or more Trustees and one or more officers, may declare and
pay dividends and other distributions, including dividends on Shares of a
particular Series and other distributions from the assets belonging to that
Series. No dividend or distribution, including, without limitation, any
distribution paid upon termination of the Trust or of any Series (or Class)
with respect to, nor any redemption or repurchase of, the Shares of any
Series (or Class) shall be effected by the Trust other than from the assets
held with respect to such Series, nor shall any Shareholder of any particular
Series otherwise have any right or claim against the assets held with respect
to any other Series except to the extent that such Shareholder has such a
right or claim hereunder as a Shareholder of such other Series. The Trustees
shall have full discretion to determine which items shall be treated as
income and which items as capital; and each such determination and allocation
shall be conclusive and binding upon the Shareholders. The amount and payment
of dividends or distributions and their form, whether they are in cash,
Shares or other Trust Property, shall be determined by the Trustees.
Dividends and other distributions may be paid pursuant to a standing
resolution adopted once or more often as the Trustees determine. All
dividends and other distributions on Shares of a particular Series shall be
distributed pro rata to the Shareholders of that Series in proportion to the
number of Shares of that Series they held on the record date established for
such payment, except that such dividends and distributions shall
appropriately reflect expenses allocated to a particular Class of such Series
and shall be reduced by any required backup, nonresident alien, or other
withholding taxes, which shall be deposited by the Trust in accordance with
applicable law. The Trustees may adopt and offer to Shareholders such
dividend
18
reinvestment plans, cash dividend payout plans or similar plans as the
Trustees deem appropriate.
Section 2. REDEMPTIONS. Each Shareholder of a Series shall have the right
at such times as may be permitted by the Trustees to require the Series to
redeem all or any part of his Shares at a redemption price per Share equal to
the Net Asset Value per Share at such time as the Trustees shall have
prescribed by resolution, or, to the extent permitted by the 1940 Act, at
such other redemption price and at such times as the Trustees shall prescribe
by resolution. In the absence of such resolution, the redemption price per
Share shall be the Net Asset Value next determined after receipt by the
Series of a request for redemption in proper form, less (1) such charges as
are determined by the Trustees and described in the Trust's Registration
Statement for that Series under the Securities Act of 1933, as amended from
time to time, and (2) any required withholding taxes, which shall be
deposited by the Trust in accordance with applicable law. The Trustees may
specify conditions, prices and places of redemption, may specify binding
requirements for the proper form or forms of requests for redemption and may
specify the amount of any deferred sales charge or redemption fee to be
withheld from redemption proceeds. Payment of the redemption price may be
wholly or partly in securities or other assets at the value of such
securities or assets used in such determination of Net Asset Value, or may be
in cash. Upon redemption, Shares shall be cancelled. The Trustees may require
Shareholders to redeem Shares for any reason under terms set by the Trustees,
including, but not limited to, the failure of a Shareholder to supply a
taxpayer identification number or other information or certification required
by federal or state tax laws, or to have the minimum investment required, or
to pay when due for the purchase of Shares issued to him. To the extent
permitted by law, the Trustees may retain the proceeds of any redemption of
Shares required by them for payment of amounts due and owing by a Shareholder
to the Trust or any Series or Class or any governmental authority. Without
limitation of the foregoing, the Trust may mandatorily redeem shares and the
Trust or its agent may transfer the proceeds of such a redemption to a
governmental unit, agency, authority or authorized depository without prior
notice to a Shareholder and without liability to such shareholder, to the
extent such action is taken (1) in response to a notice of xxxx, xxxx or
similar action from the Internal Revenue Service or a state tax authority,
(2) in compliance with state laws governing escheat or abandonment of
property, (3) in satisfaction of withholding tax requirements (including any
applicable interest and penalties) applicable to any prior distribution or
distributions (including a redemption or redemptions) to the Shareholder that
were not satisfied at the time of such distribution or distributions or (4)
otherwise in compliance with any applicable legal obligation. Notwithstanding
the foregoing, the Trustees may postpone payment of the redemption price and
may suspend the right of the Shareholders to require any Series or Class to
redeem Shares during any period of time when and to the extent permissible
under the 1940 Act.
Section 3. DETERMINATION OF NET ASSET VALUE. The Trustees shall cause the
Net Asset Value of Shares of each Series or Class to be determined from time
to time in a manner consistent with applicable laws and regulations. The
Trustees may delegate the power and duty to determine Net Asset Value per
Share to one or more Trustees or officers of the Trust or to a custodian,
depository or other agent appointed for such
19
purpose. The Net Asset Value of Shares shall be determined separately for
each Series or Class at such times as may be prescribed by the Trustees or,
in the absence of action by the Trustees, as of the close of regular trading
on the New York Stock Exchange on each day for all or part of which such
Exchange is open for trading.
Section 4. SUSPENSION OF RIGHT OF REDEMPTION. If, as referred to in
Section 2 of this Article, the Trustees postpone payment of the redemption
price and suspend the right of Shareholders to redeem their Shares, such
suspension shall take effect at the time the Trustees shall specify, but not
later than the close of business on the business day next following the
declaration of suspension. Thereafter Shareholders shall have no right of
redemption or payment until the Trustees declare the end of the suspension.
If the right of redemption is suspended, a Shareholder may either withdraw
his request for redemption or receive payment based on the Net Asset Value
per Share next determined after the suspension terminates.
Section 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 at a price not exceeding the Net
Asset Value per Share determined as of the time when the purchase or contract
of purchase is made or the Net Asset Value as of any time which may be later
determined, provided payment is not made for the Shares prior to the time as
of which such Net Asset Value is determined.
ARTICLE VII
SHAREHOLDERS' VOTING POWERS AND MEETINGS
Section 1. VOTING POWERS. The Shareholders shall have power to vote only
with respect to (a) the election of Trustees as provided in the 1940 Act; (b)
the removal of Trustees as provided in Article II, Section 5(d); (c) any
investment advisory or management contract entered into pursuant to Article
III, Section 2, unless a shareholder vote is not required pursuant to the
provisions of the 1940 Act; (d) any termination of the Trust to the extent
and as provided in Article IX, Section 3; (e) the amendment of this
Declaration to the extent and as provided in Article IX, Section 7; and (f)
such additional matters relating to the Trust as may be required or
authorized by law, this Declaration, or the By-laws or any registration of
the Trust with the Commission or as the Trustees may consider desirable.
On any matter submitted to a vote of the Shareholders, all Shares
shall be voted by individual Series or Class, except (a) when required by the
1940 Act, Shares shall be voted in the aggregate and not by individual Series
or Class, and (b) when the Trustees have determined that the matter affects
the interests of more than one Series or Class, then the Shareholders of all
such Series or Classes shall be entitled to vote together thereon. On any
matter submitted to a vote of Shareholders, each dollar of Net Asset Value
(number of Shares owned times Net Asset Value per Share of such Series or
Class, as applicable) shall be entitled to one vote and each fractional
dollar amount shall be
20
entitled to a proportionate fractional vote. There shall be no cumulative
voting in the election of Trustees. Shares may be voted in person or by proxy
or in any manner provided for in the By-laws. The By-laws may provide that
proxies may be given by any electronic or telecommunications device or in any
other manner, but if a proposal by anyone other than the officers or Trustees
is submitted to a vote of the Shareholders of any Series or Class, or if
there is a proxy contest or proxy solicitation or proposal in opposition to
any proposal by the officers or Trustees, Shares may be voted only in person
or by written proxy. Until Shares of a Series are issued, as to that Series
the Trustees may exercise all rights of Shareholders and may take any action
required or permitted to be taken by Shareholders by law, this Declaration or
the By-laws. Meetings of Shareholders shall be called and notice thereof and
record dates therefor shall be given and set as provided in the By-laws.
Section 2. QUORUM; REQUIRED VOTE. One-third (33 1/3%) of the net asset
value of the Outstanding Shares of each affected Series or Class, or
one-third (33 1/3%) of the net asset value of the Outstanding Shares of the
Trust, entitled to vote in person or by proxy shall be a quorum for the
transaction of business at a Shareholders' meeting with respect to such
Series or Class, or with respect to the entire Trust, respectively. Any
lesser number shall be sufficient for adjournments. Any adjourned session of
a Shareholders' meeting may be held within a reasonable time without further
notice. Except when a larger vote is required by applicable law, this
Declaration or the By-laws, a majority of the net asset value of the
Outstanding Shares voting at a Shareholders' meeting in person or by proxy
shall decide any matters to be voted upon with respect to the entire Trust
and a plurality of the net asset value of such Outstanding Shares shall elect
a Trustee; provided, that if this Declaration or applicable law permits or
requires that Shares be voted on any matter by individual Series or Classes,
then a majority of the net asset value of the Outstanding Shares of that
Series or Class voting at a Shareholders' meeting in person or by proxy on
the matter shall decide that matter insofar as that Series or Class is
concerned.
Section 3. ABSTENTIONS AND BROKER NON-VOTES. Outstanding Shares
represented in person or by proxy (including Shares which abstain or do not
vote with respect to one or more of any proposals presented for Shareholder
approval) will be counted for purposes of determining whether a quorum is
present at a meeting. Abstentions will be treated as Shares that are present
and entitled to vote for purposes of determining the number of Shares that
are present and entitled to vote with respect to any particular proposal, but
will not be counted as a vote in favor of such proposal. If a broker or
nominee holding Shares in "street name" indicates on the proxy that it does
not have discretionary authority to vote as to a particular proposal, those
Shares will not be considered as present and entitled to vote with respect to
such proposal.
Section 4. ACTION WITHOUT MEETING. Any action which may be taken by
Shareholders may be taken without a meeting if a majority of the net asset
value of the Outstanding Shares entitled to vote on the matter (or such
larger proportion thereof as shall be required by law) consent to the action
in writing and the written consents are filed with the records of the
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meetings of Shareholders. Such consents shall be treated for all purposes as
a vote taken at a meeting of Shareholders.
Section 5. RECORD DATES.
(a) For the purpose of determining the Shareholders of any Series or
Class who are entitled to receive payment of any dividend or of any other
distribution, the Trustees may from time to time fix a date, which shall be
before the date for the payment of such dividend or such other payment, as
the record date for determining the Shareholders of such Series or Class
having the right to receive such dividend or distribution. Without fixing a
record date, the Trustees may for distribution purposes close the register or
transfer books for one or more Series or Classes any time prior to the
payment of a distribution. Nothing in this Section shall be construed as
precluding the Trustees from setting different record dates for different
Series or Classes.
(b) The Trustees may fix in advance a date up to one hundred twenty
(120) days before the date of any Shareholders' meeting, or the date for the
allotment of rights, or the date when any change or conversion or exchange of
Shares shall go into effect as a record date for the determination of the
Shareholders entitled to notice of, and to vote at, any such meeting, or to
receive any such allotment of rights, or to exercise such rights in respect
of any such change, conversion or exchange of Shares.
Section 6. ADDITIONAL PROVISIONS. The By-laws may include further
provisions for Shareholders' votes and meetings and related matters.
ARTICLE VIII
EXPENSES OF THE TRUST
Section 1. PAYMENT OF EXPENSES BY THE TRUST. Subject to Article V,
Section 4, the Trust or a particular Series shall pay, or shall reimburse the
Trustees from the assets belonging to all Series or the particular Series,
for their expenses (or the expenses of a Class of such Series) and
disbursements, including, but not limited to, interest charges, taxes,
brokerage fees and commissions; expenses of issue, repurchase and redemption
of Shares; insurance premiums; applicable fees, interest charges and expenses
of third parties, including the Trust's Investment Advisers, managers,
Administrators, Distributors, Custodians, Transfer Agents, and fund
accountants; fees of pricing, interest, dividend, credit and other reporting
services; costs of membership in trade associations; telecommunications
expenses; funds transmission expenses; auditing, legal and compliance
expenses; costs of forming the Trust and its Series and maintaining its
existence; costs of preparing and printing the prospectuses of the Trust and
each Series, statements of additional information and Shareholder reports and
delivering them to Shareholders; expenses of meetings of Shareholders and
proxy solicitations therefor; costs of maintaining books and accounts; costs
of reproduction, stationery and supplies; fees and expenses of the Trustees;
compensation of the Trust's officers and employees
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and costs of other personnel performing services for the Trust or any Series;
costs of Trustee meetings; Commission registration fees and related expenses;
state or foreign securities laws registration and notice fees and related
expenses; and for such non-recurring items as may arise, including litigation
to which the Trust or a Series (or a Trustee or officer of the Trust acting
as such) is a party, and for all losses and liabilities by them incurred in
administering the Trust. The Trustees shall have a lien on the assets
belonging to the appropriate Series, or in the case of an expense allocable
to more than one Series, on the assets of each such Series, prior to any
rights or interests of the Shareholders thereto, for the reimbursement to
them of such expenses, disbursements, losses and liabilities.
Section 2. PAYMENT OF EXPENSES BY SHAREHOLDERS. The Trustees shall have
the power, as frequently as they may determine, to cause each Shareholder, or
each Shareholder of any particular Series, to pay directly, in advance or
arrears, for charges due from such Shareholder of the Trust's Custodian or
transfer, shareholder servicing or similar agent, an amount fixed from time
to time by the Trustees, by setting off such charges from declared but unpaid
dividends owed such Shareholder and/or by reducing the number of Shares in
the account of such Shareholder by that number of full and/or fractional
Shares which represents the outstanding amount of such charges due from such
Shareholder.
ARTICLE IX
MISCELLANEOUS
Section 1. TRUST NOT A PARTNERSHIP. This Declaration creates a trust and
not a partnership. No Trustee shall have any power to bind personally either
the Trust's officers or any Shareholder.
Section 2. TRUSTEE ACTION. The exercise by the Trustees of their powers
and discretion hereunder in good faith and with reasonable care under the
circumstances then prevailing shall be binding upon everyone interested.
Subject to the provisions of Article IV, the Trustees shall not be liable for
errors of judgment or mistakes of fact or law.
Section 3. TERMINATION OF THE TRUST. (a) This Trust shall have perpetual
existence. Subject to the vote of a majority of the Outstanding Shares of the
Trust, or of each Series to be affected, voting at a Shareholders' meeting in
person or by proxy, the Trustees may:
(i) sell and convey all or substantially all of the assets of
all Series or any affected Series to another Series or to another entity
which is an open-end investment company as defined in the 1940 Act, or is
a series thereof, for adequate consideration, which may include the
assumption of all outstanding obligations, taxes and other liabilities,
accrued or contingent, of the Trust or any
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affected Series, and which may include shares of or interests in such
Series, entity, or series thereof; or
(ii) at any time sell and convert into money all or
substantially all of the assets of all Series or any affected Series.
Upon making reasonable provision for the payment of all known
liabilities of all Series or any affected Series in either (i) or (ii), by
such assumption or otherwise, the Trustees shall distribute the remaining
proceeds or assets (as the case may be) ratably among the Shareholders of all
Series or any affected Series; however, the payment to any particular Class
of such Series may be reduced by any fees, expenses or charges allocated to
that Class.
(b) The Trustees may take any of the actions specified in subsection
(a) (i) and (ii) above without obtaining the vote of a majority of the
Outstanding Shares of the Trust or any Series voting at a Shareholders'
meeting in person or by proxy if a majority of the Trustees determines that
the continuation of the Trust or Series is not in the best interests of the
Trust, such Series, or their respective Shareholders as a result of factors
or events adversely affecting the ability of the Trust or such Series to
conduct its business and operations in an economically viable manner. Such
factors and events may include the inability of the Trust or a Series to
maintain its assets at an appropriate size, changes in laws or regulations
governing the Trust or the Series or affecting assets of the type in which
the Trust or Series invests, or economic developments or trends having a
significant adverse impact on the business or operations of the Trust or such
Series.
(c) Upon completion of the distribution of the remaining proceeds or
assets pursuant to subsection (a) the Trustees and the Trust or affected
Series shall be discharged of any and all further liabilities and duties
hereunder with respect thereto and the right, title and interest of all
parties therein shall be canceled and discharged and any such Series shall
terminate. Following completion of winding up of its business, the Trustees
shall cause a certificate of cancellation of the Trust's certificate of trust
to be filed in accordance with the Delaware Act, which certificate of
cancellation may be signed by any one Trustee, and upon filing of such
certificate of cancellation, the Trust shall terminate.
Section 4. REORGANIZATION. (a) Notwithstanding anything else herein, to
change the Trust's form or place of organization, the Trustees may, without
Shareholder approval (unless such approval is required by applicable law),
(i) cause the Trust to merge or consolidate with or into one or more
entities, if the surviving or resulting entity is the Trust or another
open-end management investment company under the 1940 Act, or a series
thereof, that will succeed to or assume the Trust's registration under the
1940 Act, (ii) cause the Shares to be exchanged under or pursuant to any
state or federal statute to the extent permitted by law, or (iii) cause the
Trust to incorporate under the laws of Delaware or any other U.S.
jurisdiction. Any agreement of merger or consolidation or certificate of
merger may be signed by a majority of Trustees and facsimile signatures
conveyed by electronic or telecommunication means shall be valid.
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(b) Pursuant to and in accordance with the provisions of Section
3815(f) of the Delaware Act, an agreement of merger or consolidation approved
by the Trustees in accordance with this Section 4 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.
(c) The Trustees may create one or more business trusts to which all
or any part of the assets, liabilities, profits or losses of the Trust or any
Series or Class thereof may be transferred and may provide for the conversion
of Shares in the Trust or any Series or Class thereof into beneficial
interests in any such newly created trust or trusts or any series or classes
thereof.
Section 5. DECLARATION OF TRUST. The original or a copy of this
Declaration and of each amendment hereto or Declaration supplemental shall be
kept at the office of the Trust where it may be inspected by any Shareholder.
Anyone dealing with the Trust may rely on a certificate by a Trustee or an
officer of the Trust as to the authenticity of the Declaration or any such
amendments or supplements and as to any matters in connection with the Trust.
The masculine gender herein shall include the feminine and neuter genders.
Headings herein are for convenience only and shall not affect the
construction of this Declaration. This Declaration may be executed in any
number of counterparts, each of which shall be deemed an original.
Section 6. APPLICABLE LAW. This Declaration and the Trust created
hereunder are governed by and construed and administered according to the
Delaware Act and the applicable 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 of
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 Delaware 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.
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Section 7. AMENDMENTS. The Trustees may, without any Shareholder vote,
amend or otherwise supplement this Declaration by making an amendment, a
Declaration supplemental hereto or an amended and restated trust instrument;
provided, that Shareholders shall have the right to vote on any amendment (a)
which would affect the voting rights of Shareholders granted in Article VII,
Section 1, (b) to this Section 7, (c) required to be approved by Shareholders
by law or by the Trust's registration statement(s) filed with the Commission,
or (d) submitted to them by the Trustees in their discretion. Any amendment
submitted to Shareholders which the Trustees determine would affect the
Shareholders of any Series shall be authorized by vote of the Shareholders of
such Series and no vote shall be required of Shareholders of a Series not
affected. Notwithstanding anything else herein, (i) any amendment to Article
IV which would have the effect of reducing the indemnification or other
rights provided thereby to Trustees, officers, employees and agents of the
Trust or to Shareholders or former Shareholders, and any repeal or amendment
of this sentence shall each require the affirmative vote of the holders of
two-thirds of the Outstanding Shares of the Trust entitled to vote thereon
and (ii) no amendment to Article IV that would have the effect of reducing
the indemnification or other rights provided thereby to Trustees, officers,
employees and agents of the Trust or to Shareholders or former Shareholders
shall be effective with respect to any acts or omissions of any such Persons
occurring or otherwise relating to any time period prior to the adoption of
such amendment or shall otherwise have any retroactive effect.
Section 8. DERIVATIVE ACTIONS. In addition to the requirements set forth
in Section 3816 of the Delaware Act, a Shareholder may bring a derivative
action on behalf of the Trust only if the following conditions are met:
(a) Shareholders eligible to bring such derivative action under the
Delaware act who hold at least 10% of the Outstanding Shares of the Trust, or
10% of the Outstanding Shares of the Series or Class to which such action
relates, shall join in the request for the Trustees to commence such action;
(b) the Trustees must be afforded a reasonable amount of time to
consider such shareholder request and to investigate the basis of such claim.
The Trustees shall be entitled to retain counsel or other advisers in
considering the merits of the request and shall require an undertaking by the
Shareholders making such request to reimburse the Trust for the expense of
any such advisers in the event that the Trustees determine not to bring such
action;
(c) Shareholders are not relieved of the conditions in Section 8(a)
and (b) if a Trustee who is not an Interested Person of the Trust or any
Series serves as a trustee of any other investment company in the Fund
Complex; and
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(d) Shareholders of an unaffected Series or Class may not bring a
derivative action on behalf of another Series or Class.
Section 9. FISCAL YEAR. The fiscal year of the Trust shall end on a
specified date as adopted by resolution of the Trustees. The taxable year of
each Series of the Trust shall be as determined by the Trustees from time to
time.
Section 10. SEVERABILITY. The provisions of this Declaration are
severable. If the Trustees determine, with the advice of counsel, that any
provision hereof conflicts with the 1940 Act, the regulated investment
company provisions of the Internal Revenue Code or with other applicable laws
and regulations, the conflicting provision shall be deemed never to have
constituted a part of this Declaration; provided, however, 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. If any provision hereof shall be held invalid or
unenforceable in any jurisdiction, such invalidity or unenforceability shall
attach only to such provision only in such jurisdiction and shall not affect
any other provision of this Declaration.
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IN WITNESS WHEREOF, the undersigned being the sole initial Trustee
of the Trust executed this instrument as of June 7, 1999.
/s/ Xxxxx X. Xxxxx
-------------------------------
XXXXX X. XXXXX
as Trustee and not individually
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