77Q (a) Exhibits
AMENDED AND RESTATED AGREEMENT AND DECLARATION OF TRUST
of
4 WINDS FAMILY OF FUNDS
a Delaware Business TrustARTICLE I. Name and Definitions 1
Section 1. Name 1
Section 2. Registered Agent and Registered Office; Principal
Place of Business 2
(a) Registered Agent and Registered Office 2
(b) Principal Place of Business 2
Section 3. Definitions 2
(a) "1940 Act" 2
(b) "Affiliate" 2
(c) "Board of Trustees" 2
(d) "By-Laws" 2
(e) "Certificate of Trust" 2
(f) "Code" 2
(g) "Commission" 2
(h) "DBTA" 3
(i) "Declaration of Trust" 3
(j) "General Liabilities" 3
(k) "Interested Person" 3
(l) "Investment Adviser" or "Adviser" 3
(m) "Person" 3
(n) "Principal Underwriter" 3
(o) "Series" 3
(p) "Shares" 3
(q) "Shareholder" 3
(r) "Trust" 3
(s) "Trust Property" 4
(t) "Trustee" or "Trustees" 4
ARTICLE II. Purpose of Trust 4
ARTICLE III. Shares 7
Section 1. Division of Beneficial Interest 7
Section 2. Ownership of Shares 9
Section 3. Investments in the Trust 9
Section 4. Status of Shares and Limitation of Personal
Liability 9
Section 5. Power of Board of Trustees to Change Provisions
Relating to Shares 10
Section 6. Establishment and Designation of Series 10
(a) Assets Held with Respect to a Particular Series 10
(b) Liabilities Held with Respect to a Particular Series 11
(c) Dividends, Distributions, Redemptions and Xxxxxxxxxxx 00
(x) Voting 12
(e) Equality 12
(f) Fractions 13
(g) Exchange Privilege 13
(h) Combination of Series or Class 13
(i) Elimination of Series or Class 13
ARTICLE IV. The Board of Trustees 13
Section 1. Number, Election and Tenure 13
Section 2. Effect of Death, Resignation, Removal, etc. of a
Trustee 14
Section 3. Powers 14
Section 4. Payment of Fees and Expenses by the Trust 16
Section 5. Payment of Fees and Expenses by Shareholders 16
Section 6. Ownership of Trust Property 16
Section 7. Service Contracts 16
Section 8. Compensation 18
ARTICLE V. Shareholders' Voting Powers and Meetings 18
Section 1. Voting Powers 18
Section 2. Meetings 18
Section 3. Quorum and Required Vote 19
Section 4. Shareholder Action by Written Consent without a
Meeting 19
Section 5. Record Dates 19
Section 6. Additional Provisions 20
ARTICLE VI. Net Asset Value, Distributions and Redemptions 20
Section 1. Determination of Net Asset Value, Net Income and
Distributions 20
Section 2. Redemptions at the Option of a Shareholder 21
Section 3. Redemptions at the Option of the Trust 22
ARTICLE VII. Limitation of Liability; Indemnification 22
Section 1. Trustees, Shareholders, etc. Not Personally Liable 22
Section 2. Officers and Trustees' Good Faith Action, Expert
Advice, No Bond or Surety 23
Section 3. Indemnification of Shareholders 24
Section 4. Indemnification of Trustees, Officers, etc. 24
Section 5. Compromise Payment 25
Section 6. Indemnification Not Exclusive, etc. 25
Section 7. Insurance 26
Section 8. Liability of Third Persons Dealing with Trustees 26
ARTICLE VIII. Miscellaneous 26
Section 1. Dissolution and Liquidation of Trust, Series, or
Class 26
Section 2. Merger and Consolidation; Conversion 27
(a) Merger and Consolidation. 27
(b) Conversion 27
Section 3. Reorganization 28
Section 4. Amendments 28
Section 5. Filing of Copies, References, Headings 29
Section 6. Applicable Law 29
Section 7. Provisions in Conflict with Law or Regulations 29
Section 8. Business Trust Only 30
Section 9. Use of the Name "4 Winds" 30
AMENDED AND RESTATED AGREEMENT AND DECLARATION OF TRUST
OF
4 WINDS FAMILY OF FUNDS
AGREEMENT AND DECLARATION OF TRUST made as of the 31st
day of August, 2000, as amended and restated as of the 28th day of September,
by the Trustees hereunder, and by the holders of shares of beneficial interest
to
be issued hereunder as hereinafter provided. This Agreement and Declaration
of Trust shall be effective upon the filing of the Certificate of Trust in the
office of the Secretary of State of the State of Delaware on the first day of
September, 2000.
W I T N E S S E T H:
WHEREAS this Trust has been formed to carry on the business of an
investment company; and
WHEREAS this Trust is authorized to issue its shares of beneficial
interest in separate Series, and to issue classes of Shares of any Series or
divide Shares of any Series into two or more classes, all in accordance with
the provisions hereinafter set forth; and
WHEREAS the Trustees have agreed to manage all property coming
into their hands as trustees of a Delaware business trust in accordance with
the provisions of the Delaware Business Trust Act (12 Del. C. 3801, et seq.),
as from time to time amended and including any successor statute of similar
import (the "DBTA"), and the provisions hereinafter set forth.
NOW, THEREFORE, the Trustees hereby declare that they will
hold all cash, securities and other assets which they may from time to
time acquire in any manner as Trustees hereunder IN TRUST to manage
and dispose of the same upon the following terms and conditions for the
benefit of the holders from time to time of shares of beneficial interest
in this Trust and the Series created hereunder as hereinafter set forth.
ARTICLE I.
Name and Definitions
Section 1. Name. This Trust shall be known as "4 Winds
Family of Funds" and the Trustees shall conduct the business of the
Trust under that name, or any other name as they may from time to
time determine.
Section 2. Registered Agent and Registered Office; Principal
Place of Business.Registered Agent and Registered Office. The name of
the registered agent of the Trust and the address of the registered office
of the Trust are as set forth on the Certificate of Trust.
Principal Place of Business. The principal place of
business of the Trust is 0000 Xxxxxxxxx Xxxxx, Xxxxxxxxxx, Xxxxxxxxxxxx,
00000-0000 or such other location within or outside of the State of
Delaware as the Board of Trustees may determine from time to time.
Section 3. Definitions. Whenever used herein, unless otherwise
required by the context or specifically provided:
"1940 Act" shall mean the Investment Company Act
of 1940 and the rules and regulations thereunder, all as adopted or
amended from time to time;
"Affiliate" shall have the meaning given to it in
Section 2(a)(3) of the 1940 Act when used with reference to a
specified Person;
"Board of Trustees" shall mean the governing body
of the Trust, which is comprised of the Trustees of the Trust;
"By-Laws" shall mean the By-Laws of the Trust, as
amended from time to time in accordance with Article IX of the By-Laws,
and incorporated herein by reference;
"Certificate of Trust" shall mean the certificate of
trust filed with the Office of the Secretary of State of the State of
Delaware as required under the DBTA to form the Trust;
"Code" shall mean the Internal Revenue Code of 1986,
as amended, and the rules and regulations thereunder;
"Commission" shall have the meaning given it in
Section 2(a)(7) of the 1940 Act;
"DBTA" shall mean the Delaware Business Trust Act
(12 Del. C. 3801, et seq.), as amended from time to time;
"Declaration of Trust" shall mean this Agreement and
Declaration of Trust, as amended or restated from time to time;
"General Liabilities" shall have the meaning given it in
Article III, Section 6(b) of this Declaration Trust;
"Interested Person" shall have the meaning given it in
Section 2(a)(19) of the 1940 Act;
"Investment Adviser" or "Adviser" shall mean a party
furnishing services to the Trust pursuant to any contract described in
Article IV, Section 7(a) hereof;
"Person" shall include a natural person, partnership,
limited partnership, trust, estate, association, corporation, custodian,
nominee or any other individual or entity in its own or any representative
capacity;
"Principal Underwriter" shall have the meaning given
to it in Section 2(a)(29) of the 1940 Act;
"Series" shall refer to each Series of Shares established
and designated under or in accordance with the provisions of Article III
and shall mean an entity such as that described in Section 18(f)(2) of the
1940 Act, and subject to Rule 18f-2 thereunder;
"Shares" shall mean the outstanding shares of beneficial
interest into which the beneficial interest in the Trust shall be divided
from time to time, and shall include fractional and whole shares;
(q) "Shareholder" shall mean a record owner of Shares;
"Trust" shall refer to the Delaware business trust
established by this Declaration of Trust, as amended from time to time;
"Trust Property" shall mean any and all property, real
or personal, tangible or intangible, which is owned or held by or for the
account of the Trust or one or more of any Series, including, without
limitation, the rights referenced in Article VIII, Section 2 hereof; and
"Trustee" or "Trustees" shall refer to each signatory to
this Declaration of Trust as a trustee, so long as such signatory continues
in office in accordance with the terms hereof, and all other Persons who
may, from time to time, be duly elected or appointed, qualified and
serving on the Board of Trustees in accordance with the provisions
hereof. Reference herein to a Trustee or the Trustees shall refer to such
Person or Persons in their capacity as trustees hereunder.
ARTICLE II.
Purpose of Trust
The purpose of the Trust is to conduct, operate and carry on
the business of a registered management investment company registered
under the 1940 Act through one or more Series investing primarily in
securities and, in addition to any authority given by law, to exercise all
of the powers and to do any and all of the things as fully and to the same
extent as any private corporation organized for profit under the general
corporation law of the State of Delaware, now or hereafter in force,
including, without limitation, the following powers:
1. To invest and reinvest cash, to hold cash uninvested,
and to subscribe for, invest in, reinvest in, purchase or otherwise acquire,
own, hold, pledge, sell, assign, mortgage, transfer, exchange, distribute,
write options on, lend or otherwise deal in or dispose of contracts for the
future acquisition or delivery of fixed income or other securities, and
securities or property of every nature and kind, including, without
limitation, all types of bonds, debentures, stocks, preferred stocks,
negotiable or non-negotiable instruments, obligations, evidences of
indebtedness, certificates of deposit or indebtedness, commercial paper,
repurchase agreements, bankers' acceptances, and other securities of any
kind, issued, created, guaranteed, or sponsored by any and all Persons,
including, without limitation, states, territories, and possessions of the
United States and the District of Columbia and any political subdivision,
agency, or instrumentality thereof, any foreign government or any
political subdivision of the U.S. Government or any foreign government,
or any international instrumentality, or by any bank or savings institution,
or by any corporation or organization organized under the laws of the
United States or of any state, territory, or possession thereof, or by any
corporation or organization organized under any foreign law, or in "when
issued" contracts for any such securities, and to change the investments
of the assets of the Trust;
2. To exercise any and all rights, powers and privileges
with reference to or incident to ownership or interest, use and enjoyment
of any of such securities and other instruments or property of every kind
and description, including, but without limitation, the right, power and
privilege to own, vote, hold, purchase, sell, negotiate, assign, exchange,
lend, transfer, mortgage, hypothecate, lease, pledge or write options with
respect to or otherwise deal with, dispose of, use, exercise or enjoy any
rights, title, interest, powers or privileges under or with reference to any
of such securities and other instruments or property, the right to consent
and otherwise act with respect thereto, with power to designate one or
more Persons, to exercise any of said rights, powers, and privileges in
respect of any of said instruments, and to do any and all acts and things
for the preservation, protection, improvement and enhancement in value
of any of such securities and other instruments or property;
3. To sell, exchange, lend, pledge, mortgage, hypothecate,
lease or write options with respect to or otherwise deal in any property
rights relating to any or all of the assets of the Trust or any Series,
subject to any requirements of the 1940 Act;
4. To vote or give assent, or exercise any rights of
ownership, with respect to stock or other securities or property; and
to execute and deliver proxies or powers of attorney to such person or
persons as the Trustees shall deem proper, granting to such person or
persons such power and discretion with relation to securities or property
as the Trustees shall deem proper;
5. To exercise powers and rights of subscription or
otherwise which in any manner arise out of ownership of securities;
6. To hold any security or property in a form not
indicating that it is trust property, whether in bearer, unregistered or
other negotiable form, or in its own name or in the name of a custodian
or subcustodian or a nominee or nominees or otherwise or to authorize
the custodian or a subcustodian or a nominee or nominees to deposit the
same in a securities depository;
7. To consent to, or participate in, any plan for the
reorganization, consolidation or merger of any corporation or issuer of
any security which is held in the Trust; to consent to any contract,
lease, mortgage, purchase or sale of property by such corporation or
issuer; and to pay calls or subscriptions with respect to any security
held in the Trust;
8. To join with other security holders in acting through
a committee, depositary, voting trustee or otherwise, and in that
connection to deposit any security with, or transfer any security to, any
such committee, depositary or trustee, and to delegate to them such
power and authority with relation to any security (whether or not so
deposited or transferred) as the Trustees shall deem proper, and to agree
to pay, and to pay, such portion of the expenses and compensation of
such committee, depositary or trustee as the Trustees shall deem proper;
9. 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;
10. To enter into joint ventures, general or limited
partnerships and any other combinations or associations;
11. To endorse or guarantee the payment of any notes
or other obligations of any Person; to make contracts of guaranty or
suretyship, or otherwise assume liability for payment thereof;
12. To purchase and pay for entirely out of Trust Property
such insurance as the Trustees may deem necessary or appropriate for
the conduct of the business, including, without limitation, insurance
policies insuring the assets of the Trust or payment of distributions
and principal on its portfolio investments, and insurance policies
insuring the Shareholders, Trustees, officers, employees, agents,
Investment Advisers, Principal Underwriters, 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, Principal Underwriter,
or independent contractor, to the fullest extent permitted by this
Declaration of Trust, the Bylaws and by applicable law;
13. To adopt, establish and carry out pension, profit
sharing, share bonus, share purchase, savings, thrift and other retirement,
incentive and benefit plans, trusts and provisions, including the purchasing
of life insurance and annuity contracts as a means of providing such
retirement and other benefits, for any or all of the Trustees, officers,
employees and agents of the Trust;
14. To purchase or otherwise acquire, own, hold, sell,
negotiate, exchange, assign, transfer, mortgage, pledge or otherwise deal
with, dispose of, use, exercise or enjoy, property of all kinds;
15. To buy, sell, mortgage, encumber, hold, own, exchange,
rent or otherwise acquire and dispose of, and to develop, improve, manage,
subdivide, and generally to deal and trade in real property, improved and
unimproved, and wheresoever situated; and to build, erect, construct, alter
and maintain buildings, structures, and other improvements on real property;
16. To borrow or raise moneys for any of the purposes of the
Trust, and to mortgage or pledge the whole or any part of the property and
franchises of the Trust, real, personal, and mixed, tangible or intangible,
and wheresoever situated;
17. To enter into, make and perform contracts and undertakings
of every kind for any lawful purpose, without limit as to amount; and
18. To issue, purchase, sell and transfer, reacquire, hold, trade
and deal in Shares, bonds, debentures and other securities, instruments or
other property of the Trust, from time to time, to such extent as the Board
of Trustees shall, consistent with the provisions of this Declaration of
Trust, determine; and to repurchase, re-acquire and redeem, from time
to time, its Shares or, if any, its bonds, debentures and other securities.
The Trust shall not be limited to investing in obligations maturing
before the possible dissolution of the Trust or one or more of its Series.
The Trust shall not in any way be bound or limited by any present or future
law or custom in regard to investment by fiduciaries. Neither the Trust nor
the Trustees shall be required to obtain any court order to deal with any
assets of the Trust or take any other action hereunder.
The foregoing clauses shall each be construed as purposes, objects
and powers, and it is hereby expressly provided that the foregoing
enumeration of specific purposes, objects and powers shall not be held to
limit or restrict in any manner the powers of the Trust, and that they are
in furtherance of, and in addition to, and not in limitation of, the general
powers conferred upon the Trust by the DBTA and the other laws of the
State of Delaware or otherwise; nor shall the enumeration of one thing
be deemed to exclude another, although it be of like nature, not expressed.
ARTICLE III.
Shares
Section 1. Division of Beneficial Interest. The beneficial
interest in the Trust shall at all times be divided into Shares, all without
par value. The number of Shares authorized hereunder is unlimited.
The Board of Trustees may authorize the division of Shares into
separate and distinct Series and the division of any Series into
separate classes of Shares. The different Series and classes shall be
established and designated, and the variations in the relative rights
and preferences as between the different Series and classes shall be
fixed and determined by the Board of Trustees without the requirement
of Shareholder approval. If no separate Series or classes shall be
established, the Shares shall have the rights and preferences provided
for herein and in Article III, Section 6 hereof to the extent relevant
and not otherwise provided for herein, and all references to Series
and classes shall be construed (as the context may require) to refer
to the Trust. The fact that a Series shall have initially been
established and designated without any specific establishment or
designation of classes (i.e., that all Shares of such Series are initially
of a single class) shall not limit the authority of the Board of Trustees
to establish and designate separate classes of said Series. The fact
that a Series shall have more than one established and designated
class, shall not limit the authority of the Board of Trustees to establish
and designate additional classes of said Series, or to establish and
designate separate classes of the previously established and designated
classes.
The Board of Trustees shall have the power to issue Shares of
the Trust, or any Series or class thereof, from time to time for such
consideration (but not less than the net asset value thereof) and in such
form as may be fixed from time to time pursuant to the direction of the
Board of Trustees.
The Board of Trustees may hold as treasury shares, reissue for
such consideration and on such terms as they may determine, or cancel,
at their discretion from time to time, any Shares of any Series reacquired
by the Trust. The Board of Trustees may classify or reclassify any
unissued Shares or any Shares previously issued and reacquired of any
Series or class into one or more Series or classes that may be established
and designated from time to time. Notwithstanding the foregoing, the
Trust and any Series thereof may acquire, hold, sell and otherwise deal
in, for purposes of investment or otherwise, the Shares of any other Series
of the Trust or Shares of the Trust, and such Shares shall not be deemed
treasury shares or canceled.
Subject to the provisions of Section 6 of this Article III, each Share
shall have voting rights as provided in Article V hereof, and the Shareholders
of any Series shall be entitled to receive dividends and distributions,
when, if and as declared with respect thereto in the manner provided in
Article IV, Section 3 hereof. No Share shall have any priority or preference
over any other Share of the same Series or class with respect to dividends
or distributions paid in the ordinary course of business or distributions
upon dissolution of the Trust or of such Series or class made pursuant to
Article VIII, Section 1 hereof. All dividends and distributions shall be
made ratably among all Shareholders of a particular class or Series from
the Trust Property held with respect to such Series according to the
number of Shares of such class of such Series held of record by such
Shareholders on the record date for any dividend or distribution.
Shareholders shall have no preemptive or other right to subscribe to new
or additional Shares or other securities issued by the Trust or any Series.
The Trustees may from time to time divide or combine the Shares of any
particular Series into a greater or lesser number of Shares of that Series.
Such division or combination may not materially change the proportionate
beneficial interests of the Shares of that Series in the Trust Property held
with respect to that Series or materially affect the rights of Shares of any
other Series.
Any Trustee, officer or other agent of the Trust, and any
organization in which any such Person is interested, may acquire, own,
hold and dispose of Shares of the Trust to the same extent as if such
Person were not a Trustee, officer or other agent of the Trust; and the
Trust may issue and sell or cause to be issued and sold and may purchase
Shares from any such Person or any such organization subject only to
the general limitations, restrictions or other provisions applicable to the
sale or purchase of such Shares generally.
Section 2. Ownership of Shares. The ownership of Shares shall
be recorded on the books of the Trust kept by the Trust or by a transfer or
similar agent for the Trust, which books shall be maintained separately
for the Shares of each Series and class thereof that has been established
and designated. No certificates certifying the ownership of Shares shall
be issued except as the Board of Trustees may otherwise determine from
time to time. The Board of Trustees may make such rules not inconsistent
with the provisions of the 1940 Act as it considers appropriate for the
issuance of Share certificates, the transfer of Shares of each Series or class
and similar matters. The record books of the Trust as kept by the Trust or
any transfer or similar agent, as the case may be, shall be conclusive as to
who are the Shareholders of each Series or class thereof and as to the
number of Shares of each Series or class thereof held from time to time
by each such Shareholder.
Section 3. Investments in the Trust. Investments may be accepted
by the Trust from such Persons, at such times, on such terms, and for such
consideration as the Board of Trustees may, from time to time, authorize.
Each investment shall be credited to the individual Shareholder's account in
the form of full and fractional Shares of the Trust, in such Series or class as
the purchaser may select, at the net asset value per Share next determined for
such Series or class after receipt of the investment; provided, however, that
the Principal Underwriter may, in its sole discretion, impose a sales charge
upon investments in the Trust.
Section 4. Status of Shares and Limitation of Personal Liability.
Shares shall be deemed to be personal property giving to Shareholders only
the rights provided in this Declaration of Trust and under applicable law.
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 death of a Shareholder during the existence of the Trust
shall not operate to dissolve the Trust or any Series, nor entitle the
representative of any deceased Shareholder to an accounting or to take
any action in court or elsewhere against the Trust or the Trustees or any
Series, but entitles such representative only to the rights of said deceased
Shareholder under this Declaration of Trust. Ownership of Shares shall
not entitle the Shareholder to any title in or to the whole or any part of
the Trust Property or right to call for a partition or division of the same
or for an accounting, nor shall the ownership of Shares constitute the
Shareholders as partners. Neither the Trust nor the Trustees, nor any
officer, employee or agent of the Trust, shall have any power to bind
personally any Shareholder, nor, except as specifically provided herein,
to call upon any Shareholder for the payment of any sum of money
or assessment whatsoever other than such as the Shareholder may at
any time personally agree to pay. All Shares when issued on the terms
determined by the Board of Trustees, shall be fully paid and
nonassessable. As provided in the DBTA, Shareholders of the Trust
shall be entitled to the same limitation of personal liability extended to
stockholders of a private corporation organized for profit under the
general corporation law of the State of Delaware.
Section 5. Power of Board of Trustees to Change
Provisions Relating to Shares. Notwithstanding any other provisions
of this Declaration of Trust and without limiting the power of the
Board of Trustees to amend this Declaration of Trust or the Certificate
of Trust as provided elsewhere herein, the Board of Trustees shall
have the power to amend this Declaration of Trust, or the Certificate
of Trust, at any time and from time to time, in such manner as the
Board of Trustees may determine in its sole discretion, without the
need for Shareholder action, so as to add to, delete, replace or
otherwise modify any provisions relating to the Shares contained in
this Declaration of Trust, provided that Shareholder approval is not
otherwise required by the 1940 Act or other applicable law.
The Board of Trustees shall have the power, in its discretion,
to make such elections as to the tax status of the Trust as may be
permitted or required under the Code as presently in effect or as
amended, without the vote of any Shareholder.
Section 6. Establishment and Designation of Series. The
establishment and designation of any Series or class of Shares shall
be effective upon the resolution by a majority of the then Board of
Trustees, adopting a resolution which sets forth such establishment
and designation and the relative rights and preferences of such Series
or class. Each such resolution shall be incorporated herein by
reference upon adoption.
Each Series shall be separate and distinct from any other Series
and shall maintain separate and distinct records on the books of the Trust,
and the assets and liabilities belonging to any such Series shall be held
and accounted for separately from the assets and liabilities of the Trust
or any other Series.
Shares of each Series or class established pursuant to this
Section 6, unless otherwise provided in the resolution establishing
such Series, shall have the following relative rights and preferences:
Assets Held with Respect to a Particular Series. All
consideration received by the Trust for the issue or sale of Shares of a
particular Series, together with all assets in which such consideration is
invested or reinvested, all income, earnings, profits, and proceeds
thereof from whatever source derived, including, without limitation,
any proceeds derived from the sale, exchange or liquidation of such
assets, and any funds or payments derived from any reinvestment of
such proceeds in whatever form the same may be, shall irrevocably be
held with respect to that Series for all purposes, subject only to the
rights of creditors with respect to that Series, and shall be so recorded
upon the books of account of the Trust. Such consideration, assets,
income, earnings, profits and proceeds thereof, from whatever source
derived, including, without limitation, any proceeds derived from the
sale, exchange or liquidation of such assets, and any funds or payments
derived from any reinvestment of such proceeds, in whatever form the
same may be, are herein referred to as "assets held with respect to" that
Series. In the event that there are any assets, income, earnings, profits
and proceeds thereof, funds or payments which are not readily
identifiable as assets held with respect to any particular Series
(collectively "General Assets"), the Board of Trustees shall allocate
such General Assets to, between or among any one or more of the
Series in such manner and on such basis as the Board of Trustees, in
its sole discretion, deems fair and equitable, and any General Asset so
allocated to a particular Series shall be held with respect to that Series.
Each such allocation by the Board of Trustees shall be conclusive and
binding upon the Shareholders of all Series for all purposes.
Liabilities Held with Respect to a Particular Series.
The assets of the Trust held with respect to each particular Series shall
be charged against the liabilities of the Trust held with respect to that
Series and all expenses, costs, charges and reserves attributable to that
Series, and any liabilities, expenses, costs, charges and reserves of the
Trust which are not readily identifiable as being held with respect to
any particular Series (collectively "General Liabilities") shall be
allocated and charged by the Board of Trustees to and among any one
or more of the Series in such manner and on such basis as the Board
of Trustees, in its sole discretion, deems fair and equitable. The
liabilities, expenses, costs, charges, and reserves so charged to a Series
are herein referred to as "liabilities held with respect to" that Series.
Each allocation of liabilities, expenses, costs, charges and reserves
by the Board of Trustees shall be conclusive and binding upon the
Shareholders of all Series for all purposes. All Persons who have
extended credit which has been allocated to a particular Series, or
who have a claim or contract which has been allocated to any particular
Series, shall look, and shall be required by contract to look exclusively,
to the assets of that particular Series for payment of such credit, claim,
or contract. In the absence of an express contractual agreement so
limiting the claims of such creditors, claimants and contract providers,
each creditor, claimant and contract provider will be deemed
nevertheless to have impliedly agreed to such limitation unless an
express provision to the contrary has been incorporated in the written
contract or other document establishing the claimant relationship.
Subject to the right of the Board of Trustees in its discretion to
allocate General Liabilities as provided herein, the debts, liabilities,
obligations and expenses incurred, contracted for or otherwise existing
with respect to a particular Series, whether such Series is now authorized
and existing pursuant to this Declaration of Trust or is hereafter authorized
and existing pursuant to this Declaration of Trust, shall be enforceable
against the assets held with respect to that Series only, and not against
the assets of any other Series or the Trust generally and none of the debts,
liabilities, obligations and expenses incurred, contracted for or otherwise
existing with respect to the Trust generally or any other Series thereof
shall be enforceable against the assets held with respect to such Series.
Notice of this limitation on liabilities between and among Series shall be
set forth in the Certificate of Trust of the Trust (whether originally or
by amendment) as filed or to be filed in the Office of the Secretary of
State of the State of Delaware pursuant to the DBTA, and upon the giving
of such notice in the Certificate of Trust, the statutory provisions of
Section 3804 of the DBTA relating to limitations on liabilities between
and among Series (and the statutory effect under Section 3804 of setting
forth such notice in the Certificate of Trust) shall become applicable to
the Trust and each Series.
Dividends, Distributions, Redemptions and Repurchases.
Notwithstanding any other provisions of this Declaration of Trust, including,
without limitation, Article VI, no dividend or distribution including, without
limitation, any distribution paid upon dissolution of the Trust or of any
Series
or class with respect to, nor any redemption or repurchase of, the Shares of
any
Series or class shall be effected by the Trust other than from the assets held
with respect to such Series or class, nor, except as specifically provided in
Section 4 of Article VII or Section 5 of Article IV, shall any Shareholder of
any particular Series or class otherwise have any right or claim against the
assets held with respect to any other Series or class or the Trust generally
except to the extent that such Shareholder has such a right or claim hereunder
as a Shareholder of such other Series or class. The Board of Trustees shall
have full discretion, to the extent not inconsistent with the 1940 Act, to
determine which items shall be treated as income and which items as capital;
and each such determination and allocation shall be conclusive and binding
upon the Shareholders.
Voting. All Shares of the Trust entitled to vote on a
matter shall vote on the matter in the aggregate without differentiation
between the separate Series or classes. Notwithstanding the foregoing, (i)
if any matter affects only the interests of some but not all Series or classes,
then only the Shareholders of such affected Series or classes shall be entitled
to vote on the matter; and (ii) with respect to matters which would otherwise
be voted on by two or more Series or classes as a single class, the Trustees
may, in their sole discretion, submit such matters to the Shareholders of any
or all such Series or classes, separately.
Equality. All Shares of each particular Series shall
represent an equal proportionate undivided beneficial interest in the assets
held with respect to that Series (subject to the liabilities held with respect
to that Series and such rights and preferences as may have been established
and designated with respect to classes of Shares within such Series), and
each Share of any particular Series shall be equal to each other Share of
that Series (subject to the rights and preferences with respect to separate
classes of such Series).
Fractions. Any fractional Share of a Series shall carry
proportionately all the rights and obligations of a whole Share of that
Series, including rights with respect to voting, receipt of dividends and
distributions, redemption of Shares and dissolution of the Trust or that
Series.
Exchange Privilege. The Board of Trustees shall have
the authority to provide that the holders of Shares of any Series or class
shall have the right to exchange said Shares for Shares of one or more
other Series or classes in accordance with such requirements and
procedures as may be established by the Board of Trustees, and in
accordance with the 1940 Act and the rules and regulations thereunder.
Combination of Series or Class. The Board of Trustees
shall have the authority, without the approval of the Shareholders of any
Series or class, unless otherwise required by applicable law, to combine
the assets and liabilities held with respect to any two or more Series or
two or more classes into assets and liabilities held with respect to a single
Series or class, respectively.
Elimination of Series or Class. At any time that there
are no Shares outstanding of any particular Series or class previously
established and designated, the Board of Trustees may by resolution of a
majority of the then Board of Trustees abolish that Series or class and
rescind the establishment and designation thereof.
ARTICLE IV.
The Board of Trustees
Section 1. Number, Election and Tenure. The number of
Trustees constituting the Board of Trustees may be fixed from time to
time by a written instrument signed, or by resolution approved at a
duly constituted meeting, by a majority of the Board of Trustees,
provided, however, that the number of Trustees shall in no event be
less than one (1) nor more than twenty (20). The Board of Trustees,
by action of a majority of the then Trustees at a duly constituted
meeting, may fill vacancies in the Board of Trustees. The Board of
Trustees, by action of a two-thirds of the then Trustees at a duly
constituted meeting, may remove any trustee with or without cause.
The Shareholders may elect Trustees, including filling any vacancies
in the Board of Trustees, at any meeting of Shareholders called by
the Board of Trustees for that purpose. A meeting of Shareholders for
the purpose of electing one or more Trustees may be called by the
Board of Trustees or, to the extent provided by the 1940 Act and the
rules and regulations thereunder, by the Shareholders. Shareholders
shall have the power to remove a Trustee only to the extent provided
by the 1940 Act and the rules and regulations thereunder.
Each Trustee shall serve during the continued lifetime of the
Trust until he or she dies, resigns, is declared bankrupt or incompetent
by a court of appropriate jurisdiction, or is removed, or, if sooner than
any of such events, until the next meeting of Shareholders called for the
purpose of electing Trustees and until the election and qualification of
his or her successor. Any Trustee may resign at any time by written
instrument signed by him or her and delivered to any officer of the
Trust or to a meeting of the Board of Trustees. Such resignation shall
be effective upon receipt unless specified to be effective at some
later time. Except to the extent expressly provided in a written
agreement with the Trust, no Trustee resigning and no Trustee
removed shall have any right to any compensation for any period
following any such event or any right to damages on account of such
events or any actions taken in connection therewith following his or
her resignation or removal.
Section 2. Effect of Death, Resignation, Removal, etc. of
a Trustee. The death, declination, resignation, retirement, removal,
declaration as bankrupt or incapacity of one or more Trustees, or of
all of them, shall not operate to dissolve the Trust or any Series or to
revoke any existing agency created pursuant to the terms of this
Declaration of Trust. Whenever a vacancy in the Board of Trustees
shall occur, until such vacancy is filled as provided in this Article IV,
Section 1, the Trustee(s) in office, regardless of the number, shall have
all the powers granted to the Board of Trustees and shall discharge
all the duties imposed upon the Board of Trustees by this Declaration
of Trust. In the event of the death, declination, resignation, retirement,
removal, declaration as bankrupt or incapacity of all of the then
Trustees, the Trust's Investment Adviser(s) is (are) empowered to
appoint new Trustees subject to the provisions of Section 16(a) of the
1940 Act.
Section 3. Powers. Subject to the provisions of this Declaration
of Trust, the business of the Trust shall be managed by the Board of
Trustees, and such Board of Trustees shall have all powers necessary or
convenient to carry out that responsibility, including, without limitation,
the power to engage in securities or other transactions of all kinds on
behalf of the Trust. The Board of Trustees shall have full power and
authority to do any and all acts and to make and execute any and all
contracts and instruments that it may consider necessary or appropriate
in connection with the administration of the Trust. The Trustees shall
not be bound or limited by present or future laws or customs with
regard to investment by trustees or fiduciaries, but shall have full
authority and absolute power and control over the assets of the Trust
and the business of the Trust to the same extent as if the Trustees
were the sole owners of the assets of the Trust and the business in their
own right, including such authority, power and control to do all acts
and things as they, in their sole discretion, shall deem proper to accomplish
the purposes of this Trust. Without limiting the foregoing, the Trustees
may: (1) adopt, amend and repeal By-Laws not inconsistent with this
Declaration of Trust providing for the regulation and management of
the affairs of the Trust; (2) fill vacancies in or remove from their number
in accordance with this Declaration of Trust or the By-Laws, and may
elect and remove such officers and appoint and terminate such agents as
they consider appropriate; (3) to delegate such authority as they consider
desirable to a committee or committees comprised of Trustees or any
officers or agents of the Trust including, without limitation, an Executive
Committee; (4) employ one or more custodians of the Trust Property
and may authorize such custodians to employ subcustodians and to
deposit all or any part of such Trust Property in a system or systems
for the central handling of securities or with a Federal Reserve Bank;
(5) retain a transfer agent, dividend disbursing agent, a shareholder
servicing agent or administrative services agent, fund accountant, or all
of them; (6) provide for the issuance and distribution of Shares by the
Trust directly or through one or more Principal Underwriters or
otherwise; (7) retain one or more Investment Adviser(s); (8) redeem,
repurchase and transfer Shares pursuant to applicable law; (9) set
record dates for the determination of Shareholders with respect to
various matters, in the manner provided in Article V, Section 5 of this
Declaration of Trust; (10) declare and pay dividends and distributions
to Shareholders from the Trust Property; (11) establish from time to
time, in accordance with the provisions of Article III, Section 6 hereof,
any Series or class of Shares, each such Series to operate as a separate
and distinct investment medium and with separately defined investment
objectives and policies and distinct investment purposes; and (12) in
general delegate such authority as they consider desirable to any officer
of the Trust, to any committee of the Board of Trustees and to any agent
or employee of the Trust or to any such custodian, transfer, dividend
disbursing or shareholder servicing agent, fund accountant, legal counsel,
independent auditors for the Trust, Principal Underwriter or Investment
Adviser. Any determination as to what is in the best interests of the
Trust made by the Board of Trustees in good faith shall be conclusive.
In construing the provisions of this Declaration of Trust, the
presumption shall be in favor of a grant of power to the Trustees.
Unless otherwise specified herein or required by law, any action by the
Board of Trustees shall be deemed effective if approved or taken by a
majority of the Trustees then in office.
Any action required or permitted to be taken by the Board of
Trustees, or a committee thereof, may be taken without a meeting if a
majority of the members of the Board of Trustees, or committee thereof,
as the case may be, shall individually or collectively consent in writing
to that action. Such action by written consent shall have the same force
and effect as a majority vote of the Board of Trustees, or committee
thereof, as the case may be. Such written consent or consents shall be
filed with the minutes of the proceedings of the Board of Trustees, or
committee thereof, as the case may be.
The Trustees shall devote to the affairs of the Trust such time
as may be necessary for the proper performance of their duties hereunder,
but neither the Trustees nor the officers, directors, shareholders or
partners of the Trustees, shall be expected to devote their full time to the
performance of such duties. The Trustees, or any Affiliate shareholder,
officer, director, partner or employee thereof, or any Person owning a
legal or beneficial interest therein, may engage in or possess an interest
in any other business or venture of any nature and description,
independently or with or for the account of others.
Section 4. Payment of Fees and Expenses by the Trust. The
Board of Trustees is authorized to pay or cause to be paid out of the
principal or income of the Trust or any particular Series or class, or partly
out of the principal and partly out of the income of the Trust or any
particular Series or class, and to charge or allocate the same to, between
or among such one or more of the Series or classes that may be
established or designated pursuant to Article III, Section 6, as it deems
fair, all expenses, fees, charges, taxes and liabilities incurred by or
arising in connection with the maintenance or operation of the Trust or
a particular Series or class, or in connection with the management
thereof, including, but not limited to, the Trustees' compensation and
such expenses, fees, charges, taxes and liabilities for the services of the
Trust's officers, employees, Investment Adviser, Principal Underwriter,
fund accountant, auditors, counsel, custodian, sub-custodian (if any),
transfer agent, dividend disbursing agent, shareholder servicing agent,
and such other agents or independent contractors and such other expenses,
fees, charges, taxes and liabilities as the Board of Trustees may deem
necessary or proper to incur.
Section 5. Payment of Fees and Expenses by Shareholders.
The Board of Trustees shall have the power, as frequently as it may
determine, to cause each Shareholder of the Trust, or each Shareholder
of any particular Series, to pay directly, in advance or arrears, for charges
of the Trust's custodian or transfer, dividend disbursing, fund accounting,
shareholder servicing or similar agent, an amount fixed from time to time
by the Board of Trustees, by setting off such charges due from such
Shareholder from declared but unpaid dividends or distributions owed
such Shareholder and/or by reducing the number of Shares in the account
of such Shareholder by that number of full and/or fractional Shares which
represents the outstanding amount of such charges due from such Shareholder.
Section 6. Ownership of Trust Property. Legal title to all of the
Trust Property shall at all times be considered to be vested in the Trust,
except that the Board of Trustees shall have the power to cause legal title
to any Trust Property to be held by or in the name of any Person as
nominee, on such terms as the Board of Trustees may determine, in
accordance with applicable law.
Section 7. Service Contracts
1. Subject to such requirements and restrictions as may
be set forth in the By-Laws and/or the 1940 Act, the Board of Trustees
may, at any time and from time to time, contract for exclusive or
nonexclusive advisory, management and/or administrative services for
the Trust or for any Series with any corporation, trust, association or
other organization, including any Affiliate; and any such contract may
contain such other terms as the Board of Trustees may determine,
including without limitation, authority for the Investment Adviser or
administrator to determine from time to time without prior consultation
with the Board of Trustees what securities and other instruments or
property shall be purchased or otherwise acquired, owned, held, invested
or reinvested in, sold, exchanged, transferred, mortgaged, pledged,
assigned, negotiated, or otherwise dealt with or disposed of, and what
portion, if any, of the Trust Property shall be held uninvested and to
make changes in the Trust's or a particular Series' investments, or such
other activities as may specifically be delegated to such party.
2. The Board of Trustees may also, at any time and
from time to time, contract with any corporation, trust, association or
other organization, including any Affiliate, appointing it or them as the
exclusive or nonexclusive distributor or Principal Underwriter for the
Shares of the Trust or one or more of the Series or classes thereof or for
other securities to be issued by the Trust, or appointing it or them to
act as the custodian, transfer agent, dividend disbursing agent, fund
accountant, and/or shareholder servicing agent for the Trust or one or
more of the Series or classes thereof.
3. The Board of Trustees is further empowered, at any
time and from time to time, to contract with any Persons to provide such
other services to the Trust or one or more of its Series, as the Board of
Trustees determines to be in the best interests of the Trust or one or
more of its Series.
(d) The fact that:
1. any of the Shareholders, Trustees, employees or officers
of the Trust is a shareholder, director, officer, partner, trustee,
employee, manager, Adviser, Principal Underwriter, distributor, or
Affiliate or agent of or for any corporation, trust, association, or other
organization, or for any parent or Affiliate of any organization with
which an Adviser's, management or administration contract, or
Principal Underwriter's or distributor's contract, or custodian, transfer,
dividend disbursing, fund accounting, shareholder servicing or other
type of service contract may have been or may hereafter be made, or
that any such organization, or any parent or Affiliate thereof, is a
Shareholder or has an interest in the Trust, or that
2. any corporation, trust, association or other organization
with which an Adviser's, management or administration contract or
Principal Underwriter's or distributor's contract, or custodian, transfer,
dividend disbursing, fund accounting, shareholder servicing or other
type of service contract may have been or may hereafter be made also
has an Adviser's, management or administration contract, or Principal
Underwriter's or distributor's contract, or custodian, transfer, dividend
disbursing, shareholder servicing or other service contract with one or
more other corporations, trusts, associations, or other organizations,
or has other business or interests,
shall not affect the validity of any such contract or disqualify any
Shareholder, Trustee, employee or officer of the Trust from voting
upon or executing the same, or create any liability or accountability
to the Trust or its Shareholders, provided that the establishment of and
performance under each such contract is permissible under the
provisions of the 1940 Act.
Section 8. Compensation. Except as set forth in the last
sentence of this Section 8, the Board of Trustees may, from time to time,
fix a reasonable amount of compensation to be paid by the Trust to the
Trustees and officers of the Trust. 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.
ARTICLE V.
Shareholders' Voting Powers and Meetings Section 1. Voting Powers.
Subject to the provisions of Article III, Section 6(d), the
Shareholders shall have power to vote only (i) for the election of
Trustees, including the filling of any vacancies in the Board of
Trustees, as provided in Article IV, Section 1; (ii) with
respect to such additional matters relating to the Trust as
may be required by this Declaration of Trust, the By-Laws,
the 1940 Act or any registration statement of the Trust filed
with the Commission; and (iii) on such other matters as the
Board of Trustees may consider necessary or desirable. The
Shareholder of record (as of the record date established pursuant
to Section 5 of this Article V) of each Share shall be entitled to
one vote for each full Share, and a fractional vote for each
fractional Share. Shareholders shall not be entitled to cumulative
voting in the election of Trustees or on any other matter. Shares
may be voted in person or by proxy.
Section 2. Meetings. Meetings of the Shareholders may be
called by the Board of Trustees for the purpose of electing Trustees
as provided in Article IV, Section 1 and for such other purposes as
may be prescribed by law, by this Declaration of Trust or by the
By-Laws. Meetings of the Shareholders may also be called by the
Board of Trustees from time to time for the purpose of taking
action upon any other matter deemed by the Board of Trustees to
be necessary or desirable.
Section 3. Quorum and Required Vote. Except when a
larger quorum is required by applicable law, by the By-Laws or by
this Declaration of Trust, thirty-three and one-third percent (33-1/3%)
of the Shares present in person or represented by proxy and entitled to
vote at a Shareholders' meeting shall constitute a quorum at such
meeting. When a separate vote by one or more Series or classes is
required, thirty-three and one-third percent (33-1/3%) of the Shares
of each such Series or class present in person or represented by proxy
and entitled to vote shall constitute a quorum at a Shareholders' meeting
of such Series or class. Subject to the provisions of Article III, Section
6(d), Article VIII, Section 3 and any other provision of this Declaration
of Trust, the By-Laws or applicable law which requires a different vote:
(1)in all matters other than the election of Trustees, the affirmative vote
of the majority of votes cast at a Shareholders' meeting at which a quorum
is present shall be the act of the Shareholders; (2) Trustees shall be elected
by a plurality of the votes cast at a Shareholders' meeting at which a quorum
is present.
Section 4. Shareholder Action by Written Consent
without a MeetingAny action which may be taken at any meeting
of Shareholders may be taken without a meeting and without prior
notice if a consent in writing setting forth the action so taken is signed
by the holders of Shares having not less than the minimum number of
votes that would be necessary to authorize or take that action at a meeting
at which all Shares entitled to vote on that action were present and voted.
All such consents shall be filed with the secretary of the Trust and shall
be maintained in the Trust's records. Any Shareholder giving a written
consent or the Shareholder's proxy holders or a transferee of the Shares
or a personal representative of the Shareholder or its respective proxy-
holder may revoke the consent by a writing received by the secretary of
the Trust before written consents of the number of Shares required to
authorize the proposed action have been filed with the secretary.
If the consents of all Shareholders entitled to vote have not
been solicited in writing and if the unanimous written consent of all
such Shareholders shall not have been received, the secretary shall give
prompt notice of the action taken without a meeting to such Shareholders.
This notice shall be given in the manner specified in the By-Laws.
Section 5. Record Dates. For purposes of determining the
Shareholders entitled to notice of any meeting or to vote or entitled to
give consent to action without a meeting, the Board of Trustees may fix
in advance a record date which shall not be more than one hundred eighty
(180) days nor less than seven (7) days before the date of any such meeting.
If the Board of Trustees does not so fix a record date:
1. The record date for determining Shareholders entitled
to notice of or to vote at a meeting of Shareholders shall be at the close
of business on the business day before the notice is given or, if notice is
waived, at the close of business on the business day which is five (5)
business days before the day on which the meeting is held.
2. The record date for determining Shareholders entitled
to give consent to action in writing without a meeting, (i) when no prior
action by the Board of Trustees has been taken, shall be the day on which
the first written consent is given, or (ii) when prior action of the Board
of Trustees has been taken, shall be at the close of business on the day on
which the Board of Trustees adopts the resolution taking such prior action.
For the purpose of determining the Shareholders of any Series
or class who are entitled to receive payment of any dividend or of any
other distribution, the Board of Trustees may from time to time fix a date,
which shall be before the date for the payment of such dividend or such
other distribution, as the record date for determining the Shareholders of
such Series or class having the right to receive such dividend or distribution.
Nothing in this Section shall be construed as precluding the Board of Trustees
from setting different record dates for different Series or classes.
Section 6. Additional Provisions. The By-Laws may include
further provisions for Shareholders' votes, meetings and related matters.
ARTICLE VI.
Net Asset Value, Distributions and Redemptions Section 1.
Determination of Net Asset Value, Net Income and Distributions.
Subject to Article III, Section 6 hereof, the Board of Trustees
shall have the power to fix an initial offering price for the
Shares of any Series or class thereof which shall result in such Series
or class being valued at not less than the net asset value thereof, at
which price the Shares of such Series or class shall be offered initially
for sale, and to determine from time to time thereafter the offering
price which shall result in such Series or class being valued at not less
than the net asset value thereof from sales of the Shares of such Series
or class; provided, however, that no Shares of a Series or class thereof
shall be issued or sold for consideration which shall result in such Series
or class being valued at less than the net asset value of the Shares of
such Series or class next determined after the receipt of the order (or at
such other times set by the Board of Trustees), except in the case of
Shares of such Series or class issued in payment of a dividend properly
declared and payable.
Subject to Article III, Section 6 hereof, the Board of Trustees,
in its absolute discretion, may prescribe and shall set forth in the By-laws
or in a duly adopted vote of the Board of Trustees such bases and time for
determining the per Share or net asset value of the Shares of any Series or
net income attributable to the Shares of any Series, or the declaration
and payment of dividends and distributions on the Shares of any Series,
as they may deem necessary or desirable.
Section 2. Redemptions at the Option of a Shareholder. Unless
otherwise provided in the prospectus of the Trust relating to the Shares, as
such prospectus may be amended from time to time ("Prospectus"):
1. The Trust shall purchase such Shares as are offered
by any Shareholder for redemption, upon the presentation of a proper
instrument of transfer together with a request directed to the Trust or
a Person designated by the Trust that the Trust purchase such Shares
or in accordance with such other procedures for redemption as the
Board of Trustees may from time to time authorize; and the Trust
will pay therefor the net asset value thereof, in accordance with the
By-Laws and applicable law. The payment of redemption proceeds
may be reduced by any applicable sales charges or fees described in
the Prospectus. Payment for said Shares shall be made by the Trust
to the Shareholder within seven days after the date on which the
request is received in proper form. The obligation set forth in this
Section 2 may be suspended or postponed in accordance with Section
22(e) of the 1940 Act and the rules and regulations thereunder or as
otherwise permitted by the Commission. If certificates have been
issued to a Shareholder, any such request by such Shareholder must
be accompanied by surrender of any outstanding certificate or
certificates for such Shares in form for transfer, together with such
proof of the authenticity of signatures as may reasonably be required
on such Shares and accompanied by proper stock transfer stamps,
if applicable.
2. Payments for Shares so redeemed by the Trust shall
be made in cash, except payment for such Shares may, at the option
of the Board of Trustees, or such officer or officers as it may duly
authorize in its complete discretion, be made in kind or partially in
cash and partially in kind. In case of any payment in kind, the Board
of Trustees, or its delegate, shall have absolute discretion as to what
security or securities of the Trust shall be distributed in kind and the
amount of the same; and the securities shall be valued for purposes of
distribution at the value at which they were appraised in computing
the then current net asset value of the Shares, provided that any
Shareholder who cannot legally acquire securities so distributed in
kind by reason of the prohibitions of the 1940 Act or the provisions of
the Employee Retirement Income Security Act ("ERISA") shall
receive cash. Shareholders shall bear the expenses of in-kind
transactions, including, but not limited to, transfer agency fees,
custodian fees and costs of disposition of such securities.
3. If payment for Shares shall be made other than
exclusively in cash, any securities to be delivered as part of such
payment shall be delivered as promptly as any necessary transfers
of such securities on the books of the several corporations whose
securities are to be delivered practicably can be made, which may
not necessarily occur within such seven day period. In no case shall
the Trust be liable for any delay of any corporation or other Person
in transferring securities selected for delivery as all or part of any
payment in kind.
4. The right of Shareholders to receive dividends
or other distributions on Shares may be set forth in a Plan adopted
by the Board of Trustees and amended from time to time pursuant
to Rule 18f-3 of the 1940 Act. The right of any Shareholder of the
Trust to receive dividends or other distributions on Shares redeemed
and all other rights of such Shareholder with respect to the Shares
so redeemed by the Trust, except the right of such Shareholder to
receive payment for such Shares, shall cease at the time as of which
the purchase price of such Shares shall have been fixed, as provided
above.
Section 3. Redemptions at the Option of the Trust. The
Board of Trustees may, from time to time, without the vote or consent
of the Shareholders, and subject to the 1940 Act, redeem Shares or
authorize the closing of any Shareholder account, subject to such
conditions as may be established by the Board of Trustees.
ARTICLE VII.
Limitation of Liability; Indemnification Section 1. Trustees,
Shareholders, etc. Not Personally Liable.The Trustees,
officers, employees and agents of the Trust,in incurring
any debts, liabilities or obligations, or in limiting or omitting
any other actions for or in connection with the Trust, are or
shall be deemed to be acting as Trustees, officers, employees or
agents of the Trust and not in their own capacities. No Shareholder
shall be subject to any personal liability whatsoever in tort, contract
or otherwise to any other Person or Persons in connection with the
assets or the affairs of the Trust or of any Series or class, and subject
to Sections 3 and 5 of this Article VII, no Trustee, officer, employee
or agent of the Trust shall be subject to any personal liability
whatsoever in tort, contract, or otherwise, to any other Person or
Persons in connection with the assets or affairs of the Trust or of
any Series or class, save only that arising from his or her own
willful misfeasance, bad faith, gross negligence or reckless disregard
of the duties involved in the conduct of his or her office or the
discharge of his or her duties. The Trust (or if the matter relates only
to a particular Series or class, that Series or class) shall be solely liable
for any and all debts, claims, demands, judgments, decrees, liabilities
or obligations of any and every kind, against or with respect to the
Trust or such Series or class in tort, contract or otherwise in
connection with the assets or the affairs of the Trust or such Series or
class, and all Persons dealing with the Trust or any Series or class
shall be deemed to have agreed that resort shall be had solely to the
Trust Property of the Trust (or if the matter relates only to a particular
Series or class, that of such Series or class), for the payment or
performance thereof.
The Trustees may provide that every note, bond, contract, instrument,
certificate or undertaking made or issued by the Trustees or by any
officer or officers shall give notice that a Certificate of Trust in respect
of the Trust is on file with the Secretary of State of the State of Delaware
and may recite to the effect that the same was executed or made by or
on behalf of the Trust or by them as Trustee or Trustees or as officer
or officers, and not individually, and that the obligations of any
instrument made or issued by the Trustees or by any officer or officers
of the Trust are not binding upon any of them or the Shareholders
individually but are binding only upon the assets and property of the
Trust, or the particular Series in question, as the case may be. The
omission of any statement to such effect from such instrument shall not
operate to bind any Trustee or Trustees or officer or officers or Shareholder
or Shareholders individually, or to subject the assets of any Series or class
to the obligations of any other Series or class.
Section 2. Officers and Trustees' Good Faith Action, Expert
Advice, No Bond or Surety. The exercise by the Trustees of their powers
and discretion hereunder shall be binding upon everyone interested. An
officer or Trustee shall be liable to the Trust and to any Shareholder solely
for such officer's or Trustee's own willful misfeasance, bad faith, gross
negligence or reckless disregard of the duties involved in the conduct of
the office of such officer or Trustee, and for nothing else, and shall not be
liable for errors of judgment or mistakes of fact or law. Subject to the
foregoing, the Trustees shall not be responsible or liable in any event for
any neglect or wrongdoing of any officer, agent, employee, consultant,
investment adviser, administrator, distributor, underwriter, custodian or
transfer agent, dividend disbursing agent, shareholder servicing agent or
accounting agent of the trust, nor shall any Trustee be responsible for the
act or omission of any other Trustee. In discharging their duties, the
Trustees, when acting in good faith, shall be entitled to rely upon the
books of account of the Trust and upon written reports made to the
Trustees by an officer appointed by them, any independent public
accountant or auditor, and (with respect to the subject matter of the
relevant contract involved) any officer, partner or responsible
employee of a contracting party employed by the Trust. The officers
and Trustees may obtain the advice of counsel or other experts with
respect to the meaning and operation of this Declaration of Trust
and their duties as officers or Trustees. No such officer or Trustee
shall be liable for any act or omission in accordance with such advice
and no inference concerning liability shall arise from a failure to
follow such advice. The officers and Trustees shall not be required to
give any bond as such, nor any surety if a bond is required.
Section 3. Indemnification of Shareholders. If any
Shareholder (or former Shareholder) of the Trust shall be charged
or held to be personally liable for any obligation or liability of the
Trust solely by reason of being or having been a Shareholder and
not because of such Shareholder's acts or omissions or for some
other reason, the Trust (upon proper and timely request by the
Shareholder) may assume the defense against such charge and
satisfy any judgment thereon or may reimburse the Shareholder
or former Shareholder for expenses, and the Shareholder or former
Shareholder (or the heirs, executors, administrators or other legal
representatives thereof, or in the case of a corporation or other
entity, its corporate or other general successor) shall be entitled
(but solely out of the assets of the Series of which such Shareholder
or former Shareholder is or was the holder of Shares) to be held
harmless from and indemnified against all loss and expense arising
from such liability.
Section 4. Indemnification of Trustees, Officers, etc.
Subject to the limitations, if applicable, hereinafter set forth in this
Section 4, the Trust shall indemnify (from the assets of one or more
Series to which the conduct in question relates) each of its Trustees,
officers, employees and agents (including Persons who serve at the
Trust's request as directors, officers or trustees of another
organization in which the Trust has any interest as a shareholder,
creditor or otherwise (hereinafter, together with such Person's
heirs, executors, administrators or personal representatives, referred
to as a "Covered Person")) against all liabilities, including but not
limited to amounts paid in satisfaction of judgments, in compromise
or as fines and penalties, and expenses, including reasonable
accountants' and counsel fees, incurred by any Covered Person
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 such Covered Person
may be or may have been involved as a party or otherwise or with
which such Covered Person may be or may have been threatened,
while in office or thereafter, by reason of being or having been such
a Trustee or officer, director or trustee, except with respect to any
matter as to which it has been determined that such Covered
Person (i) did not act in good faith in the reasonable belief that such
Covered Person's action was in or not opposed to the best interests
of the Trust; or (ii) had acted with willful misfeasance, bad faith,
gross negligence or reckless disregard of the duties involved in the
conduct of such Covered Person's office; and (iii) for a criminal
proceeding, had reasonable cause to believe that his or her conduct
was unlawful (the conduct described in (i), (ii) and (iii) being referred
to hereafter as "Disabling Conduct"). A determination that the
Covered Person is entitled to indemnification may be made by (i) a
final decision on the merits by a court or other body before whom
the proceeding was brought that the Covered Person to be indemnified
was not liable by reason of Disabling Conduct, (ii) dismissal of a
court action or an administrative proceeding against a Covered Person
for insufficiency of evidence of Disabling Conduct, or (iii) a
reasonable determination, based upon a review of the facts, that the
indemnitee was not liable by reason of Disabling Conduct by (a) a
vote of a majority of a quorum of the Trustees who are neither
Interested Persons of the Trust nor parties to the proceeding (the
"Disinterested Trustees"), or (b) an independent legal counsel in a
written opinion. Expenses, including accountants' and counsel fees
so incurred by any such Covered Person (but excluding amounts paid
in satisfaction of judgments, in compromise or as fines or penalties),
may be paid from time to time by one or more Series to which the
conduct in question related in advance of the final disposition of any
such action, suit or proceeding; provided that the Covered Person shall
have undertaken to repay the amounts so paid to such Series if it is
ultimately determined that indemnification of such expenses is not
authorized under this Article VII and (i) the Covered Person shall
have provided security for such undertaking, (ii) the Trust shall be
insured against losses arising by reason of any lawful advances,
or (iii) a majority of a quorum of the Disinterested Trustees, or an
independent legal counsel in a written opinion, shall have determined,
based on a review of readily available facts (as opposed to a full trial
type inquiry), that there is reason to believe that the Covered Person
ultimately will be found entitled to indemnification.
Section 5. Compromise Payment. As to any matter
disposed of by a compromise payment by any such Covered
Person referred to in Section 4 of this Article VII, pursuant to a
consent decree or otherwise, no such indemnification either for
said payment or for any other expenses shall be provided unless
such indemnification shall be approved (i) by a majority of a
quorum of the Disinterested Trustees or (ii) by an independent
legal counsel in a written opinion. Approval by the Trustees
pursuant to clause (i) or by independent legal counsel pursuant
to clause (ii) shall not prevent the recovery from any Covered
Person of any amount paid to such Covered Person in accordance
with either of such clauses as indemnification if such Covered
Person is subsequently adjudicated by a court of competent
jurisdiction not to have acted in good faith in the reasonable
belief that such Covered Person's action was in or not opposed
to the best interests of the Trust or to have been 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 the Covered Person's office.
Section 6. Indemnification Not Exclusive, etc. The right
of indemnification provided by this Article VII shall not be exclusive
of or affect any other rights to which any such Covered Person or
shareholder may be entitled. As used in this Article VII, a
"disinterested" Person is one against whom none of the actions, suits
or other proceedings in question, and no other action, suit or other
proceeding on the same or similar grounds is then or has been pending
or threatened. Nothing contained in this Article VII shall affect any
rights to indemnification to which personnel of the Trust, other than
Trustees and officers, and other Persons may be entitled by contract or
otherwise under law, nor the power of the Trust to purchase and
maintain liability insurance on behalf of any such Person.
Section 7. Insurance. To the fullest extent permitted by
applicable law, the officers and Trustees shall be entitled and have the
authority to purchase with Trust Property, insurance for liability and
for all expenses reasonably incurred or paid or expected to be paid by
a Trustee or officer in connection with any claim, action, suit or
proceeding in which such Person becomes involved by virtue of such
Person's capacity or former capacity with the Trust, whether or not the
Trust would have the power to indemnify such Person against such
liability under the provisions of this Article.
Section 8. Liability of Third Persons Dealing with Trustees.
No person dealing with the Trustees shall be bound to make any
inquiry concerning the validity of any actions made or to be made by
the Trustees.
ARTICLE VIII.
Miscellaneous Section 1. Dissolution and Liquidation of Trust, Series, or
Class.
Unless dissolved as provided herein, the Trust shall have perpetual
existence. The Trust may be dissolved at any time by vote of a majority of
the Shares of the Trust entitled to vote or by the Board of Trustees by
written notice to the Shareholders. Any Series or class may be dissolved or
liquidated at any time by vote of a majority of the Shares of that Series or
class or by the Board of Trustees by written notice to the Shareholders of
that Series or class.
Upon dissolution of the Trust (or a particular Series or class, as
the case may be), the Trustees shall (in accordance with Section 3808 of
the DBTA) pay or make reasonable provision to pay all claims and
obligations of each Series or class (or the particular Series or class, as
the case may be), including all contingent, conditional or unmatured
claims and obligations known to the Trust, and all claims and obligations
which are known to the Trust but for which the identity of the claimant
is unknown. If there are sufficient assets held with respect to each Series
or class of the Trust (or the particular Series or class, as the case
may be), such claims and obligations shall be paid in full and any such
provisions for payment shall be made in full. If there are insufficient
assets held with respect to each Series or class of the Trust (or the
particular Series or class, as the case may be), such claims and
obligations shall be paid or provided for according to their priority
and, among claims and obligations of equal priority, ratably to the
extent of assets available therefor. Any remaining assets (including
without limitation, cash, securities or any combination thereof) held
with respect to each Series or class of the Trust (or the particular
Series or class, as the case may be) shall be distributed to the
Shareholders of such Series or class, ratably according to the number
of Shares of such Series or class held by the several Shareholders on
the record date for such dissolution distribution.
Section 2. Merger and Consolidation; Conversion.
Merger and Consolidation. Pursuant to an
agreement of merger or consolidation, the Trust, or any one or
more Series or classes, may, by act of a majority of the Board of
Trustees, merge or consolidate with or into one or more business
trusts or other business entities formed or organized or existing
under the laws of the State of Delaware or any other state or the
United States or any foreign country or other foreign jurisdiction.
Any such merger or consolidation shall not require the vote of
the Shareholders affected thereby, unless such vote is required by
the 1940 Act, or unless such merger or consolidation would result
in an amendment of this Declaration of Trust which would
otherwise require the approval of such Shareholders. In accordance
with Section 3815(f) of the DBTA, an agreement of merger or
consolidation may effect any amendment to this Declaration of
Trust or the By-Laws or effect the adoption of a new declaration
of trust or by-laws of the Trust if the Trust is the surviving or
resulting business trust. Upon completion of the merger or
consolidation, the Trustees shall file a certificate of merger
or consolidation in accordance with Section 3810 of the
DBTA.
Conversion. A majority of the Board of
Trustees may, without the vote or consent of the Shareholders,
cause (i) the Trust to convert to a common-law trust, a general
partnership, limited partnership or a limited liability company
organized, formed or created under the laws of the State of
Delaware as permitted pursuant to Section 3821 of the
DBTA; (ii) the Shares of the Trust or any Series or class to
be converted into beneficial interests in another business trust
(or series or class thereof) created pursuant to this Section 2 of
this Article VIII, or (iii) the Shares to be exchanged under or
pursuant to any state or federal statute to the extent permitted by
law; provided, however, that if required by the 1940 Act, no
such statutory conversion, Share conversion or Share exchange
shall be effective unless the terms of such transaction shall first
have been approved at a meeting called for that purpose by the
"vote of a majority of the outstanding voting securities," as such
phrase is defined in the 1940 Act, of the Trust or Series or
class, as applicable; provided, further, that in all respects not
governed by statute or applicable law, the Board of Trustees shall
have the power to prescribe the procedure necessary or appropriate
to accomplish a sale of assets, merger or consolidation including
the power to create one or more separate business trusts to which
all or any part of the assets, liabilities, profits or losses of the
Trust may be transferred and to provide for the conversion of
Shares of the Trust or any Series or class into beneficial interests
in such separate business trust or trusts (or series or class thereof).
Section 3. Reorganization.
A majority of the Board of Trustees may
cause the Trust to sell, convey and transfer all
or substantially all of the assets of the Trust,
or all or substantially all of the assets associated
with any one or more Series or class, to another
trust, business trust, partnership, limited partnership,
limited liability company, association or corporation
organized under the laws of any state, or to one or more
separate series or classes thereof, or to the Trust to
be held as assets associated with one or more other
Series or class of the Trust, in exchange for cash,
shares or other securities (including, without limitation,
in the case of a transfer to another Series or class
of the Trust, Shares of such other Series or class) with
such transfer either (a) being made subject to, or with
the assumption by the transferee of, the liabilities
associated with each Series or class the assets of which
are so transferred, or (b) not being made subject to,
or not with the assumption of, such liabilities; provided,
however, that, if required by the 1940 Act, no assets
associated with any particular Series or class shall be
so sold, conveyed or transferred unless the terms of
such transaction shall first have been approved at a
meeting called for that purpose by the "vote of a
majority of the outstanding voting securities," as
such phrase is defined in the 1940 Act, of that Series
or class. Following such sale, conveyance and transfer,
the Board of Trustees shall distribute such cash, shares
or other securities (giving due effect to the assets
and liabilities associated with and any other
differences among the various Series or classes the
assets associated with which have so been sold,
conveyed and transferred) ratably among the Shareholders
of the Series or class the assets associated with
which have been so sold, conveyed and transferred
(giving due effect to the differences among the various
classes within each such Series or class); and if all
of the assets of the Trust have been so sold, conveyed
and transferred, the Trust shall be dissolved.
Section 4. Amendments. Subject to the provisions of the
second paragraph of this Section 4 of this Article VIII, this
Declaration of Trust may be restated and/or amended at any time
by an instrument in writing signed by a majority of the then Board
of Trustees and, if required, by approval of such amendment by
Shareholders in accordance with Article V, Section 3 hereof. Any
such restatement and/or amendment hereto shall be effective
immediately upon execution and approval or upon such future
date and time as may be stated therein. The Certificate of Trust
of the Trust may be restated and/or amended by a similar procedure,
and any such restatement and/or amendment shall be effective
immediately upon filing with the Office of the Secretary of State
of the State of Delaware or upon such future date as may be stated
therein.
Notwithstanding the above, the Board of
Trustees expressly reserves the right to amend
or repeal any provisions contained in this
Declaration of Trust or the Certificate of Trust,
in accordance with the provisions of Section 5
of Article III hereof, and all rights, contractual
and otherwise, conferred upon Shareholders are
granted subject to such reservation. The Board
of Trustees further expressly reserves the right
to amend or repeal any provision of the By-Laws
pursuant to Article IX of the By-Laws.
Section 5. Filing of Copies, References, Headings.
The original or a copy of this Declaration of Trust and of each
restatement and/or amendment hereto shall be kept at the principal
executive office of the Trust or at the principal offices of any
administrator where the Trust's records are maintained so that it
may be inspected by any Shareholder. Anyone dealing with the
Trust may rely on a certificate by an fficer of the Trust as to whether
or not any such restatements and/or amendments have been made
and as to any matters in connection with the Trust hereunder; and,
with the same effect as if it were the original, may rely on a copy
certified by an officer of the Trust to be a copy of this instrument
or of any such restatements and/or amendments. In this Declaration
of Trust and in any such restatements and/or amendments, references
to this instrument, and all expressions of similar effect to "herein,
" "hereof" and "hereunder," shall be deemed to refer to this instrument
as amended or affected by any such restatements and/or amendments.
Headings are placed herein for convenience of reference only and
shall not be taken as a part hereof or control or affect the meaning,
construction or effect of this instrument. Whenever the singular
number is used herein, the same shall include the plural; and
the neuter, masculine and feminine genders shall include each other,
as applicable. This instrument may be executed in any number of
counterparts, each of which shall be deemed an original.
Section 6. Applicable Law. This Declaration of Trust is
created under and is to be governed by and construed and administered
according to the laws of the State of Delaware and the applicable
provisions of the 1940 Act and the Code. The Trust shall be a
Delaware business trust pursuant to the DBTA, and without limiting
the provisions hereof, the Trust may exercise all powers which are
ordinarily exercised by such a business trust.
Section 7. Provisions in Conflict with Law or Regulations.
1. The provisions of this Declaration
of Trust are severable, and if the Board of Trustees
shall determine, with the advice of counsel, that
any of such provisions is in conflict with the 1940
Act, the Code, the DBTA, or with other applicable
laws and regulations, the conflicting provision shall
be deemed not to have constituted a part of this
Declaration of Trust from the time when such provisions
became inconsistent with such laws or regulations;
provided, however, that such determination shall
not affect any of the remaining provisions of this
Declaration of Trust or render invalid or improper
any action taken or omitted prior to such determination.
2. If any provision of this Declaration of
Trust shall be held invalid or unenforceable in any
jurisdiction, such invalidity or unenforceability
shall attach only to such provision in such jurisdiction
and shall not in any manner affect such provision in
any other jurisdiction or any other provision of this
Declaration of Trust in any jurisdiction.
Section 8. Business Trust Only. It is the intention of
the Trustees to create a business trust pursuant to the DBTA,
and thereby to create the relationship of trustee and beneficial
owners within the meaning of the DBTA between the Trustees
and each Shareholder. It is not the intention of the Trustees to
create a general or limited partnership, limited liability company,
joint stock association, corporation, bailment, or any form of
legal relationship other than a business trust pursuant to the DBTA.
Nothing in this Declaration of Trust shall be construed to make
the Shareholders, either by themselves or with the Trustees,
partners or members of a joint stock association.
Section 9. Use of the Name "4 Winds". The Trust
expressly agrees and acknowledges that the name "4 Winds"
is the sole property of 21st Century Enterprises Inc. 21st
Century Enterprises Inc. has consented to the use by the
Trust of the identifying words "4 Winds" and has granted
to the Trust a non-exclusive license to use such name as part
of the name of the Trust and the name of any Series of its
Shares. The Trust further expressly agrees and acknowledges
that the non-exclusive license granted herein may be terminated
by 21st Century Enterprises Inc. if the Trust ceases to use 21st
Century Enterprises or one of its Affiliates as Investment
Adviser or to use other Affiliates or successors of 21st
Century Enterprises Inc. for such purposes. In such event,
the non-exclusive license granted herein may be revoked
by 21st Century Enterprises Inc. and the Trust shall cease using
the name "4 Winds" as part of its name or the name of any
Series of Shares, unless otherwise consented to by 21st
Century Enterprises Inc. or any successor to its interests
in such name.
The Trust further understands and agrees
that so long as 21st Century Enterprises Inc.
and/or any future advisory Affiliate of 21
Century Enterprises Inc. shall continue to
serve as the Trust's Investment Adviser,
other mutual funds as may be sponsored or
advised by 21st Century Enterprises Inc. or
its Affiliates shall have the right
permanently to adopt and to use the word
Stratevest" in their names and in the names
of any Series or class of Shares of such funds.
IN WITNESS WHEREOF, the Trustees named
below do hereby make and enter into this Declaration
of Trust as of the 28th day of September, 2000.
/s/ Xxxxxxx X. Xxxxxxxx /s/ C. Xxxxx Xxxxxxxx
Xxxxxxx X. Xxxxxxxx C. Xxxxx Xxxxxxxx
Trustee Trustee
/s/ Xxxxx X. Xxxxxxx
Xxxxx X. Xxxxxxx
Trustee
77Q (e) Exhibits
INVESTMENT ADVISORY CONTRACT
This Contract is made this 13th day of October,
2000, between Native American Advisors, Inc., a
Georgia corporation having its principal place of
business in Alpharetta, Georgia (the "Adviser"), and
4 Winds Family of Funds, a Delaware business trust
having its principal place of business in Pittsburgh,
Pennsylvania (the "Trust").
WHEREAS the Trust is an open-end management
investment company as that term is defined in the
Investment Company Act of 1940, as amended, and is
registered as such with the Securities and Exchange
Commission; and
WHEREAS Adviser engages in the business of
rendering investment advisory and management services.
NOW, THEREFORE, the parties hereto, intending
to be legally bound, hereby agree as follows:
1. The Trust hereby appoints Adviser as
Investment Adviser for the 4 Winds Treasury Money
Market Fund ("Fund") and Adviser accepts the
appointment. Subject to the direction of the
Trustees, the Adviser shall provide the Trustees
with periodic reports and analyses regarding current
economic and investment matters which may affect the
Fund, and shall monitor and provide the Trustees with
analyses of the Fund's performance in light of these
trends. It is agreed and understood that, during the
term of this Contract, Federated Investment Management
Company shall be responsible for the daily management
of the Fund's assets, including the buying and selling
of portfolio securities, pursuant to the terms of a
Co-Advisory Agreement dated October 13, 2000 between
the Fund and Federated Investment Management Company
(the "Co-Adviser").
2. Adviser, regarding its activities on behalf
of the Fund, will be guided by the Fund's investment
objective and policies and the provisions and
restrictions contained in the Declaration of Trust
and By-Laws of the Trust and as set forth in the
Registration Statements and exhibits as may be on file
with the Securities and Exchange Commission.
3. The Fund shall pay or cause to be paid
all of its own expenses and its allocable share of
Trust expenses, including, without limitation, the
expenses of organizing the Trust and continuing its
existence; fees and expenses of Trustees and officers
of the Trust; fees for investment advisory services
and administrative personnel and services; expenses
incurred in the distribution of its shares ("Shares"),
including expenses of administrative support services;
fees and expenses of preparing and printing its
Registration Statements under the Securities Act of
1933 and the Investment Company Act of 1940, as amended,
and any amendments thereto; expenses of registering and
qualifying the Trust, the Fund, and Shares under federal
and state laws and regulations; expenses of preparing,
printing, and distributing prospectuses (and any
amendments thereto) to shareholders; interest expense,
taxes, fees, and commissions of every kind; expenses
of issue (including cost of Share certificates),
purchase, repurchase, and redemption of Shares,
including expenses attributable to a program of
periodic issue; charges and expenses of custodians,
transfer agents, dividend disbursing agents,
shareholder servicing agents, and registrars;
printing and mailing costs, auditing, accounting,
and legal expenses; reports to shareholders and
governmental officers and commissions; expenses of
meetings of Trustees and shareholders and proxy
solicitations therefor; insurance expenses;
association membership dues and such nonrecurring
items as may arise, including all losses and
liabilities incurred in administering the Trust and
the Fund. The Fund will also pay its allocable
share of such extraordinary expenses as may arise
including expenses incurred in connection with
litigation, proceedings, and claims and the legal
obligations of the Trust to indemnify its officers
and Trustees and agents with respect thereto.
4. The Fund shall pay to Adviser, for
all services rendered to Fund by Adviser hereunder,
the fees set forth in the exhibit attached hereto.
In addition, the Fund shall reimburse the Adviser for
travel costs incurred by it in connection with the
attendance by an employee of the Adviser of Board of
Trustees meetings of the Fund.
5. The net asset value of the Fund's Shares
as used herein will be calculated to the nearest 1/10th
of one cent.
6. The Adviser may from time to time and for
such periods as it deems appropriate reduce its
compensation (and, if appropriate, assume expenses
of the Fund) to the extent that the Fund's expenses
exceed such lower expense limitation as the Adviser
may, by notice to the Fund, voluntarily declare to
be effective.
7. This Contract shall begin for the Fund as
of the date of execution of the exhibit hereto and
shall continue in effect with respect to the Fund for
two years from the date of this Contract set forth
above and thereafter for successive periods of one
year, subject to the provisions for termination and
all of the other terms and conditions hereof if: (a)
such continuation shall be specifically approved at
least annually by the vote of a majority of the
Trustees of the Trust, including a majority of the
Trustees who are not parties to this Contract or
interested persons of any such party cast in person
at a meeting called for that purpose; and (b) Adviser
shall not have notified the Fund in writing at least
sixty (60) days prior to the anniversary date of this
Contract in any year thereafter that it does not desire
such continuation with respect to the Fund.
8. Notwithstanding any provision in this
Contract, it may be terminated at any time with respect
to the Fund, without the payment of any penalty, by the
Trustees of the Trust or by a vote of the shareholders
of that Fund on sixty (60) days' written notice to
Adviser.
9. This Contract may not be assigned by
Adviser and shall automatically terminate in the
event of any assignment. Adviser may employ or
contract with such other person, persons, corporation,
or corporations at its own cost and expense as it
shall determine in order to assist it in carrying out
this Contract.
10. In the absence of willful misfeasance,
bad faith, gross negligence, or reckless disregard of
the obligations or duties under this Contract on the
part of Adviser, Adviser shall not be liable to the
Trust or to any of the Funds or to any shareholder
for any act or omission in the course of or connected
in any way with rendering services or for any losses
that may be sustained in the purchase, holding, or
sale of any security.
11. This Contract may be amended at any time
by agreement of the parties provided that the amendment
shall be approved both by the vote of a majority of the
Trustees of the Trust including a majority of the
Trustees who are not parties to this Contract or
interested persons of any such party to this Contract
(other than as Trustees of the Trust) cast in person at
a meeting called for that purpose, and, where required
by Section 15(a)(2) of the Act, on behalf of the Fund
by a majority of the outstanding voting securities of
such Fund as defined in Section 2(a)(42) of the Act.
12. The Adviser acknowledges that all sales
literature for investment companies (such as the Trust)
is subject to strict regulatory oversight. The Adviser
agrees to submit any proposed sales literature for
the Trust (or the Fund) or for itself or its affiliates
which mentions the Trust (or the Fund) to the Trust's
distributor for review and filing with the appropriate
regulatory authorities prior to the public release of
any such sales literature, provided, however, that
nothing herein shall be construed so as to create any
obligation or duty on the part of the Adviser to
produce sales literature for the Trust (or the Fund).
The Trust agrees to cause its distributor to promptly
review all such sales literature to ensure compliance
with relevant requirements, to promptly advise Adviser
of any deficiencies contained in such sales literature,
to promptly file complying sales literature with the
relevant authorities, and to cause such sales
literature to be distributed to prospective investors
in the Trust.
13. Adviser is hereby expressly put on
notice of the limitation of liability as set
forth in Article VII of the Declaration of
Trust and agrees that the obligations pursuant
to this Contract of the Fund and of the Trust
with respect to the Fund be limited solely to
the assets of the Fund, and Adviser shall not
seek satisfaction of any such obligation from
any other fund of the Trust, the shareholders
of any such fund or the Fund, the Trustees,
officers, employees, or agents of the Trust,
or any of them.
14. The parties hereto acknowledge that
21st Century Enterprises, Inc. has reserved the
right to grant the non-exclusive use of the name
"4 Winds Family of Funds" or any derivative
thereof to any other investment company, investment
company portfolio, investment adviser, distributor,
or other business enterprise, and to withdraw from
the Trust and the Fund the use of the name 4 Winds
Family of Funds. The name 4 Winds Family of Funds
will continue to be used by the Trust and the Fund
so long as such use is mutually agreeable to 21st
Century Enterprises, Inc. and the Trust.
15. The adviser will provide the Co-Adviser
with a list, to the best of the Adviser's knowledge,
of all affiliated persons (and any affiliated person
of such an affiliated person) and will promptly
update the list whenever the Adviser becomes aware
of any additional affiliated persons.
16. This Contract shall be construed in
accordance with and governed by the laws of the
Commonwealth of Pennsylvania.
17. This Contract will become binding
on the parties hereto upon their execution of the
attached exhibit to this Contract.
EXHIBIT A
to the
Investment Advisory Contract
4 Winds Treasury Money Market Fund
For all services rendered by Adviser
hereunder, the above-named Fund of the 4 Winds
Family of Funds shall pay to Adviser and Adviser
agrees to accept as full compensation for all
services rendered hereunder, an annual investment
advisory fee equal to 0.05% of the average daily
net assets of the Fund.
The portion of the fee based upon the average
daily net assets of the Fund shall be accrued daily
at the rate of 1/365th of 0.05% of 1% applied to the
daily net assets of the Fund.
The advisory fee so accrued shall be paid
to Adviser monthly.
Witness the due execution hereof this 13th
day of October , 2000.
4 Winds Family of Funds
By: ./s/ Xxxxxx X. Xxxxxxx
Name: Xxxxxx X. Xxxxxxx
Title: Vice President
Native American Advisors, Inc.
By: /s/ Xxxx X. Parisian
Name: Xxxx X. Parisian
Title: President
iii
Current as of: 8/18/94
