Exhibit (a)(2)
AGREEMENT AND
DECLARATION OF TRUST
This
AGREEMENT AND DECLARATION OF TRUST is made by the initial trustees of Skyhawk Capital
Management Funds Trust in the City of Memphis, the State of Tennessee, this
28th day of September, 2006.
WITNESSETH:
WHEREAS,
Skyhawk Capital Management Funds Trust (the “Trust”) has been formed to carry on
the business of an investment company; and
WHEREAS,
the Trust is authorized to issue its Shares of beneficial interest in separate series,
each separate series to be a Portfolio hereunder, and to issue Classes of Shares of any
Portfolio or divide Shares of any Portfolio 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 statutory trust in accordance with the provisions hereinafter set forth.
AGREEMENT:
NOW,
THEREFORE, the Trustees hereby declare that they will hold IN TRUST all cash,
securities and other assets which the Trust may from time to time acquire and manage and
dispose of the same upon the following terms and conditions for the pro rata benefit of
the Shareholders in the Trust and the Portfolios created hereunder as hereinafter set
forth.
ARTICLE I
NAME AND
DEFINITIONS
Section
1.1 Name and Location. The name of the statutory trust established hereby is
Skyhawk Capital Management Funds Trust; and the Trustees shall conduct the business of
the Trust under that name or any other name(s) and in such location(s) as they may from
time to time determine. The Trust shall constitute a Delaware statutory trust in
accordance with the Delaware Statutory Trust Act.
Section
1.2 Definitions. Whenever used herein, unless otherwise required by the context or
specifically provided:
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(a)
“1940 Act” means the Investment Company Act of 1940 and
rules thereunder, all as amended from time to time;
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(b)
“Bylaws” means the Bylaws of the Trust, as amended from
time to time;
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(c)
“Class” means any Class of Shares of any Portfolio
established and designated under or in accordance with the provisions of
Article IV;
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(d)
“Contracting Party” shall have the meaning set forth in
Section 3.3;
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(e)
“Covered Persons” shall have the meaning set forth in
Section 6.4;
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(f)
“Disabling Conduct” shall have the meaning set forth in
Section 6.4;
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(g)
“Disinterested Trustees” shall have the meaning set forth
in Section 6.4;
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(h)
“General Items” shall have the meaning set forth in
Section 4.3(a);
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(i)
“Portfolio” means a series of Shares of the Trust
established and designated under or in accordance with the provisions of
Article IV;
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(j)
“Prospectus” means a current prospectus under the
Securities Act of 1933, as amended from time to time, including any “statement
of additional information” that is incorporated by reference into
such Prospectus.
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(k)
“Shareholder” means a record owner of Shares;
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(l)
“Shares” means the transferable units of interest into
which the beneficial interest in the Trust and each Portfolio of the Trust
and/or any Class of any Portfolio (as the context may require) shall be
divided from time to time;
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(n)
“Trust Agreement” means this Agreement and Declaration of
Trust, as amended or restated from time to time;
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(o)
“Trustees” means the Trustees of the Trust named herein
or appointed or elected in accordance with Article III; and
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(p)
“Trust Property” means any and all property, real or
personal, tangible or intangible, which is owned or held by or for the
account of the Trust or any Portfolio, or by the Trustees on behalf of the
Trust or any Portfolio.
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ARTICLE II
PURPOSE
AND CERTIFICATE OF TRUST
Section
2.1 Purpose of Trust. The purpose of the Trust is to conduct, operate, and carry
on the business of an open-end management investment company registered under the 1940
Act through one or more Portfolios investing primarily in securities and to carry on such
other business as the Trustees may from time to time determine pursuant to their
authority under this Agreement.
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ARTICLE III
THE
TRUSTEES
Section
3.1 Number; Designation; Election; Term, etc.
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(a)
Number. The initial number of Trustees shall be three. The Trustees may
thereafter increase or decrease the number of Trustees to a number other
than the number theretofore determined. No decrease in the number of
Trustees shall have the effect of removing any Trustee from office prior
to the expiration of his term, but the number of Trustees may be decreased
in conjunction with the removal of a Trustee pursuant to Section 3.1(d).
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(b)
Term of Office of Trustees. Each Trustee shall serve during the life of
the Trust and until its termination as hereinafter provided, except as
such Trustee sooner dies, resigns, retires, is declared bankrupt or
incompetent by a court of appropriate jurisdiction, or is removed. Subject
to Section 16(a) of the 1940 Act, the Trustees may elect their own
successors and may, pursuant to Section 3.1(e), appoint Trustees to fill
vacancies.
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(c)
Resignation and Retirement. Any Trustee may resign or retire, by written
instrument signed by him and delivered to the other Trustees or to any
officer of the Trust, and such resignation or retirement shall take effect
upon such delivery or upon such later date as is specified in such
instrument and shall be effective as to the Trust and each Portfolio
hereunder.
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(d)
Removal. Any Trustee may be removed with or without cause at any time (i)
by vote of Shareholders holding not less than a majority of the Shares
then outstanding, cast in person or by proxy at any meeting called for the
purpose; or (ii) by a written declaration signed by Shareholders holding
not less than a majority of the Shares then outstanding and filed with the
Trust’s custodian. Any removal pursuant to this Section 3.1(d) shall
be effective as to the Trust and each Portfolio hereunder.
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(e)
Vacancies. In the case of any vacancy or anticipated vacancy resulting
from any reason, including, without limitation, the death, resignation,
retirement, removal or incapacity of any of the Trustees, or resulting
from an increase in the number of Trustees by the other Trustees, the
other Trustees shall have all the powers hereunder and the certification
of the other Trustees of such vacancy shall be conclusive. Any vacancy may
be filled by a majority of the remaining Trustees, subject to the
provisions of Section 16(a) of the 1940 Act, through the appointment in
writing of such other person as such remaining Trustees in their
discretion shall determine. Such appointment shall be effective upon the
written acceptance of the person named therein to serve as a Trustee and
agreement by such person to be bound by the provisions of this Trust
Agreement, except that any such appointment in anticipation of a vacancy
to occur by reason of retirement, resignation or increase in number of
Trustees, to be effective at a later date, shall become effective only at
or after the effective date of said retirement, resignation or increase in
number of Trustees. As soon as any Trustee so appointed shall have
accepted such appointment and shall have agreed in writing to be bound by
this Trust Agreement and the appointment is effective, the Trust property
shall vest in the new Trustee, together with the continuing Trustees,
without any further act or conveyance. Unless required by any applicable
provisions of the 1940 Act, no vacancy need be filled so long as there are
at least two remaining trustees.
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(f)
Effect of Death, Resignation, etc. The death, resignation, retirement,
removal or incapacity of the Trustees, or any one of them, shall not
operate to annul or terminate the Trust or any Portfolio hereunder or to
revoke or terminate any existing agency or contract created or entered
into pursuant to the terms of this Trust Agreement.
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(g)
No Accounting. Except to the extent required by any applicable provision
of the 1940 Act or under circumstances that would justify his removal for
cause, no person ceasing to be a Trustee as a result of his death,
resignation, retirement, removal or incapacity (nor the estate of any such
person) shall be required to make an accounting to the Shareholders or
remaining Trustees upon such cessation.
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Section
3.2 Powers of Trustees. Subject to the provisions of this Trust Agreement, the
business of the Trust shall be managed by the Trustees, and they shall have all powers
necessary or convenient to carry out that responsibility and the purpose of the Trust.
The Trustees in all instances shall act as principals, and are and shall be free from the
control of the Shareholders. The Trustees shall have full power and authority to do any
and all acts and to make and execute any and all contracts and instruments that they may
consider necessary or appropriate in connection with the management and operation of the
Trust. Trustees 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 discretion,
shall deem proper to accomplish the purposes of this Trust. Without limiting the
foregoing, and to the extent not inconsistent with the 1940 Act or other applicable law,
the Trustees shall have power and authority:
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(a)
Bylaws. To adopt Bylaws not inconsistent with this Trust Agreement
providing for the conduct of the business and affairs of the Trust and to
amend and repeal them to the extent that such Bylaws do not reserve that
right to the Shareholders;
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(b)
Portfolios. To establish Portfolios, each such Portfolio to operate as a
separate and distinct investment medium and with separately defined
investment objectives and policies and distinct investment purposes, and
to establish Classes of Shares of any Portfolio or divide the Shares of
any Portfolio into Classes;
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(c)
Officers, Employees, Agents, and Consultants. To hire and terminate and
elect and remove such officers and employees and to appoint and terminate
such agents and consultants as they consider appropriate;
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(d)
Committees. To appoint from their own number, and terminate, any one or
more committees consisting of two or more Trustees, including, without
limitation, an executive committee, which may, when the Trustees are not
in session and subject to any applicable provisions of the 1940 Act,
exercise some or all of the power and authority of the Trustees as the
Trustees may determine;
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(e)
Service Providers. To employ one or more advisers, administrators,
depositories and custodians and authorize any depository or custodian to
employ subcustodians or agents and to deposit all or any part of such
assets in a system or systems for the central handling of securities and
debt instruments, retain transfer, dividend disbursing, accounting or
Shareholder servicing agents or any of the foregoing, provide for the
distribution of Shares by the Trust through one or more distributors,
principal underwriters or otherwise, and set record dates or times for the
determination of Shareholders with respect to various matters;
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(f)
Compensation. To compensate or provide for the compensation of the
Trustees, officers, advisers, administrators, depositories, custodians,
other agents, consultants and employees of the Trust or the Trustees on
such terms as they deem appropriate;
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(g)
Delegation. To delegate to any officer of the Trust, to any committee of
the Trustees and to any employee, adviser, administrator, distributor,
depository, custodian, transfer and dividend disbursing agent, or any
other agent or consultant of the Trust, such authority, powers, functions
and duties as they consider desirable or appropriate for the conduct of
the business and affairs of the Trust, including, without limitation, the
power and authority to act in the name of the Trust and any Portfolio and
of the Trustees, to sign documents and to act as attorney-in-fact for the
Trustees;
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(h)
Investments. To invest and reinvest cash and other property, and to hold
cash or other property uninvested in accordance with the investment
policies and restrictions of each Portfolio as set out from time to time
in the prospectus for the Portfolio;
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(i)
Dispositionof Assets. To sell, exchange, lend, pledge,
hypothecate, write options on and lease any or all of the assets of the
Trust;
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(j)
Ownership Powers. To vote or give assent, or exercise any rights of
ownership, with respect to stock or other securities, debt instruments or
property; and to execute and deliver 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,
debt instruments or property as the Trustees shall deem proper;
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(k)
Subscription. To exercise powers and rights of subscription or otherwise
which in any manner arise out of ownership of securities or debt
instruments;
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(l)
Form of Holding. To hold any security, debt instrument or property in a
form not indicating any trust, whether in bearer, unregistered or other
negotiable form, or in the name of the Trustees or of the Trust or of any
Portfolio or in the name of a custodian, subcustodian or other depository
or a nominee or nominees or otherwise;
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(m)
Reorganization, etc. To consent to or participate in any plan for the
reorganization, consolidation or merger of any corporation or issuer, any
security or debt instrument of which is held in the Trust; to consent to
any contract, lease, mortgage, purchase or sale of property by such
corporation or issuer, and to pay calls or subscriptions with respect to
any security or debt instrument held in the Trust;
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(n)
Voting Trusts, etc. To join with other holders of any securities or debt
instruments in acting through a committee, depository, voting trustee or
otherwise, and in that connection to deposit any security or debt
instrument with, or transfer any security or debt instrument to, any such
committee, depository or trustee, and to delegate to them such power and
authority with relation to any security or debt instrument (whether or not
so deposited or transferred) as the Trustees shall deem proper, and to
agree to pay, and to pay, such portion of the expenses and compensation of
such committee, depository or trustee as the Trustees shall deem proper;
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(o)
Compromise. To compromise, arbitrate or otherwise adjust claims in favor
of or against the Trust or any Portfolio or any matter in controversy,
including, without limitation, claims for taxes;
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(p)
Partnerships, etc. To enter into joint ventures, general or limited
partnerships and any other combinations or associations;
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(q)
Borrowing and Security. To borrow funds or other property in the name of
the Trust exclusively for Trust purposes, and in connection therewith, to
issue notes or other evidence of indebtedness, and to mortgage and pledge
the assets of the Trust or any part thereof to secure any or all of such
indebtedness;
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(r)
Guarantees, etc. 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; and to
mortgage and pledge the Trust property or any part thereof to secure any
of or all such obligations;
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(s)
Insurance. 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 and payment of distributions and
principal on its Portfolio investments, and insurance policies insuring
the Shareholders, Trustees, officers, employees, agents, consultants,
investment advisers, managers, administrators, distributors, principal
underwriters, or independent contractors of the Trust individually against
all claims and liabilities of every nature arising by reason of holding,
being or having held any such office or position, or by reason of any
action alleged to have been taken or omitted by any such person in any
such capacity, including any action taken or omitted that may be
determined to constitute negligence, whether or not the Trust would have
the power to indemnify such person against such liability;
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(t)
Pensions etc. To adopt, establish and carry out pension, profit-sharing,
Share bonus, Share purchase, savings, thrift and other retirement,
incentive and benefit plans, trust 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; and
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(u)
Distribution Plans. To adopt on behalf of the Trust or any Portfolio or
any Class thereof a plan of distribution and related agreements thereto
pursuant to the terms of Rule 12b-1 under the 1940 Act and to make
payments from the assets of the Trust or the relevant Portfolio or
Portfolios pursuant to said Rule 12b-1 Plan.
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The
foregoing enumeration of specific powers shall not be held to limit or restrict in any
manner the general powers of the Trustees. Any action by one or more of the Trustees in
their capacity as such hereunder shall be deemed an action on behalf of the Trust or the
applicable Portfolio, and not an action in an individual capacity.
The
Trustees shall not be limited to investing in obligations maturing before the possible
termination of the Trust.
No
one dealing with the Trustees shall be under any obligation to make any inquiry concerning
the authority of the Trustees, or to see to the application of any payments made or
property transferred to the Trustees or upon their order.
Section
3.3 Certain Contracts. Subject to compliance with any applicable provisions of the
1940 Act, the Trustees may, at any time and from time to time, and without limiting the
generality of their powers and authority otherwise set forth herein, enter into one or
more contracts with any one or more corporations, trusts, associations, partnerships,
limited partnerships, other type of organizations, or individuals (a “Contracting
Party”), to provide for the performance and assumption of some or all of the
following services, duties and responsibilities to, for or on behalf of the Trust, and/or
any Portfolio, and/or any Class of Shares and/or the Trustees, and to provide for the
performance and assumption of such other services, duties and responsibilities in
addition to those set forth below as the Trustees may determine appropriate:
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(a)
Advisory. Subject to any directions of the Trustees and in accordance
with the investment policies and restrictions of each Portfolio as set out
from time to time in the prospectus for the Portfolio, with respect to the
investments of the Trust or the assets belonging to any Portfolio of the
Trust (as that phrase is defined in Section 4.3(a)), to manage such
investments and assets, make investment decisions with respect thereto,
and to place purchase and sale orders for Portfolio transactions relating
to such investments and assets;
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(b)
Administration. Subject to any directions of the Trustees and in
conformity with any policies of the Trustees with respect to the
operations of the Trust and each Portfolio (including each Class thereof),
to supervise all or any part of the operations of the Trust and each
Portfolio, and to provide all or any part of the administrative and
clerical personnel, office space and office equipment and services
appropriate for the efficient administration and operations of the Trust
and each Portfolio;
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(c)
Distribution. To distribute the Shares of the Trust and each Portfolio
(including any Classes thereof), through a principal underwriter of such
Shares or otherwise;
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(d)
Custodian and Depository. To act as depository for and to maintain
custody of the property of the Trust and each Portfolio and accounting
records in connection therewith;
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(e)
Transfer and Dividend Disbursing Agent. To maintain records of the
ownership of outstanding Shares, the issuance and redemption and the
transfer thereof, and to disburse any dividends declared by the Trustees
and in accordance with the policies of the Trustees and/or the
instructions of any particular Shareholder to reinvest any such dividends;
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(f)
Shareholder Servicing. To provide services with respect to the
relationship of the Trust and its Shareholders, records with respect to
Shareholders and their Shares, and similar matters; and
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(g)
Accounting. To handle all or any part of the accounting and auditing
responsibilities, whether with respect to the Trust’s Property,
Shareholders or otherwise.
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The
same person may be the Contracting Party for some or all of the services, duties and
responsibilities to, for and of the Trust and/or the Trustees, and the contracts with
respect thereto may contain such terms interpretive of or in addition to the delineation
of the services, duties and responsibilities provided for in this Section 3.3, including
provisions that are not inconsistent with any applicable requirement of the 1940 Act
relating to the standard of duty of and the rights to indemnification of the Contracting
Party and others, as the Trustees may determine. Nothing herein shall preclude, prevent or
limit the Trust or a Contracting Party from entering into sub-contractual arrangements
relative to any of the matters referred to in Section 3.3(a) through (g).
The
fact that:
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(i) |
any
of the Shareholders, Trustees or officers of the Trust is a Shareholder,
director, officer, partner, trustee, employee, manager, investment adviser,
principal underwriter or distributor or agent of or for any Contracting Party,
or of or for any parent or affiliate of any Contracting Party or that the
Contracting Party or any parent or affiliate thereof is a Shareholder or has an
interest in the Trust or any Portfolio, or that |
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(ii) |
any
Contracting Party may have a contract providing for the rendering of any
similar services to one or more other corporations, trusts, associations,
partnerships, limited partnerships or other organizations, or have other
business or interests, |
shall not affect the validity of any
contract for the performance and assumption of services, duties and responsibilities to,
for or of the Trust or any Portfolio and/or the Trustees or disqualify any Shareholder,
Trustee or officer of the Trust from voting upon or executing the same or create any
liability or accountability to the Trust, any Portfolio or its Shareholders, provided
that, in the case of any relationship or interest referred to in the preceding clause (i)
on the part of any Trustee or officer of the Trust, either (x) the material facts as to
such relationship or interest and the contract involved is approved in good faith by a
majority of such Trustees not having any such relationship or interest (even though such
unrelated or disinterested Trustees are less than a quorum of all of the Trustees); (y)
the material facts as to such relationship or interest and as to the contract have been
disclosed to or are known by the Shareholders entitled to vote thereon and the contract
involved is specifically approved in good faith by vote of the Shareholders; or (z) the
specific contract involved is fair to the Trust as of the time it is authorized, approved
or ratified by the Trustees or by the Shareholders.
Section
3.4 Payment of Trust Expenses and Compensation of Trustees. The Trustees are
authorized to pay or to cause to be paid out of the principal or income of the Trust or
any Portfolio, or partly out of principal and partly out of income, and to charge or
allocate the same to, between or among such one or more of the Portfolios and/or one or
more Classes of Shares thereof that may be established and designated pursuant to Article
IV, as the Trustees deem fair, all expenses, fees, charges, taxes and liabilities
incurred or arising in connection with the Trust, any Portfolio and/or any Class of
Shares thereof, or in connection with the management thereof, including, without
limitation, the Trustees’ compensation and such expenses and charges for the
services of the Trust’s officers, employees, investment adviser, administrator,
distributor, principal underwriter, auditors, counsel, depository, custodian, transfer
agent, dividend disbursing agent, accounting agent, Shareholder servicing agent, and such
other agents, consultants, and independent contractors and such other expenses and
charges as the Trustees may deem necessary or proper to incur. Without limiting the
generality of any other provision hereof, the Trustees shall be entitled to reasonable
compensation from the Trust for their services as Trustees and may fix the amount of such
compensation.
Section
3.5 Ownership of Assets of the Trust. Title to all of the assets of the Trust and
each Portfolio shall at all times be considered as vested in the Trustees on behalf of
the Trust, except that the Trustees shall have power to cause legal title to any Trust
property to be held in the name of the Trust, or in the name of any other person as
nominee, on such terms as the Trustees may determine. The right, title and interest of
the Trustees in the Trust property shall vest automatically in each person who may
hereafter become a Trustee. Upon the resignation, removal or death of a Trustee, he or
she shall automatically cease to have any right, title or interest in any of the Trust
property, and the right, title and interest of such Trustee in the Trust property shall
vest automatically in the remaining Trustees. Such vesting and cessation of title shall
be effective whether or not conveyancing documents have been executed and delivered.
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Section
3.6 Action by Trustees. Except as otherwise provided by applicable provisions of
the 1940 Act or other applicable law, this Trust Agreement or the Bylaws, any action to
be taken by the Trustees on behalf of or with respect to the Trust or any Portfolio or
Class thereof may be taken by (a) a majority vote of the Trustees present at a
meeting of Trustees (a quorum, consisting of at least one-half of the Trustees then in
office, being present), within or without Delaware, including any meeting held by means
of a conference telephone or other communications equipment by means of which all persons
participating in the meeting can hear each other at the same time, and participation by
such means shall constitute presence in person at a meeting, or by written consents of a
majority of the Trustees then in office; or (b) without a vote, if a consent or consents
in writing, setting forth the action so taken, shall be signed by a majority of the
Trustees.
ARTICLE IV
SHARES
Section
4.1 Beneficial Interest. The beneficial interest in the Trust shall be divided
into an unlimited number of Shares, all without par value.
Section
4.2 Portfolios and Classes.
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(a)
The Trustees shall have the authority from time to time to issue Shares in
one or more series (each of which series of Shares shall represent the
beneficial interest in a separate and distinct Portfolio of the Trust),
including, without limitation, each Portfolio specifically established and
designated in Schedule A, as they deem necessary or desirable. The Trustees shall
have exclusive power, without the requirement of Shareholder approval, to
establish and designate all terms and conditions of such separate and
distinct Portfolios, including as to fees, charges, right of redemption
and the price, terms and manner of redemption, special and relative rights
as to dividends and other distributions and on liquidation, sinking or
purchase fund provisions, conversion rights, conditions under which the
several Portfolios shall have separate voting rights or no voting rights,
and arrangements for distribution and administration.
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(b)
The Trustees shall have exclusive power, without the requirement of
Shareholder approval, to issue Classes of Shares of any Portfolio or
divide the Shares of any Portfolio into Classes, and to establish all
terms and conditions of each Class, including as to fees, charges, right
of redemption and the price, terms and manner of redemption, special and
relative rights as to dividends and other distributions and on
liquidation, sinking or purchase fund provisions, conversion rights,
conditions under which the several Classes of a Portfolio shall have
separate voting rights or no voting rights, and arrangements for
distribution or administration. The fact that a Portfolio shall have
initially been established and designated without any specific
establishment or designation of Classes (i.e., that all Shares of such
Portfolio are initially of a single Class), or that a Portfolio shall have
more than one established and designated Class, shall not limit the
authority of the Trustees to establish and designate or redesignate
separate Classes, or one or more further Classes, of said Portfolio
without approval of the Shareholders of the initial Class thereof.
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(c)
The number of authorized Shares and the number of Shares of each Portfolio
or Class thereof that may be issued is unlimited, and the Trustees may
issue Shares of any Portfolio or Class thereof for such consideration and
on such terms as they may determine (or for no consideration if pursuant
to a Share dividend or split-up), all without action or approval of the
Shareholders. All Shares when so issued on the terms determined by the
Trustees shall be fully paid and non-assessable (but may be subject to any
deemed contribution of capital as described in Section 4.3(h) below). The
Trustees may classify or reclassify any unissued Shares or any Shares
previously issued and reacquired by any Portfolio or Class thereof into
one or more Portfolios or Classes thereof that may be established and
designated from time to time. The 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 Portfolio or
Class thereof reacquired by the Trust.
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(d)
The Trustees may from time to time close the transfer books or establish
record dates and times for the purpose of determining the Shareholders
entitled to be treated as such, in accordance with the provisions of the
Trust’s Bylaws.
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(e)
The establishment and designation of any Portfolio or of any Class of
Shares of any Portfolio in addition to those established and designated in
Schedule Ashall be effective (i) upon the execution
by a majority of the then Trustees of an instrument setting forth such
establishment and designation of the relative rights and preferences of
the Shares of such Portfolio or Class; (ii) upon the execution of an
instrument in writing by an officer of the Trust pursuant to the vote of a
majority of the Trustees; or (iii) as otherwise provided in either such
instrument. At any time that there are no Shares outstanding of any
particular Portfolio or Class previously established and designated, the
Trustees may by an instrument executed by a majority of their number (or
by an instrument executed by an officer of the Trust pursuant to the vote
of a majority of the Trustees) abolish that Portfolio or Class and the
establishment and designation thereof. Each instrument establishing and
designating any Portfolio shall have the status of an amendment to this
Trust Agreement.
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(f)
Any Trustee, officer or other agent of the Trust, and any organization in
which any such person is interested may acquire, own, hold and dispose of
Shares of any Portfolio (including any Classes thereof) of the Trust to
the same extent as if such person were not a Trustee, officer or other
agent of the Trust; and the Trust may issue and sell or cause to be issued
and sold and may purchase Shares of any Portfolio (including any Classes
thereof) from any such person or any such organization subject only to the
general limitations, restrictions or other provisions applicable to the
sale or purchase of Shares of such Portfolio (including any Classes
thereof) generally.
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Section
4.3 Relative Rights and Preferences Among Portfolios. The Shares of such
Portfolios and any Shares of any further Portfolio that may from time to time be
established and designated by the Trustees shall (unless the Trustees otherwise with
respect to some further Portfolio at the time of establishing and designating the same)
have the following relative rights and preferences:
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(a)
Assets Belonging to Portfolios. All net consideration received by the
Trust for the issuance or sale of Shares of a particular Portfolio or any
Classes thereof, together with all assets in which such consideration is
invested or reinvested, all income, earnings, profits, and proceeds
thereof, 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 be held by the Trustees in trust for the benefit of the
Shareholders of that Portfolio and shall irrevocably belong to the
Portfolio for all purposes, subject only to the rights of creditors of
such Portfolio, and shall be so recorded upon the books of account of the
Trust. Such consideration, assets, income, earnings, profits, and proceeds
thereof, 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, together with any General Items (as hereinafter defined) allocated
to that Portfolio as provided in the following sentence, are herein
referred to as “assets belonging to” that Portfolio. In the
event that there are any assets, income, earnings, profits, and proceeds
thereof, funds, or payments which are not readily identifiable as
belonging to any particular Portfolio (collectively “General Items”),
the Trustees shall allocate such General Items to, between or among any
one or more of the Portfolios established and designated from time to time
in such manner and on such basis as they, in their sole discretion, deem
fair and equitable. Any General Items so allocated to a particular
Portfolio shall belong to that Portfolio. Each such allocation by the
Trustees shall be conclusive and binding upon the Shareholders of all
Portfolios for all purposes.
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(b)
Liabilities Belonging to Portfolios. The assets belonging to each
particular Portfolio shall be charged with the liabilities in respect of
that Portfolio and all expenses, costs, charges and reserves attributable
to that Portfolio. Any general liabilities, expenses, costs, charges or
reserves of the Trust which are not readily identifiable as belonging to
any particular Portfolio shall be allocated and charged by the Trustees
to, between or among any one or more of the Portfolios established and
designated from time to time in such manner and on such basis as the
Trustees in their sole discretion deem fair and equitable. The
liabilities, expenses, costs, charges and reserves so allocated by the
Trustees shall be conclusive and binding upon the Shareholders, creditors
and any other persons dealing with the Trust or any Portfolio (including
any Classes thereof) for all purposes. Any creditor of any Portfolio may
look only to the assets of that Portfolio to satisfy such creditor’s
debt.
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(c)
Dividends. Dividends and distributions on Shares of a particular
Portfolio may be paid with such frequency as the Trustees may determine,
which may be daily or otherwise pursuant to a standing resolution or
resolutions adopted only once or with such frequency as the Trustees may
determine, to the Shareholders of that Portfolio, from such of the income
and capital gains, accrued or realized, from the assets belonging to that
Portfolio, as the Trustees may determine, after providing for actual and
accrued liabilities belonging to that Portfolio. All dividends and
distributions on Shares of a particular Portfolio thereof shall be
distributed pro rata to each Shareholder of that Portfolio in proportion
to the total net asset value of Shares of that Portfolio held by such
Shareholder at the date and time of record established for the payment of
such dividends or distributions, except that, in connection with any
dividend or distribution program or procedure, the Trustees may determine
that no dividend or distribution shall be payable on Shares as to which
the Shareholder’s purchase order and/or payments have not been
received by the time or times established by the Trustees under such
program or procedure. Such dividends and distributions may be made in cash
or Shares of that Portfolio or a combination thereof as determined by the
Trustees or pursuant to any program that the Trustees may have in effect
at the time for the election by each Shareholder of the mode of the making
of such dividend or distribution to that Shareholder. Any such dividend or
distribution paid in Shares will be paid at the net asset value thereof as
determined in accordance with Section 4.3(h).
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The
Trustees shall have full discretion to determine which items shall be treated as income
and which items as capital; and each such determination and allocation shall be
conclusive and binding upon the Shareholders.
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(d)
Liquidation. In the event of the liquidation or dissolution of the Trust
or any Portfolio thereof, the Shareholders of each affected Portfolio
shall be entitled to receive, when and as declared by the Trustees, the
excess of the assets belonging to that Portfolio over the liabilities
belonging to that Portfolio. The assets so distributable to the
Shareholders of any particular Portfolio shall be distributed among such
holders in proportion to the aggregate net asset value of all the Shares
of that Portfolio held by them and recorded on the books of the Trust. The
liquidation of any particular Portfolio or Class thereof may be authorized
at any time by vote of a majority of the Trustees then in office.
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(e)
Voting. On each matter submitted to a vote of the Shareholders, each
Shareholder shall be entitled to one vote for each whole Share standing in
his name on the books of the Trust irrespective of the Portfolio, and all
Shares of all Portfolios shall vote together; provided, however, that (i)
as to any matter with respect to which a separate vote of one or more
Portfolios or Classes is required by any applicable provisions of the 1940
Act, such requirement shall apply in lieu of all Shares of all Portfolios
voting together; and (ii) in any event, as to any matter which affects
only the interests of one or more particular Portfolios or Classes, only
the Shareholders of the one or more affected Portfolios or Classes shall
be entitled to vote, and each such Portfolio or Class shall vote as a
separate class.
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(f)
Redemption by Shareholder. Each Shareholder of a particular Portfolio
shall have the right at such times as may be permitted by the Trust,
consistent with the requirements of the 1940 Act, to require the Trust to
redeem all or any part of his Shares of that Portfolio on terms consistent
with any applicable requirements of the 1940 Act and at a redemption price
equal to the net asset value per Share of that Portfolio or Class thereof
determined in accordance with Section 4.3(h) after the Shares are properly
tendered for redemption, subject to any contingent deferred sales charge
or redemption charge in effect at the time of redemption. Payment of the
redemption price shall be in cash; provided, however, that if the Trustees
determine (which determination shall be conclusive) that conditions exist
that make payment wholly in cash unwise or undesirable, the Trust may,
subject to requirements of the 1940 Act, make payment wholly or partly in
securities or other assets belonging to the Portfolio of which the Shares
being redeemed are part at the value of such securities or other assets
used in such determination of net asset value.
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The
foregoing notwithstanding, the Trust may postpone payment of the redemption price and may
suspend the right of the Shareholders of any Portfolio to require the Trust to redeem
Shares of that Portfolio during any period or at any time when (and to the extent)
permissible under the 1940 Act.
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(g)
Redemption by Trust. Each Share of each Portfolio is subject to
redemption by and at the option of the Trust at the redemption price that
would be applicable if such Share was then being redeemed by the
Shareholder pursuant to Section 4.3(f): (i) at any time, if the Trustees
determine in their sole discretion that failure to so redeem may have
materially adverse consequences to the Trust or any Portfolio or to the
Shareholders of the Trust or any Portfolio thereof or Class thereof; or
(ii) upon such other conditions as may from time to time be determined by
the Trustees and set forth in the then current Prospectus of the Trust.
Upon such redemption, the Shareholders so redeemed shall have no further
right with respect thereto other than to receive payment of such
redemption price.
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(h)
Net Asset Value. The net asset value per Share of any Portfolio that has
only one Class of Shares outstanding shall be the quotient obtained by
dividing the value of the net assets of that Portfolio (being the value of
the assets belonging to that Portfolio less the liabilities belonging to
that Portfolio) by the total number of Shares of that Portfolio
outstanding; all determined in accordance with the methods and procedures,
including, without limitation, those with respect to rounding, established
by the Trustees from time to time.
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The
Trustees may determine to maintain the net asset value per Share of any Portfolio at a
designated constant dollar amount and in connection therewith may adopt procedures not
inconsistent with any applicable provisions of the 1940 Act for the continuing
declarations of income attributable to that Portfolio as dividends payable in additional
Shares of that Portfolio at the designated constant dollar amount and for the handling of
any losses attributable to that Portfolio. Such procedures may provide that in the event
of any loss, each Shareholder shall be deemed to have contributed to the capital of the
Trust attributable to that Portfolio his pro rata portion of the total number of Shares
required to be canceled in order to permit the net asset value per Share of that
Portfolio to be maintained, after reflecting such loss, at the designated constant dollar
amount. Each Shareholder of the Trust shall be deemed to have agreed, by his investment
in any Portfolio with respect to which the Trustees shall have adopted any such
procedure, to make the contribution referred to in the preceding sentence in the event of
any such loss.
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(i)
Transfer. All Shares of each Portfolio shall be transferable, but
transfers of Shares will be recorded on the Share transfer records of the
Trust applicable to a Portfolio only at such times as Shareholders shall
have the right to require the Trust to redeem Shares of that Portfolio and
of the same Class and at such other times as may be permitted by the
Trustees.
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(j)
Equality. Except as provided herein or in the instrument designating and
establishing any Portfolio or Class thereof, all Shares of each particular
Portfolio shall represent an equal proportionate interest in the assets
belonging to that Portfolio, subject to the liabilities belonging to that
Portfolio, and each Share of any Portfolio shall be equal to each other
Share of that Portfolio or Class; but the provisions of this sentence
shall not restrict any distinctions permissible under Section 4.2(c) that
may exist with respect to dividends and distributions on Shares of the
same Portfolio or Class. The Trustees may from time to time divide or
combine the Shares of any Portfolio into a greater or lesser number of
Shares of that Portfolio without thereby changing the proportionate
beneficial interest in the assets belonging to that Portfolio or those
Shares or in any way affecting the rights of any Shares of any Portfolio.
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(k)
Fractions. Any fractional Share of any Portfolio shall carry
proportionately all the rights and obligations of a whole Share of that
Portfolio, including rights and obligations with respect to voting,
receipt of dividends and distributions, redemption of Shares, and
liquidation of the Trust.
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Section
4.4 Conversion Rights. Subject to compliance with any applicable requirements of
the 1940 Act, the Trustees shall have the authority to provide that Shareholders of any
Portfolio or Class thereof shall have the right to convert said Shares into Shares of one
or more other Portfolios or Classes thereof in accordance with such requirements and
procedures as may established by the Trustees.
Section
4.5 Class Differences. The relative rights and preferences of the Classes of any
Portfolio may differ in such respects as the Trustees may determine to be appropriate in
their sole discretion. Except as so set forth, all Classes of the same Portfolio’s
Shares shall have equal rights and preferences.
Section
4.6 Ownership of Shares. The ownership of Shares shall be recorded on the books of
the Trust or of a transfer or similar agent for the Trust, which books shall be
maintained separately for the Shares of each Portfolio and each Class thereof that has
been established and designated. No certificates certifying the ownership of Shares need
be issued except as the Trustees may otherwise determine from time to time. The Trustees
may make such rules as they consider appropriate for the issuance of Share certificates,
the use of facsimile signatures, the transfer of Shares 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 and as to the number of Shares of
each Portfolio and Class thereof held from time to time by each such Shareholder.
15
Section
4.7 Investments in the Trust. The Trustees may accept investments in the Trust and
each Portfolio from such persons and on such terms and for such consideration, not
inconsistent with any applicable provisions of the 1940 Act, as they from time to time
authorize. The Trustees may authorize any distributor, principal underwriter, custodian,
transfer agent or other person to accept orders for the purchase of Shares that conform
to such authorized terms and to reject any purchase orders for Shares whether or not
conforming to such authorized terms.
Section
4.8 No Preemptive Rights. Shareholders shall have no preemptive or other right to
subscribe to any additional Shares or other securities issued by the Trust or any
Portfolio.
Section
4.9 Status of Shares and Limitation of Personal Liability. Shares shall be deemed
to be personal property giving only the rights provided in this Trust Agreement. 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. 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 to be 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.
Section
4.10 No Appraisal Rights. Shareholders shall have no right to demand payment for
their Shares or any other rights of dissenting Shareholders in the event the Trust
participates in any transaction which would give rise to appraisal or dissenters’ rights
by a Shareholder of a corporation organized under the General Corporation Law of the
State of Delaware, or otherwise.
ARTICLE V
SHAREHOLDERS’ VOTING
POWERS AND MEETING
Section
5.1 Voting Powers. Shareholders shall have power to vote only: (i) to elect
Trustees, provided that a meeting of Shareholders has been called for that purpose; (ii)
to remove Trustees, provided that a meeting of Shareholders has been called for that
purpose; (iii) with respect to the matters covered in Section 5.2 below; and (iv) to
approve such additional matters as may be required by law or as the Trustees, in their
sole discretion, shall determine.
Until
Shares are issued, the Trustees may exercise all rights of Shareholders and may take any
action required or permitted to be taken by Shareholders by law, this Trust Agreement or
the Bylaws of the Trust.
The
vote necessary to approve any matter shall be set forth in the Bylaws, except as set forth
in Section 5.2.
16
Section
5.2 Additional Voting Powers and Voting Requirements for Certain Actions. Any
other provisions of this Trust Agreement or the Bylaws notwithstanding, Shareholder
approval shall be required to approve any amendment to Article VI of this Trust Agreement
that would have the effect of increasing the liability (or potential liability) or
reducing the indemnification available to Shareholders or former Shareholders. Any such
action, as well as any repeal or amendment of this Section 5.2 shall require the
affirmative vote or consent of Shareholders owning at least 66-2/3% of the outstanding
Shares entitled to vote thereon.
Section
5.3 Non Exclusivity. The voting requirements set forth in Section 5.2 shall be in
addition to, and not in lieu of, any vote or consent of the Shareholders otherwise
required by applicable law (including, without limitation, any separate vote by Portfolio
(or Class) that may be required by the 1940 Act or by other applicable law) or by this
Trust Agreement.
ARTICLE VI
LIMITATION
OF LIABILITY; INDEMNIFICATION
Section
6.1 Trustees, Shareholders etc. Not Personally Liable; Notice. All persons
extending credit to, contracting with or having any claim against the Trust shall look
only to the assets of the Portfolio with which such person dealt for payment under such
credit, contract or claim. Neither the Shareholders of any Portfolio, nor the Trustees,
nor any of the Trust’s officers, employees or agents, whether past, present or
future, shall be personally liable therefor. Every note, bond, contract, instrument,
certificate or undertaking and every other act or thing whatsoever executed or done by or
on behalf of the Trust, any Portfolio or the Trustees or any of them in connection with
the Trust shall be conclusively deemed to have been executed or done only by or for the
Trust (or the Portfolio) or by or for the Trustees in their official capacity with the
Trust and not personally. Nothing in this Trust Agreement shall protect any Trustee,
officer, employee or agent against any liability to the Trust or the Shareholders to
which such Trustee or officer would otherwise be subject by reason of willful
misfeasance, bad faith, gross negligence or reckless disregard of the duties involved in
the conduct of the office of Trustee or of such officer.
Every
note, bond, contract, instrument, certificate or undertaking made or issued by the
Trustees or by any duly authorized officer shall give notice that the same was executed or
made by or on behalf of the relevant Portfolio or Portfolios of the Trust or by them as
Trustees or as officers and not individually and that the obligations of such instrument
are not binding upon any of them or the Shareholders individually but are binding only
upon the assets and property of such Portfolio or Portfolios, as the case may be. However,
the omission of any such notice shall not operate to bind any Trustee, officer or
Shareholder individually or otherwise invalidate any such note, bond, contract,
instrument, certificate or undertaking.
17
Section
6.2 Trustees’ Good Faith Action; Expert Advice; No Bond Surety. The exercise
by the Trustees of their powers and discretion hereunder shall be binding upon all
interested persons and entities. A Trustee shall be liable for his own willful
misfeasance, bad faith, gross negligence or reckless disregard of the duties involved in
the conduct of the office of Trustee, and for nothing else, and shall not be liable for
errors of judgment or mistakes of fact or law. Subject to the foregoing, (a) no
Trustee shall be responsible or liable in any event for any neglect or wrongdoing of any
other officer, agent, employee, consultant, investment adviser, administrator,
distributor or principal underwriter, custodian or transfer, dividend disbursing,
Shareholder servicing or accounting agent of the Trust, nor shall any Trustee be
responsible for the act or omission of any other Trustee; (b) the Trustees may take
advice of counsel or other qualified persons with respect to the meaning and operation of
this Trust Agreement and their duties as Trustees, and shall be under no liability for
any act or omission in accordance with such advice or for failing to follow such advice;
and (c) 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 any officer appointed by them, any independent public accountant, and
(with respect to the subject matter of the contract involved) any officer, partner or
responsible employee of a Contracting Party appointed by the Trustees pursuant to Section
3.3. The Trustees as such shall not be required to give any bond or surety or any other
security for the performance of their duties.
Section
6.3 Indemnification of Shareholders. In the event any Shareholder (or former
Shareholder) of any Portfolio of the Trust or Class 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, said Portfolio (upon proper and timely request by the
Shareholder) shall assume the defense against such charge and satisfy any judgment
thereon, and the Shareholder or former Shareholder (or in the case of a corporation or
other entity, its corporate or other general successor) shall be entitled out of the
assets of said Portfolio to be held harmless from and indemnified against all loss and
expense arising from such liability.
Section
6.4 Indemnification of Trustees, Officers, etc. The Trust shall indemnify (from
the assets of the Portfolio or Portfolios in question) each of its Trustees and officers
(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 referred to as “Covered Persons”))
against all liabilities, including, without limitation, 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 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 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 (such conduct referred to hereinafter as
“Disabling Conduct”). A determination that the Covered Person is
entitled to indemnification may be made by (a) a final decision on the merits by a court
or other body before whom the proceeding was brought that the person to be indemnified
was not liable by reason of Disabling Conduct; (b) dismissal of a court action or an
administrative proceeding against a Covered Person for insufficiency of evidence of
Disabling Conduct; (c) a reasonable determination, based upon a review of the facts, that
the Covered Person was not liable by reason of Disabling Conduct by (i) a vote of a
majority of a quorum of Trustees who are neither “interested persons” of the
Trust as defined in Section 2(a)(19) of the 1940 Act nor parties to the proceeding (“Disinterested
Trustees”); or (ii) an independent legal counsel in a written opinion, or (d) as
otherwise permitted by the 1940 Act. Expenses, including accountants’ and counsel
fees so incurred by any such Covered Person (but excluding amounts paid in satisfaction
of judgments, in compromise or as fines or penalties), may be paid from time to time by
the Portfolio(s) in question 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 the Portfolio(s) in question if it is ultimately determined that
indemnification of such expenses is not authorized under this Article V and (1) the
Covered Person shall have provided security for such undertaking; (2) the Trust shall be
insured against losses arising by reason of any lawful advances; (3) a majority of a
quorum of the Disinterested Trustees who are not a party to the proceeding, 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; or (4) as otherwise permitted by the 1940 Act.
18
ARTICLE VII
MISCELLANEOUS
Section
7.1 Duration and Termination of Trust.
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(a)
Unless terminated as provided herein, the Trust shall continue without
limitation of time. The Trust may be terminated at any time by vote of a
majority of the Shares of each Portfolio entitled to vote, or by the
Trustees by written notice to the Shareholders. Any Portfolio or Class of
Shares thereof may be terminated at any time by vote of a majority of the
Shares of such Portfolio or Class entitled to vote or by the Trustees by
written notice to the Shareholders of such Portfolio or Class.
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(b)
Upon the requisite Shareholder vote or action by the Trustees to terminate
the Trust or any one or more Portfolios or Classes of Shares thereof,
after paying or otherwise providing for all charges, taxes, expenses, and
liabilities, whether due or accrued or anticipated, of the Trust or of the
particular Portfolio or any Class thereof as may be determined by the
Trustees, the Trust shall in accordance with such procedures as the
Trustees consider appropriate reduce the remaining assets of the Trust or
of the affected Portfolio or Class to distributable form in cash or Shares
(if any Portfolio remain) or other securities, or any combination thereof,
and distribute the proceeds to the Shareholders of the Portfolios or
Classes involved, ratably according to the total net asset value of Shares
of such Portfolios or Classes held by each affected Shareholder on the
date of distribution. Thereupon, the Trust or any affected Portfolio or
Class shall terminate and the Trustees and the Trust shall be discharged
of any and all further liabilities and duties relating thereto or arising
therefrom, and the right, title, and interest of all parties with respect
to the Trust or such Portfolio or Class shall be canceled and discharged.
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(c)
Upon termination of the Trust, following completion of winding up of its
business, the Trustees shall cause a certificate of cancellation of the
Trust’s Certificate of Trust to be filed in accordance with Section
3810(d) of the Delaware Statutory Trust Act, which certificate of
cancellation may be signed by any one Trustee.
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Section
7.2 Reorganization. Anything else herein notwithstanding, the Trustees may,
without Shareholder approval unless such approval is required by applicable law, (a)
cause the Trust to merge or consolidate with or into one or more trusts, partnerships,
associations, corporations or other business entities (including trusts, partnerships,
associations, corporations or other business entities created by the Trustees to
accomplish such merger or consolidation), or with or into any separate Portfolio or
Portfolios of any thereof, so long as the surviving or resulting entity is an open-end
management investment company under the 1940 Act, or is a series thereof, that will
succeed to or assume the Trust’s registration under the 1940 Act and that is formed,
organized, or existing under the laws of the United States or of a state, commonwealth,
or possession of the United States; (b) cause any one or more Portfolio of the Trust to
merge or consolidate with or into any one or more of the other Portfolios of the Trust,
one or more trusts (or series thereof), partnerships, associations, corporations; (c)
cause the Shares to be exchanged under or pursuant to any state or federal statute; (d)
cause a sale of all, or substantially all, assets of the Trust or any one or more of its
Portfolios; or (e) cause the Trust to incorporate under the laws of any jurisdiction. Any
agreement of merger or consolidation or exchange or certificate or merger may be signed
by a majority of the Trustees and facsimile signatures conveyed by electronic or
telecommunication means shall be valid.
Section
7.3 Amendments. This Trust Agreement may be restated and/or amended at any time by
an instrument in writing signed by a majority of the Trustees then holding office. Any
such restatement and/or amendment hereto shall be effective immediately upon execution
and approval. 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. No amendment shall impair the
limitations on personal liability of any Shareholder, Trustee, officer, employee, or
agent of the Trust or permit assessments upon Shareholders.
Section
7.4 Filing of Copies; References; Headings. The original or a copy of this
instrument and of each restatement or amendment hereto shall be kept at the office of the
Trust where it may be inspected by any Shareholder. Anyone dealing with the Trust may
rely on a certificate by an officer of the Trust as to whether or not any such
restatements or amendments have been made, as to the identities of the Trustees and
officers, 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, and all expressions like “herein,” “hereof’ and
“hereunder”shall be deemed to refer to this instrument as a whole as the same
may be amended or affected by any such restatements 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. This instrument
may be executed in any number of counterparts, each of which shall be deemed an original.
20
Section
7.5 Applicable Law. This Trust Agreement is created under and is to be governed by
and construed and administered according to the laws of the State of Delaware. The Trust
shall be of the type referred to in Section 3801 of the Delaware Statutory Trust Act and
of the type commonly called a statutory trust, and without limiting the provisions
hereof, the Trust may exercise all powers which are ordinarily exercised by such a trust.
Section
7.6 Resident Agent. Corporation Trust Company, 0000 Xxxxxx Xxxxxx, Xxxx xx
Xxxxxxxxxx, Xxxxxx of Newcastle, Delaware, is hereby designated as the initial resident
agent of the Trust in Delaware.
IN
WITNESS WHEREOF, the Trustees named below do hereby make and enter into this Agreement
as of the date first above written.
| /s/ Xxxx Xxxxxxx |
/s/ Xxxxx Xxxxx |
| Xxxx Xxxxxxx |
Xxxxx Xxxxx |
/s/ Xxxx Xxxxxxx |
| Xxxx Xxxxxxx |
21
Schedule A
List of Portfolios
Skyhawk Small Cap
Fund
