AMENDED AND RESTATED AGREEMENT AND DECLARATION OF TRUST
OF
PIONEER SERIES TRUST III
(a Delaware Statutory Trust)
As Amended and Restated as of July 1, 2008
TABLE OF CONTENTS
ARTICLE I - Name and Definitions
Section 1.1 Name..........................................................................1
Section 1.2 Definitions...................................................................1
ARTICLE II - Nature and Purpose of Trust.................................................................4
ARTICLE III - Registered Agent and Registered Office......................................................4
ARTICLE IV - Beneficial Interests; Shareholders
Section 4.1 Shares of Beneficial Interest.................................................4
Section 4.2 Issuance of Shares............................................................4
Section 4.3 Rights of Shareholders........................................................5
Section 4.4 Ownership and Transfer of Shares; Small Accounts..............................5
Section 4.5 Voting by Shareholders........................................................6
Section 4.6 Meetings......................................................................7
Section 4.7 Quorum and Action.............................................................7
Section 4.8 Action by Written Consent in Lieu of Meeting of Shareholders..................7
Section 4.9 Series and Classes of Shares..................................................8
Section 4.10 Disclosure of Shareholder Holdings...........................................10
Section 4.11 Access to Trust Records......................................................11
Section 4.12 Communications with Shareholders.............................................11
ARTICLE V - The Trustees
Section 5.1 Management of the Trust......................................................11
Section 5.2 Qualification and Number.....................................................11
Section 5.3 Term and Election............................................................11
Section 5.4 Resignation, Retirement and Removal..........................................11
Section 5.5 Vacancies....................................................................12
ARTICLE VI - Powers of Trustees
Section 6.1 General Powers...............................................................12
Section 6.2 Certain Specific Powers......................................................13
Section 6.3 Issuance and Repurchase of Shares............................................16
Section 6.4 Delegation; Committees.......................................................16
Section 6.5 Collection and Payment.......................................................16
Section 6.6 Expenses.....................................................................16
Section 6.7 Manner of Acting.............................................................16
Section 6.8 Bylaws.......................................................................17
Section 6.9 Principal Transactions.......................................................17
Section 6.10 Effect of Trustees' Determination............................................17
ARTICLE VII - Service Providers
Section 7.1 Investment Adviser and Administrators........................................17
Section 7.2 Underwriting; Transfer Agent; Shareholder Servicing Agent; Custodian ........17
Section 7.3 Parties to Contract..........................................................18
Section 7.4 Further Authority of Trustees................................................18
ARTICLE VIII - Distributions; Redemptions; Determination of Net Asset Value
Section 8.1 Distributions................................................................18
Section 8.2 Redemption of Shares.........................................................19
Section 8.3 Redemption Price.............................................................19
Section 8.4 Payment......................................................................19
Section 8.5 Redemption of Shareholder's Interest by Action of Trust......................19
Section 8.6 Suspension of Right of Redemption............................................20
Section 8.7 Determination of Net Asset Value; Valuation of Portfolio Assets.........20
Section 8.8 Constant Net Asset Value.....................................................20
Section 8.9 Reserves.....................................................................20
Section 8.10 Determination by Trustees....................................................21
ARTICLE IX - Limitation of Liability and Indemnification
Section 9.1 No Personal Liability of and Indemnification of Shareholders.................21
Section 9.2 Limitation of Liability of Trustees and Others...............................21
Section 9.3 Experts; No Bond or Surety...................................................22
Section 9.4 Liability of Third Persons Dealing with the Trust or Trustees................23
Section 9.5 Indemnification and Advancement of Expenses..................................23
Section 9.6 Further Indemnification......................................................24
Section 9.7 Amendments and Modifications.................................................24
Section 9.8 Derivative Actions...........................................................24
ARTICLE X - Termination; Mergers and Sale of Assets
Section 10.1 Termination of Trust or Series...............................................27
Section 10.2 Merger and Consolidation.....................................................28
Section 10.3 Sale of Assets; Reorganization...............................................28
Section 10.4 Conversion...................................................................29
Section 10.5 Combination of Classes.......................................................29
ARTICLE XI - Amendments; Filings; Copies; Miscellaneous
Section 11.1 Amendments to Declaration and Certificate of Trust...........................29
Section 11.2 Filing of Certificate; Copies of Declaration; Counterparts;
Headings.....................................................................29
Section 11.3 Trustees May Resolve Ambiguities.............................................30
Section 11.4 Applicable Law; Forum Selection; Jury Waiver.................................30
Section 11.5 Statutory Trust Only.........................................................31
Section 11.6 Provisions in conflict with Law or Regulations...............................31
Section 11.7 Writings.....................................................................31
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AMENDED AND RESTATED AGREEMENT AND DECLARATION OF TRUST
OF
PIONEER SERIES TRUST III
THIS AMENDED AND RESTATED AGREEMENT AND DECLARATION OF TRUST is made as of
this 1st day of July, 2008 by the Trustees hereunder.
WHEREAS, PIONEER SERIES TRUST III was established pursuant to an Agreement
and Declaration of Trust dated as of August 3, 2004 (as amended to the date
hereof, the "Original Declaration") and the filing of a Certificate of Trust
with the Delaware Secretary of State for the purposes of carrying on the
business of a management investment company;
WHEREAS, the Trustees, pursuant to Section 8, Article IX of the Original
Declaration, are authorized to amend the Original Declaration with the vote or
consent of the Shareholders as required by such Section;
WHEREAS, this Amended and Restated Agreement and Declaration of Trust has
been amended in accordance with the provisions of the Original Declaration in
effect as of the date hereof;
NOW, THEREFORE, the Trustees and any successor Trustees elected or
appointed in accordance with Article V hereof hereby declare that they will hold
all cash, securities and other assets and properties, which the Trust may from
time to time acquire in any manner, IN TRUST, and that they will manage and
dispose of the same and manage the affairs and business of the Trust upon the
following terms and conditions for the benefit of the holders from time to time
of shares of beneficial interest in this Trust as hereinafter set forth.
ARTICLE I
NAME AND DEFINITIONS
Section 1.1. Name. This Trust shall be known as Pioneer Series Trust III
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 1.2. Definitions. Whenever used herein, unless otherwise required
by the context or specifically provided, the following terms have the following
respective meanings:
(a) "Bylaws" means the Bylaws of the Trust referred to in Section 6.8
hereof, as from time to time amended, which Bylaws are expressly
incorporated by reference herein as part of the Trust's "governing
instrument" within the meaning of the Delaware Act (as defined below).
(b) "Certificate of Trust" means the certificate of trust of the
Trust, as filed with the Secretary of State of the State of Delaware in
accordance with the Delaware Act (as defined below), and as such
certificate of trust may be amended or amended and restated from time to
time.
(c) "Class" means one or more Shares (as defined below) of a Series
(as defined below) of the Trust as may be established and designated as a
Class from time to time by the Trustees pursuant to Section 4.9(c) hereof.
(d) "Code" means the Internal Revenue Code of 1986 (or any successor
statute), as amended from time to time, and the rules and regulations
thereunder, as adopted or amended from time to time.
(e) "Commission" shall have the same meaning given to such term in the
1940 Act.
(f) "Complaining Shareholder" shall refer to a Shareholder making a
demand or bringing a claim pursuant to Section 9.8 hereof.
(g) "Declaration" means this Agreement and Declaration of Trust as
amended, supplemented or amended and restated from time to time, which,
together with the Bylaws and any designations of Series or Classes made in
accordance with Section 4.6(c) hereof, shall constitute the Trust's
"governing instrument" within the meaning of the Delaware Act. Reference in
this Agreement and Declaration of Trust to "Declaration," "hereof,"
"herein," and "hereunder" shall be deemed to refer to this Declaration
rather than exclusively to the article or section in which such words
appear.
(h) "Delaware Act" shall refer to the Delaware Statutory Trust Act, as
amended from time to time.
(i) "He," "Him" and "His" shall include the feminine and neuter, as
well as the masculine, genders.
(j) "Interested Person" shall have the same meaning given to such term
in the 1940 Act.
(k) "1940 Act" refers to the Investment Company Act of 1940 (and any
successor statute) and the rules thereunder, all as amended from time to
time, as may apply to the Trust or any Series or Class thereof, including
pursuant to any exemptive, interpretive or other relief or guidance issued
by the Commission or the staff of the Commission under such Act.
(l) "Outstanding Shares" means those Shares shown from time to time on
the books of the Trust or its transfer agent as then issued and
outstanding, but shall not include Shares which have been redeemed,
repurchased, cancelled or terminated by the Trust.
(m) "Person" means and includes natural persons, corporations,
partnerships, limited partnerships, business trusts, limited liability
partnerships, statutory trusts, limited liability companies, trusts,
associations, joint ventures, estates, nominees and any other entity in its
own or any representative capacity, whether or not legal entities, and
governments and agencies and political subdivisions thereof, in each case
whether domestic or foreign.
(n) "Prospectus" means the prospectus and statement of additional
information with respect to the Trust or one or more Series or Classes
thereof as the context shall require, as contained in the most recent
effective registration statement filed with the Commission with respect to
the Trust or one or more such Series or Classes thereof, as the same may be
supplemented or modified from time to time in accordance with the
requirements of the federal securities laws.
(o) "Series" individually or collectively means each Series of Shares
as may be established and designated from time to time by the Trustees
pursuant to Section 4.9(c) hereof.
(p) "Shareholder" means a record owner of Outstanding Shares.
(q) "Shares" means the units of interest into which the beneficial
interest in the Trust shall be divided from time to time, including the
Shares of any and all Series and Classes which may be established and
designated by the Trustees, and includes fractions of Shares as well as
whole Shares.
(r) "Trust" refers to the Delaware statutory trust established under
the Delaware Act by this Declaration and the filing of the Certificate of
Trust with the Secretary of State of the State of Delaware.
(s) "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, if the Trust has established one or more Series, any such Series
as the context shall require.
(t) "Trustees" means, at any time, the person or persons who have
signed this Declaration and all other persons who may from time to time be
duly qualified and serving as Trustees in accordance with the provisions of
Article V hereof, in each case if they shall at that time continue in
office in accordance with the terms hereof, and reference herein to a
Trustee or the Trustees shall refer to such person or persons in his
capacity or their capacities as Trustees hereunder.
ARTICLE II
NATURE AND PURPOSE OF TRUST
The purpose of the Trust is to engage in, operate and carry on the business
of an open-end management investment company through one or more Series, and to
do any and all acts or things as are necessary, convenient, appropriate,
incidental or customary in connection therewith, both within and without the
State of Delaware, and without limiting the foregoing or the other provisions
hereof, the Trust may exercise all powers conferred by the laws of the State of
Delaware upon a Delaware statutory trust formed pursuant to the Delaware Act.
ARTICLE III
REGISTERED AGENT AND REGISTERED OFFICE
The registered agent and office of the Trust in the State of Delaware are
Delaware Corporation Organizers, Inc., 0000 Xxxxx Xxxxxx Xxxxxx, Xxxxxxxxxx, XX
00000. Unless otherwise required by applicable law, the Trust shall at all times
maintain at least one resident agent who shall be either a citizen of the State
of Delaware who resides in such State or a Delaware corporation. The Trustees
may change the registered agent or registered office of the Trust from time to
time by making the appropriate filing or filings with the Secretary of State of
the State of Delaware.
ARTICLE IV
BENEFICIAL INTERESTS; SHAREHOLDERS
Section 4.1. Shares of Beneficial Interest. The beneficial interest in
the Trust shall be divided into such Shares of beneficial interest, of such
Series or Classes, and of such designations and par values (if any) and with
such rights, preferences, privileges, limitations, restrictions and such other
relative terms as shall be determined by the Trustees, from time to time. The
number of Shares is unlimited. The Trustees shall have full power and authority
to take such action with respect to the Shares as the Trustees may deem
desirable.
Section 4.2. Issuance of Shares.
(a) Shares may be issued from time to time to such Persons (including,
without limitation, any Trustee, officer, or agent of the Trust or any
Person in which a Trustee, officer or agent of the Trust has an interest)
either for cash or for such other consideration (which may be in any one or
more instances a certain specified consideration or certain specified
considerations) and on such terms as the Trustees, from time to time, may
deem advisable, and the Trust may, in connection with an issuance of
Shares, acquire other assets (including the acquisition of assets subject
to, and in connection with, the assumption of liabilities), and all Shares
so issued hereunder, including without limitation Shares issued in
connection with a dividend in Shares or a split or reverse split of Shares,
shall be fully paid and nonassessable. The Trust shall have the right to
refuse to issue Shares to any Person at any time and for any reason or for
no reason whatsoever.
(b) The Trust may issue Shares in fractional denominations to the same
extent as its whole Shares, and Shares in fractional denominations shall be
Shares having proportionately to the respective fractions represented
thereby all the rights of whole Shares, including, without limitation, the
right to vote, the right to receive dividends and distributions and the
right to participate upon termination of the Trust.
(c) Any Shares issued by the Trust which have been purchased, redeemed
or otherwise reacquired by the Trust shall be retired automatically and
shall have the status of unissued Shares.
Section 4.3. Rights of Shareholders. The ownership of the Trust Property
of every description and the right to conduct any business herein described is
vested exclusively in the Trust. The Shareholders shall have no right or title
in or to the Trust Property or to call for any partition or division of any
property, profits, rights or interests of the Trust or any Series thereof and
the Shareholders shall have no interest therein other than the beneficial
interest conferred by their Shares. The death, incapacity, dissolution,
termination, or bankruptcy of a Shareholder during the continuance of the Trust
shall neither operate to terminate the Trust or any Series thereof nor entitle
the representative of any such Shareholder to an accounting or to take any
action in court or elsewhere against the Trust, any Series thereof or the
Trustees, but shall entitle such representative only to the rights of said
Shareholder under this Declaration. Neither the Trust nor the Trustees, nor any
officer, employee or agent of the Trust shall have any power to bind personally
any Shareholder, or to call upon any Shareholder for the payment of any sum of
money or assessment whatsoever other than such as the Shareholder may at any
time personally agree to pay, provided however that any sales loads or charges,
redemption fees, account fees or any other fees or charges not prohibited as
charges to Shareholders under applicable law shall not be deemed to be an
assessment for the purposes of this Declaration. The Shares shall be personal
property giving only the rights specifically set forth in this Declaration. The
holders of Shares shall not, as such holders, have any right to acquire,
purchase or subscribe for any Shares or securities of the Trust that it may
hereafter issue or sell, other than such right, if any, as the Trustees may
determine. The holders of Shares shall not be entitled to exercise the rights of
objecting shareholders and shall have no appraisal rights with respect to their
Shares and, except as otherwise determined by the Trustees from time to time,
shall have no exchange or conversion rights with respect to their Shares. Every
Shareholder, by virtue of purchasing Shares and becoming a Shareholder, shall be
held to have expressly assented and agreed to the terms of this Declaration and
any other governing instrument and shall be bound thereby.
Section 4.4. Ownership and Transfer of Shares; Small Accounts.
(a) The ownership and transfer of Shares shall be recorded on the
books of the Trust or, if there is a transfer or similar agent with respect
to such Shares, on the books and records of such transfer or similar agent
with respect to such Shares, which records shall be maintained separately
for the Shares of each Series or Class of the Trust. No certificates
representing the ownership of Shares shall be issued except as the Trustees
may otherwise determine from time to time. The Trustees may make such rules
or impose such restrictions as they consider necessary or appropriate for
the issuance of Share certificates, transfer of Shares and similar matters.
The record books of the Trust, as kept by the Trust or any transfer or
similar agent of the Trust, shall be conclusive as to who are the holders
of Shares and as to the number of Shares held from time to time by each
Shareholder. No Shareholder shall be entitled to receive any payment of a
dividend or distribution, or to have notice given to him as provided herein
or in the Bylaws, until he has provided such information as shall be
required to the Trust or, as applicable, the Trust's transfer or similar
agent with respect to his Shares.
(b) In the event any certificates representing Outstanding Shares are
at any time outstanding, the Trustees may at any time or from time to time
determine that Shares shall no longer be represented by certificates, and
in connection therewith, upon written notice to any Shareholder holding
certificates representing Outstanding Shares, such certificates shall be
cancelled, provided that such cancellation shall not affect the ownership
by such Shareholder of such Shares, and following such cancellation,
ownership and transfer of such Shares shall be recorded by book entry on
the books of the Trust or its transfer or similar agent.
(c) The Trustees may establish, from time to time, one or more minimum
investment amounts for Shareholder accounts, which may differ within and
among any Series or Classes, and may impose account fees on (which may be
satisfied by involuntarily redeeming the requisite number of Shares in any
such account in the amount of such fee), and/or require the involuntary
redemption of Shares held in, those accounts the net asset value of which
for any reason falls below such established minimum investment amounts, or
may authorize the Trust to convert any such Shares in such account to
Shares of another Class or Series, or take any other such action with
respect to minimum investment amounts as may be deemed necessary or
appropriate by the Trustees, in each case upon such terms as shall be
established by the Trustees.
Section 4.5. Voting by Shareholders.
(a) Shareholders shall not have the power to vote on any matter
except: (i) for the election or removal of Trustees to the extent and as
provided in Article V hereof; and (ii) with respect to such additional
matters relating to the Trust as may be required by law or as the Trustees
may consider and determine necessary or desirable.
(b) As determined by the trustees without the vote or consent of
Shareholders, on any matter submitted to a vote of Shareholders either (i)
each whole Share shall be entitled to one vote as to any matter on which it
is entitled to vote and each fractional Share shall be entitled to a
proportionate fractional vote, or (ii) each whole Share or fractional Share
outstanding on the record date shall entitle the holder thereof to a number
of votes as to any matter on which the Shareholder is entitled to vote
equal to the net asset value of the Share or fractional Share in United
States dollars determined at the close of business on the record date.
Without limiting the power of the Trustees in any way to designate
otherwise in accordance with the preceding sentence, the Trustees hereby
establish that each whole Share shall be entitled to one vote as to any
matter on which it is entitled to vote and each fractional Share shall be
entitled to a proportionate fractional vote. There shall be no cumulative
voting in the election of Trustees or on any other matter submitted to a
vote of the Shareholders. Shares may be voted in person or by proxy. Until
Shares of the Trust or any Series or Class are issued, the Trustees may
exercise all rights of Shareholders of the Trust or such Series or Class
and may take any action required or permitted by law, this Declaration or
the Bylaws of the Trust to be taken by Shareholders of the Trust, such
Series or Class.
(c) On any matter submitted to a vote of the Shareholders of the
Trust, all Shares of all Series and Classes then entitled to vote shall be
voted together, except that (i) when required by the 1940 Act to be voted
by individual Series or Class, Shares shall be voted by individual Series
or Class, and (ii) when the Trustees have determined that the matter
affects only the interests of Shareholders of one or more Series or
Classes, only Shareholders of such one or more Series or Classes shall be
entitled to vote thereon.
Section 4.6. Meetings. Meetings of the Shareholders of the Trust or any
one or more Series or Classes thereof may be called and held from time to time
for the purpose of taking action upon any matter requiring the vote or authority
of the Shareholders as herein provided or upon any other matter deemed by the
Trustees to be necessary or desirable. The Trustees may set in the Bylaws
provisions relating to the calling and holding of meetings (including the
holding of meetings by electronic or other similar means), notice of meetings,
record dates, place of meetings, conduct of meetings, voting by proxy,
postponement, adjournment or cancellation of meetings and related matters.
Section 4.7. Quorum and Action.
(a) The Trustees shall set forth in the Bylaws the quorum required for
the transaction of business by the Shareholders at a meeting, which quorum
shall in no event be less than Shares representing thirty percent (30%) of
the voting power of the Shares entitled to vote at such meeting. If a
quorum is present when a duly called and held meeting is convened, the
Shareholders present may continue to transact business until adjournment,
even though the withdrawal of a number of Shareholders originally present
leaves less than the proportion or number otherwise required for a quorum.
(b) The Shareholders shall take action by the affirmative vote of the
holders of Shares entitled to vote and representing a majority of votes
cast at a meeting of Shareholders at which a quorum is present, except in
the case of the election of Trustees which shall only require a plurality
and except as may be otherwise required by applicable law or any provision
of this Declaration or the Bylaws.
Section 4.8. Action by Written Consent in Lieu of Meeting of
Shareholders. Any action required or permitted to be taken at a meeting of the
Shareholders may be taken, if so directed by the Trustees, without a meeting by
written action executed by Shareholders, as of a record date specified in
accordance with the Bylaws, holding not less than the minimum voting power that
would have been necessary to take the action at a meeting, assuming that the
Shareholders holding all of the Outstanding Shares entitled to vote on that
action were present and voting at that meeting. The written action shall be
effective when it has been executed by the requisite number of Shareholders and
delivered to the secretary of the Trust, unless a different effective time is
provided in the written action. Such a consent may be executed and delivered by
electronic means in accordance with any procedures that may be adopted by the
Trustees from time to time.
Section 4.9.Series and Classes of Shares.
(a) Series. The current Series of the Trust are set forth on Schedule
A hereto. The Trustees may from time to time authorize the division of
Shares into additional Series. The relative rights, preferences,
privileges, limitations, restrictions and other relative terms of any
Series shall be established and designated by the Trustees, and may be
modified by the Trustees from time to time, upon and subject to the
following provisions:
(i) Subject to variations between Classes of Shares of a Series, all
Shares shall be identical except that there may be such
variations as shall be fixed and determined by the Trustees from
time to time between different Series, including, without
limitation, as to qualifications for ownership, minimum purchase
amounts, minimum account size, purchase price, fees and expenses,
redemptions, conversions and exchanges, and special and relative
rights as to dividends and on liquidation, and each Series shall
have such business purpose or investment objective as shall be
determined by the Trustees. Each Share of a Series shall
represent a beneficial interest in the net assets allocated or
belonging to such Series only, and such interest shall not extend
to the assets of the Trust generally (except to the extent that
General Assets (as defined below) are allocated to such Series).
All references to Shares in this Declaration shall be deemed to
include references to Shares of any or all Series as the context
may require.
(ii) The number of authorized Shares of each Series and the number of
Shares of each Series that may be issued shall be unlimited. The
Trustees may divide or combine any issued or unissued Shares of
any Series into a greater or lesser number; classify or
reclassify any issued or unissued Shares into one or more Series;
terminate any one or more Series; change the name of a Series;
and take such other action with respect to the Series as the
Trustees may deem desirable.
(iii) All consideration received by the Trust for the issue or sale of
Shares of a particular Series, together with all assets in which
such consideration is invested or reinvested, all income,
earnings, profits and proceeds thereof, including any proceeds
derived from the sale, exchange or liquidation of such assets,
and any funds or payments derived from any reinvestment of such
proceeds in whatever form the same may be (collectively, the
"Assets"), shall irrevocably belong to that Series for all
purposes, subject only to the rights of creditors of such Series,
and shall be so recorded upon the books of the Trust. Such
Assets, together with any General Assets (as hereinafter defined)
allocated to that Series as provided in the following sentence,
are herein referred to as "Assets belonging to" that Series. In
the event that there are any assets, income, earnings, profits or
proceeds thereof, funds or payments which are not readily
identifiable as Assets belonging to any particular Series
(collectively, the "General Assets"), the Trustees shall allocate
such General Assets to and among any one or more of the Series
created from time to time in such manner and on such basis as
they deem fair and equitable; and any General Assets allocated to
a particular Series shall be Assets belonging to that Series.
Each such allocation by the Trustees shall be conclusive and
binding upon the Shareholders of all Series for all purposes.
Separate and distinct records shall be maintained for each Series
and the Assets belonging to each Series shall be held and
accounted for in such separate and distinct records separately
from the Assets belonging to all other Series and the General
Assets of the Trust not allocated to such Series.
(iv) The Assets belonging to a particular Series shall be charged
with the debts, liabilities and obligations of the Trust in
respect of that Series and with all expenses, costs, charges and
reserves attributable to that Series (collectively, the
"Liabilities"), which Liabilities shall be recorded upon the
books of the Trust. Such Liabilities together with any General
Liabilities (as hereinafter defined) allocated to that Series as
provided in the following sentence, are herein referred to as
"Liabilities belonging to" that Series. In the event there are
any debts, liabilities, obligations, expenses, costs, charges or
reserves of the Trust that are not readily identifiable as
belonging to any particular Series (collectively, the "General
Liabilities"), the Trustees shall allocate and charge such
General Liabilities to and among any one or more of the Series
created from time to time in such manner and on such basis as
they deem fair and equitable; and any General Liabilities so
allocated to a particular Series shall belong to that Series.
Each such allocation by the Trustees shall be conclusive and
binding upon all concerned for all purposes. Without limiting the
foregoing, but subject to the right of the Trustees to allocate
General Liabilities as herein provided, the Liabilities belonging
to a particular Series shall be enforceable only against the
Assets belonging to such Series and not against the assets of the
Trust generally or against the Assets belonging to any other
Series, and none of the General Liabilities incurred, contracted
for or otherwise existing with respect to the Trust generally or
any Liabilities incurred, contracted for or otherwise existing
with respect to any other Series shall be enforceable against the
Assets belonging to such Series. Notice of this contractual
limitation on liabilities among Series shall be set forth in the
Certificate of Trust (whether originally or by amendment) as
filed or to be filed with the Secretary of State of the State of
Delaware pursuant to the Delaware Act, and upon the giving of
such notice in the Certificate of Trust, the statutory provisions
of Section 3804(a) of the Delaware Act relating to limitations on
liabilities among Series (and the statutory effect under Section
3804(a) of setting forth such notice in the Certificate of Trust)
shall become applicable to the Trust and each Series. Any Person
extending credit to, contracting with or having any claim against
any Series may look only to the Assets belonging to that Series
to satisfy or enforce any Liability belonging to that Series. No
Shareholder or former Shareholder of any Series, in such
capacity, shall have a claim on or any right to any Assets
belonging to any other Series or the Trust generally.
(b) Classes. The current Classes are set forth on Schedule B hereto
with respect to those Series identified on such Schedule. The Trustees may
from time to time authorize the division of Shares of the Trust or any
Series thereof into additional Classes. The relative rights, preferences,
privileges, limitations, restrictions and other relative terms of a Class
shall be established and designated by the Trustees and may be modified by
the Trustees from time to time. All Shares of a Class of a Series shall be
identical with each other and with the Shares of each other Class of the
same Series except for such variations between Classes as may be authorized
by the Trustees from time to time and not prohibited by the 1940 Act,
including, without limitation, as to qualifications for ownership, minimum
purchase amounts, minimum account size, purchase price, fees and expenses,
right of redemption, and the price, terms and manner of redemption,
conversion and exchange rights and features and special and relative rights
as to dividends and on liquidation. The number of authorized Shares of each
Class and the number of Shares of each Class that may be issued shall be
unlimited. The Trustees may divide or combine the issued or unissued Shares
of any Class into a greater or lesser number; classify or reclassify any
issued or unissued Shares of any Class into one or more Classes; combine
two or more Classes of a Series into a single Class of such Series;
terminate any one or more Classes of Shares; change the name or other
designation of a Class; and take such other action with respect to the
Classes as the Trustees may deem desirable. To the extent necessary or
appropriate to give effect to the preferences and special or relative
rights and privileges of any Classes, the Trustees may allocate assets,
liabilities, income and expenses of a Series to a particular Class of that
Series or apportion the same among two or more Classes of that Series. All
references to Shares in this Declaration shall be deemed to include
references to Shares of any or all Classes as the context may require.
(c) Establishment and Designation of Series and Classes. The
establishment and designation of any Series or Class of Shares shall be
made either by the vote of a majority of the Trustees or by the execution
by a majority of the Trustees of an instrument in each case setting forth
such establishment and designation, the effective date of such
establishment and designation and the relative rights, preferences,
privileges, limitations, restrictions and other relative terms of such
Series and/or Class, whether directly in such resolution or instrument or
by reference to one or more documents or instruments outside this
Declaration and outside the resolutions, as the same may be in effect from
time to time, including any Prospectus relating to such Series or Class,
and any such resolutions or instruments shall be deemed to be incorporated
by reference herein as part of the Trust's "governing instrument" within
the meaning of the Delaware Act. Additions or modifications to a
designation, including, without limitation, any termination of an existing
Series or Class, shall be made in the same manner as is permitted for the
establishment and designation of such Series or Class.
Section 4.10. Disclosure of Shareholder Holdings. The holders of Shares
or other securities of the Trust shall upon demand disclose to the Trust in
writing such information with respect to direct and indirect ownership of Shares
or other securities of the Trust as the Trustees deem necessary to comply with
the provisions of the Code; to comply with the requirements of any other law or
regulation; or as the Trustees may otherwise decide, and ownership of Shares may
be disclosed by the Trust if so required by applicable law or as the Trustees
may otherwise decide.
Section 4.11. Access to Trust Records. As provided in Section 3819 of
the Delaware Act, Shareholders shall only have such right to inspect the such
records, documents, accounts and books of the Trust as may be granted from time
to time by the Trustees, and subject to such reasonable standards (including
standards governing what information and documents are to be furnished at what
time and location and at whose expense as may be established from time to time
by the Trustees.
Section 4.12. Communications with Shareholders. Any notices, reports,
statements, or communications with Shareholders of any kind required under this
Declaration, including any such communications with Shareholders or their
counsel or other representatives required under Section 9.8 hereof, or otherwise
made by the Trust or its agents on behalf of the Trust shall be governed by the
provisions pertaining thereto in the Bylaws.
ARTICLE V
THE TRUSTEES
Section 5.1. Management of the Trust. The business and affairs of the
Trust shall be managed under the direction of the Trustees, and they shall have
all powers necessary and desirable to carry out that responsibility, including,
without limitation, those powers described more fully in Article VI hereof.
Section 5.2. Qualification and Number. Each Trustee shall be a natural
person. A Trustee need not be a citizen of the United States or a resident of
the State of Delaware. By a majority vote or consent of the Trustees as may then
be in office, the Trustees may from time to time establish the number of
Trustees. 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 resignation,
retirement or removal of a Trustee pursuant to Section 5.4 hereof.
Section 5.3. Term and Election. Except as provided in Section 5.4 below,
each Trustee shall hold office until the next meeting of Shareholders called for
the purpose of considering the election or re-election of such Trustee or of a
successor to such Trustee, and until his successor, if any, is elected,
qualified and serving as a Trustee hereunder. Any Trustee vacancy may be filled
by the affirmative vote or consent of a majority of the Trustees then in office,
except as prohibited by the 1940 Act, or, if for any reason there are no
Trustees then in office, vacancies may be filled by the officers of the Trust
elected pursuant to Section 6.2(b)(iii) hereof, or may be filled in any other
manner permitted by the 1940 Act.
Section 5.4. Resignation, Retirement and Removal. Any Trustee may resign
or retire as a Trustee by an instrument in writing signed by him and delivered
or mailed to the Chair, if any, the president or the secretary, and such
resignation or retirement shall be effective upon such delivery, or at a later
date according to the terms of the instrument. Any Trustee who has attained a
mandatory retirement age or term limit established pursuant to, or who is
otherwise required to retire in accordance with, any written policy adopted from
time to time by at least two-thirds (2/3) of the Trustees shall, automatically
and without action of such Trustee or the remaining Trustees, be deemed to have
retired in accordance with the terms of such policy, effective as of the date
determined in accordance with such policy. Except as aforesaid, any Trustee may
be removed from office only (i) by action of at least two-thirds (2/3) of the
voting power of the Outstanding Shares, or (ii) by the action of a majority of
the remaining Trustees, specifying the date when such removal shall become
effective. Except to the extent expressly provided in a written agreement to
which the Trust is a party or in a written policy adopted by the Trustees, no
resigning, retiring or removed Trustee shall have any right to any compensation
for any period following his resignation, retirement or removal, or any right to
damages on account of such resignation, retirement or removal.
Section 5.5. Vacancies. The death, resignation, retirement, removal, or
incapacity of one or more of the Trustees, or all of them, shall not operate to
annul the Trust or to revoke any existing agency created pursuant to the terms
of this Declaration. Whenever a vacancy in the number of Trustees shall occur,
until such vacancy is filled as provided herein, or the number of Trustees as
fixed is reduced, the Trustees in office, regardless of their number, shall have
all the powers granted to the Trustees, and during the period during which any
such vacancy shall occur, only the Trustees then in office shall be counted for
the purposes of the existence of a quorum or any action to be taken by such
Trustees.
ARTICLE VI
POWERS OF TRUSTEES
Section 6.1. General Powers. The Trustees shall have exclusive and
absolute control over the Trust Property and over the business of the Trust but
with full powers of delegation, except as may otherwise be expressly prohibited
by this Declaration. The Trustees shall have the power to direct the business
and affairs of the Trust and carry on the Trust's operations and maintain
offices both within and outside the State of Delaware, and to do or authorize
all such other things and execute or authorize the execution of all such
instruments as they deem necessary, proper or desirable in order to promote the
interests of the Trust. With respect to any power or authority of the Trustees
hereunder, whether stated or implied, the Trustees shall have all further powers
and authority as may be necessary, incidental, relative, conductive, appropriate
or desirable for the accomplishment, carrying out or attainment of any action
authorized by the Trustees. In construing the provisions of this Declaration,
the presumption shall be in favor of a grant of power to the Trustees. Without
limiting the foregoing, the Trustees shall have power and authority to operate
and carry on the business of an investment company and the Trustees shall
exercise all the powers as are necessary, convenient, appropriate, incidental or
customary in connection therewith and may exercise all powers which are
ordinarily exercised by the trustees of a statutory trust. The enumeration of
any specific power herein shall not be construed as limiting the aforesaid
general powers. Such powers of the Trustees may be exercised without order of or
resort to any court. Whenever in this Declaration the Trustees are given
authority to act on behalf of the Trust or to direct, authorize or cause the
Trust to take any action, such power and authority shall apply, mutatis
mutandis, to any action of the Trust on behalf of any Series or Class, whether
or not specific reference is made to Series or Classes.
Section 6.2. Certain Specific Powers.
(a) Investments. The Trustees shall not in any way be bound or limited
by present or future laws, rules, regulations, or customs in regard to
investments by fiduciaries, but shall have full authority and power to
authorize the Trust to make, invest and reinvest in, to buy or otherwise
acquire, to hold, for investment or otherwise, to borrow, to sell,
terminate, exercise or otherwise dispose of, to lend or to pledge, to
write, enter into, engage, trade or deal in any and all investments or
investment strategies as they may deem proper at any time and from time to
time to accomplish the purpose of the Trust or any Series thereof. In
furtherance of, and in no way limiting, the foregoing, the Trustees shall
have power and authority to authorize the Trust:
(i) to exercise powers and rights of subscription or otherwise which
in any manner arise out of ownership of securities or other
assets;
(ii) to hold any security or property in a form not indicating any
trust, whether in bearer, unregistered or other negotiable form
or either in the Trust's name or in the name of a custodian or a
nominee or nominees;
(iii) to exercise all rights, powers and privileges of ownership or
interest in all securities and other assets included in the Trust
Property, including the right to vote thereon and otherwise act
with respect thereto and to do all acts for the preservation,
protection, improvement and enhancement in value of all such
assets;
(iv) to acquire (by purchase, lease or otherwise) and to hold, use,
maintain, develop and dispose of (by sale or otherwise) any
property, real or personal, tangible or intangible, including
cash, securities, currencies, any commodities, and any interest
therein;
(v) to borrow money for any purpose and in this connection issue
notes or other evidence of indebtedness;
(vi) to secure borrowings by mortgaging, pledging or otherwise
subjecting as security all or any portion of the Trust Property;
(vii) to endorse, guarantee, or undertake the performance of any
obligation or engagement of any other Person;
(viii) to lend money or any other Trust Property;
(ix) to aid by further investment any corporation, company, trust,
association or firm, any obligation of or interest in which is
included in the Trust Property or in the affairs of which the
Trustees have any direct or indirect interest and to do all acts
and things designed to protect, preserve, improve or enhance the
value of such obligation or interest;
(x) to guarantee or become surety on any or all of the contracts,
stocks, bonds, notes, debentures and other obligations of any
such corporation, company, trust, association or firm;
(xi) to consent to or participate in any plan for the reorganization,
consolidation or merger of any corporation or issuer, any
security or property of which is held in the Trust;
(xii) to consent to any contract, lease, mortgage, purchase, or sale
of property by such corporation or issuer;
(xiii) to pay calls or subscriptions with respect to any security held
in the Trust; and
(xiv) 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.
(b) Additional Powers. The Trustees shall have the power and
authority on behalf of the Trust:
(i) to employ, engage or contract with, or make payments to, such
Persons as the Trustees may deem desirable for the transaction of
the business of the Trust or any Series thereof, including,
without limitation, any Trustee or officer of the Trust or any
firm of which any such Trustee or officer is a member, whether as
agents or independent contractors of the Trust or any Series
thereof, or as delegates of the Trustees, officers, or any other
Person who may be involved with the management of the business
affairs of the Trust or any Series thereof, to have such titles,
and such rights, powers and duties as the Trustees may determine
from time to time, to terminate any such employment, engagement
or contract or other relationship, and to delegate to any such
Person the supervision of any other Person that has been so
employed, engaged or contracted with;
(ii) to authorize the Trust to enter into joint ventures, partnerships
and any other combinations or associations;
(iii) to elect and remove such officers as they consider appropriate,
including, without limitation, a president and a secretary;
(iv) to authorize the Trust to indemnify any Person with whom the
Trust has dealings, including, without limitation, any service
provider employed pursuant to Article VII hereof, to such extent
as the Trustees shall determine;
(v) to authorize the Trust to purchase, and pay for out of Trust
Property, (A) insurance policies insuring the Shareholders,
Trustees, officers, employees and any other Persons, including,
without limitation, any service provider employed pursuant to
Article VII hereof, against any or all claims arising by reason
of holding any such position or by reason of any action taken or
omitted by any such Person in such capacity whether or not the
Trust would have the power to indemnify such Person against such
liability, (B) insurance for the protection of Trust Property,
(C) insurance as may be required by applicable law, or (D) such
other insurance as the Trustees shall deem advisable, in each
case as the Trustees shall determine;
(vi) to authorize the Trust to establish pension, profit-sharing,
share purchase, and other retirement, incentive and benefit
plans, including the purchasing of life insurance and annuity
contracts as a means of providing such retirement and other
benefits, for any Trustees, officers, employees and agents of the
Trust;
(vii) to authorize the Trust to guarantee indebtedness or contractual
obligations of others;
(viii) to determine and change the fiscal year of the Trust or any
Series and the method by which its accounts shall be kept;
(ix) to adopt a seal for the Trust, but the absence of such seal shall
not impair the validity of any instrument executed on behalf of
the Trust; and
(x) to engage in any other lawful act or activity in connection with
or incidental to any of the powers enumerated in this
Declaration, to do everything necessary, suitable or proper for
the accomplishment of any purpose or the attainment of any object
or the furtherance of any power herein set forth, either alone or
in association with others, and to do every other act or thing
incidental or appurtenant to or growing out of or connected with
the aforesaid business or purposes, objects or powers.
(c) The foregoing enumeration of the powers and authority of the
Trustees shall be read as broadly and liberally as possible, it being the
intent of the foregoing in no way to limit the Trustees' powers and
authority.
Section 6.3. Issuance and Repurchase of Shares. The Trustees shall have
the power to authorize the Trust to issue, sell, repurchase, redeem, retire,
cancel, acquire, hold, resell, reissue, dispose of, transfer, and otherwise deal
in Shares and in any options, warrants or other rights to purchase Shares or any
other interests in the Trust other than Shares.
Section 6.4. Delegation; Committees. The Trustees shall have power to
delegate from time to time to one or more of their number or to officers,
employees or agents of the Trust the doing of such things and the execution of
such instruments either in the name of the Trust or the names of the Trustees or
otherwise as the Trustees may deem expedient, except to the extent such
delegation is prohibited by applicable law. Without limiting the foregoing, and
notwithstanding any provisions herein to the contrary, the Trustees may by
resolution appoint committees consisting of one or more, but less than the whole
number of, Trustees then in office and such other members as the Trustees shall
approve, which committees may be empowered to act for and bind the Trustees and
the Trust, as if the acts of such committees were the acts of all the Trustees
then in office.
Section 6.5. Collection and Payment. The Trustees shall have the power to
authorize the Trust or its agents to: collect all money or other property due to
the Trust; to pay all claims, including taxes, against the Trust Property; to
prosecute, defend, arbitrate, compromise or abandon any claims relating to the
Trust Property; to foreclose any security interest securing any obligations, by
virtue of which any money or other property is owed to the Trust; and to enter
into releases, agreements and other instruments; but the Trustees shall have no
liability for failing to authorize any of the foregoing.
Section 6.6. Expenses. The Trustees shall have the power to authorize the
Trust to incur and pay any expenses which, in the opinion of the Trustees, are
necessary or incidental to carry out any of the purposes of this Declaration, to
pay compensation from the funds of the Trust to themselves as Trustees and to
reimburse themselves from the funds of the Trust for their expenses and
disbursements. The Trustees shall fix the compensation of all officers,
employees and Trustees.
Section 6.7. Manner of Acting. Except as otherwise provided herein, under
applicable law or in the Bylaws, any action to be taken or determination made by
the Trustees may be taken or made by a majority of the Trustees present at a
meeting of Trustees (a quorum being present), including any meeting held by
means of a conference telephone circuit or similar communications equipment by
means of which all persons participating in the meeting can hear each other, or
by written consents of a majority of Trustees then in office. Any such action or
determination may be made by reference to one or more documents or instruments
or policies or procedures outside this Declaration and outside the resolutions
of the Trustees. Except as set forth specifically in this Declaration, any
action that may be taken by the Trustees may be taken by them in their sole
discretion and without the vote or consent of Shareholders.
Section 6.8. Bylaws. The Trustees may adopt Bylaws not inconsistent with
this Declaration to provide for the conduct of the business of the Trust and
shall have the exclusive power to amend or repeal such Bylaws.
Section 6.9. Principal Transactions. Except in transactions not permitted
by the 1940 Act, the Trustees may authorize the Trust to buy any securities or
other assets from or sell or lend any securities or other assets of the Trust
to, any affiliate of the Trust or any account managed by an affiliate of the
Trust, any Trustee or officer of the Trust or any firm of which any such Trustee
or officer is a member acting as principal, or have any such dealings with any
service provider employed pursuant to Article VII hereof.
Section 6.10. Effect of Trustees' Determination. Any action taken or
determination made by or pursuant to the direction of the Trustees in good faith
and consistent with the provisions of this Declaration shall be final and
conclusive and shall be binding upon the Trust, every holder at any time of
Shares and any other Person.
ARTICLE VII
SERVICE PROVIDERS
Section 7.1. Investment Adviser and Administrator. The Trust may enter
into contracts with one or more Persons, to act as investment adviser,
investment sub-adviser, manager, administrator, sub-administrator or other agent
to the Trust or Series, and as such to perform such functions as the Trustees
may deem reasonable and proper, including, without limitation, investment
advisory, management, research, valuation of assets, clerical and administrative
functions, under such terms and conditions, and for such compensation, as the
Trustees may deem advisable. The Trustees may also authorize any adviser or
sub-adviser to employ one or more sub-advisers from time to time and any
administrator to employ one or more sub-administrators from time to time, upon
such terms and conditions as shall be approved by the Trustees.
Section 7.2. Underwriter; Transfer Agent; Shareholder Servicing Agent;
Custodian. The Trust may enter into a contract or contracts with one or more
Persons to act as underwriters, distributors or placement agents whereby the
Trust may either agree to sell Shares of the Trust or any Series or Class to the
other party or parties to the contract or appoint such other party or parties
its sales agent or agents for such Shares and with such other provisions as the
Trustees may deem reasonable and proper, and the Trust may from time to time
enter into transfer agency, sub-transfer agency and/or shareholder servicing
contract(s), in each case with such terms and conditions, and providing for such
compensation, as the Trustees may deem advisable.
All securities and cash of the Trust shall be held pursuant to a written
contract or contracts with one or more custodians and subcustodians or shall
otherwise be held in accordance with the 1940 Act.
Section 7.3. Parties to Contract. Any contract of the character described
in this Article VII may be entered into with any Person, including, without
limitation, the investment adviser, any investment sub-adviser or an affiliate
of the investment adviser or sub-adviser, although one or more of the Trustees,
officers, or Shareholders of the Trust may be an officer, director, trustee,
shareholder, or member of such other party to the contract, or otherwise
interested in such contract, and no such contract shall be invalidated or
rendered voidable by reason of the existence of any such relationship, nor shall
any Person holding such relationship be liable merely by reason of such
relationship for any loss or expense to the Trust under or by reason of said
contract or accountable for any profit realized directly or indirectly
therefrom, provided that the contract when entered into was not inconsistent
with the provisions of this Article VII or the Bylaws. The same Person may be a
party to more than one contract entered into pursuant to this Article VII and
any individual may be financially interested or otherwise affiliated with
Persons who are parties to any or all of the contracts mentioned in this Article
VII.
Section 7.4. Further Authority of Trustees. The authority of the Trustees
hereunder to authorize the Trust to enter into contracts or other agreements or
arrangements shall include the authority of the Trustees to modify, amend, waive
any provision of, supplement, assign all or a portion of, novate, or terminate
such contracts, agreements or arrangements. The enumeration of any specific
contracts in this Article VII shall in no way be deemed to limit the power and
authority of the Trustees as set forth in Section 6.2 hereof to authorize the
Trust to employ, contract with or make payments to such Persons as the Trustees
may deem desirable for the transaction of the business of the Trust.
ARTICLE VIII
DISTRIBUTIONS; REDEMPTIONS; DETERMINATION OF NET ASSET VALUE
Section 8.1. Distributions. The Trustees may from time to time declare and
authorize the payment of, or may prescribe and set forth in a duly adopted vote
or votes of the Trustees, the bases and time or frequency, which may be monthly
or otherwise, for the declaration and payment of, such dividends and
distributions on Shares of a particular Series or Class thereof as they may deem
necessary or desirable, after providing for actual and accrued expenses and
liabilities (including such reserves as the Trustees may establish) determined
in accordance with good accounting practices. All dividends and distributions on
Shares of a particular Series shall be distributed only from the Assets
belonging to that Series, as such term is defined in Section 4.9 hereof, and
shall be distributed pro rata to the Shareholders of that Series in proportion
to the number of Shares of that Series held by such Shareholders at the date and
time of record for the payment of such dividends or distributions, subject to
any variations with respect to Classes of Shares of such Series, if any, and in
a manner consistent with the 1940 Act and the Code. Such distributions may be
paid in cash and/or in securities or other property, and the composition of any
such distribution shall be determined by the Trustees and may be different among
Shareholders (including differences among Shareholders in the same Series or
Class).
Section 8.2. Redemption of Shares. All shares of the Trust shall be
redeemable, at the redemption price determined in the manner set out in this
Declaration. The Trust shall redeem the Shares of the Trust or any Series or
Class thereof at the price determined as hereinafter set forth, at such offices
or agencies and in accordance with such conditions, not inconsistent with the
1940 Act, regarding the redemption of Shares as may be described in the
applicable Prospectus.
Section 8.3. Redemption Price. Shares of the Trust, or of any Series or
Class thereof shall be redeemed at their net asset value determined as set forth
in Section 8.7 hereof as of such time or times as the Trustees shall have
theretofore prescribed, less such fees and/or charges, if any, as may be
established by the Trustees from time to time.
Section 8.4. Payment. Payment of the redemption price of Shares of the
Trust or any Series or Class thereof shall be made in cash or in property or any
combination thereof, out of the assets of the Trust or, as applicable, the
Assets belonging to such Series, as such term is defined in Section 4.9 hereof,
and the composition of any such payment may be different among Shareholders
(including differences among Shareholders in the same Series or Class), at such
time and in the manner as may be specified from time to time in the applicable
Prospectus. In no event shall the Trust be liable for any delay of any other
Person in transferring securities or other property selected for delivery as all
or part of any such payment.
Section 8.5. Redemption of Shareholder's Interest By Action of Trust.
Subject to the provisions of the 1940 Act, the Trust may redeem some or all of
the Shares of the Trust or one or more Series or Classes held by any Shareholder
for any reason and under terms set by the Trustees, including by way of
illustration, for the following reasons:
(a) the value of such Shares held by such Shareholder being less than
the minimum amount established from time to time by the Trustees;
(b) the determination that direct or indirect ownership of Shares by
any Person has become concentrated in such Shareholder to any extent that
would disqualify that Series as a regulated investment company under the
Code;
(c) the failure of a Shareholder to supply a tax identification or
other identification or if the Trust is unable to verify a Shareholder's
identity;
(d) the failure of a Shareholder to pay when due for the purchase of
Shares issued to such Shareholder;
(e) the failure of a Shareholder to meet or maintain the
qualifications for ownership of a particular Class or Series of Shares;
(f) the payment of account fees or other charges, expenses and/or
fees as set by the Trustees, including without limitation any small account
fees permitted by Section 4.4 hereof;
(g) the determination that ownership of Shares by a particular
Shareholder is not in the best interests of the remaining Shareholders of
the Trust or applicable Series or Class;
(h) the failure of a holder of Shares or other securities of the
Trust to comply with a demand pursuant to Section 4.10 hereof;
(i) in connection with the termination of any Series or Class of
Shares; or
(j) when the Trust is requested or compelled to do so by governmental
authority or applicable law.
Section 8.6. Suspension of Right of Redemption. Notwithstanding the
foregoing, the Trust may postpone payment of the redemption price and may
suspend the right of the holders of Shares to require the Trust to redeem Shares
to the extent permissible under the 1940 Act.
Section 8.7. Determination of Net Asset Value; Valuation of Portfolio
Assets. The Trustees may from time to time prescribe such bases and times for
determining the per Share net asset value of the Shares of the Trust or any
Series or Class thereof and may prescribe or approve the procedures and methods
for determining the value of portfolio assets as they may deem necessary or
desirable.
The Trust may suspend the determination of net asset value during any
period when it may suspend the right of the holders of Shares to require the
Trust to redeem Shares.
Section 8.8. Constant Net Asset Value. With respect to any Series that
holds itself out as a money market or stable value fund, the Trustees shall have
the power to reduce the number of Outstanding Shares of the Series by reducing
the number of Shares in the account of each Shareholder on a pro rata basis, or
to take such other measures as are not prohibited by the 1940 Act, so as to
maintain the net asset value per share of such Series at a constant dollar
amount.
Section 8.9. Reserves. The Trustees may set apart, from time to time,
out of any funds of the Trust or Series or out of funds allocable to a Class
thereof a reserve or reserves for any proper purpose, and may abolish any such
reserve.
Section 8.10. Determination by Trustees. The Trustees may make any
determinations they deem necessary with respect to the provisions of this
Article VIII, including, but not limited to, the following matters: the amount
of the assets, obligations, liabilities and expenses of the Trust; the amount of
the net income of the Trust from dividends, capital gains, interest or other
sources for any period and the amount of assets at any time legally available
for the payment of dividends or distributions; which items are to be treated as
income and which as capital; the amount, purpose, time of creation, increase or
decrease, alteration or cancellation of any reserves or charges and the
propriety thereof (whether or not any obligation or liability for which such
reserves or charges were created shall have been paid or discharged); the market
value, or any other price to be applied in determining the market value, or the
fair value, of any security or other asset owned or held by the Trust; the
number of Shares of the Trust issued or issuable; the net asset value per Share;
and any of the foregoing matters as it may pertain to any Series or Class.
ARTICLE IX
LIMITATION OF LIABILITY AND INDEMNIFICATION
Section 9.1. No Personal Liability of and Indemnification of Shareholders.
No personal liability for any debt, liability or obligation or expense incurred
by, contracted for, or otherwise existing with respect to, the Trust or any
Series or Class shall attach to any Shareholder or former Shareholder of the
Trust. In case any Shareholder or former Shareholder of the Trust shall be held
to be personally liable solely by reason of his being or having been a
Shareholder and not because of his acts or omissions or for some other reason,
the Shareholder or former Shareholder (or his heirs, executors, administrators
or other legal representatives or in the case of a corporation or other entity,
its corporate or other general successor) shall be entitled out of the assets of
the Trust or, if the Trust has more than one Series, the applicable Series, to
be held harmless from and indemnified against all loss and expense arising from
such liability; provided, however, there shall be no liability or obligation of
the Trust or any Series arising hereunder to reimburse any Shareholder for taxes
paid by reason of such Shareholder's ownership of any Shares or for losses
suffered by reason of any changes in value of any Trust assets. The Trust shall,
upon request by the Shareholder or former Shareholder, assume the defense of any
claim made against the Shareholder for any act or obligation of the Trust and
satisfy any judgment thereon.
Section 9.2. Limitation of Liability of Trustees and Others.
(a) No Liability to Third Parties. No person who is or has been a
Trustee, officer, or employee of the Trust shall be subject to any personal
liability whatsoever to any Person, other than the Trust or its
Shareholders, in connection with the affairs of the Trust; and all Persons
shall look solely to the Trust Property or Property of a Series for
satisfaction of claims of any nature arising in connection with the affairs
of the Trust or such Series.
Every note, bond, contract, instrument, certificate, Share or
undertaking and every other act or thing whatsoever executed or done by or
on behalf of the Trust or the Trustees or any of them in connection with
the Trust shall be conclusively deemed to have been executed or done only
in or with respect to their or his capacity as Trustees or Trustee and
neither such Trustees or Trustee nor the Shareholders shall be personally
liable thereon.
All Persons extending credit to, contracting with or having any claim
against the Trust or a Series shall look only to the assets of the Trust
Property or the Trust Property of such Series for payment under such
credit, contract or claim; and neither the Trustees, nor any of the Trust's
officers, employees or agents, whether past, present or future, shall be
personally liable therefor.
(b) Limitation of Liability to Trust and Shareholders. No person
who is or has been a Trustee, officer or employee of the Trust shall be
liable to the Trust or to any Shareholder for any action or failure to act
except for his or her own bad faith, willful misfeasance, gross negligence
or reckless disregard of his or her duties involved in the conduct of the
individual's office, and for nothing else, and shall not be liable for
errors of judgment or mistakes of fact or law.
(c) No Liability for Acts of Others. Without limiting the foregoing
limitations of liability contained in this Section 9.2, a Trustee shall not
be responsible for or liable in any event for any neglect or wrongdoing of
any officer, employee, investment adviser, sub-adviser, principal
underwriter, custodian or other agent of the Trust, nor shall any Trustee
be responsible or liable for the act or omission of any other Trustee (or
for the failure to compel in any way any former or acting Trustee to
redress any breach of trust), except in the case of such Trustee's own
willful misfeasance, bad faith, gross negligence or reckless disregard of
the duties involved in the conduct of his or her office.
Section 9.3. Experts; No Bond or Surety. The Trustees may rely upon
advice of counsel or other experts with respect to the meaning and operation of
this Declaration and their duties as Trustees hereunder, and shall be under no
liability for any act or omission in accordance with such advice or for merely
failing to follow such advice. 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 registered public accounting firm and (with respect to the
subject matter of the contract involved) any officer, partner or responsible
employee of any other party to any contract entered into hereunder. The
appointment, designation or identification of a Trustee as chair of the
Trustees, a member or chair of a committee of the Trustees, an expert on any
topic or in any area (including an audit committee financial expert), or the
lead independent Trustee, or any other special appointment, designation or
identification of a Trustee, shall not impose on that person any standard of
care or liability that is greater than that imposed on that person as a Trustee
in the absence of the appointment, designation or identification, and no Trustee
who has special skills or expertise, or is appointed, designated or identified
as aforesaid, shall be held to a higher standard of care by virtue thereof. In
addition, no appointment, designation or identification of a Trustee as
aforesaid shall affect in any way that Trustee's rights or entitlement to
indemnification or advancement of expenses. The Trustees shall not be required
to give any bond as such, nor any surety if a bond is required.
Section 9.4. Liability of Third Persons Dealing with the Trust or
Trustees. No third Person dealing with the Trust or the Trustees shall be bound
to make any inquiry concerning the validity of any transaction made or to be
made by the Trust or Trustees or to see to the application of any payments made
or property transferred to the Trust or upon its order.
Section 9.5. Indemnification and Advancement of Expenses. Subject to the
exceptions and limitations contained in this Section 9.5, every person who is,
or has been, a Trustee, officer, or employee of the Trust, including persons who
serve at the request of the Trust as directors, trustees, officers, employees or
agents of another organization in which the Trust has an interest as a
shareholder, creditor or otherwise (hereinafter referred to as a "Covered
Person"), shall be indemnified by the Trust or the applicable Series to the
fullest extent permitted by law against liability and against all expenses
reasonably incurred or paid by him in connection with any claim, action, suit or
proceeding in which he becomes involved as a party or otherwise by virtue of his
being or having been such a Trustee, director, officer, employee or agent and
against amounts paid or incurred by him in settlement thereof.
No indemnification shall be provided hereunder to a Covered Person to the
extent such indemnification is prohibited by applicable federal law.
The rights of indemnification herein provided may be insured against by
policies maintained by the Trust, shall be severable, shall not affect any other
rights to which any Covered Person may now or hereafter be entitled, shall
continue as to a person who has ceased to be such a Covered Person and shall
inure to the benefit of the heirs, executors and administrators of such a
person.
Subject to applicable federal law, expenses of preparation and presentation
of a defense to any claim, action, suit or proceeding subject to a claim for
indemnification under this Section 9.5 shall be advanced by the Trust or the
applicable Series prior to final disposition thereof upon receipt of an
undertaking by or on behalf of the recipient to repay such amount if it is
ultimately determined that he is not entitled to indemnification under this
Section 9.5.
To the extent that any determination is required to be made as to whether a
Covered Person engaged in conduct for which indemnification is not provided as
described herein, or as to whether there is reason to believe that a Covered
Person ultimately will be found entitled to indemnification, the Person or
Persons making the determination shall afford the Covered Person a rebuttable
presumption that the Covered Person has not engaged in such conduct and that
there is reason to believe that the Covered Person ultimately will be found
entitled to indemnification.
As used in this Section 9.5, the words "claim," "action," "suit" or
"proceeding" shall apply to all claims, demands, actions, suits, investigations,
regulatory inquiries, proceedings or any other occurrence of a similar nature,
whether actual or threatened and whether civil, criminal, administrative or
other, including appeals, and the words "liability" and "expenses" shall include
without limitation, attorneys' fees, costs, judgments, amounts paid in
settlement, fines, penalties and other liabilities.
Section 9.6. Further Indemnification. Nothing contained herein shall
affect any rights to indemnification to which any Covered Person or other Person
may be entitled by contract or otherwise under law or prevent the Trust from
entering into any contract to provide indemnification to any Covered Person or
other Person. Without limiting the foregoing, the Trust may, in connection with
the acquisition of assets subject to liabilities pursuant to Section 4.2 hereof
or a merger or consolidation pursuant to Section 10.2 hereof, assume the
obligation to indemnify any Person including a Covered Person or otherwise
contract to provide such indemnification, and such indemnification shall not be
subject to the terms of this Article IX.
Section 9.7. Amendments and Modifications. Without limiting the provisions
of Section 11.1(b) hereof, in no event will any amendment, modification or
change to the provisions of this Declaration or the Bylaws adversely affect in
any manner the rights of any Covered Person to (a) indemnification under Section
9.5 hereof in connection with any proceeding in which such Covered Person
becomes involved as a party or otherwise by virtue of being or having been a
Trustee, officer or employee of the Trust or (b) any insurance payments under
policies maintained by the Trust, in either case with respect to any act or
omission of such Covered Person that occurred or is alleged to have occurred
prior to the time such amendment, modification or change to this Declaration or
the Bylaws.
Section 9.8. Derivative Actions.
(a) Subject to the Delaware Act, no Shareholder may bring a derivative
or similar action or proceeding in the right of the Trust or any Series to
recover a judgment in its favor (a "derivative action") unless each of the
following conditions is met:
(i) Each Complaining Shareholder was a Shareholder of (A) the Series
on behalf of or in the right of which the action is proposed to be
brought and (B) a Class of the Series affected by the action or
failure to act complained of, to the extent that fewer than all
Classes were affected (the "affected Series or Class"), at the time of
the action or failure to act complained of, or acquired the Shares
afterwards by operation of law from a Person who was a Shareholder at
that time;
(ii) Each Complaining Shareholder was a Shareholder of the affected
Series or Class at the time the demand required by subparagraph (iii)
below was made;
(iii)Prior to the commencement of such derivative action, the
Complaining Shareholders have made a written demand on the Trustees
requesting that the Trustees cause the Trust to file the action itself
on behalf of the affected Series or Class (a "demand"), which demand
(A) shall be executed by or on behalf of no less than three
Complaining Shareholders, each of which shall be unaffiliated and
unrelated (by blood or by marriage) to any other Complaining
Shareholder executing such written demand and (B) shall include at
least the following:
(1) a detailed description of the action or failure to act
complained of, the facts upon which each such allegation is
made and the reasonably estimated damages or other relief
sought;
(2) a statement to the effect that the Complaining Shareholders
believe in good faith that they will fairly and adequately
represent the interests of similarly situated Shareholders
in enforcing the right of the affected Series or Class and
an explanation of why the Complaining Shareholders believe
that to be the case;
(3) a certification that the requirements of subparagraphs (i)
and (ii) of this paragraph (a) have been met, as well as
information reasonably designed to allow the Trustees to
verify that certification;
(4) a list of all other derivative or class actions in which any
of the Complaining Shareholders is or was a named plaintiff,
the court in which such action was filed, the date of
filing, the name of all counsel to any plaintiffs and the
outcome or current status of such actions;
(5) a certification of the number of Shares of the affected
Series or Class owned beneficially or of record by each
Complaining Shareholder at the time set forth in
subparagraphs (i), (ii) and (iii) of this paragraph (a) and
an undertaking that each Complaining Shareholder will be a
Shareholder of the affected Series or Class as of the
commencement of and throughout the derivative action and
will notify the Trust in writing of any sale, transfer or
other disposition by any of the Complaining Shareholders of
any such Shares within three business days thereof; and
(6) an acknowledgment of the provisions of paragraphs (e) and
(f) of this Section 9.8 below;
(iv) Shareholders owning Shares representing at least ten percent
(10%) of the voting power of the affected Series or Class must join in
initiating the derivative action; and
(v) A copy of the proposed derivative complaint must be served on the
Trust, assuming the requirements of subparagraphs (i) through (iv)
above have already been met and the derivative action has not been
barred in accordance with paragraph (c) below.
(b) Within 90 calendar days of the receipt of a Shareholder demand
submitted in accordance with the requirements above, those Trustees who are
independent for purposes of considering the demand or a committee comprised
of some or all of such Trustees (the "independent Trustees") will consider,
with the assistance of counsel who may be retained by such Trustees on
behalf and at the expense of the Trust, the merits of the claim and
determine whether maintaining a suit would be in the best interests of the
Trust. If, during this 90-day period, those independent Trustees conclude
that a determination as to the maintenance of a suit cannot reasonably be
made within the 90-day period, those independent Trustees may extend the
90-day period by a period of time that the independent Trustees consider
will be sufficient to permit them to make such a determination, not to
exceed 60 calendar days from the end of the initial 90-day period (such
90-day period, as may be extended as provided hereunder, the "review
period"). Notice of any such decision to extend the review period shall be
sent in accordance with the provisions of Section 4.12 hereof to the
Complaining Shareholders, or, the Shareholders' counsel if represented by
counsel, in writing within five business days of any decision to extend the
period. Trustees who are not deemed to be Interested Persons of the Trust
are deemed independent for all purposes, including for the purpose of
approving or dismissing a derivative action. A Trustee otherwise
independent for purposes of considering the demand shall not be considered
not to be independent solely by virtue of (i) the fact that such Trustee
receives remuneration for his service as a Trustee of the Trust or as a
trustee or director of one or more investment companies with the same or an
affiliated investment adviser or underwriter, (ii) the amount of such
remuneration, (iii) the fact that such Trustee was identified in the demand
as a potential defendant or witness, or (iv) the fact that the Trustee
approved the act being challenged in the demand if the act resulted in no
material personal benefit to the Trustee or, if the Trustee is also a
Shareholder, no material personal benefit that is not shared pro rata with
other Shareholders.
(c) If the demand has been properly made under paragraph (a) of this
Section 9.8, and a majority of the independent Trustees have considered the
merits of the claim and have determined that maintaining a suit would not
be in the best interests of the Trust, the demand shall be rejected and the
Complaining Shareholders shall not be permitted to maintain a derivative
action unless they first sustain the burden of proof to the court that the
decision of the Trustees not to pursue the requested action was not a good
faith exercise of their business judgment on behalf of the Trust. If upon
such consideration a majority of the independent Trustees determine that
such a suit should be maintained, then the appropriate officers of the
Trust shall cause the Trust to commence that suit and such suit shall
proceed directly rather than derivatively or permit the Complaining
Shareholders to proceed derivatively, provided however that any counsel
representing the interests of the Trust shall be approved by the Trustees.
The Trustees, or the appropriate officers of the Trust, shall inform the
Complaining Shareholders of any decision reached under this paragraph (c)
by sending in accordance with the provisions of Section 4.12 hereof written
notice to each Complaining Shareholder, or the Shareholder's counsel, if
represented by counsel, within five business days of such decision having
been reached.
(d) If notice of a decision has not been sent to the Complaining
Shareholders or the Shareholders' counsel within the time permitted by
paragraph (c) above, and subparagraphs (i) through (v) of paragraph (a)
above have been complied with, the Complaining Shareholders shall not be
barred by this Declaration from commencing a derivative action.
(e) A Complaining Shareholder whose demand is rejected pursuant to
paragraph (c) above shall be responsible for the costs and expenses
(including attorneys' fees) incurred by the Trust and/or the affected
Series in connection with the Trust's consideration of the demand if a
court determines that the demand was made without reasonable cause or for
an improper purpose. A Shareholder who commences or maintains a derivative
action in violation of this Section 9.8 shall reimburse the Trust and/or
the affected Series for the costs and expenses (including attorneys' fees)
incurred by the Trust and/or the affected Series in connection with the
action if the action is dismissed on the basis of the failure to comply
with this Section 9.8. If a court determines that any derivative action has
been brought without reasonable cause or for an improper purpose, the costs
and expenses (including attorneys' fees) incurred by the Trust and/or the
affected Series in connection with the action shall be borne by the
Shareholders who commenced the action.
(f) The Trust or the affected Series shall be responsible for payment
of attorneys' fees and legal expenses incurred by a Complaining Shareholder
in any circumstances only if required by law. Neither the Trust nor the
affected Series shall be obligated to pay any attorneys' fees so incurred
by a Complaining Shareholder other than fees that are reasonable and that
do not exceed an amount calculated using reasonable hourly rates.
(g) No Shareholder may make demand or commence a derivative action on
behalf of any Series of the Trust of which he or she is not a shareholder.
ARTICLE X
TERMINATION; MERGERS AND SALE OF ASSETS
Section 10.1. Termination of Trust or Series.
(a) Unless terminated as provided herein, the Trust shall continue
without limitation of time. The Trust or any Series of the Trust may be
terminated at any time by the Trustees for any reason they deem
appropriate, with notice to the Shareholders of the Trust or such Series as
the case may be.
(b) Upon the requisite action of the Trustees to terminate the Trust
or such Series, after paying or otherwise providing for all charges, taxes,
expenses and liabilities, whether due or accrued or anticipated, as may be
determined by the Trustees and as required by the Delaware Act, which may
include the establishment of a liquidating trust or similar vehicle, the
Trust shall, in accordance with such procedures as the Trustees consider
appropriate, reduce the remaining assets of the Trust or assets of the
particular Series thereof to distributable form in cash or other
securities, or any combination thereof, and distribute the proceeds to the
Shareholders of the Shares of the Trust or such Series in the manner
determined by the Trustees, provided that Shareholders of a particular
Series shall be entitled to receive a pro rata share of the net assets of
such Series only, subject to any variations with respect to Classes of
Shares of such Series, if any. Thereupon, the Trust or any affected Series
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 Series shall be canceled and discharged.
(c) Any Class of the Trust or Series thereof may be terminated by the
Trustees as provided in Article IV hereof.
(d) Upon termination of the Trust, following completion of winding up
of its business, the Trustees (or, if there is no remaining Trustee at that
time, any remaining officer of the Trust) shall direct that a Certificate
of Cancellation of the Trust be executed and filed with the Secretary of
State of the State of Delaware.
Section 10.2. Merger and Consolidation. Subject to applicable law, the
Trust may merge or consolidate with or into one or more statutory trusts or
other business entities or series or classes thereof formed or organized or
existing under the laws of Delaware or any other state or the United States or
any foreign country or other foreign jurisdiction by the affirmative vote of
two-thirds (2/3) of the Trustees. Pursuant to and in accordance with Section
3815(f) of the Delaware Act, and notwithstanding anything to the contrary
contained in this Declaration, an agreement of merger or consolidation so
approved by the Trustees in accordance with this Section 10.2 may (a) effect any
amendment to the governing instrument of the Trust; or (b) effect the adoption
of a new governing instrument of the Trust if it is the surviving or resulting
trust in the merger or consolidation.
Section 10.3. Sale of Assets; Reorganization. The Trustees may
authorize the Trust or any Series or Class thereof, to sell, lease, transfer,
pledge, exchange, convey or dispose of all or substantially all of the Trust
Property (or all or substantially all of the Trust Property allocated or
belonging to a particular Series or Class), including its good will, to any one
or more business or statutory trusts or other business entities or series or
classes thereof (including another Series or Class of the Trust) upon such terms
and conditions and for such consideration (which may include the assumption of
some or all of the outstanding obligations and liabilities, accrued or
contingent, whether known or unknown, of the Trust or such Series or Class) as
may be authorized by the Trustees. Without limiting the generality of the
foregoing, this provision may be utilized to permit the Trust or any Series or
Class thereof to pursue its investment program through one or more subsidiary
vehicles or to operate in a master-feeder or fund of funds structure.
Section 10.4. Conversion. The Trustees may authorize the creation of one
or more statutory trusts to which all or any part of the assets, liabilities,
profits, or losses of the Trust or any Series or Class thereof may be
transferred and may provide for the conversion of Shares of the Trust or any
Series or Class thereof into beneficial interests in any such newly created
trust or trusts or any series or classes thereof.
Section 10.5. Combination of Classes. The authority of the Trustees under
this Article X with respect to the merger, consolidation, sale of assets or
reorganization of any Series of the Trust or any Class thereof is in addition to
the authority of the Trustees under Section 4.9 hereof to combine two or more
Classes of a Series into a single Class.
ARTICLE XI
AMENDMENTS; FILINGS; MISCELLANEOUS
Section 11.1. Amendments to Declaration and Certificate of Trust.
(a) The Trustees may by vote of a majority of the Trustees then in
office amend or otherwise supplement the Declaration by making an
amendment, a Declaration supplemental hereto or an amended and restated
Declaration, provided, however, that an amendment to any provision of
Article V hereof shall require the vote of two-thirds (2/3) of the Trustees
then in office.
(b) Notwithstanding anything else herein, any amendment to Section
6.6 which reduces the right of Trustees to receive reasonable compensation
or to Article IX which would have the effect of reducing the
indemnification or limitation of liability provided thereby to Trustees,
officers, employees, and agents of the Trust or to Shareholders or former
Shareholders, and any repeal or amendment of this sentence shall each
require the affirmative vote of the holders of two-thirds of the
Outstanding Shares of the Trust entitled to vote thereon and no such
amendment shall affect the right to indemnification of any person who is no
longer a Trustee, officer or employee or agent at the time of such
amendment.
(c) The Trust's Certificate of Trust may be amended at any time for
any purpose as the Trustees may determine and such amendment shall be
signed by one or more of the Trustees or by an officer of the Trust as duly
authorized by vote of a majority of the Trustees then in office.
Section 11.2. Filing of Certificate; Copies of Declaration; Counterparts;
Headings. Any amendment to the Certificate of Trust shall be filed with the
Secretary of State of the State of Delaware. The original or a copy of this
instrument and of each amendment and/or restatement hereto shall be kept in the
office of the Trust where it may be inspected by any Shareholder. Anyone dealing
with the Trust may rely on a certificate by an officer or Trustee of the Trust
as to whether or not any such amendments or restatements have been made and as
to any matters in connection with the Trust hereunder, and with the same effect
as if it were the original, may rely on a copy certified by an officer or
Trustee of the Trust to be a copy of this instrument or of any such amendments
or restatements. This instrument may be executed in any number of counterparts,
each of which shall be deemed an original. Headings are placed herein for
convenience of reference only, and in case of any conflict, the text of this
instrument, rather than the headings, shall control.
Section 11.3. Trustees May Resolve Ambiguities. The Trustees may construe
any of the provisions of this Declaration insofar as the same may appear to be
ambiguous or inconsistent with any other provisions hereof, and any such
construction hereof by the Trustees in good faith shall be conclusive as to the
meaning to be given to such provisions.
Section 11.4. Applicable Law; Forum Selection; Jury Waiver.
(a) The Trust set forth in this instrument is created under and is to
be governed by and construed and administered according to the laws of the
State of Delaware, without reference to its conflicts of law rules, as a
Delaware statutory trust under the Delaware Act, and without limiting the
provisions hereof, the Trust specifically reserves the right to exercise
any of the powers and privileges afforded to statutory trusts or actions
that may be engaged in by statutory trusts under the Delaware Act, and the
absence of a specific reference herein to any such power, privilege, or
action shall not imply that the Trust may not exercise such power or
privilege or take such actions.
(b) Notwithstanding the first sentence of Section 11.4(a) hereof,
there shall not be applicable to the Trust, the Trustees, or this
Declaration any provisions of the laws (statutory or common) of the State
of Delaware (other than the Delaware Act) or any other state pertaining to
trusts, including by way of illustration and without limitation, laws that
relate to or regulate: (i) the filing with any court or governmental body
or agency of trustee accounts or schedules of trustee fees and charges;
(ii) affirmative requirements to post bonds for trustees, officers, agents,
or employees of a trust; (iii) the necessity for obtaining a court or other
governmental approval concerning the acquisition, holding, or disposition
of real or personal property; (iv) fees or other sums applicable to
trustees, officers, agents or employees of a trust; (v) the allocation of
receipts and expenditures to income or principal; (vi) restrictions or
limitations on the permissible nature, amount, or concentration of trust
investments or requirements relating to the titling, storage, or other
manner of holding of trust assets; (vii) the establishment of fiduciary or
other standards or responsibilities or limitations on the acts or powers or
liabilities or authorities and powers of trustees if such laws are
inconsistent with the authorities and powers or the limitation on liability
of the Trustees set forth or referenced in this Declaration; or (viii) any
requirements that a trust have any initial beneficiary or any initial
corpus. Section 3540 of Title 12 of the Delaware Code shall not apply to
the Trust.
(c) No provision of this Declaration shall be effective to require a
waiver of compliance with any provision of the Securities Act of 1933, as
amended, the Securities Exchange Act of 1934, as amended or the 1940 Act,
or of any valid rule, regulation or order of the Commission thereunder.
(d) Subject to the Delaware Act, any action commenced by a
Shareholder, directly or derivatively, against or on behalf of the Trust or
a Series or Class thereof, its Trustees, officers, or employees, shall be
brought only in the U.S. District Court for the District of Massachusetts,
or if such action may not be brought in that court, then such action shall
be brought in Massachusetts Superior Court, in Boston, Massachusetts (each,
a "Chosen Court"). The Trust, its Trustees, officers, employees and
Shareholders (a) waive any objection to venue in either Chosen Court and
(b) waive any objection that either Chosen Court is an inconvenient forum.
(e) In any action commenced by a Shareholder against the Trust or any
Series or Class thereof, its Trustees or officers, or as a derivative
action on behalf of the Trust, or any Series or Class thereof there shall
be no right to a jury trial. THE RIGHT TO A TRIAL BY JURY IS EXPRESSLY
WAIVED TO THE FULLEST EXTENT PERMITTED BY LAW.
Section 11.5. Statutory Trust Only. The Trust is not intended to be,
shall not be deemed to be, and shall not be treated as, a general or a limited
partnership, joint venture, corporation or joint stock company, nor shall the
Trustees or Shareholders or any of them for any purpose be deemed to be, or be
treated in any way whatsoever as though they were, liable or responsible
hereunder as partners or joint venturers.
Section 11.6. Provisions in Conflict with Law or Regulations.
(a) The provisions of this Declaration are severable, and if the
Trustees shall determine, with the advice of counsel, that any such
provision, in whole or in part, conflicts with the 1940 Act, the regulated
investment company provisions of the Code, and the regulations thereunder,
the Delaware Act or with other applicable laws and regulations, the
conflicting provision, or the conflicting part or parts thereof, shall be
deemed not to constitute a part of this Declaration; provided, however,
that such determination shall not affect any of the remaining provisions of
this Declaration or render invalid or improper any action taken or omitted
prior to such determination.
(b) If any provision of this Declaration shall be held invalid or
unenforceable, in whole or in part, in any jurisdiction, such invalidity or
unenforceability shall attach only to such provision, or such part or parts
thereof, in such jurisdiction and shall not in any manner affect such
provision in any other jurisdiction or any other provision of this
Declaration in any jurisdiction.
Section 11.7. Writings. To the fullest extent permitted by applicable
law, except as the Trustees may otherwise determine:
(a) any requirements in this Declaration or in the Bylaws that any
action be taken by means of any writing, including, without limitation, any
written instrument, any written consent or any written agreement, shall be
deemed to be satisfied by means of any electronic record in such form that
is acceptable to the Trustees provided such form is capable of conversion
into a written form within a reasonable time; and
(b) any requirements in this Declaration or in the Bylaws that any
writing be signed shall be deemed to be satisfied by any electronic
signature in such form that is acceptable to the Trustees.
IN WITNESS WHEREOF, the undersigned, being the Trustees of the Trust, have
executed this instrument as of the date first written above.
/s/ Xxxxx X. Xxxx
-----------------
Xxxxx X. Xxxx, as Trustee
00 Xxxxx Xxxxxx, Xxxxxx, Xxxxxxxxxxxxx 00000
/s/ Xxxx X. Xxxx
----------------
Xxxx X. Xxxx, as Trustee
00 Xxxxx Xxxxxx, Xxxxxx, Xxxxxxxxxxxxx 00000
/s/ Xxxx X. Xxxxx, Xx.
----------------------
Xxxx X. Xxxxx, Xx., as Trustee
00 Xxxxx Xxxxxx, Xxxxxx, Xxxxxxxxxxxxx 00000
/s/ Xxxxxxxx X. Xxxxxxxx
------------------------
Xxxxxxxx X. Xxxxxxxx, as Trustee
00 Xxxxx Xxxxxx, Xxxxxx, Xxxxxxxxxxxxx 00000
/s/ Xxxxxxxx X.X. Xxxxxx
------------------------
Xxxxxxxx X.X. Xxxxxx, as Trustee
00 Xxxxx Xxxxxx, Xxxxxx, Xxxxxxxxxxxxx 00000
/s/ Xxxxxx X. Xxxxxxxxx
Xxxxxx X. Xxxxxxxxx, as Trustee
00 Xxxxx Xxxxxx, Xxxxxx, Xxxxxxxxxxxxx 00000
/s/ Xxxxxx X. Xxxxx
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Xxxxxx X. Xxxxx, as Trustee
00 Xxxxx Xxxxxx, Xxxxxx, Xxxxxxxxxxxxx 00000
/s/ Xxxxxxxxxx X. Xxxxx
-----------------------
Xxxxxxxxxx X. Xxxxx, as Trustee
00 Xxxxx Xxxxxx, Xxxxxx, Xxxxxxxxxxxxx 00000
/s/ Xxxxxxx X. Xxxx
-------------------
Xxxxxxx X. Xxxx, as Trustee
00 Xxxxx Xxxxxx, Xxxxxx, Xxxxxxxxxxxxx 00000
/s/ Xxxx Xxxxxxxx
-----------------
Xxxx Xxxxxxxx, as Trustee
00 Xxxxx Xxxxxx, Xxxxxx, Xxxxxxxxxxxxx 00000
SCHEDULE A
Series of Shares of Beneficial Interests
(Effective as of July 1, 2008)
WHEREAS, the Trustees of the Trust, acting pursuant to the Trust's
agreement and declaration of trust as then in effect, have previously
established and designated one or more series of shares of beneficial interest
in the Trust (each, a "Series") pursuant to one or more designations of series
(the "Prior Designations");
WHEREAS, in connection with the adoption of an Amended and Restated
Agreement and Declaration of Trust dated as of July 1, 2008 (the "Declaration"),
pursuant to Section 4.9(a) of the Declaration, the previously established and
designated Series are hereby included on this Schedule A, which Schedule A shall
be deemed an amendment and restatement of the Prior Designations.
NOW THEREFORE, the following Series of the Trust are established with such
relative rights, preferences, privileges, limitations, restrictions and other
relative terms as are set forth below:
Pioneer Cullen Value Fund
1. Each Share of each Series is entitled to all the rights and preferences
accorded to Shares under the Declaration.
2. The number of authorized Shares of each Series is unlimited.
3. Each Series shall be authorized to hold cash, invest in securities,
instruments and other property, use investment techniques, and have such goals
or objectives as from time to time described in the prospectus and statement of
additional information contained in the Trust's then currently effective
registration statement under the Securities Act of 1933 to the extent pertaining
to the offering of Shares of the Series, as the same may be amended and
supplemented from time to time ("Prospectus"). Each Share of a Series shall
represent a beneficial interest in the net assets allocated or belonging to such
Series only, and such interest shall not extend to the assets of the Trust
generally (except to the extent that General Assets (as defined in the
Declaration) are allocated to such Series), and shall be entitled to receive its
pro rata share of the net assets of the Series upon liquidation of the Series,
all as set forth in Section 4.9 of the Declaration.
4. With respect to each Series, (a) the purchase price of the Shares, (b)
fees and expenses, (c) qualifications for ownership, if any, (d) the method of
determination of the net asset value of the Shares, (e) minimum purchase
amounts, if any, (f) minimum account size, if any, (g) the price, terms and
manner of redemption of the Shares, (h) any conversion or exchange feature or
privilege, (i) the relative dividend rights, and (j) any other relative rights,
preferences, privileges, limitations, restrictions and other relative terms have
been established by the Trustees in accordance with the Declaration and are set
forth in the Prospectus with respect to such Series.
5. The Trustees may from time to time modify any of the relative rights,
preferences, privileges, limitations, restrictions and other relative terms of a
Series that have been established by the Trustees or redesignate any of the
Series without any action or consent of the Shareholders.
6. The designation of any Series hereby shall not impair the power of the
Trustees from time to time to designate additional Series of Shares of the
Trust.
7. Capitalized terms not defined herein have the meanings given to such
terms in the Declaration.
SCHEDULE B
Designation of Classes of Shares
(Effective as of July 1, 2008)
WHEREAS, the Trustees of the Trust, acting pursuant to the Trust's
agreement and declaration of trust as then in effect, have previously
established and designated one or more series of shares of beneficial interest
in the Trust (each, a "Series") and have previously established and designated
one or more classes of Shares (each, a "Class") for some or all of the Series
pursuant to one or more designations of Classes (the "Prior Designations");
WHEREAS, in connection with the adoption of an Amended and Restated
Agreement and Declaration of Trust dated as of July 1, 2008 (the "Declaration"),
pursuant to Section 4.9(b) of the Declaration, the previously established and
designated Classes are hereby included on this Schedule B, which Schedule B
shall be deemed an amendment and restatement of the Prior Designations.
NOW THEREFORE, the following Classes as listed below with respect to the
identified Series of the Trust are established with such relative rights,
preferences, privileges, limitations, restrictions and other relative terms as
are set forth below:
Series Classes
Pioneer Cullen Value Fund Class A
Class B
Class C
Class R
Class Y
Class Z
1. Each Share of each Class is entitled to all the rights and preferences
accorded to Shares under the Declaration.
2. The number of authorized Shares of each Class is unlimited.
3. All Shares of a Class of a Series shall be identical with each other and
with the Shares of each other Class of the same Series except for such
variations between Classes as may be authorized by the Trustees from time to
time and set forth in the Trust's then currently effective registration
statement under the Securities Act of 1933 to the extent pertaining to the
offering of Shares of the Class of such Series, as the same may be amended and
supplemented from time to time ("Prospectus"). The Trustees may change the name
or other designation of a Class; and take such other action with respect to the
Classes as the Trustees may deem desirable.
4. With respect to the Shares of a Class of a Series, (a) the time and
method of determining the purchase price, (b) the fees and expenses, (c) the
qualifications for ownership, if any, (d) minimum purchase amounts, if any, (e)
minimum account size, if any, (f) the price, terms and manner of redemption of,
(g) any conversion or exchange feature or privilege , (h) the relative dividend
rights, and (i) any other relative rights, preferences, privileges, limitations,
restrictions and other relative terms have been established by the Trustees in
accordance with the Declaration and are set forth in the Prospectus with respect
to such Class of such Series.
5. The Trustees may from time to time modify any of the relative rights,
preferences, privileges, limitations, restrictions and other relative terms of a
Class of a Series that have been established by the Trustees, divide or combine
the issued or unissued Shares of any Class of a Series into a greater or lesser
number; classify or reclassify any issued or unissued Shares of any Class of a
Series into one or more Classes of such Series; combine two or more Classes of a
Series into a single Class of such Series; in each case without any action or
consent of the Shareholders.
6. The designation of any Class hereby shall not impair the power of the
Trustees from time to time to designate additional Classes of Shares of a Series
or terminate any one or more Classes of a Series hereby designated.
7. Capitalized terms not defined herein have the meanings given to such
terms in the Declaration.
