EXHIBIT 1.2
AGREEMENT AND DECLARATION OF TRUST
of
THE PURISIMA FUNDS
a Delaware Business Trust
Principal Place of Business:
00000 Xxxxxxx Xxxxxxxxx
Xxxxxxxx, Xxxxxxxxxx 00000
Formed:
June 27, 1996
TABLE OF CONTENTS
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Page
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ARTICLE I Name and Definitions........................... 1
1. Name................................................ 1
2. Definitions......................................... 1
(a) Trust ......................................... 1
(b) Trust Property ................................ 1
(c) Trustees ...................................... 1
(d) Shares ........................................ 2
(e) Shareholder ................................... 2
(f) Person ........................................ 2
(g) Investment Company Act ........................ 2
(h) Commission and Principal Underwriter........... 2
(i) Declaration of Trust .......................... 2
(j) By-Laws ....................................... 2
(k) Interested Person ............................. 2
(l) Investment Adviser or Manager ................. 2
(m) Series ........................................ 2
(n) Class ......................................... 2
(o) Voting Interests .............................. 2
ARTICLE II Purpose of Trust............................... 3
ARTICLE III Shares......................................... 3
1. Division of Beneficial Interest. .................. 3
2. Ownership of Shares. .............................. 4
3. Investments in the Trust. ......................... 4
4. Status of Shares and Limitation of
Personal Liability................................ 4
5. Power of Board of Trustees to Change
Provisions Relating to Shares. .................. 5
6. Establishment and Designation of Series
and Classes. ..................................... 5
(a) Assets Held with Respect to a Particular
Series. ..................................... 5
(b) Liabilities Held With Respect to a
Particular Series or Class................... 6
(c) Dividends, Distributions, Redemptions
and Repurchases.............................. 6
(d) Voting......................................... 7
(e) Equality........................................ 7
(f) Fractions. .................................... 7
(g) Exchange Privilege. .......................... 8
(h) Combination of Series. ....................... 8
(i) Elimination of Series. ....................... 8
7. Indemnification of Shareholders. .................. 8
ARTICLE IV The Board of Trustees........................... 8
1. Number, Election and Tenure.......................... 8
2. Effect of Death, Resignation, etc. of a Trustee...... 9
3. Powers. ........................................... 9
4. Payment of Expenses by the Trust.................... 12
5. Payment of Expenses by Shareholders................. 13
6. Ownership of Assets of the Trust.................... 13
7. Service Contracts................................... 13
ARTICLE V Shareholders' Voting Powers and Meetings............ 15
1. Voting Powers....................................... 15
2. Voting Power and Meetings........................... 15
3. Quorum and Required Vote............................ 16
4. Action by Written Consent........................... 16
5. Record Dates........................................ 16
6. Additional Provisions............................... 17
ARTICLE VI Net Asset Value, Distributions and
Redemptions.................................. 17
1. Determination of Net Asset Value, Net
Income and Distributions.......................... 17
2. Redemptions and Repurchases......................... 17
3. Redemptions at the Option of the Trust.............. 18
ARTICLE VII Compensation and Limitation of
Liability of Trustees........................ 18
1. Compensation........................................ 18
2. Indemnification and Limitation of Liability......... 18
3. Trustee's Good Faith Action, Expert Advice,
No Bond or Surety................................. 19
4. Insurance........................................... 19
ARTICLE VIII Miscellaneous.................................. 19
1. Liability of Third Persons Dealing with Trustees.... 19
2. Termination of Trust, Series or Class............... 20
3. Merger and Consolidation............................ 20
4. Amendments.......................................... 21
5. Filing of Copies, References, Headings.............. 21
6. Applicable Law...................................... 21
7. Provisions in Conflict with Law or Regulations...... 22
8. Business Trust Only................................. 22
9. Use of the Identifying Words Purisima
and The Purisima Funds............................ 22
AGREEMENT AND DECLARATION OF TRUST
OF
THE PURISIMA FUNDS
WHEREAS, THIS AGREEMENT AND DECLARATION OF TRUST is made and entered
into as of the date set forth below by the sole Trustee (the "Sole Trustee")
named hereunder for the purpose of forming a Delaware business trust in
accordance with the provisions hereinafter set forth,
NOW, THEREFORE, the Sole Trustee hereby directs that a Certificate of
Trust be filed with Office of the Secretary of State of the State of Delaware
and do hereby declares that the Trustees will hold IN TRUST all cash, securities
and other assets which the Trust now possesses or may hereafter acquire from
time to time in any manner and manage and dispose of the same upon the following
terms and conditions for the pro rata benefit of the holders of Shares in this
Trust.
ARTICLE I
Name and Definitions
SECTION 1. NAME. This Trust shall be known as THE PURISIMA FUNDS,
and the Trustees shall conduct the business of the Trust under that name or any
other name as they may from time to time determine.
SECTION 2. DEFINITIONS. Whenever used herein, unless otherwise
required by the context or specifically provided:
(a) The "Trust" refers to the Delaware business trust established
by this Agreement and Declaration of Trust, as amended from time to time;
(b) The "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, including without limitation the rights referenced in Article VIII,
Section 9 hereof;
(c) "Trustees" refers to the person who have signed this Agreement
and Declaration of Trust, so long as he continues in office in accordance with
the terms hereof, and all other persons who may from time to time be duly
elected or appointed to serve on the Board of Trustees in accordance with the
provisions hereof, and reference herein to a Trustee or the Trustees shall refer
to such person or persons in their capacity as Trustees hereunder;
(d) "Shares" means the shares of beneficial interest into which the
beneficial interest in the Trust shall be divided from time to time and includes
fractions of Shares as well as whole Shares, and if the Shares of any Series
shall be divided into Classes, "Shares" means the Shares belonging to a
particular Class (as the context may require);
(e) "Shareholder" means a record owner of outstanding Shares;
(f) "Person" means and includes individuals, corporations,
partnerships, trusts, associations, joint ventures, estates and other entities,
whether or not legal entities, and governments and agencies and political
subdivisions thereof, whether domestic or foreign;
(g) The "Investment Company Act" refers to the Investment Company
Act of 1940 and the Rules and Regulations thereunder, all as amended from
time to time;
(h) The terms "Commission" and "Principal Underwriter" shall have
the meanings given them in the Investment Company Act;
(i) "Declaration of Trust" shall mean this Agreement and Declaration
of Trust, as amended or restated from time to time;
(j) "By-Laws" shall mean the By-Laws of the Trust as amended from
time to time and incorporated herein by reference;
(k) The term "Interested Person" has the meaning given it in Section
2(a)(19) of the Investment Company Act;
(l) "Investment Adviser" or "Manager" means a party
furnishing services to the Trust pursuant to any contract described in Article
IV, Section 7(a) hereof;
(m) "Series" refers to each Series of Shares established and
designated under or in accordance with the provisions of Article III;
(n) "Class" means a Class of Shares established and designated
under or in accordance with the provisions of Article III; and
(o) "Voting Interests" shall mean (i) the number of Shares outstanding
times net asset value per Share where two or more Series or Classes of Shares of
the Trust are voted in the aggregate or (ii) the number of Shares of each Series
or Class where Shareholders vote by separate Series or Classes.
ARTICLE II
Purpose of Trust
The purpose of the Trust is to conduct, operate and carry on the
business of a management investment company registered under the Investment
Company Act through one or more Series investing primarily in securities.
ARTICLE III
Shares
SECTION 1. DIVISION OF BENEFICIAL INTEREST. The beneficial interest
in the Trust shall at all times be divided into an unlimited number of Shares,
with a par value of $ .01 per Share. The Trustees may authorize the division of
Shares into separate Series and the division of Series into separate Classes of
Shares. The different Series and Classes shall be established and designated,
and the variations in the relative rights and preferences as between the
different Series and Classes shall be fixed and determined, by the Trustees.
If only one or no Series or Classes shall be established, the Shares shall
have the rights and preferences provided for herein and in Article III, Section
6 hereof to the extent relevant and not otherwise provided for herein, and all
references to Series (and Classes) shall be construed (as the context may
require) to refer to the Trust.
Subject to the provisions of Section 6 of this Article III, each Share
shall have voting rights as provided in Article V hereof, and holders of the
Shares of any Series shall be entitled to receive dividends and distributions
when, if and as declared with respect thereto in the manner provided in Article
VI, Section 1 hereof. No Shares shall have any priority or preference over any
other Share of the same Series and Class with respect to dividends or
distributions upon termination of the Trust or of such Series or such Class made
pursuant to Article VIII, Section 2 hereof. All dividends and distributions
shall be made ratably among all Shareholders of a particular Class of a
particular Series and, if no Classes, of a particular Series from the assets
held with respect to such Series according to the number of Shares of such Class
of such Series or of such Series held of record by such Shareholders on the
record date for any dividend or distribution or on the date of termination, as
the case may be. Shareholders shall have no preemptive or other right to
subscribe to any additional Shares or other securities issued by the Trust or
any Series, although the Trustees may provide for the automatic conversion of
one Class of Shares of a Series into another Class of Shares of the same Series
upon the occurrence of certain specific events. The Trustees may from time to
time divide or combine the Shares of any particular Series or Class into a
greater or lesser number of Shares of that Series or Class without thereby
materially changing the proportionate beneficial interest of the Shares of that
Series or Class in the assets held with respect to that Series or materially
affecting the rights of Shares of any other Series or Class.
SECTION 2. OWNERSHIP OF SHARES. The ownership of Shares shall be
recorded on the books of the Trust or a transfer or similar agent for the Trust,
which books shall be maintained separately for the Shares of each Series or
Class of each Series. No certificates certifying the ownership of Shares shall
be issued except as the Board of Trustees may otherwise determine from time to
time. The Trustees may make such rules as they consider appropriate for the
transfer of Shares of each Series or Class of each Series and similar matters.
The record books of the Trust as kept by the Trust or any transfer or similar
agent, as the case may be, shall be conclusive as to the identity of the
Shareholders of each Series or Class of each Series and as to the number of
Shares of each Series or Class held from time to time by each.
SECTION 3. INVESTMENTS IN THE TRUST. Investments may be accepted by
the Trust from such Persons, at such times, on such terms, and for such
consideration as the Trustees from time to time may authorize.
SECTION 4. STATUS OF SHARES AND LIMITATION OF PERSONAL
LIABILITY. Shares shall be deemed to be personal property giving only the
rights provided in this instrument. Every Shareholder, by virtue of having
become a Shareholder, shall be held to have expressly assented and agreed to the
terms hereof and to have become a party hereto. The death of a Shareholder
during the existence of the Trust shall not operate to terminate the Trust, nor
entitle the representative of any deceased Shareholder to an accounting or to
take any action in court or elsewhere against the Trust or the Trustees, but
entitles such representative only to the rights of said deceased Shareholder
under this Trust. Ownership of Shares shall not entitle the Shareholder to any
title in or to the whole or any part of the Trust Property or right to call for
a partition or division of the same or for an accounting, nor shall the
ownership of Shares constitute the Shareholders as partners. Neither the Trust
nor the Trustees, nor any officer, employee or agent of the Trust, shall have
any power to bind personally any Shareholder, nor, except as specifically
provided herein, to call upon any Shareholder for the payment of any sum of
money or assessment whatsoever other than such as the Shareholder may at any
time personally agree to pay.
SECTION 5. POWER OF BOARD OF TRUSTEES TO CHANGE PROVISIONS
RELATING TO SHARES. Notwithstanding any other provision of this
Declaration of Trust and without limiting the power of the Board of Trustees to
amend the Declaration of Trust as provided elsewhere herein, the Board of
Trustees shall have the power to amend this Declaration of Trust, at any time
and from time to time, in such manner as the Board of Trustees may determine in
their sole discretion, without the need for Shareholder action, so as to add to,
delete, replace or otherwise modify any provisions relating to the Shares
contained in this Declaration of Trust, provided that before adopting any such
amendment without Shareholder approval the Board of Trustees shall determine
that it is consistent with the fair and equitable treatment of all Shareholders
or that Shareholder approval is not otherwise required by the Investment Company
Act or other applicable law. If Shares have been issued, Shareholder approval
shall be required to adopt any amendments to this Declaration of Trust that
would adversely affect to a material degree the rights and preferences of the
Shares of any Series or Class of any Series or to increase or decrease the par
value of the Shares of any Series or Class of any Series.
Subject to the foregoing Paragraph, the Board of Trustees may amend
this Declaration of Trust to amend any of the provisions set forth in paragraphs
(a) through (i) of Section 6 of this Article III.
SECTION 6. ESTABLISHMENT AND DESIGNATION OF SERIES AND CLASSES.
The establishment and designation of any Series or Class of Shares shall be
effective upon the resolution by a majority of the then Trustees, adopting a
resolution that sets forth such establishment and designation and the relative
rights and preferences of such Series or Class. Each such resolution shall be
incorporated herein by reference upon adoption.
Shares of each Series or Class established pursuant to this Section 6,
unless otherwise provided in the resolution establishing such Series, shall have
the following relative rights and preferences:
(a) ASSETS HELD WITH RESPECT TO A PARTICULAR SERIES. All consideration
received by the Trust for the issue or sale of Shares of a particular Series,
together with all assets in which such consideration is invested or reinvested,
all income, earnings, profits, and proceeds thereof from whatever source
derived, including, without limitation, any proceeds derived from the sale,
exchange or liquidation of such assets, and any funds or payments derived from
any reinvestment of such proceeds in whatever form the same may be, shall
irrevocably be held with respect to that Series for all purposes, subject only
to the rights of creditors respecting such Series, and shall be so recorded upon
the books of account of the Trust. Such consideration, assets, income,
earnings, profits and proceeds thereof, from whatever source derived, including,
without limitation, any proceeds derived from the sale, exchange or liquidation
of such assets, and any funds or payments derived from any reinvestment of such
proceeds, in whatever form the same may be, are herein referred to as "assets
held with respect to" that Series. In the event that there are any assets,
income, earnings, profits and proceeds thereof, funds or payments which are not
readily identifiable as assets held with respect to any particular Series
(collectively "General Assets"), the Trustees shall allocate such General Assets
to, between or among any one or more of the Series in such manner and on such
basis as the Trustees, in their sole discretion, deem fair and equitable, and
any General Asset so allocated to a particular Series shall be held with respect
to that Series. Each such allocation by the Trustees shall be conclusive and
binding upon the Shareholders and creditors of all Series for all purposes.
(b) LIABILITIES HELD WITH RESPECT TO A PARTICULAR SERIES OR
CLASS. The assets of the Trust held with respect to each particular Series
shall be charged against the liabilities of the Trust held with respect to that
Series and all expenses, costs, charges and reserves attributable to that
Series. Specific Classes within each Series shall be charged with the
liabilities, expenses, costs, charges and reserves attributable to that Class.
Any general liabilities of the Trust which are not readily identifiable as being
held with respect to any particular Series, or within a Series, to any
particular Class shall be allocated and charged by the Trustees to and among any
one or more of the Series or Classes in such manner and on such basis as the
Trustees in their sole discretion deem fair and equitable. The liabilities,
expenses, costs, charges, and reserves so charged to a Series or Class are
herein referred to as "liabilities held with respect to" that Series or Class.
Each allocation of liabilities, expenses, costs, charges and reserves by the
Trustees shall be conclusive and binding upon the Shareholders and creditors of
all Series and Classes for all purposes. All Persons who have extended credit
which has been allocated to a particular Series, or who have a claim or contract
which has been allocated to any particular Series, shall look, and shall be
required by contract to look exclusively, to the assets of that particular
Series for payment of such credit, claim, or contract. In the absence of an
express contractual agreement so limiting the claims of such creditors,
claimants and contract providers, each creditor, claimant and contract provider
will be deemed nevertheless to have impliedly agreed to such limitation unless
an express provision to the contrary has been incorporated in the written
contract or other document establishing the claimant relationship.
(c) DIVIDENDS, DISTRIBUTIONS, REDEMPTIONS AND
REPURCHASES. Notwithstanding any other provisions of this Declaration of
Trust, including, without limitation, Article VI, no dividend or distribution
including, without limitation, any distribution paid upon termination of the
Trust or of any Series or Class with respect to, nor any redemption or
repurchase of, the Shares of any Series or Class shall be effected by the Trust
other than from the assets held with respect to such Series, nor, except as
specifically provided in Section 7 of this Article III, shall any Shareholder of
any particular Series or Class within such Series otherwise have any right or
claim against the assets held with respect to any other Series except to the
extent that such Shareholder has such a right or claim hereunder as a
Shareholder of such other Series. The Trustees shall have full discretion, to
the extent not inconsistent with the Investment Company Act, to determine which
items shall be treated as income and which items as capital; and each such
determination and allocation shall be conclusive and binding upon the
Shareholders.
(d) VOTING. All Shares of the Trust entitled to vote on a matter
shall vote separately by Series (and, if applicable, by Class): that is, the
Shareholders of each Series or Class shall have the right to approve or
disapprove matters affecting the Trust and each respective Series or Class as
if the Series or Classes were separate companies. There are, however, two
exceptions to voting by separate Series or Classes. First, if the Investment
Company Act requires all Shares of the Trust to be voted in the aggregate
without differentiation between the separate Series or Classes, then all the
Trust's Shares shall be entitled to vote based on the dollar value of their
Shares as described below in Article V, Section 1. Second, if any matter affects
only the interests of some but not all Series or Classes, then only the
Shareholders of such affected Series or Classes shall be entitled to vote
on the matter.
(e) EQUALITY. All the Shares of each particular
Series shall represent an equal proportionate interest in the
assets held with respect to that Series (subject to the liabilities held with
respect to particular Classes within that Series and such rights and preferences
as may have been established and designated with respect to Classes of Shares
within such Series), and, except for rights and preference among Classes, each
Share of any particular Series shall be equal to each other Share of that
Series.
(f) FRACTIONS. Any fractional Share of a Series or Class shall
carry proportionately all the rights and obligations of a whole share of that
Series, including rights with respect to voting, receipt of dividends and
distributions, redemption of Shares and termination of the Trust.
(g) EXCHANGE PRIVILEGE. The Trustees shall have the authority
to provide that the holders of Shares of any Series and Class shall have the
right to exchange said Shares for Shares of one or more other Series of Shares
or Classes of the same Series in accordance with such requirements and
procedures as may be established by the Trustees.
(h) COMBINATION OF SERIES. The Trustees shall have the authority,
without the approval of the Shareholders of any Series unless otherwise required
by applicable law, to combine the assets and liabilities held with respect to
any two or more Series or Classes into assets and liabilities held with respect
to a single Series or Class.
(i) ELIMINATION OF SERIES. At any time that there are no Shares
outstanding of any particular Series or Class previously established and
designated, the Trustees may by resolution of a majority of the then Trustees
abolish that Series or Class and rescind the establishment and designation
thereof.
SECTION 7. INDEMNIFICATION OF SHAREHOLDERS. If any Shareholder or
former Shareholder shall be exposed to liability by reason of a claim or demand
relating to his or her being or having been a Shareholder, and not because of
his or her acts or omissions, the Shareholder or former Shareholder (or his or
her heirs, executors, administrators, or other legal representatives or in the
case of a corporation or other entity, its corporate or other general successor)
shall be entitled to be held harmless from and indemnified out of the assets of
the applicable Series of the Trust against all loss and expense arising from
such claim or demand.
ARTICLE IV
The Board of Trustees
SECTION 1. NUMBER, ELECTION AND TENURE. The number of Trustees
constituting the Board of Trustees shall be fixed from time to time by a written
instrument signed, or by resolution approved at a duly constituted meeting, by a
majority of the Board of Trustees, provided, however, that the number of
Trustees shall in no event be less than one (1) nor more than fifteen (15).
The Board of Trustees, by action of a majority of the then Trustees at a duly
constituted meeting, may fill vacancies in the Board of Trustees or remove
Trustees with or without cause. Each Trustee shall serve during the continued
lifetime of the Trust until he or she dies, resigns, is declared bankrupt or
incompetent by a court of appropriate jurisdiction, or is removed, or, if
sooner, until the next meeting of Shareholders called for the purpose of
electing Trustees and until the election and qualification of his or her
successor. Any Trustee may resign at any time by written instrument signed by
him or her and delivered to any officer of the Trust or to a meeting of the
Trustees. Such resignation shall be effective upon receipt unless specified
to be effective at some other time. Except to the extent expressly provided
in a written agreement with the Trust, no Trustee resigning and no Trustee
removed shall have any right to any compensation for any period following his
or her resignation or removal, or any right to damages on account of such
removal. The Shareholders may fix the number of Trustees and elect Trustees at
any meeting of Shareholders called by the Trustees for that purpose. Any
Trustee may be removed at any meeting of Shareholders by a vote of
two-thirds of the Voting Interests of the Trust as defined in Article I, Section
2(o). A meeting of Shareholders for the purpose of electing or removing one or
more Trustees may be called (i) by the Trustees upon their own vote, or (ii)
upon the demand of Shareholders owning 10% or more of the Voting Interests of
the Trust as defined in Article I, Section 2(o).
SECTION 2. EFFECT OF DEATH, RESIGNATION, ETC. OF A TRUSTEE. The
death, declination, resignation, retirement, removal, or incapacity of one or
more 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 of Trust.
Whenever a vacancy in the Board of Trustees shall occur, until such vacancy is
filled as provided in Article IV, Section l, the Trustees in office, regardless
of their number, shall have all the powers granted to the Trustees and shall
discharge all the duties imposed upon the Trustees by this Declaration of Trust.
As conclusive evidence of such vacancy, a written instrument certifying the
existence of such vacancy may be executed by an officer of the Trust or by a
majority of the Board of Trustees. In the event of the death, declination,
resignation, retirement, removal, or incapacity of all the then Trustees within
a short period of time and without the opportunity for at least one Trustee
being able to appoint additional Trustees to fill vacancies, the Trust's
Investment Adviser(s) are empowered to appoint new Trustees subject to the
provisions of Section 16(a) of the Investment Company Act.
SECTION 3. POWERS. Subject to the provisions of this
Declaration of Trust, the business of the Trust shall be managed by
the Board of Trustees, and such Board shall have all powers necessary
or convenient to carry out that responsibility, including the power to engage in
securities transactions of all kinds on behalf of the Trust. Without limiting
the foregoing, the Trustees may: adopt By-Laws not inconsistent with this
Declaration of Trust providing for the regulation and management of the affairs
of the Trust and may amend and repeal them to the extent that such By-Laws do
not reserve that right to the Shareholders; fill vacancies in or remove from
their number, and may elect and remove such officers and appoint and terminate
such agents as they consider appropriate; appoint from their own number and
establish and terminate one or more committees consisting of one or more
Trustees, which may exercise the powers and authority of the Board of Trustees
to the extent that the Trustees determine; employ one or more custodians of the
assets of the Trust and may authorize such custodians to employ subcustodians
and to deposit all or any part of such assets in a system or systems for the
central handling of securities or with a Federal Reserve Bank; retain an
administrator and a portfolio adviser for each Series of Shares; retain a
transfer agent or a shareholder servicing agent, or both; provide for the
issuance and distribution of Shares by the Trust directly or through one or more
Principal Underwriters or otherwise; redeem, repurchase and transfer Shares
pursuant to applicable law; set record dates for the determination of
Shareholders with respect to various matters; declare and pay dividends and
distributions to Shareholders of each Series from the assets of such Series;
and, in general, delegate such authority as they consider desirable to any
officer of the Trust, to any committee of the Trustees and to any agent or
employee of the Trust or to any such custodian, transfer or shareholder
servicing agent, or Principal Underwriter. Any determination as to what is in
the interests of the Trust made by the Trustees in good faith shall be
conclusive. In construing the provisions of this Declaration of Trust, the
presumption shall be in favor of a grant of power to the Trustees. Unless
otherwise specified or required by law, any action by the Board of Trustees
shall be deemed effective if approved or taken by a majority of the Trustees
then in office.
Without limiting the foregoing, the Trust shall have power and
authority:
(a) To invest and reinvest cash, to hold cash uninvested, and to
subscribe for, invest in, reinvest in, purchase or otherwise acquire, own, hold,
pledge, sell, assign, transfer, exchange, distribute, write options on, lend or
otherwise deal in or dispose of contracts for the future acquisition or delivery
of fixed income or other securities, and securities of every nature and kind,
including, without limitation, all types of bonds, debentures, stocks,
negotiable or non-negotiable instruments, obligations, evidences of
indebtedness, certificates of deposit or indebtedness, commercial paper,
repurchase agreements, bankers' acceptances, and other securities of any kind,
issued, created, guaranteed, or sponsored by any and all Persons, including,
without limitation, states, territories, and possessions of the United States
and the District of Columbia and any political subdivision, agency, or
instrumentality thereof, any foreign government or any political subdivision of
the U.S. Government or any foreign government, or any international
instrumentality, or by any bank or savings institution, or by any corporation or
organization organized under the laws of the United States or of any state,
territory, or possession thereof, or by any corporation or organization
organized under any foreign law, or in "when issued" contracts for any such
securities, to change the investments of the assets of the Trust; and to
exercise any and all rights, powers, and privileges of ownership or interest in
respect of any and all such investments of every kind and description,
including, without limitation, the right to consent and otherwise act with
respect thereto, with power to designate one or more Persons, to exercise any of
said rights, powers, and privileges in respect of any of said instruments;
(b) To sell, exchange, lend, pledge, mortgage, hypothecate, lease, or
write options with respect to or otherwise deal in any property rights relating
to any or all of the assets of the Trust or any Series;
(c) To vote or give assent, or exercise any rights of ownership, with
respect to stock or other securities or property; and to execute and deliver
proxies or powers of attorney to such person or persons as the Trustees shall
deem proper, granting to such person or persons such power and discretion with
relation to securities or property as the Trustees shall deem proper;
(d) To exercise powers and right of subscription or otherwise which
in any manner arise out of ownership of securities;
(e) To hold any security or property in a form not indicating any
trust, whether in bearer, unregistered or other negotiable form, or in its own
name or in the name of a custodian or subcustodian or a nominee or nominees or
otherwise;
(f) To consent to or participate in any plan for the reorganization,
consolidation or merger of any corporation or issuer of any security which is
held in the Trust; to consent to any contract, lease, mortgage, purchase or sale
of property by such corporation or issuer; and to pay calls or subscriptions
with respect to any security held in the Trust;
(g) 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;
(h) To compromise, arbitrate or otherwise adjust claims in favor of
or against the Trust or any matter in controversy, including but not limited to
claims for taxes;
(i) To enter into joint ventures, general or limited partnerships and
any other combinations or associations;
(j) To borrow funds or other property in the name of the Trust
exclusively for Trust purposes;
(k) To endorse or guarantee the payment of any notes or other
obligations of any Person; to make contracts of guaranty or suretyship, or
otherwise assume liability for payment thereof;
(l) To purchase and pay for entirely out of Trust Property such
insurance as the Trustees may deem necessary or appropriate for the conduct of
the business, including, without limitation, insurance policies insuring the
assets of the Trust or payment of distributions and principal on its portfolio
investments, and insurance policies insuring the Shareholders, Trustees,
officers, employees, agents, investment advisers, principal underwriters, or
independent contractors of the Trust, individually against all claims and
liabilities of every nature arising by reason of holding Shares, holding, being
or having held any such office or position, or by reason of any action alleged
to have been taken or omitted by any such Person as Trustee, officer, employee,
agent, investment adviser, principal underwriter, or independent contractor,
including any action taken or omitted that may be determined to constitute
negligence, whether or not the Trust would have the power to indemnify such
Person against liability; and
(m) To adopt, establish and carry out pension, profit-sharing, share
bonus, share purchase, savings, thrift and other retirement, incentive and
benefit plans, trusts and provisions, including the purchasing of life insurance
and annuity contracts as a means of providing such retirement and other
benefits, for any or all of the Trustees, officers, employees and agents of the
Trust.
The Trust shall not be limited to investing in obligations maturing
before the possible termination of the Trust or one or more of its Series. The
Trust shall not in any way be bound or limited by any present or future law or
custom in regard to investment by fiduciaries. The Trust shall not be required
to obtain any court order to deal with any assets of the Trust or take any other
action hereunder.
SECTION 4. PAYMENT OF EXPENSES BY THE TRUST. The Trustees are
authorized to pay or cause to be paid out of the principal or income
of the Trust, or partly out of the principal and partly out of income,
as they deem fair, all expenses, fees, charges, taxes and liabilities
incurred or arising in connection with the Trust, or in connection
with the management thereof, including, but not limited to, the Trustees'
compensation and such expenses and charges for the services of the
Trust's officers, employees, investment adviser or manager, principal
underwriter, auditors, counsel, custodian, transfer agent, Shareholder servicing
agent, and such other agents or independent contractors and such other expenses
and charges as the Trustees may deem necessary or proper to incur.
SECTION 5. PAYMENT OF EXPENSES BY SHAREHOLDERS. The Trustees shall
have the power, as frequently as they may determine, to cause each Shareholder,
or each Shareholder of any particular Series, to pay directly, in advance or
arrears, for charges of the Trust's custodian or transfer, Shareholder servicing
or similar agent, an amount fixed from time to time by the Trustees, by setting
off such charges due from such Shareholder from declared but unpaid dividends
owed such Shareholder and/or by reducing the number of shares in the account of
such Shareholder by that number of full and/or fractional Shares which
represents the outstanding amount of such charges due from such Shareholder.
SECTION 6. OWNERSHIP OF ASSETS OF THE TRUST. Title to all of the
assets of the Trust shall at all times be considered as vested in the Trust,
except that the Trustees shall have power to cause legal title to any Trust
Property to be held by or in the name of one or more of the Trustees, or
in the name of the Trust, or in the name of any other Person as nominee, on
such terms as the Trustees may determine. The right, title and interest of
the Trustees in the Trust Property shall vest automatically in each Person who
may hereafter become a Trustee. Upon the resignation, removal or death of a
Trustee, he or she shall automatically cease to have any right, title or
interest in any of the Trust Property, and the right, title and interest of such
Trustee in the Trust Property shall vest automatically in the remaining
Trustees. Such vesting and cessation of title shall be effective whether or
not conveyancing documents have been executed and delivered.
SECTION 7. SERVICE CONTRACTS.
(a) Subject to such requirements and restrictions as may be set forth
in the By-Laws, the Trustees may, at any time and from time to time, contract
for exclusive or nonexclusive advisory, management, administrative and/or any
other services for the Trust or for any Series with any corporation, trust,
association or other organization; and any such contract may contain such other
terms as the Trustees may determine, including without limitation, authority for
the Investment Adviser or administrator to determine from time to time without
prior consultation with the Trustees what investments shall be purchased, held,
sold or exchanged and what portion, if any, of the assets of the Trust shall be
held uninvested and to make changes in the Trust's investments, or such other
activities as may specifically be delegated to such party.
(b) The Trustees may also, at any time and from time to time,
contract with any corporation, trust, association or other organization,
appointing it exclusive or nonexclusive distributor or Principal Underwriter for
the Shares of one or more of the Series or Classes or other securities to be
issued by the Trust. Every such contract shall comply with such requirements
and restrictions as may be set forth in the By-Laws; and any such contract may
contain such other terms as the Trustees may determine.
(c) The Trustees are also empowered, at any time and from time to
time, to contract with any corporations, trusts, associations or other
organizations, appointing it or them the custodian, transfer agent and/or
shareholder servicing agent for the Trust or one or more of its Series. Every
such contract shall comply with such requirements and restrictions as may be set
forth in the By-Laws or stipulated by resolution of the Trustees.
(d) The Trustees are further empowered, at any time and from time to
time, to contract with any entity to provide such other services to the Trust or
one or more of the Series, as the Trustees determine to be in the best interests
of the Trust and the applicable Series.
(e) The fact that:
(i) any of the Shareholders, Trustees, or officers of the Trust
is a shareholder, director, officer, partner, trustee, employee,
investment adviser, manager, principal underwriter, distributor, or
affiliate or agent of or for any corporation, trust, association, or
other organization, or for any parent or affiliate of any organization
with which an advisory, management or administration contract, or
principal underwriter's or distributor's contract, or transfer,
shareholder servicing or other type of service contract may have been
or may hereafter be made, or that any such organization, or any parent
or affiliate thereof, is a Shareholder or has an interest in the
Trust, or
(ii) any corporation, trust, association or other organization
with which an advisory, management or administration contract or
principal underwriter's or distributor's contract, or transfer,
shareholder servicing or other type of service contract may have been
or may hereafter be made also has an advisory, management or
administration contract, or principal underwriter's or distributor's
contract, or transfer, shareholder servicing or other service contract
with one or more other corporations, trusts, associations, or other
organizations, or has other business or interests, shall not affect
the validity of any such contract or disqualify any Shareholder,
Trustee or officer of the Trust from voting upon or executing the
same, or create any liability or accountability to the Trust or its
Shareholders, provided approval of each such contract is made pursuant
to the requirements of the Investment Company Act.
ARTICLE V
Shareholders' Voting Powers and Meetings
SECTION 1. VOTING POWERS. Subject to the provisions of Article III,
Section 6(d), the Shareholders shall have power to vote only (a) for the
election or removal of Trustees as provided in Article IV, Section 1, and
(b) with respect to such additional matters relating to the Trust as may be
required by this Declaration of Trust, the By-Laws or any registration of the
Trust with the Commission (or any successor agency) or any state, or as the
Trustees may consider necessary or desirable. As appropriate, voting may be
by Series or Class. A Shareholder of each Series shall be entitled to one
vote for each dollar of net asset value (number of Shares owned times
net asset value per Share) per Share of such Series, on any matter on
which such Shareholder is entitled to vote and each fractional dollar
amount shall be entitled to a proportionate fractional vote. There shall be no
cumulative voting in the election of Trustees. Shares may be voted in person or
by proxy. A proxy with respect to Shares held in the name of two or more
persons shall be valid if executed by any one of them unless at or prior to
exercise of the proxy the Trust receives a specific written notice to the
contrary from any one of them. A proxy purporting to be executed by or on
behalf of a Shareholder shall be deemed valid unless challenged at or prior to
its exercise and the burden of proving invalidity shall rest on the challenger.
The Trustees may allow the use of electronic, telegraph and facsimile proxies to
the fullest extent consistent with applicable law.
SECTION 2. VOTING POWER AND MEETINGS. Meetings of the Shareholders
may be called by the Trustees for the purpose of electing Trustees
as provided in Article IV, Section l and for such other purposes as
may be prescribed by law, by this Declaration of Trust or by the
By-Laws. Meetings of the Shareholders may also be called by the
Trustees from time to time for the purpose of taking action upon any other
matter deemed by the Trustees to be necessary or desirable. A meeting of
Shareholders may be held at any place designated by the Trustees. Written
notice of any meeting of Shareholders shall be given or caused to be given by
the Trustees by mailing such notice at least seven (7) days before such meeting,
postage prepaid, stating the time and place of the meeting, to each Shareholder
at the Shareholder's address as it appears on the records of the Trust.
Whenever notice of a meeting is required to be given to a Shareholder under this
Declaration of Trust or the By-Laws, a written waiver thereof, executed before
or after the meeting by such Shareholder or his or her attorney thereunto
authorized and filed with the records of the meeting, shall be deemed equivalent
to such notice.
SECTION 3. QUORUM AND REQUIRED VOTE. Except when a larger quorum
is required by applicable law, by the By-Laws or by this Declaration
of Trust, one third of the Voting Interests, as defined in Article I,
Section 2(o), entitled to vote shall constitute a quorum at a Shareholders'
meeting. When any one or more Series or Classes is to vote as a single
Class separate from any other Shares, one third of the Shares of each
such Series or Class entitled to vote shall constitute a quorum at a
Shareholder's meeting of that Series. Any meeting of Shareholders
may be adjourned from time to time by a majority of the Voting Interests, as
defined in Article I, Section 2(o), properly cast upon the question of
adjourning a meeting to another date and time, whether or not a quorum is
present, and the meeting may be held as adjourned within a reasonable time after
the date set for the original meeting without further notice. Subject to the
provisions of Article III, Section 6(d), when a quorum is present at any
meeting, a majority of the Voting Interests, as defined in Article I, Section
2(o), voted shall decide any questions and a plurality shall elect a Trustee,
except when a larger vote is required by any provision of this Declaration of
Trust or the By-Laws or by applicable law.
SECTION 4. ACTION BY WRITTEN CONSENT. Any action taken by
shareholders may be taken without a meeting if Shareholders holding a
majority of the Voting Interests, as defined in Article I, Section 2(o),
entitled to vote on the matter (or such larger proportion thereof as shall
be required by any express provision of this Declaration of Trust or by the
By-Laws or by applicable law) and holding a majority (or such larger
proportion as aforesaid) of the Shares of any Series or Class entitled
to vote separately on the matter consent to the action in writing
and such written consents are filed with the records of the meetings of
Shareholders. Such consent shall be treated for all purposes as a vote taken
at a meeting of Shareholders.
SECTION 5. RECORD DATES. For the purpose of determining the
Shareholders of any Series or Class who are entitled to vote or act at
any meeting or any adjournment thereof, the Trustees may from time to
time fix a time, which shall be not more than ninety (90) days
before the date of any meeting of Shareholders, as the record date for
determining the Shareholders of such Series or Class having the right to notice
of and to vote at such meeting and any adjournment thereof, and in such case
only Shareholders of record on such record date shall have such right,
notwithstanding any transfer of shares on the books of the Trust after the
record date. For the purpose of determining the Shareholders of any Series or
Class who are entitled to receive payment of any dividend or of any other
distribution, the Trustees may from time to time fix a date, which shall be
before the date for the payment of such dividend or such other payment, as the
record date for determining the Shareholders of such Series or Class having the
right to receive such dividend or distribution. Without fixing a record date
the Trustees may for voting and/or distribution purposes close the register or
transfer books for one or more Series for all or any part of the period between
a record date and a meeting of Shareholders or the payment of a distribution.
Nothing in this Section shall be construed as precluding the Trustees from
setting different record dates for different Series or Classes.
SECTION 6. ADDITIONAL PROVISIONS. The By-Laws may include further
provisions for Shareholders' votes and meetings and related matters.
ARTICLE VI
Net Asset Value, Distributions and Redemptions
SECTION 1. DETERMINATION OF NET ASSET VALUE, NET INCOME AND
DISTRIBUTIONS. Subject to Article III, Section 6 hereof, the Trustees, in
their absolute discretion, may prescribe and shall set forth in the By-laws or
in a duly adopted vote of the Trustees such bases and time for determining the
per-Share net asset value of the Shares of any Series and Class or net income
attributable to the Shares of any Series and Class, or the declaration and
payment of dividends and distributions on the Shares of any Series and Class, as
they may deem necessary or desirable.
SECTION 2. REDEMPTIONS AND REPURCHASES. The Trust shall purchase
such Shares as are offered by any Shareholder for redemption, upon the
presentation of a proper instrument of transfer together with a request
directed to the Trust or a Person designated by the Trust that the
Trust purchase such Shares or in accordance with such other
procedures for redemption as the Trustees may from time to time
authorize; and the Trust will pay therefor the net asset value thereof, in
accordance with the By-Laws and applicable law. Payment for said Shares shall
be made by the Trust to the Shareholder within such time period after the date
on which the request is made in proper form as may be required by applicable law
or regulation. The obligation set forth in this Section 2 is subject to the
provision that in the event that any time the New York Stock Exchange (the
"Exchange") is closed for other than weekends or holidays, or if permitted by
the Rules of the Commission during periods when trading on the Exchange is
restricted or during any emergency which makes it impracticable for the Trust to
dispose of the investments of the applicable Series or to determine fairly the
value of the net assets held with respect to such Series or during any other
period permitted by order of the Commission for the protection of investors,
such obligations may be suspended or postponed by the Trustees.
The redemption price may in any case or cases be paid wholly or partly
in kind if the Trustees determine that such payment is advisable in the interest
of the remaining Shareholders of the Series for which the Shares are being
redeemed. Subject to the foregoing, the fair value, selection and quantity of
securities or other property so paid or delivered as all or part of the
redemption price may be determined by or under authority of the Trustees. In no
case shall the Trust be liable for any delay of any corporation or other Person
in transferring securities selected for delivery as all or part of any payment
in kind.
SECTION 3. REDEMPTIONS AT THE OPTION OF THE TRUST. The Trust shall
have the right, at its option and at any time, to redeem Shares of any
Shareholder at the net asset value thereof as described in Section 1 of this
Article VI: (a) if at such time such Shareholder owns Shares of any Series
having an aggregate net asset value of less than an amount determined from
time to time by the Trustees prior to the acquisition of said Shares; or (b)
to the extent that such Shareholder owns Shares of a particular Series
equal to or in excess of a percentage of the outstanding Shares of
that Series determined from time to time by the Trustees; or (c) to the
extent that such Shareholder owns Shares equal to or in excess of a percentage,
determined from time to time by the Trustees, of the outstanding Shares of the
Trust or of any Series.
ARTICLE VII
Compensation and Limitation of Liability of Trustees
SECTION 1. COMPENSATION. The Trustees as such shall be entitled
to reasonable compensation from the Trust, and they may fix the amount of such
compensation. Nothing herein shall in any way prevent the employment of any
Trustee for advisory, management, legal, accounting, investment banking or
other services and payment for the same by the Trust.
SECTION 2. INDEMNIFICATION AND LIMITATION OF LIABILITY. The Trustees
shall not be responsible or liable in any event for any neglect or wrong-doing
of any officer, agent, employee, Investment Adviser or principal underwriter
of the Trust, nor shall any Trustee be responsible for the act or omission of
any other Trustee, and the Trust out of its assets, to the fullest extent
permitted by law, shall indemnify and hold harmless each and every Trustee
from and against any and all claims and demands whatsoever arising out of or
related to each Trustee's performance of his or her duties as a Trustee of the
Trust; provided that nothing herein contained shall indemnify, hold harmless or
protect any Trustee from or against any liability to the Trust or any
Shareholder to which he or she would otherwise be subject by reason of wilful
misfeasance, bad faith, gross negligence or reckless disregard of the duties
involved in the conduct of his or her office.
Every note, bond, contract, instrument, certificate or undertaking and
every other act or thing whatsoever issued, 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 issued, executed or done only in or with
respect to their or his or her capacity as Trustees or Trustee, and such
Trustees or Trustee shall not be personally liable thereon.
SECTION 3. TRUSTEE'S GOOD FAITH ACTION, EXPERT ADVICE, NO
BOND OR SURETY. The exercise by the Trustees of their powers and discretion
hereunder shall be binding upon everyone interested. A Trustee shall be liable
to the Trust and to any Shareholder solely for his or her own wilful
misfeasance, bad faith, gross negligence or reckless disregard of the duties
involved in the conduct of the office of Trustee, and shall not be liable for
errors of judgment or mistakes of fact or law. The Trustees may take advice of
counsel or other experts with respect to the meaning and operation of this
Declaration of Trust, and shall be under no liability for any act or omission in
accordance with such advice nor for failing to follow such advice. The Trustees
shall not be required to give any bond as such, nor any surety if a bond is
required.
SECTION 4. INSURANCE. The Trustees shall be entitled and empowered
to the fullest extent permitted by law to purchase with Trust assets insurance
for liability and for all expenses reasonably incurred or paid or expected to
be paid by a Trustee or officer in connection with any claim, action, suit or
proceeding in which he or she becomes involved by virtue of his or her capacity
or former capacity with the Trust.
ARTICLE VIII
Miscellaneous
SECTION 1. LIABILITY OF THIRD PERSONS DEALING WITH TRUSTEES. No
Person dealing with the Trustees shall be bound to make any inquiry concerning
the validity of any transaction made or to be made by the Trustees or to see to
the application of any payments made or property transferred to the Trust or
upon its order.
SECTION 2. TERMINATION OF TRUST, SERIES OR CLASS.
Unless terminated as provided herein, the Trust shall continue without
limitation of time. The Trust may be terminated at any time by vote
of a majority of the Shares of each Series entitled to vote, voting
separately by Series, or by the Trustees by written notice to the Shareholders
without a vote of such Shareholders. Any Series or Class (in the case of
a proposed termination of a Class) may be terminated at any time by vote
of a majority of the Shares of that Series, or by the Trustees by written
notice to the Shareholders of that Series or Class without a vote of
such Shareholders.
Upon termination of the Trust (or any Series or Class, as the case may
be), after paying or otherwise providing for all charges, taxes, expenses and
liabilities held, severally, with respect to each Series and Class (or the
applicable Series or Class, as the case may be), whether due or accrued or
anticipated as may be determined by the Trustees, the Trust shall, in accordance
with such procedures as the Trustees consider appropriate, reduce the remaining
assets held, severally, with respect to each Series and Class (or the applicable
Series or Class, as the case may be), to distributable form in cash or shares or
other securities, or any combination thereof, and distribute the proceeds held
with respect to each Series and Class (or the applicable Series or Class, as the
case may be), to the Shareholders of that Series or Class, as a Series or Class,
ratably according to the number of Shares of that Series or Class held by the
several Shareholders on the date of termination.
SECTION 3. MERGER AND CONSOLIDATION. The Trustees may cause (a)
the Trust or one or more of its Series or Classes to the extent consistent
with applicable law to be merged into or consolidated with another trust
or company, (b) the Shares of the Trust or any Series to be converted into
beneficial interests in another business trust (or series thereof) created
pursuant to this Section 3 of Article VIII, or (c) the Shares to be exchanged
under or pursuant to any state or federal statute to the extent permitted
by law. Such merger or consolidation, Share conversion or Share
exchange must be authorized by vote of a majority of the Voting Interests
of the Trust, as defined in Article I, Section 2(o), as a whole, or any affected
Series, as may be applicable; provided that in all respects not governed by
statute or applicable law, the Trustees shall have the power to prescribe the
procedure necessary or appropriate to accomplish a sale of assets, merger or
consolidation including the power to create one or more separate business trusts
to which all or any part of the assets, liabilities, profits or losses of the
Trust may be transferred and to provide for the conversion of Shares of the
Trust or any Series into beneficial interests in such separate business trust or
trusts (or series thereof).
SECTION 4. AMENDMENTS. This Declaration of Trust may be
restated and/or amended at any time by an instrument in writing signed
by a majority of the then Trustees and, if required, by approval of such
amendment by Shareholders in accordance with Article V, Section 3 hereof.
Any such restatement and/or amendment hereto shall be effective
immediately upon execution and approval. The Certificate of Trust of the Trust
may be restated and/or amended by a similar procedure, and any such restatement
and/or amendment shall be effective immediately upon filing with the Office of
the Secretary of State of the State of Delaware or upon such future date as may
be stated therein.
SECTION 5. FILING OF COPIES, REFERENCES, HEADINGS. The original or a
copy of this instrument and of each restatement and/or amendment hereto shall
be kept at the office of the Trust where it may be inspected by any Shareholder.
Anyone dealing with the Trust may rely on a certificate by an officer of the
Trust as to whether or not any such restatements and/or amendments have been
made and as to any matters in connection with the Trust hereunder; and, with
the same effect as if it were the original, may rely on a copy certified by
an officer of the Trust to be a copy of this instrument or of any such
restatements and/or amendments. In this instrument and in any such
restatements and/or amendment, references to this instrument, and all
expressions like "herein," "hereof" and "hereunder," shall be deemed
to refer to this instrument as amended or affected by any such restatements
and/or amendments. Headings are placed herein for convenience of reference
only and shall not be taken as a part hereof or control or affect the
meaning, construction or effect of this instrument. Whenever the singular
number is used herein, the same shall include the plural; and the neuter,
masculine and feminine genders shall include each other, as applicable.
This instrument may be executed in any number of counterparts each of which
shall be deemed an original.
SECTION 6. APPLICABLE LAW. This Agreement and Declaration of
Trust is created under and is to be governed by and construed and
administered according to the laws of the State of Delaware and the
Delaware Business Trust Act, as amended from time to time (the "Act").
The Trust shall be a Delaware business trust pursuant to such Act, and without
limiting the provisions hereof, the Trust may exercise all powers which are
ordinarily exercised by such a business trust.
SECTION 7. PROVISIONS IN CONFLICT WITH LAW OR REGULATIONS.
(a) The provisions of the Declaration of Trust are severable,
and if the Trustees shall determine, with the advice of counsel, that any of
such provisions is in conflict with the Investment Company Act, the regulated
investment company provisions of the Internal Revenue Code or with other
applicable laws and regulations, the conflicting provision shall be deemed never
to have constituted a part of the Declaration of Trust; provided, however, that
such determination shall not affect any of the remaining provisions of the
Declaration of Trust or render invalid or improper any action taken or omitted
prior to such determination.
(b) If any provision of the Declaration of Trust shall be held
invalid or unenforceable in any jurisdiction, such invalidity or
unenforceability shall attach only to such provision in such jurisdiction and
shall not in any manner affect such provision in any other jurisdiction or any
other provision of the Declaration of Trust in any jurisdiction.
SECTION 8. BUSINESS TRUST ONLY. It is the intention of the Trustees
to create a business trust pursuant to the Delaware Business Trust Act,
as amended from time to time (the "Act"), and thereby to create only
the relationship of trustee and beneficial owners within the meaning of
such Act between the Trustees and each Shareholder. It is not the intention
of the Trustees to create a general partnership, limited partnership,
joint stock association, corporation, bailment, or any form of legal
relationship other than a business trust pursuant to such Act. Nothing in
this Declaration of Trust shall be construed to make the Shareholders, either
by themselves or with the Trustees, partners or members of a joint stock
association.
SECTION 9. USE OF THE IDENTIFYING WORDS "PURISIMA" AND "THE
PURISIMA FUNDS." The identifying words "Purisima" and "The Purisima
Funds" and all rights to the use of such identifying words belong to Xxxxxx
Investments, Inc., the proposed Investment Adviser of the Trust. Xxxxxx
Investments, Inc. has licensed the Trust to use the identifying words "The
Purisima Funds" in the Trust's name and to use the identifying word "Purisima"
in the name of any series of the Trust. In the event that Xxxxxx Investments,
Inc. or an affiliate of Xxxxxx Investments, Inc. is not appointed or ceases to
be the Investment Adviser of the Trust, the non-exclusive license may be revoked
by Xxxxxx Investments, Inc., and the Trust and any series thereof shall
respectively cease using the identifying words "The Purisima Funds" and
"Purisima," unless otherwise consented to by Xxxxxx Investments, Inc. or any
successor to Xxxxxx Investments, Inc.'s interest.
IN WITNESS WHEREOF, the sole Trustee named below do hereby make and
enter into this Declaration of Trust as of the 27th day of July 1996.
Xxxxxxx X. Xxxxxx, Sole Trustee
THE PRINCIPAL PLACE OF BUSINESS OF THE TRUST IS 00000 XXXXXXX XXXXXXXXX,
XXXXXXXX, XXXXXXXXXX, 00000.
