Exhibit No. EX-99.a.1
SECOND AMENDED AND RESTATED
AGREEMENT AND DECLARATION OF TRUST
of
RevenueShares ETF Trust
a Delaware Statutory Trust
(Original Agreement and Declaration of Trust was adopted December 11, 2006;
Amended and Restated Agreement and Declaration of Trust
was adopted June 21, 2007; and Second Amended and Restated Agreement
and Declaration of Trust was adopted October 12, 2007.)
TABLE OF CONTENTS
Page
ARTICLE I NAME; OFFICES; REGISTERED AGENT; DEFINITIONS......................2
Section 1. Name...........................................................2
Section 2. Offices of the Trust...........................................2
Section 3. Registered Agent and Registered Office.........................2
Section 4. Definitions....................................................2
ARTICLE II PURPOSE OF TRUST..................................................4
ARTICLE III SHARES............................................................7
Section 1. Division of Beneficial Interest................................7
Section 2. Ownership of Shares............................................9
Section 3. Sale of Shares.................................................9
Section 4. Status of Shares and Limitation of Personal Liability.........10
Section 5. Power of Board of Trustees to Make Tax Status Election........10
Section 6. Establishment and Designation of Series and Classes...........10
Section 7. Indemnification of Shareholders...............................14
ARTICLE IV THE BOARD OF TRUSTEES............................................15
Section 1. Number, Election, Term, Removal and Resignation...............15
Section 2. Trustee Action by Written Consent Without a Meeting...........15
Section 3. Powers; Other Business Interests; Quorum and Required Vote....15
Section 4. Payment of Expenses by the Trust..............................17
Section 5. Ownership of Trust Property...................................18
Section 6. Service Contracts.............................................18
ARTICLE V SHAREHOLDERS' VOTING POWERS AND MEETINGS.........................19
Section 1. Voting Powers.................................................19
Section 2. Quorum and Required Vote......................................19
Section 3. Shareholder Action by Written Consent Without a Meeting.......20
Section 4. Record Dates..................................................20
Section 5. Additional Provisions.........................................22
ARTICLE VI NET ASSET VALUE; DISTRIBUTIONS;
REDEMPTIONS; TRANSFERS...........................................22
Section 1. Determination of Net Asset Value, Net Income and Distributions22
Section 2. Redemptions at the Option of a Shareholder....................24
Section 3. Redemptions at the Option of the Trust........................25
Section 4. Transfer of Shares............................................25
ARTICLE VII LIMITATION OF LIABILITY AND
INDEMNIFICATION OF AGENT.........................................25
Section 1. Limitation of Liability.......................................25
Section 2. Indemnification...............................................27
Section 3. Insurance.....................................................28
Section 4. Derivative Actions............................................28
ARTICLE VIII CERTAIN TRANSACTIONS...........................................28
Section 1. Dissolution of Trust or Series................................28
Section 2. Merger or Consolidation; Conversion; Reorganization...........29
Section 3. Master Feeder Structure.......................................31
Section 4. Absence of Appraisal or Dissenters' Rights....................31
ARTICLE IX AMENDMENTS.......................................................31
Section 1. Amendments Generally..........................................31
ARTICLE X MISCELLANEOUS....................................................32
Section 1. References; Headings; Counterparts............................32
Section 2. Applicable Law................................................32
Section 3. Provisions in Conflict with Law or Regulations................32
Section 4. Statutory Trust Only..........................................32
SECOND AMENDED AND RESTATED AGREEMENT AND DECLARATION OF TRUST
OF
RevenueShares ETF Trust
AGREEMENT AND DECLARATION OF TRUST made as of this 12th day of October,
2007, by the Trustees hereunder, and by the holders of Shares to be issued by
RevenueShares ETF Trust (the "Trust") hereunder, and (i) incorporates herein and
makes a part of this Second Amended and Restated Agreement and Declaration of
Trust the resolutions of the Board of Trustees of the Trust adopted prior to the
date set forth above, pursuant to the provisions of the original Agreement and
Declaration of Trust dated December 11, 2006, as amended or restated on June 21,
2007, (the "Original Declaration of Trust"), regarding the establishment and
designation of Series and/or Classes of the Shares of the Trust, and any
amendments or modifications to such resolutions adopted through the date hereof,
as of the date of the adoption of each such resolution, and (ii) amends and
restates the Original Declaration of Trust pursuant to Article IX, Section 1, of
such Original Declaration of Trust, as hereinafter provided..
WITNESSETH:
WHEREAS this Trust has been formed to carry on the business of an open-end
management investment company as defined in the 1940 Act; and
WHEREAS this Trust is authorized to divide its Shares into two or more
Classes, to issue its Shares in separate Series, to divide Shares of any Series
into two or more Classes and to issue Classes of the Trust or the Series, if
any, all in accordance with the provisions hereinafter set forth; and
WHEREAS the Trustees have agreed to manage all property coming into their
hands as trustees of a Delaware statutory trust in accordance with the
provisions of the Delaware Statutory Trust Act, as amended from time to time,
and the provisions hereinafter set forth;
NOW, THEREFORE, the Trustees hereby declare that:
(i) the Original Declaration of Trust is amended and restated in its
entirety in the manner hereinafter set forth;
(ii) the Trustees will hold all cash, securities and other assets that they
may from time to time acquire in any manner as Trustees hereunder IN TRUST and
will manage and dispose of the same upon the following terms and conditions for
the benefit of the holders from time to time of Shares created hereunder as
hereinafter set forth; and
(iii) this Declaration of Trust and the By-Laws shall be binding in
accordance with their terms on every Trustee, by virtue of having become a
Trustee of the Trust, and on every Shareholder, by virtue of having become a
Shareholder of the Trust, pursuant to the terms of the Original Declaration of
Trust and/or this Declaration of Trust and the By-Laws.
ARTICLE I
NAME; OFFICES; REGISTERED AGENT; DEFINITIONS
Section 1. Name. This Trust shall be known as "RevenueShares ETF Trust" and
the Board of Trustees shall conduct the business of the Trust under that name,
or any other name as it may from time to time designate.
Section 2. Offices of the Trust. The Board may at any time establish
offices of the Trust at any place or places where the Trust intends to do
business.
Section 3. Registered Agent and Registered Office. The name of the
registered agent of the Trust and the address of the registered office of the
Trust are as set forth in the Trust's Certificate of Trust.
Section 4. Definitions. Whenever used herein, unless otherwise required by
the context or specifically provided:
(a) "1940 Act" shall mean the Investment Company Act of 1940 and the rules and
regulations thereunder, all as adopted or amended from time to time;
(b) "Affiliate" shall have the same meaning as "affiliated person" as such term
is defined in the 1940 Act when used with reference to a specified Person,
as defined below;
(c) "Board of Trustees" shall mean the governing body of the Trust, that is
comprised of the number of Trustees of the Trust fixed from time to time
pursuant to Article IV hereof, having the powers and duties set forth
herein;
(d) "By-Laws" shall mean By-Laws of the Trust, as amended or restated from time
to time in accordance with Article VIII therein. Such By-Laws may contain
any provision not inconsistent with applicable law or this Declaration of
Trust, relating to the governance of the Trust;
(e) "Certificate of Trust" shall mean the certificate of trust of the Trust
filed on December 15, 2006 with the office of the Secretary of State of the
State of Delaware as required under the Delaware Statutory Trust Act, as
such certificate has been or shall be amended or restated from time to
time;
(f) "Class" shall mean each class of Shares of the Trust or of a Series of the
Trust established and designated under and in accordance with the
provisions of Article III hereof or the corresponding provisions of the
Original Declaration of Trust;
(g) "Code" shall mean the Internal Revenue Code of 1986 and the rules and
regulations thereunder, all as adopted or amended from time to time;
(h) "Commission" shall have the meaning given that term in the 1940 Act;
(i) "Creation Unit" has the meaning set forth in Article III, Section 3;
(j) "DSTA" shall mean the Delaware Statutory Trust Act (12 Del. C.ss.3801, et
seq.), as amended from time to time;
(k) "Declaration of Trust" shall mean this Amended and Restated Agreement and
Declaration of Trust, including resolutions of the Board of Trustees of the
Trust that have been adopted prior to the date of this document, or that
may be adopted hereafter, regarding the establishment and designation of
Series and/or Classes of Shares of the Trust, and any amendments or
modifications to such resolutions, as of the date of the adoption of each
such resolution;
(l) "General Liabilities" shall have the meaning given it in Article III,
Section 6(b) of this Declaration of Trust;
(m) "Interested Person" shall have the meaning given that term in the 1940 Act;
(n) "Investment Adviser" or "Adviser" shall mean a Person, as defined below,
furnishing services to the Trust pursuant to any investment advisory or
investment management contract described in Article IV, Section 6(a)
hereof;
(o) "National Financial Emergency" shall mean the whole or any part of any
period during (i) which an emergency exists as a result of which disposal
by the Trust of securities or other assets owned by the Trust is not
reasonably practicable; (ii) which it is not reasonably practicable for the
Trust fairly to determine the net asset value of its assets; or (iii) such
other period as the Commission may by order permit for the protection of
investors;
(p) "Person" shall mean a natural person, partnership, limited partnership,
limited liability company, trust, estate, association, corporation,
organization, custodian, nominee or any other individual or entity in its
own or any representative capacity, in each case, whether domestic or
foreign, and a statutory trust or a foreign statutory or business trust;
(q) "Principal Underwriter" shall have the meaning given that term in the 1940
Act;
(r) "Series" shall mean each Series of Shares established and designated under
and in accordance with the provisions of Article III hereof, or the
corresponding provisions of the Original Declaration of Trust;
(s) "Shares" shall mean the transferable shares of beneficial interest into
which the beneficial interest in the Trust have been or shall be divided
from time to time, and shall include fractional and whole Shares;
(t) "Shareholder" shall mean a record owner of Shares pursuant to the By-Laws;
(u) "Trust" shall mean RevenueShares ETF Trust, the Delaware statutory trust
formed pursuant to the Original Declaration of Trust and by filing of the
Certificate of Trust with the office of the Secretary of State of the State
of Delaware;
(v) "Trust Property" shall mean any and all property, real or personal,
tangible or intangible, which is owned or held by or for the account of the
Trust, or one or more of any Series thereof, including, without limitation,
the rights referenced in Article X, Section 5 hereof; and
(w) "Trustee" or "Trustees" shall mean each Person who signs this Declaration
of Trust as a trustee and all other Persons who may, from time to time, be
duly elected or appointed, qualified and serving on the Board of Trustees
in accordance with the provisions hereof and the By-Laws, so long as such
signatory or other Person continues in office in accordance with the terms
hereof and the By-Laws. Reference herein to a Trustee or the Trustees shall
refer to such Person or Persons in such Person's or Persons' capacity as a
trustee or trustees hereunder and under the By-Laws.
ARTICLE II
PURPOSE OF TRUST
The purpose of the Trust is to conduct, operate and carry on the business
of a registered management investment company registered under the 1940 Act,
directly, or if one or more Series is established hereunder, through one or more
Series, investing primarily in securities, and to exercise all of the powers,
rights and privileges granted to, or conferred upon, a statutory trust formed
under the DSTA, including, without limitation, the following powers:
(a) To hold, invest and reinvest its funds, and in connection therewith, to
make any changes in the investment of the assets of the Trust, to hold part
or all of its funds in cash, to hold cash uninvested, to subscribe for,
invest in, reinvest in, purchase or otherwise acquire, own, hold, pledge,
sell, assign, mortgage, transfer, exchange, distribute, write options on,
lend or otherwise deal in or dispose of contracts for the future
acquisition or delivery of fixed income or other securities, and securities
or property of every nature and kind, including, without limitation, all
types of bonds, debentures, stocks, shares, units of beneficial interest,
preferred stocks, negotiable or non-negotiable instruments, obligations,
evidences of indebtedness, money market instruments, certificates of
deposit or indebtedness, bills, notes, mortgages, commercial paper,
repurchase or reverse repurchase agreements, bankers' acceptances, finance
paper, and any options, certificates, receipts, warrants, futures contracts
or other instruments representing rights to receive, purchase or subscribe
for the same, or evidencing or representing any other rights or interests
therein or in any property or assets, and other securities of any kind, as
the foregoing are 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;
(b) To exercise any and all rights, powers and privileges with reference to or
incident to ownership or interest, use and enjoyment of any of such
securities and other instruments or property of every kind and description,
including, but without limitation, the right, power and privilege to own,
vote, hold, purchase, sell, negotiate, assign, exchange, lend, transfer,
mortgage, hypothecate, lease, pledge or write options with respect to or
otherwise deal with, dispose of, use, exercise or enjoy any rights, title,
interest, powers or privileges under or with reference to any of such
securities and other instruments or property, the right to consent and
otherwise act with respect thereto, with power to designate one or more
Persons, to exercise any of said rights, powers, and privileges in respect
of any of said instruments, and to do any and all acts and things for the
preservation, protection, improvement and enhancement in value of any of
such securities and other instruments or property;
(c) To sell, exchange, lend, pledge, mortgage, hypothecate, lease or write
options with respect to or otherwise deal in any property rights relating
to any or all of the assets of the Trust or any Series, subject to any
requirements of the 1940 Act;
(d) 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;
(e) To exercise powers and right of subscription or otherwise which in any
manner arise out of ownership of securities and/or other property;
(f) To hold any security or property in a form not indicating that it is trust
property, whether in bearer, unregistered or other negotiable form, or in
its own name or in the name of a custodian or subcustodian or a nominee or
nominees or otherwise or to authorize the custodian or a subcustodian or a
nominee or nominees to deposit the same in a securities depository, subject
in each case to proper safeguards according to the usual practice of
investment companies or any rules or regulations applicable thereto;
(g) 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;
(h) 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;
(i) 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;
(j) To enter into joint ventures, general or limited partnerships and any other
combinations or associations;
(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 Board of Trustees may deem necessary or appropriate for the conduct of
the business, including, without limitation, insurance policies insuring
the assets of the Trust or payment of distributions and principal on its
portfolio investments, and insurance policies insuring the Shareholders,
Trustees, officers, employees, agents, Investment Advisers, Principal
Underwriters, or independent contractors of the Trust, individually against
all claims and liabilities of every nature arising by reason of holding
Shares, holding, being or having held any such office or position, or by
reason of any action alleged to have been taken or omitted by any such
Person as Trustee, officer, employee, agent, Investment Adviser, Principal
Underwriter, or independent contractor, to the fullest extent permitted by
this Declaration of Trust, the By-Laws and by applicable law;
(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;
(n) To purchase or otherwise acquire, own, hold, sell, negotiate, exchange,
assign, transfer, mortgage, pledge or otherwise deal with, dispose of, use,
exercise or enjoy, property of all kinds;
(o) To buy, sell, mortgage, encumber, hold, own, exchange, rent or otherwise
acquire and dispose of, and to develop, improve, manage, subdivide, and
generally to deal and trade in real property, improved and unimproved, and
wheresoever situated; and to build, erect, construct, alter and maintain
buildings, structures, and other improvements on real property;
(p) To borrow or raise moneys for any of the purposes of the Trust, and to
mortgage or pledge the whole or any part of the property and franchises of
the Trust, real, personal, and mixed, tangible or intangible, and
wheresoever situated;
(q) To enter into, make and perform contracts and undertakings of every kind
for any lawful purpose, without limit as to amount;
(r) To issue, purchase, sell and transfer, reacquire, hold, trade and deal in
stocks, Shares, bonds, debentures and other securities, instruments or
other property of the Trust, from time to time, to such extent as the Board
of Trustees shall, consistent with the provisions of this Declaration of
Trust, determine; and to re-acquire and redeem, from time to time, its
Shares or, if any, its bonds, debentures and other securities;
(s) To engage in and to prosecute, defend, compromise, abandon, or adjust, by
arbitration, or otherwise, any actions, suits, proceedings, disputes,
claims, and demands relating to the Trust, and out of the assets of the
Trust to pay or to satisfy any debts, claims or expenses incurred in
connection therewith, including those of litigation, and such power shall
include without limitation the power of the Trustees or any appropriate
committee thereof, in the exercise of their or its good faith business
judgment, to dismiss any action, suit, proceeding, dispute, claim, or
demand, derivative or otherwise, brought by any Person, including a
Shareholder in the Shareholder's own name or the name of the Trust, whether
or not the Trust or any of the Trustees may be named individually therein
or the subject matter arises by reason of business for or on behalf of the
Trust;
(t) To exercise and enjoy, in Delaware and in any other states, territories,
districts and United States dependencies and in foreign countries, all of
the foregoing powers, rights and privileges, and the enumeration of the
foregoing powers shall not be deemed to exclude any powers, rights or
privileges so granted or conferred; and
(u) In general, to carry on any other business in connection with or incidental
to its trust purposes, to do everything necessary, suitable or proper for
the accomplishment of such purposes or for the attainment of any object or
the furtherance of any power hereinbefore 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, its business or
purposes, objects or powers.
The Trust shall not be limited to investing in obligations maturing before
the possible dissolution of the Trust or one or more of its Series. Neither the
Trust nor the Board of Trustees shall be required to obtain any court order to
deal with any assets of the Trust or take any other action hereunder.
The foregoing clauses shall each be construed as purposes, objects and
powers, and it is hereby expressly provided that the foregoing enumeration of
specific purposes, objects and powers shall not be held to limit or restrict in
any manner the powers of the Trust, and that they are in furtherance of, and in
addition to, and not in limitation of, the general powers conferred upon the
Trust by the DSTA and the other laws of the State of Delaware or otherwise; nor
shall the enumeration of one thing be deemed to exclude another, although it be
of like nature, not expressed.
ARTICILE III
SHARES
Section 1. Division of Beneficial Interest.
(a) The beneficial interest in the Trust shall be divided into Shares, each
Share with no par value. The number of Shares in the Trust authorized under
the Original Declaration of Trust and authorized hereunder, and of each
Series and Class as may be established from time to time, is unlimited. The
Board of Trustees may authorize the division of Shares into separate
Classes of Shares and into separate and distinct Series of Shares and the
division of any Series into separate Classes of Shares in accordance with
the 1940 Act. As of the effective date of this Declaration of Trust, any
new Series and Classes shall be established and designated pursuant to
Article III, Section 6 hereof. If no separate Series or Classes of Series
shall be established, the Shares shall have the rights, powers and duties
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.
(i) The fact that the Trust shall have one or more established and
designated Classes of the Trust, shall not limit the authority of the
Board of Trustees to establish and designate additional Classes of the
Trust. The fact that one or more Classes of the Trust shall have
initially been established and designated without any specific
establishment or designation of a Series (i.e., that all Shares of the
Trust are initially Shares of one or more Classes) shall not limit the
authority of the Board of Trustees to later establish and designate a
Series and establish and designate the Class or Classes of the Trust
as Class or Classes, respectively, of such Series.
(ii) The fact that a Series shall have initially been established and
designated without any specific establishment or designation of
Classes (i.e., that all Shares of such Series are initially of a
single Class) shall not limit the authority of the Board of Trustees
to establish and designate separate Classes of said Series. The fact
that a Series shall have more than one established and designated
Class, shall not limit the authority of the Board of Trustees to
establish and designate additional Classes of said Series.
(b) The Board of Trustees shall have the power to issue authorized, but
unissued Shares of beneficial interest of the Trust, or any Series and
Class thereof, from time to time for such consideration paid wholly or
partly in cash, securities or other property, as may be determined from
time to time by the Board of Trustees, subject to any requirements or
limitations of the 1940 Act. The Board of Trustees, on behalf of the Trust,
may acquire and hold as treasury shares, reissue for such consideration and
on such terms as it may determine, or cancel, at its discretion from time
to time, any Shares reacquired by the Trust. The Board of Trustees may
classify or reclassify any unissued Shares of beneficial interest or any
Shares of beneficial interest of the Trust or any Series or Class thereof,
that were previously issued and are reacquired, into one or more Series or
Classes that may be established and designated from time to time.
Notwithstanding the foregoing, the Trust and any Series thereof may
acquire, hold, sell and otherwise deal in, for purposes of investment or
otherwise, the Shares of any other Series of the Trust or Shares of the
Trust, and such Shares shall not be deemed treasury shares or cancelled.
(c) Subject to the provisions of Section 6 of this Article III, each Share
shall entitle the holder to voting rights as provided in Article V hereof.
Shareholders shall have no preemptive or other right to subscribe for new
or additional authorized, but unissued Shares or other securities issued by
the Trust or any Series thereof. The Board of Trustees may from time to
time divide or combine the Shares of the Trust or any particular Series
thereof into a greater or lesser number of Shares of the Trust or that
Series, respectively. Such division or combination shall not materially
change the proportionate beneficial interests of the holders of Shares of
the Trust or that Series, as the case may be, in the Trust Property at the
time of such division or combination that is held with respect to the Trust
or that Series, as the case may be.
(d) Any Trustee, officer or other agent of the Trust, and any organization in
which any such Person has an economic or other interest, may acquire, own,
hold and dispose of Shares of beneficial interest in the Trust or any
Series and Class thereof, whether such Shares are authorized but unissued,
or already outstanding, to the same extent as if such Person were not a
Trustee, officer or other agent of the Trust; and the Trust or any Series
may issue and sell and may purchase such Shares from any such Person or any
such organization, subject to the limitations, restrictions or other
provisions applicable to the sale or purchase of such Shares herein and the
1940 Act.
Section 2. Ownership of Shares. The ownership of Shares shall be recorded
on the books of the Trust kept by the Trust or by a transfer or similar agent
for the Trust, which books shall be maintained separately for the Shares of the
Trust and each Series and each Class thereof that has been established and
designated. No certificates certifying the ownership of Shares shall be issued
except as the Board of Trustees may otherwise determine from time to time. The
Board of Trustees may make such rules not inconsistent with the provisions of
the 1940 Act as it considers appropriate for the issuance of Share certificates,
the transfer of Shares of the Trust and each Series and Class thereof, if any,
and similar matters. The record books of the Trust as kept by the Trust or any
transfer or similar agent, as the case may be, shall be conclusive as to who are
the Shareholders of the Trust and each Series and Class thereof and as to the
number of Shares of the Trust and each Series and Class thereof held from time
to time by each such Shareholder.
Section 3. Sale of Shares. Subject to the 1940 Act and applicable law, the
Trust may sell its authorized but unissued Shares of beneficial interest to such
Persons, at such times, on such terms, and for such consideration as the Board
of Trustees may from time to time authorize. The Shares of any Series, if the
Trustees so determine, shall be issued only in aggregations of such number of
those shares (each, a "Creation Unit") and on such days as the Trustees
determine or as determined pursuant to procedures or methods the Trustees
prescribe or approve from time to time with respect to such Series. In
connection with the issuance of such Creation Units, the Trustees may change
such transaction fees or other fees as they determine in their sole discretion
and without shareholder approval. A Series will not issue fractional Creation
Units. The Trustees shall have the unrestricted power to alter the number of
shares constituting a Creation Unit by resolution adopted by them, at any time.
Each sale shall be credited to the individual purchaser's account in the form of
full (and, unless the shareholder is purchasing a Creation Unit, fractional)
Shares of the Trust or such Series thereof (and Class thereof, if any), as the
purchaser may select, at the net asset value per Share, subject to Section 22 of
the 1940 Act, and the rules and regulations adopted thereunder; provided,
however, that the Board of Trustees may, in its sole discretion, permit the
Principal Underwriter to impose a sales charge upon any such sale. Every
Shareholder by virtue of having become a Shareholder shall be deemed to have
expressly assented and agreed to the terms of this Declaration of Trust and to
have become bound as a party hereto.
Section 4. Status of Shares and Limitation of Personal Liability. Shares
shall be deemed to be personal property giving to Shareholders only the rights
provided in this Declaration of Trust, the By-Laws, and under applicable law.
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. Subject to Article VIII, Section 1
hereof, the death, incapacity, dissolution, termination, or bankruptcy of a
Shareholder during the existence of the Trust and any Series thereof shall not
operate to dissolve the Trust or any such Series, nor entitle the representative
of any deceased, incapacitated, dissolved, terminated or bankrupt Shareholder to
an accounting or to take any action in court or elsewhere against the Trust, the
Trustees or any such Series, but entitles such representative only to the rights
of said deceased, incapacitated, dissolved, terminated or bankrupt Shareholder
under this Declaration of Trust. 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 other than such as the
Shareholder may at any time personally agree to pay. Each Share, when issued on
the terms determined by the Board of Trustees, shall be fully paid and
nonassessable. As provided in the DSTA, Shareholders shall be entitled to the
same limitation of personal liability as that extended to stockholders of a
private corporation organized for profit under the General Corporation Law of
the State of Delaware.
Section 5. Power of Board of Trustees to Make Tax Status Election. The
Board of Trustees shall have the power, in its discretion, to make such
elections as to the tax status of the Trust and any Series as may be permitted
or required under the Code, without the vote of any Shareholder.
Section 6. Establishment and Designation of Series and Classes. The
establishment and designation of any Series or Class shall be effective, without
the requirement of Shareholder approval, upon the adoption of a resolution by
not less than a majority of the then Board of Trustees, which resolution shall
set forth such establishment and designation and may provide, to the extent
permitted by the DSTA, for rights, powers and duties of such Series or Class
(including variations in the relative rights and preferences as between the
different Series and Classes) otherwise than as provided herein. Each such
resolution shall be incorporated herein by reference upon adoption, and the
resolutions that have been adopted prior to June 21, 2007 regarding the
establishment and designation of Series and/or Classes of Shares of the Trust
pursuant to the applicable provisions of the Original Declaration of Trust, and
any amendments or modifications to such resolutions through the date hereof, are
hereby incorporated herein as of the date of their adoption. Any such resolution
may be amended by a further resolution of a majority of the Board of Trustees,
and if Shareholder approval would be required to make such an amendment to the
language set forth in this Declaration of Trust, such further resolution shall
require the same Shareholder approval that would be necessary to make such
amendment to the language set forth in this Declaration of Trust. Each such
further resolution shall be incorporated herein by reference upon adoption.
Each Series shall be separate and distinct from any other Series, separate
and distinct records on the books of the Trust shall be maintained for each
Series, and the assets and liabilities belonging to any such Series shall be
held and accounted for separately from the assets and liabilities of the Trust
or any other Series. Each Class of the Trust shall be separate and distinct from
any other Class of the Trust. Each Class of a Series shall be separate and
distinct from any other Class of the Series. As appropriate, in a manner
determined by the Board of Trustees, the liabilities belonging to any such Class
shall be held and accounted for separately from the liabilities of the Trust,
the Series or any other Class and separate and distinct records on the books of
the Trust for the Class shall be maintained for this purpose. Subject to Article
II hereof, each such Series shall operate as a separate and distinct investment
medium, with separately defined investment objectives and policies.
Shares of each Series (and Class where applicable) established and
designated pursuant to this Section 6, or the corresponding provisions of the
Original Declaration of Trust shall have the following rights, powers and
duties, unless otherwise provided to the extent permitted by the DSTA, in the
resolution establishing and designating such Series or Class:
(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 with
respect to that Series, and shall be so recorded upon the books of account
of the Trust. Such consideration, assets, income, earnings, profits and
proceeds thereof, from whatever source derived, including, without
limitation, any proceeds derived from the sale, exchange or liquidation of
such assets, and any funds or payments derived from any reinvestment of
such proceeds, in whatever form the same may be, are herein referred to as
"assets held with respect to" that Series. In the event that there are any
assets, income, earnings, profits and proceeds thereof, funds or payments
which are not readily identifiable as assets held with respect to any
particular Series (collectively "General Assets"), the Board of Trustees,
or an appropriate officer as determined by the Board of Trustees, shall
allocate such General Assets to, between or among any one or more of the
Series in such manner and on such basis as the Board of Trustees, in its
sole discretion, deems fair and equitable, and any General Asset so
allocated to a particular Series shall be held with respect to that Series.
Each such allocation by or under the direction of the Board of Trustees
shall be conclusive and binding upon the Shareholders 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 a particular Series shall be charged with
the liabilities, debts, obligations, costs, charges, reserves and expenses
of the Trust incurred, contracted for or otherwise existing with respect to
such Series. Such liabilities, debts, obligations, costs, charges, reserves
and expenses incurred, contracted for or otherwise existing with respect to
a particular Series are herein referred to as "liabilities held with
respect to" that Series. Any liabilities, debts, obligations, costs,
charges, reserves and expenses of the Trust which are not readily
identifiable as being liabilities held with respect to any particular
Series (collectively "General Liabilities") shall be allocated by the Board
of Trustees, or an appropriate officer as determined by the Board of
Trustees, to and among any one or more of the Series in such manner and on
such basis as the Board of Trustees in its sole discretion deems fair and
equitable. Each allocation of liabilities, debts, obligations, costs,
charges, reserves and expenses by or under the direction of the Board of
Trustees shall be conclusive and binding upon the Shareholders of all
Series for all purposes. All Persons who have extended credit that has been
allocated to a particular Series, or who have a claim or contract that has
been allocated to any particular Series, shall 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 shall be deemed nevertheless to
have impliedly agreed to such limitation.
Subject to the right of the Board of Trustees in its discretion to allocate
General Liabilities as provided herein, the debts, liabilities, obligations and
expenses incurred, contracted for or otherwise existing with respect to a
particular Series, whether such Series is now authorized and existing pursuant
to the Original Declaration of Trust, or is hereafter authorized and existing
pursuant to this Declaration of Trust, shall be enforceable against the assets
held with respect to that Series only, and not against the assets of any other
Series or the Trust generally and none of the debts, liabilities, obligations
and expenses incurred, contracted for or otherwise existing with respect to the
Trust generally or any other Series thereof shall be enforceable against the
assets held with respect to such Series. Notice of this limitation on
liabilities between and among Series has been set forth in the Certificate of
Trust filed in the Office of the Secretary of State of the State of Delaware
pursuant to the DSTA, and having given such notice in the Certificate of Trust,
the statutory provisions of Section 3804 of the DSTA relating to limitations on
liabilities between and among Series (and the statutory effect under Section
3804 of setting forth such notice in the Certificate of Trust) are applicable to
the Trust and each Series.
Liabilities, debts, obligations, costs, charges, reserves and expenses
related to the distribution of, and other identified expenses that should or may
properly be allocated to, the Shares of a particular Class may be charged to and
borne solely by such Class. The bearing of expenses solely by a particular Class
of Shares may be appropriately reflected (in a manner determined by the Board of
Trustees) and may affect the net asset value attributable to, and the dividend,
redemption and liquidation rights of, such Class. Each allocation of
liabilities, debts, obligations, costs, charges, reserves and expenses by or
under the direction of the Board of Trustees shall be conclusive and binding
upon the Shareholders of all Classes for all purposes. All Persons who have
extended credit that has been allocated to a particular Class, or who have a
claim or contract that has been allocated to any particular Class, shall look,
and may be required by contract to look, exclusively to that particular Class
for payment of such credit, claim, or contract.
(c) Dividends, Distributions and Redemptions. Notwithstanding any other
provisions of this Declaration of Trust, including, without limitation,
Article VI hereof, no dividend or distribution including, without
limitation, any distribution paid upon dissolution of the Trust or of any
Series with respect to, nor any redemption of, the Shares of any Series or
Class of such Series 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 otherwise have any right or claim against the assets held
with respect to any other Series or the Trust generally except, in the case
of a right or claim against the assets held with respect to any other
Series, to the extent that such Shareholder has such a right or claim
hereunder as a Shareholder of such other Series. The Board of Trustees
shall have full discretion, to the extent not inconsistent with the 1940
Act, to determine which items shall be treated as income and which items as
capital; and each such determination and allocation shall be conclusive and
binding upon the Shareholders.
(d) Voting. All Shares of the Trust entitled to vote on a matter shall vote in
the aggregate without differentiation between the Shares of the separate
Series, if any, or separate Classes, if any; provided that (i) with respect
to any matter that affects only the interests of some but not all Series,
then only the Shares of such affected Series, voting separately, shall be
entitled to vote on the matter, (ii) with respect to any matter that
affects only the interests of some but not all Classes, then only the
Shares of such affected Classes, voting separately, shall be entitled to
vote on the matter; and (iii) notwithstanding the foregoing, with respect
to any matter as to which the 1940 Act or other applicable law or
regulation requires voting, by Series or by Class, then the Shares of the
Trust shall vote as prescribed in such law or regulation.
(e) Equality. Each Share of any particular Series shall be equal to each other
Share of such Series (subject to the rights and preferences with respect to
separate Classes of such Series).
(f) Fractions. A fractional Share of a Series shall carry proportionately all
the rights and obligations of a whole Share of such Series, including
rights with respect to voting, receipt of dividends and distributions,
redemption of Shares and dissolution of the Trust or that Series.
(g) Exchange Privilege. The Board of Trustees shall have the authority to
provide that the holders of Shares of any Series shall have the right to
exchange said Shares for Shares of one or more other Series in accordance
with such requirements and procedures as may be established by the Board of
Trustees, and in accordance with the 1940 Act.
(h) Combination of Series or Classes.
(i) The Board of Trustees shall have the authority, without the approval,
vote or consent 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 into assets and liabilities
held with respect to a single Series; provided that upon completion of
such combination of Series, the interest of each Shareholder, in the
combined assets and liabilities held with respect to the combined
Series shall equal the interest of each such Shareholder in the
aggregate of the assets and liabilities held with respect to the
Series that were combined.
(ii) The Board of Trustees shall have the authority, without the approval,
vote or consent of the Shareholders of any Series or Class, unless
otherwise required by applicable law, to combine, merge or otherwise
consolidate the Shares of two or more Classes of Shares of a Series
with and/or into a single Class of Shares of such Series, with such
designation, preference, conversion or other rights, voting powers,
restrictions, limitations as to dividends, qualifications, terms and
conditions of redemption and other characteristics as the Trustees may
determine; provided, however, that the Trustees shall provide written
notice to the affected Shareholders of any such transaction.
(iii) The transactions in (i) and (ii) above may be effected through
share-for-share exchanges, transfers or sales of assets, Shareholder
in-kind redemptions and purchases, exchange offers, or any other
method approved by the Trustees.
(i) Dissolution or Termination. Any particular Series shall be dissolved upon
the occurrence of the applicable dissolution events set forth in Article
VIII, Section 1 hereof. Upon dissolution of a particular Series, the
Trustees shall wind up the affairs of such Series in accordance with
Article VIII, Section 1 hereof and thereafter, rescind the establishment
and designation thereof. The Board of Trustees shall terminate any
particular Class and rescind the establishment and designation thereof: (i)
upon approval by a majority of votes cast at a meeting of the Shareholders
of such Class, provided a quorum of Shareholders of such Class are present,
or by action of the Shareholders of such Class by written consent without a
meeting pursuant to Article V, Section 3; or (ii) at the discretion of the
Board of Trustees either (A) at any time there are no Shares outstanding of
such Class, or (B) upon prior written notice to the Shareholders of such
Class; provided, however, that upon the rescission of the establishment and
designation of any particular Series, every Class of such Series shall
thereby be terminated and its establishment and designation rescinded. Each
resolution of the Board of Trustees pursuant to this Section 6(i) shall be
incorporated herein by reference upon adoption.
Section 7. Indemnification of Shareholders. No shareholder as such shall be
subject to any personal liability whatsoever to any Person in connection with
Trust Property or the acts, obligations or affairs of the Trust. If any
Shareholder or former Shareholder shall be exposed to liability, charged with
liability, or held personally liable, for any obligations or liability of the
Trust, by reason of a claim or demand relating exclusively to his or her being
or having been a Shareholder of the Trust or a Shareholder of a particular
Series thereof, and not because of such Shareholder's actions or omissions, such
Shareholder or former Shareholder (or, in the case of a natural person, 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 Trust or out of the assets of such Series thereof, as the case may be,
against all loss and expense, including without limitation, attorneys' fees,
arising from such claim or demand; provided, however, such indemnity shall not
cover (i) any taxes due or paid by reason of such Shareholder's ownership of any
Shares and (ii) expenses charged to a Shareholder pursuant to Article IV,
Section 5 hereof.
ARTICLE IV
THE BOARD OF TRUSTEES
Section 1. Number, Election, Term, Removal and Resignation.
(a) In accordance with Section 3801 of the DSTA, each Trustee shall become a
Trustee and be bound by this Declaration of Trust and the By-Laws when such
Person signs this Declaration of Trust as a trustee and/or is duly elected
or appointed, qualified and serving on the Board of Trustees in accordance
with the provisions hereof and the By-Laws, so long as such signatory or
other Person continues in office in accordance with the terms hereof.
(b) The number of Trustees constituting the entire Board of Trustees may be
fixed from time to time by the vote of a majority of the then 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 number of Trustees
shall not be reduced so as to shorten the term of any Trustee then in
office.
(c) Each Trustee shall hold office for the lifetime of the Trust or until such
Trustee's earlier death, resignation, removal, retirement or inability
otherwise to serve, or, if sooner than any of such events, until the next
meeting of Shareholders called for the purpose of electing Trustees or
consent of Shareholders in lieu thereof for the election of Trustees, and
until the election and qualification of his or her successor.
(d) Any Trustee may be removed, with or without cause, by the Board of
Trustees, by action of a majority of the Trustees then in office, or by
vote of the Shareholders at any meeting called for that purpose.
(e) Any Trustee may resign at any time by giving written notice to the
secretary of the Trust or to a meeting of the Board of Trustees. Such
resignation shall be effective upon receipt, unless specified to be
effective at some later time.
Section 2. Trustee Action by Written Consent Without a Meeting. To the
extent not inconsistent with the provisions of the 1940 Act, any action that may
be taken at any meeting of the Board of Trustees or any committee thereof may be
taken without a meeting and without prior written notice if a consent or
consents in writing setting forth the action so taken is signed by the Trustees
having not less than the minimum number of votes that would be necessary to
authorize or take that action at a meeting at which all Trustees on the Board of
Trustees or any committee thereof, as the case may be, were present and voted.
Written consents of the Trustees may be executed in one or more counterparts. A
consent transmitted by electronic transmission (as defined in Section 3806 of
the DSTA) by a Trustee shall be deemed to be written and signed for purposes of
this Section. All such consents shall be filed with the secretary of the Trust
and shall be maintained in the Trust's records.
Section 3. Powers; Other Business Interests; Quorum and Required Vote.
(a) Powers. Subject to the provisions of this Declaration of Trust, the
business of the Trust (including every Series thereof) shall be managed by
or under the direction of the Board of Trustees, and such Board of Trustees
shall have all powers necessary or convenient to carry out that
responsibility. The Board of Trustees shall have full power and authority
to do any and all acts and to make and execute any and all contracts and
instruments that it may consider necessary or appropriate in connection
with the operation and administration of the Trust (including every Series
thereof). The Board of Trustees shall not be bound or limited by present or
future laws or customs with regard to investments by trustees or
fiduciaries, but, subject to the other provisions of this Declaration of
Trust and the By-Laws, shall have full authority and absolute power and
control over the assets and the business of the Trust (including every
Series thereof) to the same extent as if the Board of Trustees was the sole
owner of such assets and business in its own right, including such
authority, power and control to do all acts and things as it, in its sole
discretion, shall deem proper to accomplish the purposes of this Trust.
Without limiting the foregoing, the Board of Trustees may, subject to the
requisite vote for such actions as set forth in this Declaration of Trust
and the By-Laws: (1) adopt By-Laws not inconsistent with applicable law or
this Declaration of Trust; (2) amend, restate and repeal such By-Laws,
subject to and in accordance with the provisions of such By-Laws; (3) fill
vacancies on the Board of Trustees in accordance with this Declaration of
Trust and the By-Laws; (4) elect and remove such officers and appoint and
terminate such agents as it considers appropriate, in accordance with this
Declaration of Trust and the By-Laws; (5) establish and terminate one or
more committees of the Board of Trustees pursuant to the By-Laws; (6) place
Trust Property in custody as required by the 1940 Act, employ one or more
custodians of the Trust Property and authorize such custodians to employ
sub-custodians and to place all or any part of such Trust Property with a
custodian or a custodial system meeting the requirements of the 1940 Act;
(7) retain a transfer agent, dividend disbursing agent, a shareholder
servicing agent or administrative services agent, or any number thereof or
any other service provider as deemed appropriate; (8) provide for the
issuance and distribution of shares of beneficial interest in the Trust or
other securities or financial instruments directly or through one or more
Principal Underwriters or otherwise; (9) retain one or more Investment
Adviser(s); (10) re-acquire and redeem Shares on behalf of the Trust and
transfer Shares pursuant to applicable law; (11) set record dates for the
determination of Shareholders with respect to various matters, in the
manner provided in Article V, Section 4 of this Declaration of Trust; (12)
declare and pay dividends and distributions to Shareholders from the Trust
Property, in accordance with this Declaration of Trust and the By-Laws;
(13) establish, designate and redesignate from time to time, in accordance
with the provisions of Article III, Section 6 hereof, any Series or Class
of the Trust or of a Series; (14) hire personnel as staff for the Board of
Trustees or, for those Trustees who are not Interested Persons of the
Trust, the Investment Adviser, or the Principal Underwriter, set the
compensation to be paid by the Trust to such personnel, exercise exclusive
supervision of such personnel, and remove one or more of such personnel, at
the discretion of the Board of Trustees; (15) retain special counsel, other
experts and/or consultants for the Board of Trustees, for those Trustees
who are not Interested Persons of the Trust, the Investment Adviser, or the
Principal Underwriter, and/or for one or more of the committees of the
Board of Trustees, set the compensation to be paid by the Trust to such
special counsel, other experts and/or consultants, and remove one or more
of such special counsel, other experts and/or consultants, at the
discretion of the Board of Trustees; (16) engage in and prosecute, defend,
compromise, abandon, or adjust, by arbitration, or otherwise, any actions,
suits, proceedings, disputes, claims, and demands relating to the Trust,
and out of the assets of the Trust to pay or to satisfy any debts, claims
or expenses incurred in connection therewith, including those of
litigation, and such power shall include, without limitation, the power of
the Trustees, or any appropriate committee thereof, in the exercise of
their or its good faith business judgment, to dismiss any action, suit,
proceeding, dispute, claim or demand, derivative or otherwise, brought by
any person, including a shareholder in its own name or in the name of the
Trust, whether or not the Trust or any of the Trustees may be named
individually therein or the subject matter arises by reason of business for
or on behalf of the Trust; and (17) in general delegate such authority as
it considers desirable to any Trustee or officer of the Trust, to any
committee of the Trust, to any agent or employee of the Trust or to any
custodian, transfer, dividend disbursing, shareholder servicing agent,
Principal Underwriter, Investment Adviser, or other service provider.
The powers of the Board of Trustees set forth in this Section 3(a) are
without prejudice to any other powers of the Board of Trustees set forth in this
Declaration of Trust and the By-Laws. Any determination as to what is in the
best interests of the Trust or any Series or Class thereof and its Shareholders
made by the Board of Trustees in good faith shall be conclusive. In construing
the provisions of this Declaration of Trust, the presumption shall be in favor
of a grant of power to the Board of Trustees.
(b) Other Business Interests. The Trustees shall devote to the affairs of the
Trust (including every Series thereof) such time as may be necessary for
the proper performance of their duties hereunder, but neither the Trustees
nor the officers, directors, shareholders, partners or employees of the
Trustees, if any, shall be expected to devote their full time to the
performance of such duties. The Trustees, or any Affiliate, shareholder,
officer, director, partner or employee thereof, or any Person owning a
legal or beneficial interest therein, may engage in, or possess an interest
in, any business or venture other than the Trust or any Series thereof, of
any nature and description, independently or with or for the account of
others. None of the Trust, any Series thereof or any Shareholder shall have
the right to participate or share in such other business or venture or any
profit or compensation derived therefrom.
(c) Quorum and Required Vote. At all meetings of the Board of Trustees, a
majority of the Board of Trustees then in office shall be present in person
in order to constitute a quorum for the transaction of business. A meeting
at which a quorum is initially present may continue to transact business
notwithstanding the departure of Trustees from the meeting, if any action
taken is approved by at least a majority of the required quorum for that
meeting. Subject to Article III, Sections 1 and 6 of the By-Laws and except
as otherwise provided herein or required by applicable law, the vote of not
less than a majority of the Trustees present at a meeting at which a quorum
is present shall be the act of the Board of Trustees.
Section 4. Payment of Expenses by the Trust. Subject to the provisions of
Article III, Section 6 hereof, an authorized officer of the Trust shall pay or
cause to be paid out of the principal or income of the Trust or any particular
Series or Class thereof, or partly out of the principal and partly out of the
income of the Trust or any particular Series or Class thereof, and charge or
allocate the same to, between or among such one or more of the Series or Classes
that may be established or designated pursuant to Article III, Section 6 hereof,
as such officer deems fair, all expenses, fees, charges, taxes and liabilities
incurred by or arising in connection with the maintenance or operation of the
Trust or a particular Series or Class thereof, or in connection with the
management thereof, including, but not limited to, the Trustees' compensation
and such expenses, fees, charges, taxes and liabilities associated with the
services of the Trust's officers, employees, Investment Adviser(s), Principal
Underwriter, auditors, counsel, custodian, sub-custodian, transfer agent,
dividend disbursing agent, shareholder servicing agent, and such other agents or
independent contractors and such other expenses, fees, charges, taxes and
liabilities as the Board of Trustees may deem necessary or proper to incur.
Section 5. Ownership of Trust Property. Legal title to all of the Trust
Property shall at all times be vested in the Trust, except that the Board of
Trustees shall have the power to cause legal title to any Trust Property to be
held by or in the name of any Person as nominee, on such terms as the Board of
Trustees may determine, in accordance with applicable law.
Section 6. Service Contracts.
(a) Subject to this Declaration of Trust, the By-Laws and the 1940 Act, the
Board of Trustees may, at any time and from time to time, contract for
exclusive or nonexclusive investment advisory or investment management
services for the Trust or for any Series thereof with any corporation,
trust, association or other organization, including any Affiliate; and any
such contract may contain such other terms as the Board of Trustees may
determine, including without limitation, delegation of authority to the
Investment Adviser to determine from time to time without prior
consultation with the Board of Trustees what securities and other
instruments or property shall be purchased or otherwise acquired, owned,
held, invested or reinvested in, sold, exchanged, transferred, mortgaged,
pledged, assigned, negotiated, or otherwise dealt with or disposed of, and
what portion, if any, of the Trust Property shall be held uninvested and to
make changes in the Trust's or a particular Series' investments, or to
engage in such other activities, including administrative services, as may
specifically be delegated to such party.
(b) The Board of Trustees may also, at any time and from time to time, contract
with any Person, including any Affiliate, appointing it or them as the
exclusive or nonexclusive placement agent, distributor or Principal
Underwriter for the Shares of beneficial interest of the Trust or one or
more of the Series or Classes thereof, or for other securities or financial
instruments to be issued by the Trust, or appointing it or them to act as
the administrator, fund accountant or accounting agent, custodian, transfer
agent, dividend disbursing agent and/or shareholder servicing agent for the
Trust or one or more of the Series or Classes thereof.
(c) The Board of Trustees is further empowered, at any time and from time to
time, to contract with any Persons, including any Affiliates, to provide
such other services to the Trust or one or more of its Series, as the Board
of Trustees determines to be in the best interests of the Trust, such
Series and its Shareholders.
(d) The Trustees, on behalf of the Trust or any Series or Class, may enter into
one or more contracts for processing Creation Units.
(e) None of the following facts or circumstances shall affect the validity of
any of the contracts provided for in this Article IV, Section 6, or
disqualify any Shareholder, Trustee, employee or officer of the Trust from
voting upon or executing the same, or create any liability or
accountability to the Trust, any Series thereof or the Shareholders,
provided that the establishment of and performance of each such contract is
permissible under the 1940 Act, and provided further that such Person is
authorized to vote upon such contract under the 1940 Act:
(i) the fact that any of the Shareholders, Trustees, employees or officers
of the Trust is a shareholder, director, officer, partner, trustee,
employee, manager, Adviser, placement agent, Principal Underwriter,
distributor, or Affiliate or agent of or for any Person, or for any
parent or Affiliate of any Person, with which any type of service
contract provided for in this Article IV, Section 6 may have been or
may hereafter be made, or that any such Person, or any parent or
Affiliate thereof, is a Shareholder or has an interest in the Trust,
or
(ii) the fact that any Person with which any type of service contract
provided for in this Article IV, Section 6 may have been or may
hereafter be made also has such a service contract with one or more
other Persons, or has other business or interests.
(f) Every contract referred to in this Section 6 is required to comply with
this Declaration of Trust, the By-Laws, the 1940 Act, other applicable law
and any stipulation by resolution of the Board of Trustees.
ARTICLE V
SHAREHOLDERS' VOTING POWERS AND MEETINGS
Section 1. Voting Powers. Subject to the provisions of Article III, Section
6 hereof, the Shareholders shall have the power to vote only (i) on such matters
required by this Declaration of Trust, the By-Laws, the 1940 Act, other
applicable law and any registration statement of the Trust filed with the
Commission, the registration of which is effective; and (ii) on such other
matters as the Board of Trustees may consider necessary or desirable. Subject to
Article III hereof, the Shareholder of record (as of the record date established
pursuant to Section 4 of this Article V) of each Share shall be entitled to one
vote for each full Share, and a fractional vote for each fractional Share.
Shareholders shall not be entitled to cumulative voting in the election of
Trustees or on any other matter.
Section 2. Quorum and Required Vote.
(a) Forty percent (40%) of the outstanding Shares entitled to vote at a
Shareholders' meeting, which are present in person or represented by proxy,
shall constitute a quorum at the Shareholders' meeting, except when a
larger quorum is required by this Declaration of Trust, the By-Laws,
applicable law or the requirements of any securities exchange on which
Shares are listed for trading, in which case such quorum shall comply with
such requirements. When a separate vote by one or more Series or Classes is
required, forty percent (40%) of the outstanding Shares of each such Series
or Class entitled to vote at a Shareholders' meeting of such Series or
Class, which are present in person or represented by proxy, shall
constitute a quorum at the Shareholders' meeting of such Series or Class,
except when a larger quorum is required by this Declaration of Trust, the
By-Laws, applicable law or the requirements of any securities exchange on
which Shares of such Series or Class are listed for trading, in which case
such quorum shall comply with such requirements.
(b) Subject to the provisions of Article III, Section 6(d), when a quorum is
present at any meeting, a majority of the votes cast 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. Pursuant to Article III, Section 6(d) hereof, where a
separate vote by Series and, if applicable, by Class is required, the
preceding sentence shall apply to such separate votes by Series and
Classes.
(c) Abstentions and broker non-votes will be treated as votes present at a
Shareholders' meeting; abstentions and broker non-votes will not be treated
as votes cast at such meeting. Abstentions and broker non-votes, therefore
(i) will be included for purposes of determining whether a quorum is
present; and (ii) will have no effect on proposals that require a plurality
for approval, or on proposals requiring an affirmative vote of a majority
of votes cast for approval.
Section 3. Shareholder Action by Written Consent Without a Meeting. Any
action which may be taken at any meeting of Shareholders may be taken without a
meeting if a consent or consents in writing setting forth the action so taken is
or are signed by the holders of a majority of the Shares entitled to vote on
such action (or such different proportion thereof as shall be required by law,
the Declaration of Trust or the By-Laws for approval of such action) and is or
are received by the secretary of the Trust either: (i) by the date set by
resolution of the Board of Trustees for the shareholder vote on such action; or
(ii) if no date is set by resolution of the Board, within 30 days after the
record date for such action as determined by reference to Article V, Section
4(b) hereof. The written consent for any such action may be executed in one or
more counterparts, each of which shall be deemed an original, and all of which
when taken together shall constitute one and the same instrument. A consent
transmitted by electronic transmission (as defined in the DSTA) by a Shareholder
or by a Person or Persons authorized to act for a Shareholder shall be deemed to
be written and signed for purposes of this Section. All such consents shall be
filed with the secretary of the Trust and shall be maintained in the Trust's
records. Any Shareholder that has given a written consent or the Shareholder's
proxyholder or a personal representative of the Shareholder or its respective
proxyholder may revoke the consent by a writing received by the secretary of the
Trust either: (i) before the date set by resolution of the Board of Trustees for
the shareholder vote on such action; or (ii) if no date is set by resolution of
the Board, within 30 days after the record date for such action as determined by
reference to Article V, Section 4(b) hereof.
Section 4. Record Dates.
(a) For purposes of determining the Shareholders entitled to notice of, and to
vote at, any meeting of Shareholders, the Board of Trustees may fix a
record date, which record date shall not precede the date upon which the
resolution fixing the record date is adopted by the Board of Trustees, and
which record date shall not be more than one hundred and twenty (120) days
nor less than ten (10) days before the date of any such meeting. A
determination of Shareholders of record entitled to notice of or to vote at
a meeting of Shareholders shall apply to any adjournment of the meeting;
provided, however, that the Board of Trustees may fix a new record date for
the adjourned meeting and shall fix a new record date for any meeting that
is adjourned for more than sixty (60) days from the date set for the
original meeting. For purposes of determining the Shareholders entitled to
vote on any action without a meeting, the Board of Trustees may fix a
record date, which record date shall not precede the date upon which the
resolution fixing the record date is adopted by the Board of Trustees, and
which record date shall not be more than thirty (30) days after the date
upon which the resolution fixing the record date is adopted by the Board of
Trustees.
(b) If the Board of Trustees does not so fix a record date:
(i) the record date for determining Shareholders entitled to notice of,
and to vote at, a meeting of Shareholders shall be at the close of
business on the day next preceding the day on which notice is given
or, if notice is waived, at the close of business on the day next
preceding the day on which the meeting is held.
(ii) the record date for determining Shareholders entitled to vote on any
action by consent in writing without a meeting of Shareholders, (1)
when no prior action by the Board of Trustees has been taken, shall be
the day on which the first signed written consent setting forth the
action taken is delivered to the Trust, or (2) when prior action of
the Board of Trustees has been taken, shall be at the close of
business on the day on which the Board of Trustees adopts the
resolution taking such prior action.
(c) For the purpose of determining the Shareholders of the Trust or any Series
or Class thereof who are entitled to receive payment of any dividend or of
any other distribution of assets of the Trust or any Series or Class
thereof (other than in connection with a dissolution of the Trust or a
Series, a merger, consolidation, conversion, reorganization, or any other
transactions, in each case that is governed by Article VIII of the
Declaration of Trust), the Board of Trustees may:
(i) from time to time fix a record date, which record date shall not
precede the date upon which the resolution fixing the record date is
adopted, and which record date shall not be more than sixty (60) days
before the date for the payment of such dividend and/or such other
distribution;
(ii) adopt standing resolutions fixing record dates and related payment
dates at periodic intervals of any duration for the payment of such
dividend and/or such other distribution; and/or
(iii) delegate to an appropriate officer or officers of the Trust the
determination of such periodic record and/or payments dates with
respect to such dividend and/or such other distribution.
Nothing in this Section shall be construed as precluding the Board of Trustees
from setting different record dates for different Series or Classes.
Section 5. Additional Provisions. The By-Laws may include further
provisions for Shareholders' votes, meetings and related matters.
ARTICLE VI
NET ASSET VALUE; DISTRIBUTIONS;
REDEMPTIONS; TRANSFERS
Section 1. Determination of Net Asset Value, Net Income and Distributions.
(a) Subject to Article III, Section 6 hereof, the Board of Trustees shall have
the power to determine from time to time the offering price for authorized,
but unissued, Shares of beneficial interest of the Trust or any Series or
Class thereof, respectively, that shall yield to the Trust or such Series
or Class not less than the net asset value thereof, in addition to any
amount of applicable sales charge to be paid to the Principal Underwriter
or the selling broker or dealer in connection with the sale of such Shares,
at which price the Shares of the Trust or such Series or Class,
respectively, shall be offered for sale, subject to any other requirements
or limitations of the 1940 Act.
(b) Subject to Article III, Section 6 hereof, the Board of Trustees may,
subject to the 1940 Act, prescribe and shall set forth in the By-Laws, this
Declaration of Trust or in a resolution of the Board of Trustees such bases
and time for determining the net asset value per Share of the Trust or any
Series or Class thereof, or net income attributable to the Shares of the
Trust or any Series or Class thereof or the declaration and payment of
dividends and distributions on the Shares of the Trust or any Series or
Class thereof, as it may deem necessary or desirable, and such dividends
and distributions may vary between the Classes to reflect differing
allocations of the expenses of the Trust between such Classes to such
extent and for such purposes as the Trustees may deem appropriate.
(c) The Shareholders of the Trust or any Series or Class, if any, shall be
entitled to receive dividends and distributions, when, if and as declared
by the Board of Trustees with respect thereto, provided that with respect
to Classes, such dividends and distributions shall comply with the 1940
Act. The right of Shareholders to receive dividends or other distributions
on Shares of any Class may be set forth in a plan adopted by the Board of
Trustees and amended from time to time pursuant to the 1940 Act. No Share
shall have any priority or preference over any other Share of the Trust
with respect to dividends or distributions paid in the ordinary course of
business or distributions upon dissolution of the Trust made pursuant to
Article VIII, Section 1 hereof; provided however, that
(i) if the Shares of the Trust are divided into Series thereof, no Share
of a particular Series shall have any priority or preference over any
other Share of the same Series with respect to dividends or
distributions paid in the ordinary course of business or distributions
upon dissolution of the Trust or of such Series made pursuant to
Article VIII, Section 1 hereof;
(ii) if the Shares of the Trust are divided into Classes thereof, no Share
of a particular Class shall have any priority or preference over any
other Share of the same Class with respect to dividends or
distributions paid in the ordinary course of business or distributions
upon dissolution of the Trust made pursuant to Article VIII, Section 1
hereof; and
(iii) if the Shares of a Series are divided into Classes thereof, no Share
of a particular Class of such Series shall have any priority or
preference over any other Share of the same Class of such Series with
respect to dividends or distributions paid in the ordinary course of
business or distributions upon dissolution of such Series made
pursuant to Article VIII, Section 1 hereof.
All dividends and distributions shall be made ratably among all Shareholders of
the Trust, a particular Class of the Trust, a particular Series, or a particular
Class of a Series from the Trust Property held with respect to the Trust, such
Series or such Class, respectively, according to the number of Shares of the
Trust, such Series or such Class held of record by such Shareholders on the
record date for any dividend or distribution; provided however, that
(iv) if the Shares of the Trust are divided into Series thereof, all
dividends and distributions from the Trust Property and, if
applicable, held with respect to such Series, shall be distributed to
each Series thereof according to the net asset value computed for such
Series and within such particular Series, shall be distributed ratably
to the Shareholders of such Series according to the number of Shares
of such Series held of record by such Shareholders on the record date
for any dividend or distribution; and
(v) if the Shares of the Trust or of a Series are divided into Classes
thereof, all dividends and distributions from the Trust Property and,
if applicable, held with respect to the Trust or such Series, shall be
distributed to each Class thereof according to the net asset value
computed for such Class and within such particular Class, shall be
distributed ratably to the Shareholders of such Class according to the
number of Shares of such Class held of record by such Shareholders on
the record date for any dividend or distribution.
Dividends and distributions may be paid in cash, in kind or in Shares.
(d) Before payment of any dividend there may be set aside out of any funds of
the Trust, or the applicable Series thereof, available for dividends such
sum or sums as the Board of Trustees may from time to time, in its absolute
discretion, think proper as a reserve fund to meet contingencies, or for
equalizing dividends, or for repairing or maintaining any property of the
Trust, or any Series thereof, or for such other lawful purpose as the Board
of Trustees shall deem to be in the best interests of the Trust, or the
applicable Series, as the case may be, and the Board of Trustees may
abolish any such reserve in the manner in which the reserve was created.
Section 2. Redemptions at the Option of a Shareholder. Unless otherwise
provided in the prospectus of the Trust relating to the Shares, as such
prospectus may be amended from time to time:
(a) 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 and/or in accordance with such
other procedures for redemption as the Board of Trustees may from time to
time authorize. If certificates have been issued to a Shareholder, any
request for redemption by such Shareholder must be accompanied by surrender
of any outstanding certificate or certificates for such Shares in form for
transfer, together with such proof of the authenticity of signatures as may
reasonably be required on such Shares and accompanied by proper stock
transfer stamps, if applicable. The Shares of any Series, if the Trustees
so determine, shall be redeemable only in such Creation Unit aggregations
and on such days as the Trustees determine or as determined pursuant to
procedures or methods the Trustees prescribe or approve from time to time
with respect to such Series. Each holder of a Creation Unit, on request to
the Trust in accordance with procedures the Trustees establish, shall be
entitled to require the Trust to redeem all or any number of such holder's
Shares standing in the holder's name on the Trust's books (but only in full
Creation Units in the case of any Series as to which the Trustees have
determined that its Shares shall be redeemable only in full Creation
Units), at a redemption price per share equal to an amount determined by
the Trustees in accordance with applicable laws.
(b) The Trust shall pay for such Shares the net asset value thereof (excluding
any applicable redemption fee or sales load), in accordance with this
Declaration of Trust, the By-Laws, the 1940 Act and other applicable law.
Payments for Shares so redeemed by the Trust shall be made in cash, except
payment for such Shares may, at the option of the Board of Trustees, or
such officer or officers as it may duly authorize in its complete
discretion, be made in kind or partially in cash and partially in kind. In
case of any payment in kind, the Board of Trustees, or its authorized
officers, shall have absolute discretion as to what security or securities
of the Trust or the applicable Series shall be distributed in kind and the
amount of the same; and the securities shall be valued for purposes of
distribution at the value at which they were appraised in computing the
then current net asset value of the Shares, provided that any Shareholder
who cannot legally acquire securities so distributed in kind shall receive
cash to the extent permitted by the 1940 Act. Shareholders shall bear the
expenses of in-kind transactions, including, but not limited to, transfer
agency fees, custodian fees and costs of disposition of such securities.
(c) Payment by the Trust for such redemption of Shares shall be made by the
Trust to the Shareholder within seven days after the date on which the
redemption request is received in proper form and/or such other procedures
authorized by the Board of Trustees are complied with; provided, however,
that if payment shall be made other than exclusively in cash, any
securities to be delivered as part of such payment shall be delivered as
promptly as any necessary transfers of such securities on the books of the
several corporations whose securities are to be delivered practicably can
be made, which may not necessarily occur within such seven-day period. In
no case shall the Trust be liable for any delay of any corporation or other
Person in transferring securities selected for delivery as all or part of
any payment in kind.
(d) The obligations of the Trust set forth in this Section 2 are subject to the
provision that such obligations may be suspended or postponed by the Board
of Trustees (1) during any time the New York Stock Exchange (the
"Exchange") is closed for other than weekends or holidays; (2) if permitted
by the rules of the Commission, during periods when trading on the Exchange
is restricted; or (3) during any National Financial Emergency. The Board of
Trustees may, in its discretion, declare that the suspension relating to a
National Financial Emergency shall terminate, as the case may be, on the
first business day on which the Exchange shall have reopened or the period
specified above shall have expired (as to which, in the absence of an
official ruling by the Commission, the determination of the Board of
Trustees shall be conclusive).
(e) The right of any Shareholder of the Trust or any Series or Class thereof to
receive dividends or other distributions on Shares redeemed and all other
rights of such Shareholder with respect to the Shares so redeemed, except
the right of such Shareholder to receive payment for such Shares, shall
cease at the time the purchase price of such Shares shall have been fixed,
as provided above.
Section 3. Redemptions at the Option of the Trust. At the option of the
Board of Trustees the Trust may, from time to time, without the vote of the
Shareholders, but subject to the 1940 Act, redeem Shares or authorize the
closing of any Shareholder account, subject to such conditions as may be
established from time to time by the Board of Trustees.
Section 4. Transfer of Shares. Shares shall be transferable in accordance
with the provisions of the By-Laws.
ARTICLE VII
LIMITATION OF LIABILITY
AND INDEMNIFICATION OF AGENT
Section 1. Limitation of Liability.
(a) For the purpose of this Article, "Agent" means any Person who is or was a
Trustee, officer, employee or other agent of the Trust or is or was serving
at the request of the Trust as a trustee, director, officer, employee or
other agent of another foreign or domestic corporation, partnership, joint
venture, trust or other enterprise; "Proceeding" means any threatened,
pending or completed action or proceeding, whether civil, criminal,
administrative or investigative; and "Expenses" include without limitation
attorneys' fees and any expenses of establishing a right to indemnification
under this Article.
(b) An Agent shall be liable to the Trust and to any Shareholder for any act or
omission that constitutes a bad faith violation of the implied contractual
covenant of good faith and fair dealing, for such Agent's own willful
misfeasance, bad faith, gross negligence or reckless disregard of the
duties involved in the conduct of such Agent (such conduct referred to
herein as "Disqualifying Conduct"), and for nothing else.
(c) Subject to subsection (b) of this Section 1 and to the fullest extent that
limitations on the liability of Agents are permitted by the DSTA, the
Agents shall not be responsible or liable in any event for any act or
omission of any other Agent of the Trust or any Investment Adviser or
Principal Underwriter of the Trust.
(d) No Agent, when acting in its respective capacity as such, shall be
personally liable to any Person, other than the Trust or a Shareholder to
the extent provided in subsections (b) and (c) of this Section 1, for any
act, omission or obligation of the Trust or any Trustee thereof.
(e) Each Trustee, officer and employee of the Trust shall, in the performance
of his or her duties, be fully and completely justified and protected with
regard to any act or any failure to act resulting from reliance in good
faith upon the books of account or other records of the Trust, upon an
opinion of counsel, or upon reports made to the Trust by any of its
officers or employees or by the Investment Adviser, the Principal
Underwriter, any other Agent, selected dealers, accountants, appraisers or
other experts or consultants selected with reasonable care by the Trustees,
officers or employees of the Trust, regardless of whether such counsel or
expert may also be a Trustee. The officers and Trustees may obtain the
advice of counsel or other experts with respect to the meaning and
operation of this Declaration of Trust, the By-Laws, applicable law and
their respective duties as officers or Trustees. No such officer or Trustee
shall be liable for any act or omission in accordance with such advice,
records and/or reports and no inference concerning liability shall arise
from a failure to follow such advice, records and/or reports. The officers
and Trustees shall not be required to give any bond hereunder, nor any
surety if a bond is required by applicable law.
(f) The failure to make timely collection of dividends or interest, or to take
timely action with respect to entitlements, on the Trust's securities
issued in emerging countries, shall not be deemed to be negligence or other
fault on the part of any Agent, and no Agent shall have any liability for
such failure or for any loss or damage resulting from the imposition by any
government of exchange control restrictions which might affect the
liquidity of the Trust's assets or from any war or political act of any
foreign government to which such assets might be exposed, except, in the
case of a Trustee or officer, for liability resulting from such Trustee's
or officer's Disqualifying Conduct.
(g) The limitation on liability contained in this Article applies to events
occurring at the time a Person serves as an Agent whether or not such
Person is an Agent at the time of any Proceeding in which liability is
asserted.
(h) No amendment or repeal of this Article shall adversely affect any right or
protection of an Agent that exists at the time of such amendment or repeal.
Section 2. Indemnification.
(a) Indemnification by Trust. The Trust shall indemnify, out of Trust Property,
to the fullest extent permitted under applicable law, any Person who was or
is a party or is threatened to be made a party to any Proceeding by reason
of the fact that such Person is or was an Agent of the Trust, against
Expenses, judgments, fines, settlements and other amounts actually and
reasonably incurred in connection with such Proceeding if such Person acted
in good faith or in the case of a criminal proceeding, had no reasonable
cause to believe the conduct of such Person was unlawful. The termination
of any Proceeding by judgment, order, settlement, conviction or plea of
nolo contendere or its equivalent shall not of itself create a presumption
that the Person did not act in good faith or that the Person had reasonable
cause to believe that the Person's conduct was unlawful.
(b) Exclusion of Indemnification. Notwithstanding any provision to the contrary
contained herein, there shall be no right to indemnification for any
liability arising by reason of the Agent's Disqualifying Conduct. In
respect of any claim, issue or matter as to which that Person shall have
been adjudged to be liable in the performance of that Person's duty to the
Trust or the Shareholders, indemnification shall be made only to the extent
that the court in which that action was brought shall determine, upon
application or otherwise, that in view of all the circumstances of the
case, that Person was not liable by reason of that Person's Disqualifying
Conduct.
(c) Required Approval. Any indemnification under this Article shall be made by
the Trust if authorized in the specific case on a determination that
indemnification of the Agent is proper in the circumstances by (i) a final
decision on the merits by a court or other body before whom the proceeding
was brought that the Agent was not liable by reason of Disqualifying
Conduct (including, but not limited to, dismissal of either a court action
or an administrative proceeding against the Agent for insufficiency of
evidence of any Disqualifying Conduct) or, (ii) in the absence of such a
decision, a reasonable determination, based upon a review of the facts,
that the Agent was not liable by reason of Disqualifying Conduct, by (1)
the vote of a majority of a quorum of the Trustees who are not (x)
"interested persons" of the Trust as defined in Section 2(a)(19) of the
1940 Act, (y) parties to the proceeding, or (z) parties who have any
economic or other interest in connection with such specific case (the
"disinterested, non-party Trustees"); or (2) by independent legal counsel
in a written opinion.
(d) Advancement of Expenses. Expenses incurred by an Agent in defending any
Proceeding may be advanced by the Trust before the final disposition of the
Proceeding on receipt of an undertaking by or on behalf of the Agent to
repay the amount of the advance if it shall be determined ultimately that
the Agent is not entitled to be indemnified as authorized in this Article;
provided, that at least one of the following conditions for the advancement
of expenses is met: (i) the Agent shall provide a security for his
undertaking, (ii) the Trust shall be insured against losses arising by
reason of any lawful advances, or (iii) a majority of a quorum of the
disinterested, non-party Trustees of the Trust, or an independent legal
counsel in a written opinion, shall determine, based on a review of readily
available facts (as opposed to a full trial-type inquiry), that there is
reason to believe that the Agent ultimately will be found entitled to
indemnification.
(e) Other Contractual Rights. Nothing contained in this Article shall affect
any right to indemnification to which Persons other than Trustees and
officers of the Trust or any subsidiary thereof may be entitled by contract
or otherwise.
(f) Fiduciaries of Employee Benefit Plan. This Article does not apply to any
Proceeding against any trustee, investment manager or other fiduciary of an
employee benefit plan in that Person's capacity as such, even though that
Person may also be an Agent of the Trust as defined in Section 1 of this
Article. Nothing contained in this Article shall limit any right to
indemnification to which such a trustee, investment manager, or other
fiduciary may be entitled by contract or otherwise which shall be
enforceable to the extent permitted by applicable law other than this
Article.
Section 3. Insurance. To the fullest extent permitted by applicable law,
the Board of Trustees shall have the authority to purchase with Trust Property,
insurance for liability and for all Expenses reasonably incurred or paid or
expected to be paid by an Agent in connection with any Proceeding in which such
Agent becomes involved by virtue of such Agent's actions, or omissions to act,
in its capacity or former capacity with the Trust, whether or not the Trust
would have the power to indemnify such Agent against such liability.
Section 4. Derivative Actions. Subject to the requirements set forth in
Section 3816 of the DSTA, a Shareholder or Shareholders may bring a derivative
action on behalf of the Trust only if the Shareholder or Shareholders first make
a pre-suit demand upon the Board of Trustees to bring the subject action unless
an effort to cause the Board of Trustees to bring such action is excused. A
demand on the Board of Trustees shall only be excused if a majority of the Board
of Trustees, or a majority of any committee established to consider the merits
of such action, has a material personal financial interest in the action at
issue. A Trustee shall not be deemed to have a material personal financial
interest in an action or otherwise be disqualified from ruling on a Shareholder
demand by virtue of the fact that such Trustee receives remuneration from his or
her service on the Board of Trustees of the Trust or on the boards of one or
more investment companies with the same or an affiliated investment adviser or
underwriter.
ARTICLE VIII
CERTAIN TRANSACTIONS
Section 1. Dissolution of Trust or Series. The Trust and each Series shall
have perpetual existence, except that the Trust (or a particular Series) shall
be dissolved:
(a) With respect to the Trust, (i) upon the vote of the holders of not less
than a majority of the Shares of the Trust cast, or (ii) at the discretion
of the Board of Trustees either (A) at any time there are no Shares
outstanding of the Trust, or (B) upon prior written notice to the
Shareholders of the Trust; or
(b) With respect to a particular Series, (i) upon the vote of the holders of
not less than a majority of the Shares of such Series cast, or (ii) at the
discretion of the Board of Trustees either (A) at any time there are no
Shares outstanding of such Series, or (B) upon prior written notice to the
Shareholders of such Series; or
(c) With respect to the Trust (or a particular Series), upon the occurrence of
a dissolution or termination event pursuant to any other provision of this
Declaration of Trust (including Article VIII, Section 2) or the DSTA; or
(d) With respect to any Series, upon any event that causes the dissolution of
the Trust.
Upon dissolution of the Trust (or a particular Series, as the case may be),
the Board of Trustees shall (in accordance with Section 3808 of the DSTA) pay or
make reasonable provision to pay all claims and obligations of the Trust and/or
each Series (or the particular Series, as the case may be), including all
contingent, conditional or unmatured claims and obligations known to the Trust,
and all claims and obligations which are known to the Trust, but for which the
identity of the claimant is unknown. If there are sufficient assets held with
respect to the Trust and/or each Series of the Trust (or the particular Series,
as the case may be), such claims and obligations shall be paid in full and any
such provisions for payment shall be made in full. If there are insufficient
assets held with respect to the Trust and/or each Series of the Trust (or the
particular Series, as the case may be), such claims and obligations shall be
paid or provided for according to their priority and, among claims and
obligations of equal priority, ratably to the extent of assets available
therefor. Any remaining assets (including, without limitation, cash, securities
or any combination thereof) held with respect to the Trust and/or each Series of
the Trust (or the particular Series, as the case may be) shall be distributed to
the Shareholders of the Trust and/or each Series of the Trust (or the particular
Series, as the case may be) ratably according to the number of Shares of the
Trust and/or such Series thereof (or the particular Series, as the case may be)
held of record by the several Shareholders on the date for such dissolution
distribution; provided, however, that if the Shares of the Trust or a Series are
divided into Classes thereof, any remaining assets (including, without
limitation, cash, securities or any combination thereof) held with respect to
the Trust or such Series, as applicable, shall be distributed to each Class of
the Trust or such Series according to the net asset value computed for such
Class and within such particular Class, shall be distributed ratably to the
Shareholders of such Class according to the number of Shares of such Class held
of record by the several Shareholders on the date for such dissolution
distribution. Upon the winding up of the Trust in accordance with Section 3808
of the DSTA and its termination, any one (1) Trustee shall execute, and cause to
be filed, a certificate of cancellation, with the office of the Secretary of
State of the State of Delaware in accordance with the provisions of Section 3810
of the DSTA.
Section 2. Merger or Consolidation; Conversion; Reorganization.
(a) Merger or Consolidation. Pursuant to an agreement of merger or
consolidation, the Board of Trustees, by vote of a majority of the
Trustees, may cause the Trust to merge or consolidate with or into one or
more statutory trusts or "other business entities" (as defined in Section
3801 of the DSTA) formed or organized or existing under the laws of the
State of Delaware or any other state of the United States or any foreign
country or other foreign jurisdiction. Any such merger or consolidation
shall not require the vote of the Shareholders unless such vote is required
by the 1940 Act; provided however, that the Board of Trustees shall provide
at least thirty (30) days' prior written notice to the Shareholders of such
merger or consolidation. By reference to Section 3815(f) of the DSTA, any
agreement of merger or consolidation approved in accordance with this
Section 2(a) may, without a Shareholder vote, unless required by the 1940
Act, the requirements of any securities exchange on which Shares are listed
for trading or any other provision of this Declaration of Trust or the
By-Laws, effect any amendment to this Declaration of Trust or the By-Laws
or effect the adoption of a new governing instrument if the Trust is the
surviving or resulting statutory trust in the merger or consolidation,
which amendment or new governing instrument shall be effective at the
effective time or date of the merger or consolidation. In all respects not
governed by the DSTA, the 1940 Act, other applicable law or the
requirements of any securities exchange on which Shares are listed for
trading, the Board of Trustees shall have the power to prescribe additional
procedures necessary or appropriate to accomplish a merger or
consolidation, including the power to create one or more separate statutory
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 into beneficial interests in such separate statutory trust or
trusts. Upon completion of the merger or consolidation, if the Trust is the
surviving or resulting statutory trust, any one (1) Trustee shall execute,
and cause to be filed, a certificate of merger or consolidation in
accordance with Section 3815 of the DSTA.
(b) Conversion. The Board of Trustees, by vote of a majority of the Trustees,
may cause (i) the Trust to convert to an "other business entity" (as
defined in Section 3801 of the DSTA) formed or organized under the laws of
the State of Delaware as permitted pursuant to Section 3821 of the DSTA;
(ii) the Shares of the Trust or any Series to be converted into beneficial
interests in another statutory trust (or series thereof) created pursuant
to this Section 2 of this Article VIII, or (iii) the Shares to be exchanged
under or pursuant to any state or federal statute to the extent permitted
by law. Any such statutory conversion, Share conversion or Share exchange
shall not require the vote of the Shareholders unless such vote is required
by the 1940 Act; provided however, that the Board of Trustees shall provide
at least thirty (30) days' prior written notice to the Shareholders of the
Trust of any conversion of Shares of the Trust pursuant to Subsections
(b)(i) or (b)(ii) of this Section 2 or exchange of Shares of the Trust
pursuant to Subsection (b)(iii) of this Section 2, and at least thirty (30)
days' prior written notice to the Shareholders of a particular Series of
any conversion of Shares of such Series pursuant to Subsection (b)(ii) of
this Section 2 or exchange of Shares of such Series pursuant to Subsection
(b)(iii) of this Section 2. In all respects not governed by the DSTA, the
1940 Act, other applicable law or the requirements of any securities
exchange on which Shares are listed for trading, the Board of Trustees
shall have the power to prescribe additional procedures necessary or
appropriate to accomplish a statutory conversion, Share conversion or Share
exchange, including the power to create one or more separate statutory
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 thereof into beneficial interests in such
separate statutory trust or trusts (or series thereof).
(c) Reorganization. The Board of Trustees, by vote of a majority of the
Trustees, may cause the Trust to sell, convey and transfer all or
substantially all of the assets of the Trust ("sale of Trust assets") or
all or substantially all of the assets associated with any one or more
Series ("sale of such Series' assets"), to another trust, statutory trust,
partnership, limited partnership, limited liability company, corporation or
other association organized under the laws of any state, or to one or more
separate series thereof, or to the Trust to be held as assets associated
with one or more other Series of the Trust, in exchange for cash, shares or
other securities (including, without limitation, in the case of a transfer
to another Series of the Trust, Shares of such other Series) with such
sale, conveyance and transfer either (a) being made subject to, or with the
assumption by the transferee of, the liabilities associated with the Trust
or the liabilities associated with the Series the assets of which are so
transferred, as applicable, or (b) not being made subject to, or not with
the assumption of, such liabilities. Any such sale, conveyance and transfer
shall not require the vote of the Shareholders unless such vote is required
by the 1940 Act; provided however, that the Board of Trustees shall provide
at least thirty (30) days' prior written notice to the Shareholders of the
Trust of any such sale of Trust assets, and at least thirty (30) days prior
written notice to the Shareholders of a particular Series of any sale of
such Series' assets. Following such sale of Trust assets, the Board of
Trustees shall distribute such cash, shares or other securities ratably
among the Shareholders of the Trust (giving due effect to the assets and
liabilities associated with and any other differences among the various
Series the assets associated with which have been so sold, conveyed and
transferred, and due effect to the differences among the various Classes
within each such Series). Following a sale of such Series' assets, the
Board of Trustees shall distribute such cash, shares or other securities
ratably among the Shareholders of such Series (giving due effect to the
differences among the various Classes within each such Series). If all of
the assets of the Trust have been so sold, conveyed and transferred, the
Trust shall be dissolved; and if all of the assets of a Series have been so
sold, conveyed and transferred, such Series and the Classes thereof shall
be dissolved. In all respects not governed by the DSTA, the 1940 Act or
other applicable law, the Board of Trustees shall have the power to
prescribe additional procedures necessary or appropriate to accomplish such
sale, conveyance and transfer, including the power to create one or more
separate statutory 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 into beneficial interests in such
separate statutory trust or trusts.
Section 3. Master Feeder Structure. If permitted by the 1940 Act, the Board
of Trustees, by vote of a majority of the Trustees, and without a Shareholder
vote, may cause the Trust or any one or more Series to convert to a master
feeder structure (a structure in which a feeder fund invests all of its assets
in a master fund, rather than making investments in securities directly) and
thereby cause existing Series of the Trust to either become feeders in a master
fund, or to become master funds in which other funds are feeders.
Section 4. Absence of Appraisal or Dissenters' Rights. No Shareholder shall
be entitled, as a matter of right, to relief as a dissenting Shareholder in
respect of any proposal or action involving the Trust or any Series or any Class
thereof.
ARTICLE IX
AMENDMENTS
Section 1. Amendments Generally. This Declaration of Trust may be restated
and/or amended at any time by an instrument in writing signed by not less than a
majority of the Board of Trustees and, to the extent required by this
Declaration of Trust, the 1940 Act or the requirements of any securities
exchange on which Shares are listed for trading, by approval of such amendment
by the Shareholders in accordance with Article III, Section 6 hereof and Article
V hereof. Any such restatement and/or amendment hereto shall be effective
immediately upon execution and approval or upon such future date and time as may
be stated therein. The Certificate of Trust shall be restated and/or amended at
any time by the Board of Trustees, without Shareholder approval, to correct any
inaccuracy contained therein. Any such restatement and/or amendment of the
Certificate of Trust shall be executed by at least one (1) Trustee and shall be
effective immediately upon its filing with the office of the Secretary of State
of the State of Delaware or upon such future date as may be stated therein.
ARTICLE X
MISCELLANEOUS
Section 1. References; Headings; Counterparts. In this Declaration of Trust
and in any restatement hereof and/or amendment hereto, references to this
instrument, and all expressions of similar effect to "herein," "hereof and
"hereunder," shall be deemed to refer to this instrument as so restated and/or
amended. 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. Any references herein to specific sections of
the DSTA, the Code or the 1940 Act shall refer to such sections as amended from
time to time or any successor sections thereof. This instrument may be executed
in any number of counterparts, each of which shall be deemed an original.
Section 2. Applicable Law. This Declaration of Trust is created under and
is to be governed by and construed and administered according to the laws of the
State of Delaware and the applicable provisions of the 1940 Act and the Code.
The Trust shall be a Delaware statutory trust pursuant to the DSTA, and without
limiting the provisions hereof, the Trust may exercise all powers which are
ordinarily exercised by such a statutory trust.
Section 3. Provisions in Conflict with Law or Regulations.
(a) The provisions of this Declaration of Trust are severable, and if the Board
of Trustees shall determine, with the advice of counsel, that any of such
provisions is in conflict with the 1940 Act, the Code, the DSTA, or with
other applicable laws and regulations, the conflicting provision shall be
deemed not to have constituted a part of this Declaration of Trust from the
time when such provisions became inconsistent with such laws or
regulations; provided, however, that such determination shall not affect
any of the remaining provisions of this Declaration of Trust or render
invalid or improper any action taken or omitted prior to such
determination.
(b) If any provision of this Declaration of Trust shall be held invalid or
unenforceable in any jurisdiction, such invalidity or unenforceability
shall attach only to such provision in such jurisdiction and shall not in
any manner affect such provision in any other jurisdiction or any other
provision of this Declaration of Trust in any jurisdiction.
Section 4. Statutory Trust Only. It is the intention of the Trustees to
create hereby a statutory trust pursuant to the DSTA, and thereby to create the
relationship of trustee and beneficial owners within the meaning of the DSTA
between, respectively, the Trustees and each Shareholder. It is not the
intention of the Trustees to create a general or limited partnership, limited
liability company, joint stock association, corporation, bailment, or any form
of legal relationship other than a statutory trust pursuant to the DSTA. 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.
IN WITNESS WHEREOF, the Trustees named below do hereby make and enter into
this Agreement and Declaration of Trust as of the date first written above. This
instrument may be signed in one or more counterparts.
/s/ Xxxxxxx XxXxxxxxx
Xxxxxxx XxXxxxxxx, Trustee
/s/ Xxxxxxxx X. Xxxxxxxx
Xxxxxxxx X. Xxxxxxxx, Trustee
/s/ Xxxxxxx X. Xxxxx
Xxxxxxx X. Xxxxx, Trustee
/s/ Xxxxx X. XxXxxxxxx
Xxxxx X. XxXxxxxxx, Trustee
/s/ Xxxxxxxxx X. Xxxxx, III
Xxxxxxxxx X. Xxxxx, III, Trustee
/s/ Xxxx Xxxxxxxxx
Xxxx Xxxxxxxxx, Trustee
