AGREEMENT AND DECLARATION OF TRUST
of
XXXXXXX XXXXX GLOBAL EQUITY FUND
a Delaware Statutory Trust
Principal Place of Business:
000 Xxxxxxxx Xxxx Xxxx
Xxxxxxxxxx, XX 00000
TABLE OF CONTENTS
Page
ARTICLE I Name and Definitions.......................................................1
Section 1. Name...................................................................1
Section 2. Definitions............................................................1
ARTICLE II Purpose of Trust...........................................................3
ARTICLE III Shares.....................................................................3
Section 1. Division of Beneficial Interest........................................3
Section 2. Ownership of Shares....................................................4
Section 3. Transfer of Shares.....................................................4
Section 4. Investments in the Trust...............................................4
Section 5. Status of Shares and Limitation of Personal Liability..................4
Section 6. Establishment and Designation of Series................................5
Section 7. Indemnification of Shareholders........................................7
ARTICLE IV The Board of Trustees......................................................7
Section 1. Number, Election and Tenure............................................7
Section 2. Effect of Death, Resignation, etc. of a Trustee........................8
Section 3. Powers.................................................................8
Section 4. Chairman of the Board.................................................11
Section 5. Payment of Expenses by the Trust......................................12
Section 6. Payment of Expenses by Shareholders...................................12
Section 7. Ownership of Assets of the Trust......................................12
Section 8. Service Contracts.....................................................12
Section 9. Trustees and Officers as Shareholders.................................14
ARTICLE V Shareholders' Voting Powers and Meetings..................................14
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Section 1. Voting Powers, Meetings, Notice and Record Dates......................14
Section 2. Quorum and Required Vote..............................................15
Section 3. Record Dates..........................................................15
Section 4. Additional Provisions.................................................15
ARTICLE VI Net Asset Value, Distributions and Redemptions............................15
Section 1. Determination of Net Asset Value, Net Income, and Distributions.......15
Section 2. Redemptions and Repurchases...........................................15
ARTICLE VII Compensation and Limitation of Liability of Trustees......................16
Section 1. Compensation..........................................................16
Section 2. Indemnification and Limitation of Liability...........................17
Section 3. Trustee's Good Faith Action, Expert Advice, No Bond or Surety.........17
Section 4. Insurance.............................................................17
ARTICLE VIII Miscellaneous.............................................................18
Section 1. Liability of Third Persons Dealing with Trustees......................18
Section 2. Dissolution and Termination of Trust or Series or Classes.............18
Section 3. Reorganization and Master/Feeder......................................19
Section 4. Amendments............................................................20
Section 5. Filing of Copies, References, Headings, Rules of Construction.........20
Section 6. Applicable Law........................................................21
Section 7. Provisions in Conflict with Law or Regulations........................21
Section 8. Statutory Trust Only..................................................22
Section 9. Derivative Actions....................................................22
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AGREEMENT AND DECLARATION OF TRUST
OF
XXXXXXX XXXXX GLOBAL EQUITY FUND
Dated: April 22, 2005
THIS AGREEMENT AND DECLARATION OF TRUST is made and entered into as of the
date set forth above by the Trustees named hereunder for the purpose of forming
a Delaware statutory trust in accordance with the provisions hereinafter set
forth.
WHEREAS, the Trustees desire to establish a statutory trust under the
Delaware Statutory Trust Act (the "Delaware Act") consisting of one or more
portfolios for the investment and reinvestment of funds contributed thereto.
NOW, THEREFORE, the Trustees hereby direct that the Certificate of Trust
be filed with the Office of the Secretary of State of the State of Delaware and
do hereby declare that the Trustees will hold IN TRUST all cash, securities,
financial instruments and other assets which the Trust now possesses or may
hereafter acquire from time to time in any manner and manage and dispose of the
same upon the following terms and conditions for the benefit of the holders of
Shares in this Trust.
ARTICLE I
Name and Definitions
Section 1. Name. This Trust shall be known as XXXXXXX XXXXX GLOBAL EQUITY
FUND and the Trustees shall conduct the business of the Trust under that name
or any other name as they may from time to time determine; provided that the
Trustees may, without Shareholder approval, change the name of the Trust or any
Series or Class thereof that may be established from time to time. In the event
of any such change, the Trustees shall cause notice to be given to the affected
Shareholders within a reasonable time after the implementation of such change.
Section 2. Definitions. Whenever used herein, unless otherwise required by
the context or specifically provided:
(1) "By-Laws" shall mean the By-Laws of the Trust as amended from time to
time, which By-Laws are expressly herein incorporated by reference as part of
the "governing instrument" within the meaning of the Delaware Act;
(2) "Certificate of Trust" means the certificate of trust, as amended or
restated from time to time, filed by the Trustees in the Office of the
Secretary of State of the State of Delaware in accordance with the Delaware
Act;
(3) "Class" means a class of Shares of the Trust, or of any Series of the
Trust that may be created from time to time, established in accordance with the
provisions of Article III hereof;
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(4) "Commission" shall mean the Securities and Exchange Commission;
(5) "Declaration of Trust" means this Agreement and Declaration of Trust,
as amended, supplemented or restated from time to time;
(6) "Delaware Act" means the Delaware Statutory Trust Act, 12 Del. C.,
Sections 3801 et seq., as amended from time to time;
(7) "Interested Person" shall have the meaning given it in Section
2(a)(19) of the 1940 Act;
(8) "Investment Manager" or "Manager" means a party furnishing services to
the Trust pursuant to any contract described in Article IV, Section 8(1)
hereof;
(9) "1940 Act" means the Investment Company Act of 1940 and the Rules and
Regulations thereunder, all as amended from time to time and any order or
orders thereunder which may from time to time be applicable to the Trust;
(10) "Person" means and includes individuals, corporations, partnerships,
trusts, associations, joint ventures, estates and other entities, whether or
not legal entities, and governments and agencies and political subdivisions
thereof, whether domestic or foreign;
(11) "Principal Underwriter" shall have the meaning given it in the 1940
Act;
(12) "Registration Statement" means the Trust's currently effective
registration statement under the Securities Act of 1933 and the 1940 Act, as it
may be amended or supplemented from time to time.
(13) "Series" means each series of Shares as may from time to time be
established and designated under or in accordance with Sections 3804 and 3806
of the Delaware Act and the provisions of Article III hereof, each of which
shall be accounted for and maintained as a separate series or portfolio of the
Trust;
(14) "Shareholder" means a record owner of outstanding Shares;
(15) "Shares" means the shares of beneficial interest into which the
beneficial interest in the Trust, or any Series or Classes established from
time to time, shall be divided from time to time and includes fractions of
Shares as well as whole Shares;
(16) "Trust" means the Delaware Statutory Trust established under the
Delaware Act by this Declaration of Trust and the filing of the Certificate of
Trust in the Office of the Secretary of State of the State of Delaware;
(17) "Trust Property" means any and all property, real or personal,
tangible or intangible, which is from time to time owned or held by or for the
account of the Trust each and every asset of which shall be allocated and
belong to a specific Series to the exclusion of all other Series; and
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(18) "Trustees" means the persons who have signed this Declaration of
Trust and all other Person or Persons who may from time to time be duly elected
or appointed to serve as Trustees in accordance with the provisions hereof, in
each case so long as such Person or Persons shall continue in office in
accordance with the terms of this Declaration of Trust, and reference herein to
a Trustee or the Trustees shall refer to such Person or Persons in his, her or
their capacities as trustee or trustees hereunder. Unless otherwise required by
the context or specifically provided, any reference herein to the Trustees
shall refer to the Trustee at any time that there is only one Trustee of the
Trust.
ARTICLE II
Purpose of Trust
The purpose of the Trust is to conduct, operate and carry on the business
of a management investment company registered under the 1940 Act by investing
primarily in securities and other financial instruments, and to carry on such
other business as the Trustees may from time to time determine pursuant to
their authority under this Declaration of Trust.
ARTICLE III
Shares
Section 1. Division of Beneficial Interest. Beneficial interests in the
Trust, or any Series established from time to time, may consist of one Class or
may be divided into two or more Classes or may consist of no Classes. Subject
to the further provisions of this Article III and any applicable requirements
of the 1940 Act, the Trustees shall have full power and authority, in their
sole discretion, and without obtaining any authorization or vote of the
Shareholders of the Trust or any Series or Class thereof, (i) to divide the
beneficial interest in the Trust, or in any Series or Class thereof that may be
established from time to time, into Shares, with or without par value as the
Trustees shall determine, (ii) to issue Shares without limitation as to number
(including fractional Shares), to such Persons and for such amount and type of
consideration, subject to any restriction set forth in the By-Laws, including
cash or securities, at such time or times and on such terms as the Trustees may
deem appropriate, (iii) to establish and designate and to change in any manner
the beneficial interest in the Trust, or any Series or Class thereof, and to
fix such preferences, voting powers, rights, duties and privileges and business
purpose of the beneficial interest in the Trust, or any Series or Class
thereof, as the Trustees may from time to time determine, which preferences,
voting powers, rights, duties and privileges may be senior or subordinate to
(or in the case of business purpose, different from) any existing Series or
Class and may be limited to specified property or obligations of the Trust or
profits and losses associated with specified property or obligations of the
Trust, (iv) to divide or combine the Shares of the Trust, or any Series or
Class thereof, into a greater or lesser number without thereby materially
changing the proportionate beneficial interest of the Shares of the Trust, or
any Series or Class, in the assets held with respect to the Trust or any such
Series, (v) to classify or reclassify any issued Shares of the Trust, or any
Series or Class thereof, into shares of one or more Series or Classes thereof
and (vi) to take such other action with respect to the Shares as the Trustees
may deem desirable.
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Subject to the distinctions permitted among Classes of Shares of the
Trust, or of Classes of the same Series, as established by the Trustees
consistent with the requirements of the 1940 Act, each Share of the Trust (or
Series, as applicable) shall represent an equal beneficial interest in the net
assets of the Trust (or such Series), and each holder of Shares of the Trust
(or a Series) shall be entitled to receive such holder's pro rata share of
distributions of income and capital gains, if any, made with respect thereto.
Upon redemption of the Shares of any Series, the applicable Shareholder shall
be paid solely out of the funds and property of such Series of the Trust.
All references to Shares in this Declaration of Trust shall be deemed to
be Shares of the Trust or of any or all Series or Classes thereof established
from time to time, as the context may require. All provisions herein relating
to the Trust shall apply equally to each Series of the Trust and each Class
thereof as established from time to time, except as the context otherwise
requires.
All Shares issued hereunder, including Shares issued in connection with a
dividend in Shares or a split or reverse split of Shares, shall be fully paid
and nonassessable. Except as otherwise provided by the Trustees, Shareholders
shall have no preemptive or other right to subscribe to any additional Shares
or other securities issued by the Trust.
Section 2. Ownership of Shares. The Ownership of Shares shall be recorded
on the books of the Trust or a transfer or similar agent for the Trust, which
books shall be maintained separately for the Shares of any Series (or Class).
No certificates certifying the ownership of Shares shall be issued except as
the Trustees may otherwise determine from time to time. The Trustees may make
such rules as they consider appropriate for the issuance of Share certificates,
the transfer of Shares and similar matters. The record books of the Trust as
kept by the Trust or any transfer or similar agent, as the case may be, shall
be conclusive as to the identity of the Shareholders of the Trust or any Series
(or Class) and as to the number of Shares of the Trust or any Series (or Class)
held from time to time by each Shareholder.
Section 3. Transfer of Shares. Except as otherwise provided by the
Trustees, Shares shall be transferable on the books of the Trust only by the
record holder thereof or by his duly authorized agent upon delivery to the
Trustees or the Trust's transfer agent of a duly executed instrument of
transfer, together with a Share certificate if one is outstanding, and such
evidence of the genuineness of each such execution and authorization and of
such other matters as may be required by the Trustees. Upon such delivery, and
subject to any further requirements specified by the Trustees or contained in
the By-Laws, the transfer shall be recorded on the books of the Trust. Until a
transfer is so recorded, the Shareholder of record of Shares shall be deemed to
be the holder of such Shares for all purposes hereunder and neither the
Trustees nor the Trust, nor any transfer agent or registrar or any officer,
employee or agent of the Trust, shall be affected by any notice of a proposed
transfer.
Section 4. Investments in the Trust. Investments may be accepted by the
Trust from such Persons, at such times, on such terms, and for such
consideration as the Trustees from time to time may authorize.
Section 5. Status of Shares and Limitation of Personal Liability. Shares
shall be deemed to be personal property giving only the rights provided in this
instrument. Every Shareholder by
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virtue of having become a Shareholder shall be held to have expressly assented
and agreed to the terms hereof. The death, incapacity, dissolution, termination
or bankruptcy of a Shareholder during the existence of the Trust shall not
operate to terminate the Trust, nor entitle the representative of any such
Shareholder to an accounting or to take any action in court or elsewhere
against the Trust or the Trustees, but entitles such representative only to the
rights of such Shareholder under this Trust. Ownership of Shares shall not
entitle the Shareholder to any title in or to the whole or any part of the
Trust Property or right to call for a partition or division of the same or for
an accounting, nor shall the ownership of Shares constitute the Shareholders as
partners. Neither the Trust nor the Trustees, nor any officer, employee or
agent of the Trust shall have any power to bind personally any Shareholders,
nor, except as specifically provided herein, to call upon any Shareholder for
the payment of any sum of money or assessment whatsoever other than such as the
Shareholder may at any time personally agree to pay.
Section 6. Establishment and Designation of Series. The establishment and
designation of any Series (or Class) of Shares shall be effective upon the
adoption by a majority of the then Trustees of a resolution that sets forth
such establishment and designation whether directly in such resolution or by
reference to, or approval of, another document that sets forth each such Series
(or Class) including the Registration Statement, or as otherwise provided in
such resolution. The relative rights and preferences of each Series and Class
thereof shall be as set forth herein and as set forth in the Registration
Statement, unless otherwise provided in the resolution establishing such Series
or Class.
In the event that a Series of the Trust shall be established, the initial
Shares of the Trust shall constitute a separate Series and shall be considered
separate and apart from such newly established Series and each Series
subsequently established shall be considered separate from each other Series as
set forth in this Article III. Shares of the Trust, and any Series (or Class)
established pursuant to this Article III, unless otherwise provided in the
resolution establishing such Series, shall have the following relative rights
and preferences:
(1) 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, 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 of such Series, and shall be so recorded upon the books of account of
the Trust. Such consideration, assets, income, earnings, profits and proceeds
thereof, from whatever source derived, including, any proceeds derived from the
sale, exchange or liquidation of such assets, and any funds or payments derived
from any reinvestment of such proceeds, in whatever form the same may be, are
herein referred to as "assets held with respect to" that Series. In the event
that there are any assets, income, earnings, profits and proceeds thereof,
funds or payments which are not readily identifiable as assets held with
respect to any particular Series (collectively "General Assets"), the Trustees
shall allocate such General Assets to, between or among any one or more of the
Series in such manner and on such basis as the Trustees, in their sole
discretion, deem fair and equitable, and any General Assets so allocated to a
particular Series shall be held with respect to that Series. Each such
allocation by the Trustees shall be conclusive and binding upon the
Shareholders of all Series for all purposes. Separate and
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distinct records shall be maintained for each Series and the assets held with
respect to each Series shall be held and accounted for separately from the
assets held with respect to all other Series and the General Assets of the
Trust not allocated to such Series.
(2) Liabilities Held with Respect to a Particular Series. The assets of
the Trust held with respect to each particular Series shall be charged against
the liabilities of the Trust held with respect to that Series and all expenses,
costs, charges and reserves attributable to that Series. Any general
liabilities of the Trust which are not readily identifiable as being held with
respect to any particular Series shall be allocated and charged by the Trustees
to and among any one or more of the Series in such manner and on such basis as
the Trustees in their sole discretion deems fair and equitable. All
liabilities, expenses, costs, charges, and reserves so charged to a Series are
herein referred to as "liabilities held with respect to" that Series. Each
allocation of liabilities, expenses, costs, charges and reserves by the
Trustees shall be conclusive and binding upon the holders of all Series for all
purposes. All liabilities held with respect to a particular Series shall be
enforceable against the assets held with respect to such Series only and not
against the assets of the Trust generally or against the assets held with
respect to any other Series and, except as otherwise provided in this
Declaration of Trust, 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
of such Series. Notice of this contractual limitation on the liability of each
Series shall be set forth in the Certificate of Trust or in an amendment
thereto prior to the issuance of any Shares of a Series.
(3) Dividends, Distributions, Redemptions, and Repurchases.
Notwithstanding any other provisions of this Declaration of Trust, including
Article VI, no dividend or distribution, including any distribution paid upon
termination of the Trust or of any Series (or Class) with respect to, nor any
redemption or repurchase of, the Shares of any Series (or Class) shall be
effected by the Trust other than from the assets held with respect to such
Series, nor shall any Shareholder of any particular Series otherwise have any
right or claim against the assets held with respect to any other Series except
to the extent that such Shareholder has such a right or claim hereunder as a
Shareholder of such other Series. The Trustees shall have full discretion, to
the extent not inconsistent with the 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.
(4) Equality. All the Shares of each particular Series shall represent an
equal proportionate interest in the assets held with respect to that Series
(subject to the liabilities held with respect to that Series), and each Share
of any particular Series shall be equal to each other Share of that Series
(subject to such rights and preferences as may have been established and
designated with respect to Classes of Shares within such Series).
(5) Fractions. Any fractional Share of a Series shall carry
proportionately all the rights and obligations of a whole Share of that Series,
including rights with respect to voting, receipt of dividends and
distributions, redemption of Shares and termination of the Trust.
(6) Exchange Privilege. The 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 of Shares or for interests in one
or more other trusts, corporations, or other business
6
entities (or a series of any of the foregoing) in accordance with such
requirements and procedures as may be established by the Trustees from time to
time.
(7) Combination of Series. The Trustees shall have the authority, without
the approval of the Shareholders of any Series unless otherwise required by the
1940 Act, 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.
(8) Elimination of Series. At any time that there are no Shares
outstanding of any particular Series (or Class) previously established and
designated, the Trustees may by resolution of a majority of the then Trustees
abolish that Series (or Class) and rescind the establishment and designation
thereof.
Section 7. Indemnification of Shareholders. If any Shareholder or former
Shareholder shall be exposed to liability by reason of a claim or demand
relating to such Person being or having been a Shareholder, and not because of
such Person's acts or omissions, the Shareholder or former Shareholder (or such
Person's 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 against all loss and expense arising from such claim or
demand, but only out of the assets held with respect to the particular Series
of Shares of which such Person is or was a Shareholder and from or in relation
to which such liability arose.
ARTICLE IV
The Board of Trustees
Section 1. Number, Election and Tenure. The number of Trustees shall
initially be three, who shall be Xxxxxxx X. Xxx, Xxxxx X. Xxxxxxx and Xxxxx X.
Xxxxxxxxxx. Hereafter, the number of Trustees shall at all times be at least
one and no more than fifteen as determined, from time to time, by the Trustees
pursuant to Section 3 of this Article IV. Each Trustee shall serve during the
continued lifetime of the Trust until the next meeting of Shareholders called
for the purpose of electing Trustees and until the election and qualification
of his or her successor or, if sooner, until he or she dies, resigns, retires,
or until December 31 of the year in which he or she shall have reached
seventy-two years of age, or until he or she is removed as herein provided. If
there is more than one Trustee, in the event that less than the majority of the
Trustees holding office have been elected by the Shareholders, to the extent
required by the 1940 Act, but only to such extent, the Trustees then in office
shall call a Shareholders' meeting for the election of Trustees. Any Trustee
may resign at any time by written instrument signed by the Trustee and
delivered to the Chairman or any officer of the Trust or to a meeting of the
Trustees. Such resignation shall be effective upon receipt unless specified to
be effective at some other time. Except to the extent expressly provided in a
written agreement with the Trust, no Trustee resigning and no Trustee removed
shall have any right to any compensation for any period following the effective
date of his or her resignation or removal, or any right to damages on account
of such removal. The Shareholders may elect Trustees at any meeting of
Shareholders called by the Trustees for that purpose. Any Trustee may be
removed at any meeting of Shareholders by the affirmative vote of the majority
of the outstanding Shares of the Trust with or without cause.
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Section 2. Effect of Death, Resignation, etc. of a Trustee. The death,
declination to serve, resignation, retirement, removal, or incapacity of one or
more Trustees, or all of them, shall not operate to annul the Trust or to
revoke any existing agency created pursuant to the terms of this Declaration of
Trust. Whenever there shall be fewer than the designated number of Trustees,
until additional Trustees are elected or appointed as provided herein to bring
the total number of Trustees equal to the designated number, the Trustees in
office, regardless of their number, shall have all the powers granted to the
Trustees and shall discharge all the duties imposed upon the Trustee by this
Declaration of Trust. As conclusive evidence of such vacancy, a written
instrument certifying the existence of such vacancy may be executed by an
officer of the Trust or by a majority of the Trustees. In the event of the
death, declination, resignation, retirement, removal, or incapacity of all the
then Trustees within a short period of time and without the opportunity for at
least one Trustee being able to appoint additional Trustees to replace those no
longer serving, the Trust's Investment Manager(s) are empowered to appoint new
Trustees subject to the provisions of Section 16(a) of the 1940 Act.
Section 3. Powers. Subject to the provisions of this Declaration of Trust,
the business of the Trust shall be managed by the Trustees, and the Trustees
shall have all powers necessary or convenient to carry out that responsibility
including the power to engage in securities transactions of all kinds on behalf
of the Trust. Without limiting the foregoing, the Trustees may: adopt By-Laws
not inconsistent with this Declaration of Trust providing for the regulation
and management of the affairs of the Trust and may amend and repeal them to the
extent that such By-Laws do not reserve that right to the Shareholders; enlarge
or reduce their number; remove any Trustee with or without cause at any time by
written instrument signed by at least two-thirds of the number of Trustees
prior to such removal, specifying the date when such removal shall become
effective, and fill vacancies caused by enlargement of their number or by the
death, resignation or removal of a Trustee; elect and remove, with or without
cause, such officers and appoint and terminate such agents as they consider
appropriate; appoint from their own number and establish and terminate one or
more committees consisting of one or more Trustees which may exercise the
powers and authority of the Board of Trustees to the extent that the Trustees
determine; employ one or more custodians of the assets of the Trust and
authorize such custodians to employ subcustodians and to deposit all or any
part of such assets in a system or systems for the central handling of
securities or with a Federal Reserve Bank; retain a transfer agent or a
shareholder servicing agent, or both; provide for the issuance and distribution
of Shares by the Trust directly or through one or more Principal Underwriters
or otherwise; redeem, repurchase and transfer Shares pursuant to applicable
law; set record dates for the determination of Shareholders with respect to
various matters; declare and pay dividends and distributions to Shareholders of
each Series from the assets of such Series; and in general delegate such
authority as they consider desirable to any officer of the Trust, to any
committee of the Trustees and to any agent or employee of the Trust or to any
such custodian, transfer or Shareholder servicing agent, or Principal
Underwriter. Any determination as to what is in the interests of the Trust made
by the Trustees in good faith shall be conclusive. In construing the provisions
of this Declaration of Trust, the presumption shall be in favor of a grant of
power to the Trustees. Unless otherwise specified herein or in the By-Laws or
required by law, any action by the Trustees shall be deemed effective if
approved or taken by a majority of the Trustees present at a meeting of
Trustees at which a quorum (as defined in the By-Laws as the same may be
amended from time to time) of Trustees are present, within or without the State
of Delaware.
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Without limiting the foregoing, the Trustees shall have the power and
authority to cause the Trust (or to act on behalf of the Trust):
(1) To invest and reinvest cash, to hold cash uninvested, and to subscribe
for, invest in, reinvest in, purchase or otherwise acquire, own, hold, pledge,
sell, assign, transfer, exchange, distribute, write options on, lend or
otherwise deal in or dispose of contracts for the future acquisition or
delivery of fixed income or other securities, and securities of every nature
and kind, including all types of bonds, debentures, stocks, negotiable or
non-negotiable instruments, obligations, evidences of indebtedness,
certificates of deposit or indebtedness, commercial paper, repurchase
agreements, bankers' acceptances, and other securities and financial
instruments of any kind, issued, created, guaranteed, or sponsored by any and
all Persons, including states, territories, and possessions of the United
States and the District of Columbia and any political subdivision, agency, or
instrumentality thereof, any foreign government or any political subdivision of
the U.S. Government or any foreign government, or any international
instrumentality, or by any bank or savings institution, or by any corporation
or organization organized under the laws of the United States or of any state,
territory, or possession thereof, or by any corporation or organization
organized under any foreign law, or in "when issued" contracts for any such
securities, to change the investments of the assets of the Trust; and to
exercise any and all rights, powers, and privileges of ownership or interest
and to fulfill any and all obligations in respect of any and all such
investments of every kind and description, including 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;
(2) To purchase, sell and hold currencies and enter into contracts for the
future purchase or sale of currencies, including but not limited to forward
foreign currency exchange contracts;
(3) To sell, exchange, lend, pledge, mortgage, hypothecate, lease, or
write options (including, options on futures contracts) with respect to or
otherwise deal in any property rights relating to any or all of the assets of
the Trust or any Series;
(4) To vote or give assent, or exercise any rights of ownership, with
respect to stock or other securities or property; and to execute and deliver
proxies or powers of attorney to such Person or Persons as the Trustees shall
deem proper, granting to such Person or Persons such power and discretion with
relation to securities or property as the Trustees shall deem proper;
(5) To exercise powers and right of subscription or otherwise which in any
manner arise out of ownership of securities;
(6) To hold any security or property in a form not indicating any trust,
whether in bearer, unregistered or other negotiable form, or in its own name or
in the name of a custodian or subcustodian or a nominee or nominees or
otherwise;
(7) To consent to or participate in any plan for the reorganization,
consolidation or merger of any corporation or issuer of any security which is
held in the Trust; to consent to any contract, lease, mortgage, purchase or
sale of property by such corporation or issuer; and to pay calls or
subscriptions with respect to any security held in the Trust;
9
(8) To join with other security holders in acting through a committee,
depository, voting trustee or otherwise, and in that connection to deposit any
security with, or transfer any security to, any such committee, depository 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, depository or trustee as the Trustees shall
deem proper;
(9) To compromise, arbitrate or otherwise adjust claims in favor of or
against the Trust or any matter in controversy, including, but not limited to,
claims for taxes;
(10) To enter into joint ventures, general or limited partnerships and any
other combinations or associations;
(11) To borrow funds or other property in the name of the Trust
exclusively for Trust purposes and in connection therewith issue notes or other
evidence of indebtedness; and to mortgage and pledge the Trust Property or any
part thereof to secure any or all of such indebtedness;
(12) To endorse or guarantee the payment of any notes or other obligations
of any Person; to make contracts of guaranty or suretyship, or otherwise assume
liability for payment thereof; and to mortgage and pledge the Trust Property or
any part thereof to secure any of or all of such obligations;
(13) To purchase and pay for entirely out of Trust Property such insurance
as the Trustees may deem necessary or appropriate for the conduct of the
business, including insurance policies insuring the assets of the Trust or
payment of distributions and principal on its portfolio investments, and
insurance policies insuring the Shareholders, the Trustees, officers,
employees, agents, investment advisers, principal underwriters, or independent
contractors of the Trust, individually against all claims and liabilities of
every nature arising by reason of holding Shares, holding, being or having held
any such office or position, or by reason of any action alleged to have been
taken or omitted by any such Person as Trustee, officer, employee, agent,
investment adviser, principal underwriter, or independent contractor, including
any action taken or omitted that may be determined to constitute negligence,
whether or not the Trust would have the power to indemnify such Person against
liability;
(14) To adopt, establish and carry out pension, profit-sharing, share
bonus, share purchase, savings, thrift and other retirement, incentive and
benefit plans and trusts, 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;
(15) To operate as and carry out the business of an investment company,
and exercise all the powers necessary or appropriate to the conduct of such
operations;
(16) To enter into contracts of any kind and description;
(17) To employ one or more banks, trust companies or companies that are
members of a national securities exchange or such other entities as the
Commission may permit as custodians
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of any assets of the Trust subject to any conditions set forth in this
Declaration of Trust or in the By-Laws;
(18) To interpret the investment policies, practices or limitations of the
Trust or any Series or Class established from time to time;
(19) To invest part or all of the Trust Property (or part or all of the
assets of the Trust or any Series), or to dispose of part or all of the Trust
Property (or part or all of the assets of the Trust or any Series) and invest
the proceeds of such disposition, in securities issued by one or more other
investment companies registered under the 1940 Act (including investment by
means of transfer of part or all of the Trust Property in exchange for an
interest or interests in such one or more investment companies) all without any
requirement of approval by Shareholders unless required by the 1940 Act. Any
such other investment company may (but need not) be a trust (formed under the
laws of the State of Delaware or of any other state) which is classified as a
partnership for federal income tax purposes;
(20) To establish one or more committees, to delegate any powers of the
Trustees to such committees and to adopt a committee charter providing for such
responsibilities, membership (including Trustees, officers or other agents of
the Trust therein) and other characteristics of such committees as the Trustees
may deem proper. Notwithstanding the provisions of this Article IV, and in
addition to such provisions or any other provision of this Declaration of Trust
or of the By-Laws, the Trustees may by resolution appoint a committee
consisting of fewer than the whole number of the Trustees then in office, which
committee may be empowered to act for and bind the Trustees and the Trust, as
if the acts of such committee were the acts of all the Trustees then in office,
with respect to any matter including the institution, prosecution, dismissal,
settlement, review or investigation of any action, suit or proceeding that may
be pending or threatened to be brought before any court, administrative agency
or other adjudicatory body;
(21) To provide for separate classes, groups or series of Trustees with
respect to any Series or Class thereof or any Trust property having such
relative rights, powers and duties as the Trustees may determine; and
(22) Subject to the 1940 Act, to engage in any other lawful act or
activity in which a statutory trust organized under the Delaware Act may
engage.
The Trust shall not be limited to investing in obligations maturing before
the possible termination of the Trust or one or more of its Series, if any. The
Trust shall not in any way be bound or limited by any present or future law or
custom in regard to investment by fiduciaries. The Trust shall not be required
to obtain any court order to deal with any assets of the Trust or take any
other action hereunder.
Section 4. Chairman of the Board. A Chairman of the Board shall be elected
by the Board from among the Trustees of the Trust who are not Interested
Persons of the Trust ("Independent Trustees"). The Chairman of the Board shall
preside over the meetings of the Board of Trustees, shall set the agendas for
the Board meetings, and shall have substantially the same responsibilities as
would a typical chairman of a board of directors of a corporation. The Board
may elect Co-Chairmen of the Board, provided each is an Independent Trustee of
the
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Trust. In the absence of the Chairman of the Board, another Independent
Trustee shall be designated by the Board to preside over the meeting of the
Board of Trustees, to set the agenda for the meeting and to perform the other
responsibilities of the Chairman of the Board in his or her absence. The
Chairman of the Board shall not be an officer of the Trust.
Section 5. Payment of Expenses by the Trust. The Trustees are authorized
to pay or cause to be paid out of the principal or income of the Trust, or
partly out of the principal and partly out of income, as they deem fair, all
expenses, fees, charges, taxes and liabilities incurred or arising in
connection with the Trust, or in connection with the management thereof,
including, but not limited to, the Trustees compensation and such expenses and
charges for the services of the Trust's officers, employees, investment adviser
or manager, Principal Underwriter, auditors, counsel, custodian, transfer
agent, shareholder servicing agent, and such other agents or independent
contractors and such other expenses and charges as the Trustees may deem
necessary or proper to incur, which expenses, fees, charges, taxes and
liabilities shall be allocated in accordance with Article III, Section 6
hereof.
Section 6. Payment of Expenses by Shareholders. The Trustees shall have
the power, as frequently as they may determine, to cause each Shareholder, or
each Shareholder of any particular Series, to pay directly, in advance or
arrears, for charges of the Trust's custodian or transfer, Shareholder
servicing or similar agent, an amount fixed from time to time by the Trustees,
by setting off such charges due from such Shareholder from declared but unpaid
dividends owed such Shareholder and/or by reducing the number of Shares in the
account of such Shareholder by that number of full and/or fractional Shares
which represents the outstanding amount of such charges due from such
Shareholder.
Section 7. Ownership of Assets of the Trust. Title to all of the assets of
the Trust shall at all times be considered as vested in the Trust, except that
the Trustees shall have power to cause legal title to any Trust Property to be
held by or in the name of one or more of the Trustees, or in the name of any
other Person as nominee, on such terms as the Trustees may determine, provided
that any such Person hold such legal title on behalf of the Trust. The right,
title and interest of the Trustees in the Trust Property shall vest
automatically in each Person who may hereafter become a Trustee. Upon the
resignation, removal or death of a Trustee, he or she shall automatically cease
to have any right, title or interest in any of the Trust Property, and the
right, title and interest of such Trustee in the Trust Property shall vest
automatically in the remaining Trustees. Such vesting and cessation of title
shall be effective whether or not conveyancing documents have been executed and
delivered.
Section 8. Service Contracts.
(1) Subject to such requirements and restrictions as may be set forth
under federal law and in the By-Laws, including the requirements of Section 15
of the 1940 Act, the Trustees may, at any time and from time to time, contract
for exclusive or nonexclusive advisory, management and/or administrative
services for the Trust or for any Series (or Class thereof) with any
corporation, trust, association or other organization; and any such contract
may contain such other terms as the Trustees may determine, including authority
for the Investment Manager or administrator to delegate certain or all of its
duties under such contracts to qualified investment advisers and administrators
and to determine from time to time without prior consultation with
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the Trustees what investments shall be purchased, held, sold or exchanged and
what portion, if any, of the assets of the Trust shall be held uninvested and
to make changes in the Trust's investments, or such other activities as may
specifically be delegated to such party.
(2) The Trustees may also, at any time and from time to time, contract
with any corporation, trust, association or other organization, appointing it
exclusive or nonexclusive distributor or Principal Underwriter for the Shares
of the Trust or for any one or more of its Series (or Classes) or other
securities to be issued by the Trust. Every such contract shall comply with
such requirements and restrictions as may be set forth under federal law and in
the By-Laws, including the requirements of Section 15 of the 1940 Act; and any
such contract may contain such other terms as the Trustees may determine.
(3) The Trustees are also empowered, at any time and from time to time, to
contract with any corporations, trusts, associations or other organizations,
appointing it or them the custodian, transfer agent and/or Shareholder
servicing agent for the Trust or any one or more of its Series. Every such
contract shall comply with such requirements and restrictions as may be set
forth under federal law and in the By-Laws or stipulated by resolution of the
Trustees.
(4) Subject to applicable federal law, including the 1940 Act, the
Trustees are further empowered, at any time and from time to time, to contract
with any entity to provide such other services to the Trust or any one or more
of its Series, as the Trustees determine to be in the best interests of the
Trust and/or any applicable Series.
(5) The fact that:
(i) any of the Shareholders, Trustees, or officers of the Trust is a
shareholder, director, officer, partner, trustee, employee, Manager,
adviser, Principal Underwriter, distributor, or affiliate or agent of or
for any corporation, trust, association, or other organization, or for any
parent or affiliate of any organization with which an advisory, management
or administration contract, or principal underwriter's or distributor's
contract, or transfer, shareholder servicing or other type of service
contract may have been or may hereafter be made, or that any such
organization, or any parent or affiliate thereof, is a Shareholder or has
an interest in the Trust, or that
(ii) any corporation, trust, association or other organization with
which an advisory, management or administration contract or principal
underwriter's or distributor's contract, or transfer, shareholder
servicing or other type of service contract may have been or may hereafter
be made also has an advisory, management or administration contract, or
principal underwriter's or distributor's contract, or transfer,
shareholder servicing or other service contract with one or more other
corporations, trusts, associations, or other organizations, or has other
business or interests shall not affect the validity of any such contract
or disqualify any Shareholder, Trustee or officer of the Trust from voting
upon or executing the same, or create any liability or accountability to
the Trust or its Shareholders, provided approval of each such contract is
made pursuant to the requirements of the 1940 Act.
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Section 9. Trustees and Officers as Shareholders. Any Trustee, officer or
agent of the Trust may acquire, own and dispose of Shares to the same extent as
if he were not a Trustee, officer or agent; and the Trustees may issue and sell
and cause to be issued and sold Shares to, and redeem such Shares from, any
such Person or any firm or company in which such Person is interested, subject
only to the general limitations contained herein, in the By-Laws, or in the
Registration Statement relating to the sale and redemption of such Shares.
ARTICLE V
Shareholders' Voting Powers and Meetings
Section 1. Voting Powers, Meetings, Notice and Record Dates. The
Shareholders shall have power to vote only (i) for the election or removal of
Trustees as and to the extent provided in Article IV, Section 1, and (ii) with
respect to such additional matters relating to the Trust as may be required by
the 1940 Act, Section 4 of Article VIII of this Declaration of Trust, Section 2
of Article X or Article XIII of the By-Laws or as the Trustees may consider
necessary or desirable. As determined by the Trustees without the vote or
consent of Shareholders (except as required by the 1940 Act), on any matter
submitted to a vote of Shareholders, either (i) each whole Share shall be
entitled to one vote as to any matter on which it is entitled to vote and each
fractional Share shall be entitled to a proportionate fractional vote or (ii)
each dollar of Net Asset Value (number of Shares owned times Net Asset Value
per share of the Trust, if no Series shall have been established or of such
Series or Class, as applicable) shall be entitled to one vote on any matter on
which such Shares are entitled to vote and each fractional dollar amount shall
be entitled to a proportionate fractional vote. Without limiting the power of
the Trustees in any way to designate otherwise in accordance with the preceding
sentence, the Trustees hereby establish that each whole Share shall be entitled
to one vote as to any matter on which it is entitled to vote and each
fractional Share shall be entitled to a proportionate fractional vote.
Notwithstanding any other provision of this Declaration of Trust, on any matter
submitted to a vote of the Shareholders, all Shares of the Trust then entitled
to vote shall be voted in aggregate, except (i) when required by the 1940 Act,
Shares shall be voted by individual Series; (ii) when the matter involves any
action that the Trustees have determined will affect only the interests of any
one or more Series, then only Shareholders of such Series shall be entitled to
vote thereon; and (iii) when the matter involves any action that the Trustees
have determined will affect only the interests of one or more Classes, then
only the Shareholders of such Class or Classes shall be entitled to vote
thereon. There shall be no cumulative voting in the election of Trustees.
Shares may be voted in person or by proxy. A proxy may be given in writing. The
By-Laws may provide that proxies may also, or may instead, be given by any
electronic or telecommunications device or in any other manner. Notwithstanding
anything else contained herein or in the By-Laws, in the event a proposal by
anyone other than the officers or the Trustees of the Trust is submitted to a
vote of the Shareholders of the Trust or any one or more Series or Classes
thereof, or in the event of any proxy contest or proxy solicitation or proposal
in opposition to any proposal by the officers or the Trustees of the Trust,
then, solely with respect to such proposal, proxy contest or proxy
solicitation, Shares may be voted only in person or by written proxy at a
meeting. Until Shares are issued, the Trustees may exercise all rights of
Shareholders and may take any action required by law, this Declaration of Trust
or the By-Laws to be taken by the Shareholders. Meetings of the Shareholders
shall be called and notice thereof and record dates therefor shall be given and
set as provided in the By-Laws.
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Section 2. Quorum and Required Vote. Except when a larger quorum is
required by federal law, including the 1940 Act, by the By-Laws or by this
Declaration of Trust, the holders of Shares entitled to cast one-third of the
votes, present in person or by proxy, shall constitute a quorum at a
Shareholders' meeting. When any one or more Series (or Class) is to vote as a
single class separate from any other Shares, the holders of Shares of each such
Series (or Class) entitled to cast one-third of the votes, present in person or
by proxy, shall constitute a quorum at a Shareholders' meeting of that Series
(or Class). Except when a larger vote is required by any provision of this
Declaration of Trust or the By-Laws or by federal law, including the 1940 Act,
when a quorum is present at any meeting, a plurality of the Shares voted shall
elect a Trustee and a majority of the Shares voted shall decide any other
matters, provided that where any provision of federal law, including the 1940
Act, or of this Declaration of Trust requires or permits the holders of any
Series to vote as a Series (or that holders of a Class shall vote as a Class),
then a majority of the Shares of that Series (or Class) voted on the matter (or
a plurality with respect to the election of a Trustee shall decide that matter
insofar as that Series (or Class) is concerned.
Section 3. Record Dates. For the purpose of determining the Shareholders
of the Trust, or any Series (or Class), who are entitled to receive payment of
any dividend or of any other distribution, the Trustees may from time to time
fix a date, which shall be before the date for the payment of such dividend or
such other payment, as the record date for determining the Shareholders of such
Series (or Class) having the right to receive such dividend or distribution.
Without fixing a record date, the Trustees may for distribution purposes close
the register or transfer books for the Trust, or any one or more Series (or
Classes), at any time prior to the payment of a distribution. Nothing in this
Section shall be construed as precluding the Trustees from setting different
record dates for different Series (or Classes).
Section 4. Additional Provisions. The By-Laws may include further
provisions for Shareholders' votes and meetings and related matters.
ARTICLE VI
Net Asset Value, Distributions and Redemptions
Section 1. Determination of Net Asset Value, Net Income, and
Distributions. Subject to applicable law and Article III, Section 6 hereof, the
Trustees, in their absolute discretion, may prescribe and shall set forth in a
duly adopted vote of the Trustees such bases and time for determining the per
Share or net asset value of the Shares of the Trust, or any Series (or Class),
or net income attributable to the Shares of the Trust, or any Series (or
Class), or the declaration and payment of dividends and distributions on the
Shares of the Trust, or any Series (or Class), as they may deem necessary or
desirable.
Section 2. Redemptions and Repurchases.
(1) The Trust shall purchase such Shares as are offered by any Shareholder
for redemption, upon the presentation of a proper instrument of transfer
together with a request directed to the Trust or a Person designated by the
Trust that the Trust purchase such Shares or in accordance with such other
procedures for redemption as the Trustees may from time to time authorize; and
the Trust will pay therefor the net asset value thereof as determined by the
15
Trustees (or on their behalf), in accordance with any applicable provisions of
the By-Laws, the Registration Statement and applicable law, less any fees
imposed on such redemption. Unless extraordinary circumstances exist, payment
for said Shares shall be made by the Trust to the Shareholder within seven (7)
days after the date on which the request is made in proper form. The obligation
set forth in this Section 2 is subject to the provision that in the event that
any time the New York Stock Exchange (the "Exchange") is closed for other than
weekends or holidays, or if permitted by the rules and regulations or an order
of the Commission during periods when trading on the Exchange is restricted or
during any emergency which makes it impracticable for the Trust to dispose of
its investments or the investments of any applicable Series or to determine
fairly the value of the net assets of the Trust or net assets held with respect
to any Series or during any other period permitted by order of the Commission
for the protection of investors, such obligations may be suspended or postponed
by the Trustees. In the case of a suspension of the right of redemption as
provided herein, a Shareholder may either withdraw the request for redemption
or receive payment based on the net asset value per share next determined after
the termination of such suspension, less any fees imposed on such redemption.
(2) The redemption price may in any case or cases be paid wholly or partly
in kind if the Trustees determine that such payment is advisable in the
interest of the remaining Shareholders of the Trust, or any Series, for which
the Shares are being redeemed. Subject to the foregoing, the fair value,
selection and quantity of securities or other property so paid or delivered as
all or part of the redemption price may be determined by or under authority of
the Trustees. In no case shall the Trust be liable for any delay of any
corporation or other Person in transferring securities selected for delivery as
all or part of any payment in kind.
(3) The Trustees may require any Shareholder or any group of Shareholders
(including some or all of the Shareholders of any Series or Class) to redeem
Shares for any reason under terms set by the Trustees, including but not
limited to (i) the determination of the Trustees that direct or indirect
ownership of Shares of the Trust or any Series has or may become concentrated
in such Shareholder to an extent that would disqualify the Trust or any Series
as a regulated investment company under the Internal Revenue Code of 1986, as
amended (or any successor statute thereto), (ii) the failure of a Shareholder
to supply a tax identification number if required to do so or any other
identifying information as required by applicable law, or to have the minimum
investment required (which may vary by Series), or (iii) the failure of a
Shareholder to pay when due for the purchase of Shares issued to him. Any such
redemption shall be effected at the redemption price and in the manner provided
in this Article VI.
(4) The holders of Shares shall upon demand disclose to the Trustees in
writing such information with respect to direct and indirect ownership of
Shares as the Trustees deem necessary to comply with the provisions of the
Internal Revenue Code of 1986, as amended (or any successor statute thereto),
or to comply with the requirements of any other taxing authority.
ARTICLE VII
Compensation and Limitation of Liability of Trustees
Section 1. Compensation. The Trustees as such shall be entitled to
reasonable compensation from the Trust, and the Trustees may fix the amount of
such compensation.
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Nothing herein shall in any way prevent the employment of any Trustee for
advisory, management, legal, accounting, investment banking or other services
and payment for the same by the Trust.
Section 2. Indemnification and Limitation of Liability. A Trustee, when
acting in such capacity, shall not be personally liable to any Person, other
than the Trust or a Shareholder to the extent provided in this Article VII, for
any act, omission or obligation of the Trust, of such Trustee or of any other
Trustee. The Trustees shall not be responsible or liable in any event for any
neglect or wrongdoing of any officer, agent, employee, Manager, adviser,
sub-adviser or Principal Underwriter of the Trust. The Trust shall indemnify
each Person who is, or has been, a Trustee, officer, employee or agent of the
Trust and any Person who is serving or has served at the Trust's request as a
director, officer, trustee, employee or agent of another organization in which
the Trust has any interest as a shareholder, creditor or otherwise to the
extent and in the manner provided in the By-Laws. All persons extending credit
to, contracting with or having any claim against the Trust or the Trustees
shall look only to the assets of the Series that such person extended credit
to, contracted with or has a claim against, or, if the Trustees have yet to
establish Series, of the Trust for payment under such credit, contract or
claim; and neither the Trustees nor the Shareholders, nor any of the Trust's
officers, employees or agents, whether past, present or future, shall be
personally liable therefor. Every note, bond, contract, instrument, certificate
or undertaking and every other act or thing whatsoever executed or done by or
on behalf of the Trust or the Trustees by any of them in connection with the
Trust shall conclusively be deemed to have been executed or done only in or
with respect to his or her capacity as Trustee or Trustees and such Trustee or
Trustees shall not be personally liable thereon. At the Trustees' discretion,
any note, bond, contract, instrument, certificate or undertaking made or issued
by the Trustees or by any officer or officers may give notice that the
Certificate of Trust is on file in the Office of the Secretary of State of the
State of Delaware and that a limitation on liability of Series exists and such
note, bond, contract, instrument, certificate or undertaking may, if the
Trustees so determine, recite that the same was executed or made on behalf of
the Trust by a Trustee or Trustees in such capacity and not individually or by
an officer or officers in such capacity and not individually and that the
obligations of such instrument are not binding upon any of them or the
Shareholders individually but are binding only on the assets and property of
the Trust or a Series thereof, and may contain such further recital as such
Person or Persons may deem appropriate. The omission of any such notice or
recital shall in no way operate to bind any Trustees, officers or Shareholders
individually.
Section 3. Trustee's Good Faith Action, Expert Advice, No Bond or Surety.
The exercise by the Trustees of their powers and discretions hereunder shall be
binding upon everyone interested. A Trustee shall be liable to the Trust and to
any Shareholder solely for his or her own willful misfeasance, bad faith, gross
negligence or reckless disregard of the duties involved in the conduct of the
office of Trustee, and shall not be liable for errors of judgment or mistakes
of fact or law. The Trustees may take advice of counsel or other experts with
respect to the meaning and operation of this Declaration of Trust, and shall be
under no liability for any act or omission in accordance with such advice nor
for failing to follow such advice. The Trustees shall not be required to give
any bond as such, nor any surety if a bond is required.
Section 4. Insurance. The Trustees shall be entitled and empowered to the
fullest extent permitted by law to purchase with Trust assets insurance for
liability and for all expenses
17
reasonably incurred or paid or expected to be paid by a Trustee, officer,
employee or agent of the Trust in connection with any claim, action, suit or
proceeding in which he or she becomes involved by virtue of his or her capacity
or former capacity with the Trust.
ARTICLE VIII
Miscellaneous
Section 1. Liability of Third Persons Dealing with Trustees. No Person
dealing with the Trustees shall be bound to make any inquiry concerning the
validity of any transaction made or to be made by the Trustees or to see to the
application of any payments made or property transferred to the Trust or upon
its order.
Section 2. Dissolution and Termination of Trust or Series or Classes.
(1) Unless terminated as provided herein, the Trust shall continue without
limitation of time. The Trust may be dissolved at any time by the Trustees by
written notice to the Shareholders. Any Series of Shares may be dissolved at
any time by the Trustees by written notice to the Shareholders of such Series.
Any Class of any Series of Shares may be terminated at any time by the Trustees
by written notice to the Shareholders of such Class. Any action to dissolve the
Trust shall be deemed also to be an action to dissolve each Series and each
Class thereof and any action to dissolve a Series shall be deemed also to be an
action to dissolve each Class thereof.
(2) Upon the requisite action by the Trustees to dissolve the Trust or any
one or more Series of Shares, after paying or otherwise providing for all
charges, taxes, expenses and liabilities, whether due or accrued or
anticipated, of the Trust or of the particular Series as may be determined by
the Trustees, the Trust shall in accordance with such procedures as the
Trustees consider appropriate reduce the remaining assets of the Trust or of
the affected Series to distributable form in cash or Shares (if the Trust has
not dissolved) or other securities, or any combination thereof, and distribute
the proceeds to the Shareholders of the Trust or Series involved, ratably
according to the number of Shares of the Trust or such Series held by the
several Shareholders of such Series on the date of distribution. Thereupon, any
affected Series shall terminate and the Trustees and the Trust shall be
discharged of any and all further liabilities and duties relating thereto or
arising therefrom, and the right, title and interest of all parties with
respect to such Series shall be canceled and discharged. Upon the requisite
action by the Trustees to terminate any Class of any Series of Shares, the
Trustees may, to the extent they deem it appropriate, follow the procedures set
forth in this Section 2(2) with respect to such Class that are specified in
connection with the dissolution and winding up of the Trust or any Series of
Shares. Alternatively, in connection with the termination of any Class of any
Series of Shares, the Trustees may treat such termination as a redemption of
the Shareholders of such Class effected pursuant to Section 2(3) of Article VI
of this Declaration of Trust provided that the costs relating to the
termination of such Class shall be included in the determination of the net
asset value of the Shares of such Class for purposes of determining the
redemption price to be paid to the Shareholders of such Class (to the extent
not otherwise included in such determination).
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(3) Following completion of winding up of the Trust's business, the
Trustees shall cause a certificate of cancellation of the Trust's Certificate
of Trust to be filed in accordance with the Delaware Act, which certificate of
cancellation may be signed by any one Trustee. Upon termination of the Trust,
the Trustees shall be discharged of any and all further liabilities and duties
relating thereto or arising therefrom, and the right, title and interest of all
parties with respect to the Trust shall be canceled and discharged.
Section 3. Reorganization and Master/Feeder.
(1) Notwithstanding anything else herein, the Trustees may, without
Shareholder approval unless such approval is required by the 1940 Act, (i)
cause the Trust to convert into or merge, reorganize or consolidate with or
into one or more trusts, partnerships, limited liability companies,
associations, corporations or other business entities (or a series of any of
the foregoing to the extent permitted by law) (including trusts, partnerships,
limited liability companies, associations, corporations or other business
entities created by the Trustees to accomplish such conversion, merger or
consolidation) so long as the surviving or resulting entity is an open-end
management investment company under the 1940 Act, or is a series thereof to the
extent permitted by law, and that, in the case of any trust, partnership,
limited liability company, association, corporation or other business entity
created by the Trustees to accomplish such conversion, merger or consolidation,
may succeed to or assume the Trust's registration under the 1940 Act and that,
in any case, is formed, organized or existing under the laws of the United
States or of a state, commonwealth, possession or colony of the United States,
(ii) cause the Shares to be exchanged under or pursuant to any state or federal
statute to the extent permitted by law, (iii) cause the Trust to incorporate
under the laws of a state, commonwealth, possession or colony of the United
States, (iv) sell or convey all or substantially all of the assets of the Trust
or any Series or Class to another Series or Class of the Trust or to another
trust, partnership, limited liability company, association, corporation or
other business entity (or a series of any of the foregoing to the extent
permitted by law) (including a trust, partnership, limited liability company,
association, corporation or other business entity created by the Trustees to
accomplish such sale and conveyance), organized under the laws of the United
States or of any state, commonwealth, possession or colony of the United States
so long as such trust, partnership, limited liability company, association,
corporation or other business entity is an open-end management investment
company under the 1940 Act and, in the case of any trust, partnership, limited
liability company, association, corporation or other business entity created by
the Trustees to accomplish such sale and conveyance, may succeed to or assume
the Trust's registration under the 1940 Act, for adequate consideration as
determined by the Trustees which may include the assumption of all outstanding
obligations, taxes and other liabilities, accrued or contingent of the Trust or
any affected Series or Class, and which may include Shares of such other Series
or Class of the Trust or shares of beneficial interest, stock or other
ownership interest of such trust, partnership, limited liability company,
association, corporation or other business entity (or series thereof) or (v) at
any time sell or convert into money all or any part of the assets of the Trust
or any Series or Class thereof. Any agreement of merger, reorganization,
consolidation, exchange or conversion or certificate of merger, certificate of
conversion or other applicable certificate may be signed by a majority of the
Trustees and facsimile signatures conveyed by electronic or telecommunication
means shall be valid.
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(2) Pursuant to and in accordance with the provisions of Section 3815(f)
of the Delaware Act, and notwithstanding anything to the contrary contained in
this Declaration of Trust, an agreement of merger or consolidation approved by
the Trustees in accordance with this Section 3 may effect any amendment to the
governing instrument of the Trust or effect the adoption of a new trust
instrument of the Trust if the Trust is the surviving or resulting trust in the
merger or consolidation.
(3) Notwithstanding anything else herein, the Trustees may, without
Shareholder approval unless such approval is required by the 1940 Act, create
one or more statutory or business trusts to which all or any part of the
assets, liabilities, profits or losses of the Trust or any Series or Class
thereof may be transferred and may provide for the conversion of Shares in the
Trust or any Series or Class thereof into beneficial interests in any such
newly created trust or trusts or any series or classes thereof.
(4) Notwithstanding anything else herein, the Trustees may, without
Shareholder approval, invest all or a portion of the Trust Property of any
Series, or dispose of all or a portion of the Trust Property of any Series, and
invest the proceeds of such disposition in interests issued by one or more
other investment companies registered under the 1940 Act. Any such other
investment company may (but need not) be a trust (formed under the laws of the
State of Delaware or any other state or jurisdiction) (or subtrust thereof)
which is classified as a partnership for federal income tax purposes.
Notwithstanding anything else herein, the Trustees may, without Shareholder
approval unless such approval is required by the 1940 Act, cause a Series that
is organized in the master/feeder fund structure to withdraw or redeem its
Trust Property from the master fund and cause such series to invest its Trust
Property directly in securities and other financial instruments or in another
master fund.
Section 4. Amendments. Except as specifically provided in this Section,
the Trustees may, without Shareholder vote, restate, amend or otherwise
supplement this Declaration of Trust. Shareholders shall have the right to vote
(i) on any amendment that is required to be approved by Shareholders by the
1940 Act or by the Registration Statement and (ii) on any amendment submitted
to them by the Trustees. Any amendment required or permitted to be submitted to
the Shareholders that, as the Trustees determine, shall only affect the
Shareholders of any one or more Series or one or more Classes shall be
authorized by a vote of only the Shareholders of each Series or Class affected
and no vote of Shareholders of a Series or Class not affected shall be
required. Notwithstanding anything else herein, no amendment hereof shall limit
the rights to insurance provided by Article VII, Section 4 of this Declaration
of Trust with respect to any acts or omissions of Persons covered thereby prior
to such amendment nor shall any such amendment limit the rights to
indemnification referenced in Article VII, Section 2 of this Declaration of
Trust or as provided in the By-Laws with respect to any actions or omissions of
Persons covered thereby prior to such amendment. The Trustees may, without
Shareholder vote, restate, amend, or otherwise supplement the Certificate of
Trust as the Trustees deem necessary or desirable.
Section 5. Filing of Copies, References, Headings, Rules of Construction.
The original or a copy of this instrument and of each restatement, amendment
and/or supplement hereto shall be kept at the office of the Trust where it may
be inspected by any Shareholder. Anyone dealing with the Trust may rely on a
certificate by an officer of the Trust as to whether or not any such
restatements, amendments and/or supplements have been made and as to any
matters in
20
connection with the Trust hereunder; and, with the same effect as if it were
the original, may rely on a copy certified by an officer of the Trust to be a
copy of this instrument or of any such restatements, amendments and/or
supplements. In this instrument and in any such restatements, amendments and/or
supplements, references to this instrument, and all expressions such as
"herein", "hereof" and "hereunder", shall be deemed to refer to this instrument
as amended or affected by any such restatements, amendments and/or supplements.
Headings are placed herein for convenience of reference only and shall not be
taken as a part hereof or control or affect the meaning, construction or effect
of this instrument. Whenever the singular number is used herein, the same shall
include the plural; and the neuter, masculine and feminine genders shall
include each other, as applicable. This instrument may be executed in any
number of counterparts each of which shall be deemed an original. The terms
"include," "includes" and "including" and any comparable terms shall be deemed
to mean "including, without limitation."
Section 6. Applicable Law.
(1) The Trust is created under, and this Declaration of Trust is to be
governed by, and construed and enforced in accordance with, the laws of the
State of Delaware. The Trust shall be of the type commonly called a business
trust, and without limiting the provisions hereof, the Trust specifically
reserves the right to exercise any of the powers or privileges afforded to
business or statutory trusts or actions that may be engaged in by business or
statutory trusts under the Delaware Act, and the absence of a specific
reference herein to any such power, privilege or action shall not imply that
the Trust may not exercise such power or privilege or take such actions.
(2) Notwithstanding the first sentence of Section 6(1) of this Article
VIII, there shall not be applicable to the Trust, the Trustees or this
Declaration of Trust, the provisions of Section 3540 of Title 12 of the
Delaware Code or any provisions of the laws (statutory or common) of the State
of Delaware (other than the Delaware Act) pertaining to trusts that relate to
or regulate: (i) the filing with any court or governmental body or agency of
trustee accounts or schedules of trustee fees and charges, (ii) affirmative
requirements to post bonds for trustees, officers, agents or employees of a
trust, (iii) the necessity for obtaining a court or other governmental approval
concerning the acquisition, holding or disposition of real or personal
property, (iv) fees or other sums applicable to trustees, officers, agents or
employees of a trust, (v) the allocation of receipts and expenditures to income
or principal, (vi) restrictions or limitations on the permissible nature,
amount or concentration of trust investments or requirements relating to the
titling, storage or other manner of holding of trust assets, or (vii) the
establishment of fiduciary or other standards or responsibilities or
limitations on the acts or powers of trustees that are inconsistent with the
limitations or liabilities or authorities and powers of the Trustees set forth
or referenced in this Declaration of Trust.
Section 7. Provisions in Conflict with Law or Regulations.
(1) The provisions of the Declaration of Trust are severable, and if the
Trustees shall determine, with the advice of counsel, that any of such
provision is in conflict with the 1940 Act, the regulated investment company
provisions of the Internal Revenue Code of 1986, as amended (or any successor
statute thereto), and the regulations thereunder, the Delaware Act or with
other applicable laws and regulations, the conflicting provision shall be
deemed never to have
21
constituted a part of the Declaration of Trust; provided, however, that such
determination shall not affect any of the remaining provisions of the
Declaration of Trust or render invalid or improper any action taken or omitted
prior to such determination.
(2) If any provision of the Declaration of Trust shall be held invalid or
unenforceable in any jurisdiction, such invalidity or unenforceability shall
attach only to such provision in such jurisdiction and shall not in any manner
affect such provision in any other jurisdiction or any other provision of the
Declaration of Trust in any jurisdiction.
Section 8. Statutory Trust Only. It is the intention of the Trustees to
create a statutory trust pursuant to the Delaware Act. It is not the intention
of the Trustees to create a general partnership, limited partnership, joint
stock association, corporation, bailment, or any form of legal relationship
other than a statutory trust pursuant to the Delaware Act. Nothing in this
Declaration of Trust shall be construed to make the Shareholders, either by
themselves or with the Trustees, partners or members of a joint stock
association.
Section 9. Derivative Actions. In addition to the requirements set forth
in Section 3816 of the Delaware Act, a Shareholder may bring a derivative
action on behalf of the Trust only if the following conditions are met:
(1) The Shareholder or Shareholders must make a pre-suit demand upon the
Trustees to bring the subject action unless an effort to cause the Trustees to
bring such an action is not likely to succeed. For purposes of this Section
9(1), a demand on the Trustees shall only be deemed not likely to succeed and
therefore excused if a majority of the Board of Trustees, or a majority of any
committee established to consider the merits of such action, is composed of
Trustees who are not "independent trustees" (as that term is defined in the
Delaware Act).
(2) Unless a demand is not required under paragraph (1) of this Section 9,
Shareholders eligible to bring such derivative action under the Delaware Act
who collectively hold at least 10% of the outstanding Shares of the Trust, or
who collectively hold at least 10% of the outstanding Shares of any Series or
Class to which such action relates, shall join in the request for the Trustees
to commence such action; and
(3) Unless a demand is not required under paragraph (1) of this Section 9,
the Trustees must be afforded a reasonable amount of time to consider such
shareholder request and to investigate the basis of such claim. The Trustees
shall be entitled to retain counsel or other advisors in considering the merits
of the request and shall require an undertaking by the Shareholders making such
request to reimburse the Trust for the expense of any such advisors in the
event that the Trustees determine not to bring such action.
For purposes of this Section 9, the Board of Trustees may designate a
committee of one Trustee to consider a Shareholder demand if necessary to
create a committee with a majority of Trustees who do not have a personal
financial interest in the transaction at issue. The Trustees shall be entitled
to retain counsel or other advisors in considering the merits of the request
and may require an undertaking by the Shareholders making such request to
reimburse the Trust for the expense of any such advisors in the event that the
Trustees determine not to bring such action.
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IN WITNESS WHEREOF, the Trustees named below do hereby make and enter into
this Declaration of Trust as of the 22nd day of April, 2005.
/s/ Xxxxxxx X. Xxx
----------------------------
Xxxxxxx X. Xxx
/s/ Xxxxx X. Xxxxxxx
----------------------------
Xxxxx X. Xxxxxxx
/s/ Xxxxx X. Xxxxxxxxxx
----------------------------
Xxxxx X. Xxxxxxxxxx
THE PRINCIPAL PLACE OF BUSINESS OF THE TRUST IS:
000 Xxxxxxxx Xxxx Xxxx
Xxxxxxxxxx, Xxx Xxxxxx 00000
