Exhibit 28(a)(3)
THE GAMCO XXXXXXX FUND
---------------------------
AMENDED AND RESTATED AGREEMENT
AND DECLARATION OF TRUST
---------------------------
August 19, 2009
TABLE OF CONTENTS
ARTICLE I
The Trust
Section 1.1 Name........................................................... 2
Section 1.2 Definitions.................................................... 2
Section 1.3 Purpose and Powers of Trust.................................... 4
Trustees
Section 2.1 Number and Qualification....................................... 4
Section 2.2 Term and Election.............................................. 4
Section 2.3 Resignation and Removal........................................ 5
Section 2.4 Vacancies...................................................... 5
Section 2.5 Meetings....................................................... 6
Section 2.6 Officers....................................................... 7
ARTICLE III
Powers and Duties of Trustees
Section 3.1 General........................................................ 7
Section 3.2 Investments.................................................... 8
Section 3.3 Legal Title.................................................... 8
Section 3.4 Issuance and Repurchase of Shares.............................. 8
Section 3.5 Borrow Money or Utilize Leverage............................... 9
Section 3.6 Delegation; Committees......................................... 9
Section 3.7 Collection and Payment......................................... 9
Section 3.8 Expenses....................................................... 10
Section 3.9 By-Laws........................................................ 10
Section 3.10 Miscellaneous Powers........................................... 10
Section 3.11 Further Powers................................................. 11
ARTICLE IV
Limitations of Liability and Indemnification
Section 4.1 No Personal Liability of Shareholders, Trustees, etc........... 12
Section 4.2 Mandatory Indemnification...................................... 12
Section 4.3 No Duty of Investigation; Notice in Trust Instruments, etc..... 14
Section 4.4 Reliance on Experts, etc....................................... 14
ARTICLE V
Shares of Beneficial Interest
Section 5.1 Beneficial Interest............................................ 15
Section 5.2 Series Designation............................................. 15
Section 5.3 Class Designation. 15
Section 5.4 Description of Shares.......................................... 16
Section 5.5 Rights of Shareholders......................................... 18
Section 5.6 Trust Only..................................................... 19
Section 5.7 Issuance of Shares............................................. 19
Section 5.8 Register of Shares. ........................................... 19
Section 5.9 Transfer of Shares............................................. 20
Section 5.10 Notices........................................................ 20
Section 5.11 Net Asset Value............................................... 20
Section 5.12 Distributions to Shareholders................................. 21
ARTICLE VI
Shareholders
Section 6.1 Meetings of Shareholders....................................... 21
Section 6.2 Voting......................................................... 22
Section 6.3 Notice of Meeting, Shareholder Proposals and Record Date....... 22
Section 6.4 Quorum and Required Vote....................................... 23
Section 6.5 Proxies, etc................................................... 23
Section 6.6 Reports........................................................ 24
Section 6.7 Inspection of Records.......................................... 24
Section 6.8 Shareholder Action by Written Consent.......................... 24
ARTICLE VII
Redemption
Section 7.1 Redemptions.................................................... 25
Section 7.2 Disclosure of Holding.......................................... 25
Section 7.3 Redemptions of Small Accounts.................................. 25
ARTICLE VIII
Duration: Termination of Trust;
Amendment; Mergers, Etc.
Section 8.1 Duration....................................................... 26
Section 8.2 Termination.................................................... 26
Section 8.3 Amendment Procedure............................................ 27
Section 8.4 Merger, Consolidation and Sale of Assets....................... 28
ARTICLE IX
Miscellaneous
Section 9.1 Filing......................................................... 29
Section 9.2 Resident Agent................................................. 29
Section 9.3 Governing Law.................................................. 29
Section 9.4 Counterparts................................................... 29
Section 9.5 Reliance by Third Parties...................................... 30
Section 9.6 Provisions in Conflict with Law or Regulation.................. 30
THE GAMCO XXXXXXX FUND
AMENDED AND RESTATED AGREEMENT
AND
DECLARATION OF TRUST
AMENDED AND RESTATED AGREEMENT AND DECLARATION OF TRUST made as of the 19h
day of August, 2009 by the Trustees hereunder, and by the holders of shares of
beneficial interest issued hereunder as hereinafter provided.
WHEREAS, the Trustees desire to amend and restate the Agreement and
Declaration of Trust made as of the 17th day of June, 1999 in its entirety
pursuant to its Section 8.3;
WHEREAS, this Trust has been formed to carry on business as set forth more
particularly hereinafter;
WHEREAS, this Trust is authorized to issue an unlimited number of its
shares of beneficial interest in separate series and classes of each such
series, each separate series to be a sub-trust hereunder, all in accordance with
the provisions hereinafter set forth;
WHEREAS, the Trustees have agreed to manage all property coming into their
hands as Trustees of a Delaware business trust in accordance with the provisions
hereinafter set forth; and
WHEREAS, the parties hereto intend that the Trust created by itsinitial
Declaration and the Certificate of Trust filed with the Secretary of State of
the State of Delaware on June 17, 1999 shall constitute a business trust under
the Delaware Business Trust Statute and that this Declaration shall constitute
the governing instrument of such business trust.
NOW, THEREFORE, the Trustees hereby declare that they will hold all cash,
securities, and other assets which they may from time to time acquire in any
manner as Trustees hereunder IN TRUST to manage and dispose of the same upon the
following terms and conditions for the benefit of the holders from time to time
of shares of beneficial interest in this Trust or sub-trusts created hereunder
as hereinafter set forth.
ARTICLE I
The Trust
SECTION 1.1 NAME. This Trust shall be known as "The GAMCO Xxxxxxx Fund"
and the Trustees shall conduct the business of the Trust under that name or any
other name or names as they may from time to time determine.
SECTION 1.2 DEFINITIONS. As used in this Declaration, the following terms
shall have the following meanings:
"By-Laws" shall mean the By-Laws of the Trust as amended from time to time
by the Trustees.
"Class" shall mean a portion of Shares of a Series of the Trust
established in accordance with Section 5.3 hereof.
"Code" shall mean the Internal Revenue Code of 1986, as amended, and the
regulations promulgated thereunder.
"Commission" shall mean the Securities and Exchange Commission.
"Declaration" shall mean this Amended and Restated Agreement and
Declaration of Trust, as amended or amended and restated from time to time,
including by way of any classifying or reclassifying Shares of any Series or any
Class of any such Series or determining any designations, powers, preferences,
voting, conversion and other rights, limitations, qualifications and terms and
conditions thereof.
"Delaware Business Trust Statute" shall mean the provisions of the
Delaware Business Trust Act, 12 Del. C. ss.3801, et. seq., as such Act may be a
mended from time to time.
"Fundamental Policies" shall mean the investment policies and restrictions
set forth from time to time in any Prospectus of the Trust or any Series that
are expressly designated therein as fundamental policies of such Series.
"Interested Person" shall have the meaning ascribed thereto in the 1940
Act.
"Majority Shareholder Vote" shall mean a vote of a "majority of the
outstanding voting securities" (as such term is defined in the 0000 Xxx) of the
Trust, any Series of the Trust or any Class thereof, as applicable.
The "1940 Act" refers to the Investment Company Act of 1940 and the rules
and regulations promulgated thereunder and applicable exemptions there from, as
amended from time to time.
The "1933 Act" refers to the Securities Act of 1933, and the rules and
regulations promulgated thereunder and applicable exemptions therefrom, as
amended from time to time.
"Person" shall mean and include natural persons, corporations,
partnerships, trusts, limited liability companies, associations, joint ventures
and other entities, whether or not legal entities, and governments and agencies
and political subdivisions thereof.
"Prospectus" shall mean the current Prospectus of the Trust or of any
Series thereof or of any Class of any such Series, as applicable.
"Series" shall mean the separate sub-trusts that may be established and
designated as series pursuant to Section 5.2 hereof or any one of such
sub-trusts, as applicable.
"Shareholders" shall mean as of any particular time the holders of record
of outstanding Shares of the Trust, any Series of the Trust or any Class of any
Series, as applicable, at such time.
"Shares" shall mean the transferable units of beneficial interest into
which the beneficial interest in the Trust or in a Series of the Trust shall be
divided from time to time and includes fractions of Shares as well as whole
Shares, which Shares may be divided into Series and Classes. All references to
Shares shall be deemed to be Shares of any or all Series or Classes as the
context may require.
"Trust" shall mean the trust established by this Declaration, as amended
from time to time, inclusive of each such amendment and every sub-trust
established as a Series hereunder.
"Trustees" shall mean the signatory to this Declaration, so long as such
signatory shall continue in office in accordance with the terms hereof, and all
other persons who at the time in question have been duly elected or appointed
and have qualified as trustees in accordance with the provisions hereof and are
then in office.
"Trust Property" shall mean as of any particular time any and all
property, real or personal, tangible or intangible, which at such time is owned
or held by or for the account of the Trust or the Trustees in such capacity.
SECTION 1.3 PURPOSE AND POWERS OF TRUST. The Trust is established for the
purpose of engaging in any activity not prohibited by Delaware law and shall
have the power to engage in any such activity and in any activity incidental or
related to any such activity.
ARTICLE II
Trustees
SECTION 2.1 NUMBER AND QUALIFICATION. Prior to any offering of Shares,
there may be a sole Trustee and thereafter the number of Trustees shall be such
number, not less than three or more than fifteen, as shall be set forth in a
written instrument signed or adopted by a majority of the Trustees then in
office. No reduction in the number of Trustees shall have the effect of removing
any Trustee from office prior to the expiration of his or her term. An
individual nominated as a Trustee shall be at least 21 years of age and not
older than such age as may be set forth in a written instrument signed or
adopted by not less than a majority of the Trustees then in office and shall not
be under legal disability. Trustees need not own Shares and may succeed
themselves in office.
SECTION 2.2 TERM AND ELECTION. Except for the Trustees appointed to fill
vacancies pursuant to Section 2.4 hereof, each Trustee shall be elected to serve
until death, resignation, removal, reelection by written ballot at the annual
meeting, if one is held, or at any special meeting. Subject to Section 2.4
hereof, each Trustee named herein or elected or appointed pursuant to the terms
hereof shall hold office until such Trustee's successor has been elected at such
meetings and has qualified to serve as Trustee. Election of Trustees at a
meeting shall be by the affirmative vote of the holders of a plurality of the
Shares present in person or by proxy. Each individual elected or appointed as a
Trustee of the Trust shall, unless otherwise provided by such election or
appointment, by such election or appointment also thereby be elected or
appointed, as the case may be, as a Trustee of each Series of the Trust then in
existence. The election or appointment of any Trustee (other than an individual
who was serving as a Trustee immediately prior thereto) shall not become
effective unless and until such person shall have in writing accepted his
election and agreed to be bound by the terms of this Declaration.
SECTION 2.3 RESIGNATION AND REMOVAL. Any Trustee may resign his trust
(without need for prior or subsequent accounting) by an instrument in writing
signed by him and delivered or mailed to the Chairman, if any, the President or
the Secretary and such resignation shall be effective upon such delivery, or at
a later date according to the terms of the instrument. Any Trustee may be
removed (provided the aggregate number of Trustees after such removal shall not
be less than the number required by Section 2.1 hereof) for cause at any time by
written instrument, signed by two-thirds of the remaining Trustees, specifying
the date when such removal shall become effective. Any Trustee may be removed
(provided the aggregate number of Trustees after such removal shall not be less
than the minimum number required by Section 2.1 hereof) without cause at any
time by a written instrument, signed or
adopted by two-thirds of the remaining Trustees or by vote of Shares having not
less than two-thirds of the aggregate number of Shares entitled to vote in the
election of such Trustee, specifying the date when such removal shall become
effective. Upon the resignation or removal of a Trustee, or such persons
otherwise ceasing to be a Trustee, such persons shall execute and deliver such
documents as the remaining Trustees shall require for the purpose of conveying
to the Trust or the remaining Trustees any Trust Property held in the name of
the resigning or removed Trustee. Upon the incapacity or death of any Trustee,
such Trustee's legal representative shall execute and deliver on such Trustee's
behalf such documents as the remaining Trustees shall require as provided in the
preceding sentence.
SECTION 2.4 VACANCIES. The term of office of a Trustee shall terminate and
a vacancy shall occur in the event of the death, resignation, bankruptcy,
adjudicated incompetence or other incapacity to perform the duties of the
office, or removal, of a Trustee. Whenever a vacancy in the Board of Trustees
shall occur, the remaining Trustees may fill such vacancy by appointing an
individual having the qualifications described in this Article by a written
instrument signed or adopted by a majority of the Trustees then in office or by
election by the Shareholders, or may leave such vacancy unfilled or may reduce
the number of Trustees (provided the aggregate number of Trustees after such
reduction shall not be less than the mini mum number required by Section 2.1
hereof). Any vacancy created by an increase in Trustees may be filled by the
appointment of an individual having the qualifications described in this Article
made by a written instrument signed by a majority of the Trustees then in office
or by election by the Shareholders. No vacancy shall operate to annul this
Declaration or to revoke any existing agency created pursuant to the terms of
this Declaration. Whenever a vacancy in the number of Trustees shall occur,
until such vacancy is filled as provided herein, the Trustees in office, regard
less of their number, shall have all the powers granted to the Trustees and
shall discharge all the duties imposed upon the Trustees by this Declaration.
SECTION 2.5 MEETINGS. Meetings of the Trustees shall be held from time to
time upon the call of the Chairman, if any, the President, the Secretary or any
two Trustees. Regular meetings of the Trustees may be held without call or
notice at a time and place fixed by the By-Laws or by the Trustees. Notice of
any other meeting shall be mailed or delivered by electronic mail not less than
48 hours before the meeting or otherwise actually delivered orally or in writing
not less than 24 hours before the meeting, but may be waived in writing by any
Trustee either before or after such meeting. The attendance of a Trustee at a
meeting shall constitute a waiver of notice of such meeting except where a
Trustee attends a meeting for the express purpose of objecting to the
transaction of any business on the ground that the meeting has not been lawfully
called or convened. The Trustees may act with or without a meeting. A quorum for
all meetings of the Trustees shall be one-third of the Trustees. Unless provided
otherwise in this Declaration of Trust, any action of the Trustees may be taken
at a meeting by vote of a majority of the Trustees present (a quorum being
present) or without a meeting by written consent of a majority of the Trustees
or such other proportion as shall be specified herein for action at a meeting at
which all Trustees then in office are present.
Any committee of the Trustees, including an executive committee, if any,
may act with or without a meeting. A quorum for all meetings of any such
committee shall be a majority of the members thereof. Unless provided otherwise
in this Declaration, any action of any such committee may be taken at a meeting
by vote of a majority of the members present (a quorum being present) or without
a meeting by written consent of a majority of the members or such other
proportion as shall be specified herein for action at a meeting at which all
committee members are present.
With respect to actions of the Trustees and any committee of the Trustees,
Trustees who are Interested Persons in any action to be taken may be counted for
quorum purposes under this Section and shall be entitled to vote to the extent
not prohibited by the 1940 Act.
All or any one or more Trustees may participate in a meeting of the
Trustees or any committee thereof by means of a conference telephone, internet
connection or similar communications equipment by means of which all persons
participating in the meeting can hear or otherwise communicate with each other;
participation in a meeting pursuant to any such communications system shall
constitute presence in person at such meeting except as otherwise provided by
the 1940 Act.
SECTION 2.6 OFFICERS. The Trustees shall elect a President, a Secretary
and a Treasurer and may elect a Chairman who shall serve at the pleasure of the
Trustees or until their successors are elected. The Trustees may elect or
appoint or may authorize the Chairman, if any, or President to appoint such
other officers or agents with such other titles and powers as the Trustees may
deem to be advisable. A Chairman shall, and the President, Secretary and
Treasurer may, but need not, be a Trustee.
ARTICLE III
Powers and Duties of Trustees
SECTION 3.1 GENERAL. The Trustees shall owe to the Trust and its
Shareholders the same fiduciary duties as owed by directors of corporations to
such corporations and their stockholders under the general corporation law of
the State of Delaware. The Trustees shall have exclusive and absolute control
over the Trust Property and over the business of the Trust or any Series thereof
to the same extent as if the Trustees were the sole owners of the Trust Property
and business in their own right, but with such powers of delegation as may be
permitted by this Declaration. The Trustees shall have power to engage in any
activity not prohibited by Delaware law. The enumeration of any specific power
herein shall not be construed as limiting the aforesaid power. The Trustees may
perform such acts as in their sole discretion are proper for conducting the
business of the Trust. The powers of the Trustees may be exercised without order
of or resort to any court. No Trustee shall be obligated to give any bond or
other security for the performance of any of his duties or powers hereunder.
SECTION 3.2 INVESTMENTS. The Trustees shall have power to:
(1) manage, conduct, operate and carry on the business of an
investment company;
(2) subscribe for, invest in, reinvest in, purchase or otherwise
acquire, hold, pledge, sell, assign, transfer, exchange, distribute or
otherwise deal in or dispose of any and all sorts of property, tangible or
intangible, including but not limited to securities of any type
whatsoever, whether equity or non-equity, of any issuer, evidences of
indebtedness of any person and any other rights, interests, instruments or
property of any sort and to exercise any and all rights, powers and
privileges of ownership or interest in respect of any and all such
investments of every kind and description, including, without limitation,
the right to consent and otherwise act with respect thereto, with power to
designate one or more Persons to exercise any of said rights, powers and
privileges in respect of any of said investments. The Trustees shall not
be limited by any law limiting the investments which may be made by
fiduciaries.
SECTION 3.3 LEGAL TITLE. Legal title to all the Trust Property shall be
vested in the Trustees as joint tenants except that the Trustees shall have
power to cause legal title to any Trust Property to be held by or in the name of
one or more of the Trustees, or in the name of the Trust, or any Series thereof,
or in the name of any other Person as nominee, custodian or pledgee, on such
terms as the Trustees may determine, provided that the interest of the Trust or
any Series thereof therein is appropriately protected.
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 his
due election and qualification. Upon the ceasing of any person to be a Trustee
for any reason, such person 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 3.4 ISSUANCE AND REPURCHASE OF SHARES. Subject to the provisions
of this Declaration and applicable law, the Trustees shall have the power to
issue, sell, repurchase, redeem, retire, cancel, acquire, hold, resell, reissue,
dispose of, transfer, and otherwise deal in, Shares, including Shares in
fractional denominations, shall have the power to establish from time to time in
accordance with the provisions of Section 5.2 and 5.3 hereof Series and Classes
representing interests in the Trust or a Series thereof and, subject to the more
detailed provisions set forth in Article VII, to apply to any such repurchase,
redemption, retirement, cancellation or acquisition of Shares any funds or
property of the applicable Series of the Trust whether capital or surplus or
otherwise, to the full extent now or hereafter permitted by the laws of the
State of Delaware governing business corporations.
SECTION 3.5 BORROW MONEY OR UTILIZE LEVERAGE. The Trustees shall have the
power to borrow money or otherwise obtain credit or utilize leverage in
connection with the activities of the Trust to the maximum extent permitted by
law, regulation or order and the Fundamental Policies of any Series and to
secure the same by mortgaging, pledging or otherwise subjecting as security the
assets of the Trust or any Series thereof, including the lending of portfolio
securities, and to endorse, guarantee, or undertake the performance of any
obligation, contract or engagement of any other person, firm, association or
corporation; provided, however, that the assets of any particular Series shall
not be used as security for any credit extended solely to one or more other
Series.
SECTION 3.6 DELEGATION; COMMITTEES. The Trustees shall have power,
consistent with their continuing exclusive authority over the management of the
Trust and the Trust Property, to delegate from time to time to such of their
number or to officers, employees or agents of the Trust the doing of such things
and the execution of such instruments either in the name of the Trust or the
names of the Trustees or otherwise as the Trustees may deem expedient, to at
least the same extent as such delegation is permitted to directors of a Delaware
business corporation and is permitted by the 1940 Act, as well as any further
delegations the Trustees may determine to be desirable, expedient or necessary
in order to effect the purpose hereof. The Trustees may designate one or more
committees which shall have all or such lesser portion of the authority of the
entire Board of Trustees as the Trustees shall determine from time to time
except to the extent action by the entire Board of Trustees or particular
Trustees is required by the 1940 Act.
SECTION 3.7 COLLECTION AND PAYMENT. The Trustees shall have power to
collect all property due to the Trust or any Series of the Trust or any Class
thereof; to pay all claims, including taxes, against the Trust Property, the
Trust or any Series of the Trust or any Class thereof, the Trustees or any
officer, employee or agent of the Trust; to prosecute, defend, compromise or
abandon any claims relating to the Trust Property, the Trust or any Series of
the Trust or any Class thereof, or the Trustees or any officer, employee or
agent of the Trust; to foreclose any security interest securing any obligations,
by virtue of which any property is owed to the Trust or any Series of the Trust
or any Class thereof; and to enter into releases, agreements and other
instruments. Except to the extent required for a Delaware business corporation,
the Shareholders shall have no power to vote as to whether or not a court
action, legal proceeding or claim should or should not be brought or maintained
derivatively or as a class action on behalf of the Trust or the Shareholders.
SECTION 3.8 EXPENSES. The Trustees shall have power to incur and pay out
of the assets or income of the Trust or any Series of the Trust or any Class
thereof, any expenses which in the opinion of the Trustees are necessary or
appropriate to carry out any of the purposes of this Declaration, and the
business of the Trust or any Series of the Trust or any Class thereof, and to
pay reasonable compensation from the funds of the Trust to themselves as
Trustees. The Trustees shall fix the compensation of all officers, employees and
Trustees. The Trustees may pay themselves such compensation for special
services, including legal, underwriting, syndicating and brokerage services, as
they in good faith may deem reasonable and reimbursement for expenses reasonably
incurred by themselves on behalf of the Trust. The Trustees shall have the
power, as frequently as they may determine, to cause each Shareholder, or each
Shareholder of any particular Series or Class thereof, to pay directly, in
advance or arrears, for charges of distribution, of the custodian or transfer,
shareholder servicing or similar agent of such Series or Class, a pro rata
amount as defined from time to time by the Trustees, by setting off such charges
due from such Shareholder from declared but unpaid dividends or distributions
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 3.9 BY-LAWS. The Trustees may adopt and from time to time amend or
repeal By-Laws for the conduct of the business of the Trust. Such By-Laws shall
be binding on the Trust and the Shareholders unless inconsistent with the
provisions of this Declaration. The Shareholders shall not have authority to
adopt or amend By-Laws.
SECTION 3.10 MISCELLANEOUS POWERS. The Trustees shall have the power to:
(a) employ or contract with such Persons as the Trustees may deem desirable for
the transaction of the business of the Trust or any Series thereof, including
investment advisors, administrators, custodians, transfer agents, share holder
services providers, accountants, counsel, brokers, dealers and others; (b) enter
into joint ventures, partnerships and any other combinations or associations;
(c) purchase, and pay for out of Trust Property, insurance policies insuring the
Share holders, Trustees, officers, employees, agents, investment advisors,
distributors, selected dealers or independent contractors of the Trust or any
Series thereof against all claims arising by reason of holding any such position
or by reason of any action taken or omitted by any such Person in such capacity,
whether or not constituting negligence, or whether or not the Trust would have
the power to indemnify such Person against such liability; (d) establish
pension, profit-sharing, share purchase, and other retirement, incentive and
benefit plans for any Trustees, officers, employees and agents of the Trust; (e)
make donations, irrespective of benefit to the Trust, for charitable, religious,
educational, scientific, civic or similar purposes; (f) to the extent permitted
by applicable law, indemnify any Person with whom the Trust or any Series
thereof has dealings, including without limitation any investment advisor,
administrator, manager, transfer agent, custodian, distributor or selected
dealer, or any other person as the Trustees may see fit to such extent as the
Trustees shall determine; (g) guarantee indebtedness or contractual obligations
of others; (h) determine and change the fiscal year of the Trust and the method
in which its accounts shall be kept; and (i) adopt a seal for the Trust but the
absence of such seal shall not impair the validity of any instrument executed on
behalf of the Trust.
SECTION 3.11 FURTHER POWERS. The Trustees shall have the power to conduct
the business of the Trust or any Series of the Trust or any Class thereof and
carry on its operations in any and all of its branches and maintain offices both
within and without the State of Delaware, in any and all states of the United
States of America, in the District of Columbia, and in any and all
commonwealths, territories, dependencies, colonies, possessions, agencies or
instrumentalities of the United States of America and of foreign governments,
and to do all such other things and execute all such instruments as they deem
necessary, proper or desirable in order to promote the interests of the Trust or
any Series of the Trust or any Class thereof although such things are not herein
specifically mentioned. Any determination as to
what is in the interests of the Trust or any Series of the Trust or any Class
thereof made by the Trustees in good faith shall be conclusive. In construing
the provisions of this Declaration, the presumption shall be in favor of a grant
of power to the Trustees.
ARTICLE IV
Limitations of Liability and Indemnification
SECTION 4.1 NO PERSONAL LIABILITY OF SHAREHOLDERS, TRUSTEES, ETC. No
Shareholder of the Trust shall be subject in such capacity to any personal
liability whatsoever to any Person in connection with Trust Property or the
acts, obligations or affairs of the Trust. Shareholders shall have the same
limitation of personal liability as is extended to stockholders of a private
corporation for profit incorporated under the general corporation law of the
State of Delaware. No Trustee, officer, employee or agent of the Trust or any
Series of the Trust shall be subject in such capacity to any personal liability
whatsoever to any Person, other than the Trust or the respective Series or the
Shareholders, in connection with Trust Property or the affairs of the Trust or
the respective Series, save only liability to the Trust or its Shareholders
arising from bad faith, willful misfeasance, gross negligence or reckless
disregard for his duty to such Person; and, subject to the foregoing exception,
all such Persons shall look solely to the Trust Property for satisfaction of
claims of any nature arising in connection with the affairs of the Trust. If any
Shareholder, Trustee or officer, as such, of the Trust, is made a party to any
suit or proceeding to enforce any such liability, subject to the foregoing
exception, he shall not, on account thereof, be held to any personal liability.
SECTION 4.2 MANDATORY INDEMNIFICATION. The Trust shall indemnify the
Trustees and officers of the Trust and, with respect to acts or omissions of the
Directors and officers of Xxxxxxx Fund, Inc. (the "Fund"), the Trust's
predecesor, occurring prior to the reorganization of the Fund into the Trust,
such Directors and officers (each such person being an "indemnitee") against any
liabilities and ex penses, including amounts paid in satisfaction of judgments,
in compromise or as fines and penalties, and reasonable counsel fees reasonably
incurred by such indemnitee in connection with the defense or disposition of any
action, suit or other proceeding, whether civil or criminal, before any court or
administrative or investigative body in which he may be or may have been
involved as a party or otherwise (other than, except as authorized by the
Trustees, as the plaintiff or complainant) or with which he may be or may have
been threatened, while acting in any capacity set forth above in this Section
4.2 by reason of his having acted in any such capacity, except with respect to
any matter as to which he shall not have acted in good faith in the reasonable
belief that his action was in the best interest of the Trust or the respective
Series of the Trust or Class thereof or the Fund, as the case may be and
furthermore, in the case of any criminal proceeding, as to which he shall have
had reasonable cause to believe that the conduct was unlawful, provided,
however, that no indemnitee shall be indemnified hereunder against any liability
to any person or any expense of such indemnitee arising by reason of (i) willful
misfeasance, (ii) bad faith, (iii) gross negligence (negligence in the case of
indemnitees that are affiliates of the Trust or the Fund, as the case may be),
or (iv) reckless disregard of the duties involved in the conduct of his
position. Notwithstanding the foregoing, with respect to any action, suit or
other proceeding voluntarily prosecuted by any indemnitee as plaintiff,
indemnification shall be mandatory only if the prosecution of such action, suit
or other proceeding by such indemnitee was authorized by a majority of the
Trustees.
(a) Notwithstanding the foregoing, no indemnification shall be made
hereunder unless there has been a determination (1) by a final
decision on the merits by a court or other body of competent
jurisdiction before whom the issue of entitlement to indemnification
hereunder was brought that such indemnitee is entitled to
indemnification hereunder or, (2) in the absence of such a decision,
by (i) a majority vote of a quorum of those Trustees who are neither
Interested Persons of the Trust nor parties to the proceeding
("Disinterested Non-Party Trustees"), that
the indemnitee is entitled to indemnification hereunder, or (ii) if
such quorum is not obtainable or even if obtainable, if such
majority so directs, independent legal counsel in a written opinion
conclude that the indemnitee should be entitled to indemnification
hereunder. All determinations to make advance payments in connection
with the expense of defending any proceeding shall be authorized and
made in accordance with the immediately succeeding paragraph (c)
below.
(b) The Trust shall make advance payments in connection with the
expenses of defending any action with respect to which
indemnification might be sought hereunder if the Trust receives a
written affirmation by the indemnitee of the indemnitee's good faith
belief that the standards of conduct necessary for indemnification
have been met and a written undertaking to reimburse the Trust
unless it is subsequently determined that he is entitled to such
indemnification and if a majority of the Trustees determine that the
applicable standards of conduct necessary for indemnification appear
to have been met. In addition, at least one of the following
conditions must be met: (1) the indemnitee shall provide adequate
security for his undertaking, (2) the Trust shall be insured against
losses arising by reason of any lawful advances, or (3) a majority
of a quorum of the Disinterested Non-Party Trustees, or if a
majority vote of such quorum so direct, independent legal counsel in
a written opinion, shall conclude, based on a review of readily
available facts (as opposed to a full trial-type inquiry), that
there is substantial reason to believe that the indemnitee
ultimately will be found entitled to indemnification.
(c) The rights accruing to any indemnitee under these provisions shall
not exclude any other right to which he may be lawfully entitled.
(d) Notwithstanding the foregoing, subject to any limitations provided
by the 1940 Act and this Declaration, the Trust shall have the power
and authority to indemnify Persons providing services to the Trust
to the full extent provided by law as if the Trust were a
corporation organized under the Delaware General Corporation Law
provided that such indemnification has been approved by a majority
of the Trustees.
SECTION 4.3 NO DUTY OF INVESTIGATION; NOTICE IN TRUST INSTRUMENTS, ETC. No
purchaser, lender, transfer agent or other person dealing with the Trustees or
with any officer, employee or agent of the Trust or any Series of the Trust or
Class thereof shall be bound to make any inquiry concerning the validity of any
transaction purporting to be made by the Trustees or by said officer, employee
or agent or be liable for the application of money or property paid, loaned, or
delivered to or on the order of the Trustees or of said officer, employee or
agent. Every obligation, contract, undertaking, instrument, certificate, Share,
other security of the Trust or any Series of the Trust or any Class thereof, and
every other act or thing whatsoever executed in connection with the Trust or any
Series of the Trust or Class thereof shall be conclusively taken to have been
executed or done by the executors thereof only in their capacity as Trustees
under this Declaration or in their capacity as officers, employees or agents of
the Trust. The Trustees may maintain insurance for the protection of the Trust
Property, its Shareholders, Trustees, officers, employees and agents in such
amount as the Trustees shall deem adequate to cover possible liability, and such
other insurance as the Trustees in their sole judgment shall deem advisable or
is required by the 1940 Act.
SECTION 4.4 RELIANCE ON EXPERTS, ETC. Each Trustee and officer or employee
of the Trust or any Series of the Trust shall, in the performance of its 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 or any Series of the Trust or Class thereof, upon
an opinion of counsel, or upon reports made to the Trust or any Series thereof
by any of the Trust's officers or employees or by any advisor, administrator,
manager, distributor, selected dealer, accountant, appraiser or
other expert or consultant selected with reasonable care by the Trustees,
officers or employees of the Trust, regardless of whether such counsel or other
person may also be a Trustee.
ARTICLE V
Shares of Beneficial Interest
SECTION 5.1 BENEFICIAL INTEREST. The interest of the beneficiaries
hereunder shall be divided into an unlimited number of shares of beneficial
interest, par value $.001 per share. All Shares issued in accordance with the
terms hereof, including, without limitation, Shares issued in connection with a
dividend in Shares or a split of Shares, shall be fully paid and nonassessable
when the consideration determined by the Trustees (if any) therefor shall have
been received by the Trust.
SECTION 5.2 SERIES DESIGNATION. The Trustees, in their discretion from
time to time, may authorize the division of Shares into two or more Series, each
Series relating to a separate portfolio of investments and each of which Series
shall be a separate and distinct subtrust of the Trust. Each Series so
established hereunder shall be deemed to be a separate trust under the
provisions of Delaware law. The Trustees shall have exclusive power without the
requirement of Shareholder approval to establish and designate such separate and
distinct Series and to fix and determine the relative rights and preferences as
between the different Series. The establishment and designation of any Series
shall be effective upon the execution by a majority of the Trustees of an
instrument setting forth the establishment and designation of such Series. Such
instrument shall also set forth any rights and preferences of such Series which
are in addition to the rights and preferences of Shares set forth in this
Declaration. At any time that there are no Shares outstanding of any particular
Series previously established and designated, the Trustees may by an instrument
executed by a majority of their number abolish or alter that Series and the
establishment and designation thereof. Each instrument referred to in this
paragraph shall have the status of an amendment to this Declaration.
SECTION 5.3 CLASS DESIGNATION. The Trustees, in their discretion from time
to time, may authorize the division of Shares of the Trust or any Series into
two or more Classes of Shares all the assets of which shall be commingled with
the other Classes of such Series. The Trustees shall have exclusive power
without the requirement of Shareholder approval to establish and designate such
separate and distinct Classes and to fix and determine the relative rights,
terms, conditions and expenses applicable to each Class of Shares to the maximum
extent permitted by the 0000 Xxx. The establishment and designation of any Class
of Shares shall be effective upon the affirmative vote of a majority of the
Trustees of the Trust, including the Trustees who are not interested persons of
the Trust. At any time that there are no Shares outstanding of any particular
Class previously established and designated, the Trustees may, by the
affirmative vote of a majority of the Trustees, including a majority of the
Trustees who are not interested persons of the Trust, abolish or alter that
Class and the establishment and designation thereof.
SECTION 5.4 DESCRIPTION OF SHARES. If the Trustees shall create sub-trusts
and divide the Shares into one or more Series or create Classes of Shares, the
following provisions shall be applicable:
(1) NUMBER OF SHARES. The number of Shares of each Series or Class
that may be issued shall be unlimited. The Trustees may
classify or reclassify any unissued Shares or any Shares
previously issued and reacquired of any Series or Class into
one or more Series or Classes that may be established and
designated from time to time. The Trustees may hold as
treasury Shares (of the same or some other Series or Class),
reissue for such consideration and on such terms as they may
determine, or cancel any Shares of any Series or Class
reacquired by the Trust at their discretion from time to time.
(2) INVESTMENT OF PROPERTY. The power of the Trustees to invest
and reinvest the Trust Property of each Series that may be
established shall be governed by Section 3.2 of this
Declaration.
(3) ALLOCATION OF ASSETS. All consideration received by the Trust
for the issue or sale of Shares of a particular Series or
Class, together with all assets in which such consideration is
invested or reinvested, all income, earnings, profits, and
proceeds thereof, including any proceeds derived from the
sale, exchange or liquidation of such assets, and any funds or
payment derived from any reinvestment of such proceeds in
whatever form the same may be, together with such Series' or
Class' share of any assets of the Trust not otherwise
allocated to any particular Series or Class, shall be held by
the Trustees and Trust for the benefit of the Shareholders of
such Series and, subject to the rights of creditors of such
Series only, shall irrevocably belong to that Series for all
purposes, and shall be so recorded upon the books of account
of the Trust. In the event that there are any assets, income,
earnings, profits, and proceeds thereof, funds or payments
which are not readily identifiable as belonging to any
particular Series, the Trustees shall allocate them among any
one or more of the Series established and designated from time
to time in such manner and on such basis as they, in their
sole discretion, deem fair and equitable, and anything so
allocated to a Series shall belong to such Series. Each such
allocation by the Trustees shall be conclusive and binding
upon the Shareholders of all Series for all purposes.
(4) ALLOCATION OF EXPENSES. The assets belonging to each
particular Series or attributable to each particular Class
shall be charged with the liabilities of the Trust in respect
of that Series or Class and all expenses, costs, charges and
reserves attributable to that Series or Class, and any general
liabilities, expenses, costs, charges or reserves of the Trust
which are not readily identifiable as belonging to any
particular Series or attributable to any particular Class
shall be allocated and charged by the Trustees to and among
any one or more of the Series or Classes established and
designated from time to time in such manner and on such basis
as the Trustees in their sole discretion deem fair and
equitable; provided that any incremental expenses allocated to
one or more Classes of Shares on a basis other than the
relative net asset values of the respective Classes shall be
allocated in a manner consistent with the 1940 Act. Each
allocation of liabilities, expenses, costs, charges and
reserves by the Trustees shall be conclusive and binding upon
the Shareholders of all Series and Classes for all purposes.
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. Under no circumstances shall the assets
allocated or belonging to a particular Series or attributable
to a particular Class be charged with any liabilities
attributable to another Series or Class. Any creditor may look
only to the assets of the particular Series with respect to
which such person is a creditor for satisfaction of such
creditor's debt.
(5) DIVIDENDS. The power of the Trustees to pay dividends and make
distributions with respect to any one or more Series shall be
governed by Section 5.12 of this Trust. Dividends and
distributions on Shares of a particular Series may be paid
with such frequency as the Trustees may determine, which may
be daily or otherwise, pursuant to a standing resolution or
resolutions adopted only once or with such frequency as the
Trustees may determine, to the holders of Shares of that
Series, from such of the income and capital gains, accrued or
realized, from the assets belonging to that Series, as the
Trustees may determine, after providing for actual and accrued
liabilities belonging to that Series. All dividends and
distributions on each Class of a Series shall be distributed
pro rata to the holders of Shares of that Class in proportion
to the number of Shares of that Class held by such holders at
the date and time of record established for the payment of
such dividends or distributions, and such dividends and
distributions need not be pro rata with respect to dividends
and distributions paid to Shares of any other Class of such
Series. Dividends and distributions shall be paid with respect
to Shares of a given Class only out of lawfully available
assets attributable to such Class.
SECTION 5.5 RIGHTS OF SHAREHOLDERS. The Shares shall be personal property
giving only the rights in this Declaration specifically set forth. The ownership
of the Trust Property of every description and the right to conduct any business
herein before described are vested exclusively in the Trustees, and the
Shareholders shall have no interest therein other than the beneficial interest
conferred by their Shares, with respect to a particular Series of Class and they
shall have no right to call for any partition or division of any property,
profits, rights or interests of the Trust nor can they be called upon to share
or assume any losses of the Trust or, subject to the right of the Trustees to
charge certain expenses directly to Shareholders, as provided in the last
sentence of Section 3.8, suffer an assessment of any kind by virtue of their
ownership of Shares. The Shares shall not entitle the holder to preference,
preemptive, appraisal, conversion or exchange rights (except as specified in
this Section 5.5 or in Section 8.4 or as specified by the Trustees in the
designation or redesignation of any Series or Class thereof). Notwithstanding
anything to the contrary contained herein:
(1) Any Class of shares denominated as being convertible automatically,
and without any action or choice on the part of the holder thereof,
or shares denominated as being convertible based on an election of
the holder thereof, into any other Class of Shares (or fractions
thereof) pursuant to such terms, conditions and restrictions as may
be established by the Board of Trustees and set forth from time to
time in the applicable Prospectus with respect to such Shares shall
be convertible on such terms as are described in such Prospectus.
(2) The number of Shares into which each such convertible Share shall
convert pursuant to the foregoing paragraph shall equal the number
(including for this purpose fractions of a Share) obtained by
dividing the net asset value per share of the convertible Shares for
purposes of sales and redemptions thereof on the date of such
conversion (the "Conversion Date") by the net asset value per share
of the Class of Shares being converted into for purposes of sales
and redemptions thereof on the Conversion Date.
(3) On the Conversion Date, those Shares which are converted into
another Class of Shares shall cease to accrue dividends and will no
longer be deemed outstanding and the rights of the holders thereof
(except the right to receive dividends declared prior to the
Conversion Date but unpaid as of the Conversion Date) will cease.
Certificates representing Shares resulting from conversion may be
issued pursuant to such terms and conditions as may be established
from time to time by the Board of Trustees.
SECTION 5.6 TRUST ONLY. It is the intention of the Trustees to create only
the relationship of Trustee and beneficiary between the Trustees and each
Shareholder from time to time. 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 trust. Nothing in this Declaration shall be construed to make the
Shareholders, either by themselves or with the Trustees, partners or members of
a joint stock association.
SECTION 5.7 ISSUANCE OF SHARES. The Trustees, in their discretion, may
from time to time without vote of the Shareholders issue Shares with respect to
any Series that may have been established pursuant to Section 5.2, in addition
to the then issued and outstanding Shares and Shares held in the treasury, to
such party or parties and for such amount and type of consideration, including
cash or property, at such time or times, and on such terms as the Trustees may
determine, and may in such manner acquire other assets (including the
acquisition of assets subject to, and in connection with the assumption of,
liabilities) and businesses. The Trustees may from time to time divide or
combine the Shares of any Series into a greater or lesser number without thereby
changing the proportionate beneficial interest in such Series of the Trust.
Issuances and redemptions of Shares may be made in whole Shares and/or
l/l,000ths of a Share or multiples thereof as the Trustees may determine in such
fractions thereof.
SECTION 5.8 REGISTER OF SHARES. A register shall be kept at the Trust or
any transfer agent duly appointed by the Trustees under the direction of the
Trustees which shall contain the names and addresses of the Shareholders and the
number of Shares held by them respectively and a record of all transfers
thereof. Separate registers shall be established and maintained for each Series
of the Trust and each Class thereof. Each such register shall be conclusive as
to who are the holders of the Shares of the applicable Series and Classes
thereof and who shall be entitled to receive dividends or distributions or
otherwise to exercise or enjoy the rights of Shareholders. No Shareholder shall
be entitled to receive payment of any dividend or distribution, nor to have
notice given to him as herein provided, until he or she has given his or her
address to a transfer agent or such other officer or agent of the Trustees as
shall keep the register for entry thereon. It is not contemplated that
certificates will be issued for the Shares; however, the Trustees, in their
discretion, may authorize the issuance of share certificates and promulgate
appropriate fees therefore and rules and regulations as to their use.
SECTION 5.9 TRANSFER OF SHARES. Shares shall be transferable on the
records of the Trust only by the record holder thereof or by its agent thereto
duly authorized in writing, upon delivery to the Trustees or a transfer agent of
the Trust of a duly executed instrument of transfer, together with such evidence
of the genuineness of each such execution and authorization and of other matters
as may reasonably be required. Upon such delivery the transfer shall be recorded
on the applicable register of the Trust. Until such record is made, the
Shareholder of record shall be deemed to be the holder of such Shares for all
purposes hereof and neither the Trustees nor any transfer agent or registrar nor
any officer, employee or agent of the Trust shall be affected by any notice of
the proposed transfer.
Any person becoming entitled to any Shares in consequence of the death,
bankruptcy, or incompetence of any Shareholder, or otherwise by operation of
law, shall be recorded on the applicable register of Shares as the holder of
such Shares upon production of the proper evidence thereof to the Trustees or a
transfer agent of the Trust, but until such record is made, the Shareholder of
record shall be deemed to be the holder of such for all purposes hereof, and
neither the Trustees nor any transfer agent or registrar nor any officer or
agent of the Trust shall be affected by any notice of such death, bankruptcy or
incompetence, or other operation of law.
SECTION 5.10 NOTICES. Any and all notices to which any Shareholder
hereunder may be entitled and any and all communications to any Shareholder
shall be deemed duly served or given (i)if mailed, postage prepaid, addressed to
any Shareholder of record at his or her last known address as recorded on the
applicable register of the Trust or (ii) to the extent permitted by applicable
law, electronic mail or other form of legally permissible electronic
transmission and may be sent together with any such notice or
other communication to another Shareholder at the same address. Notice directed
to a Shareholder by electronic mail or other form of electronic transmission may
be transmitted to any address at which the Shareholder receives electronic mail
or other electronic transmissions.
SECTION 5.11 NET ASSET VALUE. The value of the assets of the Trust or any
Series thereof, the amount of liabilities of the Trust or any Series thereof and
the net asset value of each outstanding Share of the Trust or any Series or
Class shall be determined at such time or times and on such days as the Trustees
may determine in accordance with the 1940 Act. The method of determination of
net asset value shall be determined by the Trustees. The power and duty to value
the assets and liabilities of the Trust and make net asset value determinations
and calculations may be delegated by the Trustees.
SECTION 5.12 DISTRIBUTIONS TO SHAREHOLDERS.
(1) The Trustees shall from time to time distribute among the
Shares such proportion of the net profits, surplus (including
paid-in surplus), capital, or assets held by the Trustees as
they may deem proper or as may otherwise be determined in the
instrument setting forth the terms of such Shares such Class
or Series of Shares, which need not be ratable with respect to
distributions in respect of Shares of any other class or
series thereof of the Trust. Such distributions may be made in
cash or property (including without limitation any type of
obligations of the Trust or any assets thereof) or any
combination thereof.
(2) Distributions may be made to the Shareholders of record
entitled to such distribution at the time such distribution is
declared or at such later date as shall be determined by the
Trust prior to the date of payment.
(3) The Trustees may always retain from any source such amount as
they may deem necessary to pay the debts or expenses of the
Trust or to meet obligations of the Trust, or as they
otherwise may deem desirable to use in the conduct of its
affairs or to retain for future requirements or extensions of
the business of the Trust.
ARTICLE VI
Shareholders
SECTION 6.1 MEETINGS OF SHAREHOLDERS. The Trust may, but shall not be
required to, hold annual meetings of the holders of any class or series of
Shares. An annual or special meeting of Shareholders may be called at any time
only by the Trustees; provided, however, that if May 31 of any year shall have
passed and the Trustees shall not have called an annual meeting of Shareholders
for such year, the Trustees shall call a meeting for the purpose of voting on
the removal of one or more Trustees or the termination of any investment
advisory agreement, upon written request of holders of Shares of the Trust or a
Series having in the aggregate not less than a majority of the votes of the
outstanding Shares of the Trust entitled to vote on the matter or matters in
question, such request specifying the purpose or purposes for which such meeting
is to be called. Any meeting of Shareholders shall be held within or without the
State of Delaware on such day and at such time as the Trustees shall designate.
SECTION 6.2 VOTING. Shareholders shall have no power to vote on any matter
except matters on which a vote of Shares is required by applicable law, this
Declaration or resolution of the Trustees. Any matter required to be submitted
for approval of any of the Shares and affecting one or more Series or Classes
shall require approval by the required vote of Shares of the affected Series or
Class voting
together as a single Series or Class and, if such matter affects one or more
Series or Class thereof differently from one or more other Series or Class,
approval by the required vote of Shares of such other Series or Class voting as
a separate Series or Class shall be required in order to be approved with
respect to such other Series or Class; provided, however, that except to the
extent required by the 1940 Act, there shall be no separate class votes on the
election or removal of Trustees or the selection of auditors for the Trust.
Shareholders of a particular Series shall not be entitled to vote on any matter
that affects the rights or interests of only one or more other Series. There
shall be no cumulative voting in the election or removal of Trustees.
SECTION 6.3 NOTICE OF MEETING, SHAREHOLDER PROPOSALS AND RECORD DATE.
Notice of all meetings of Shareholders, stating the time, place and purposes of
the meeting, shall be given by the Trustees by (i) mail to each Shareholder of
record entitled to vote thereat at its registered address, or (ii) to the extent
permitted by applicable law, electronic mail or other form of legally
permissible electronic transmission, mailed or transmitted at least 10 days
before the meeting or otherwise in compliance with applicable law. Except with
respect to an annual meeting, at which any business required by the 1940 Act may
be conducted, only the business stated in the notice of the meeting shall be
considered at such meeting. Subject to the provisions of applicable law, any
Shareholder wishing to include a proposal to be considered at an annual meeting
must submit such proposal to the Trust at least 30 days in advance of such
meeting. Any adjourned meeting may be held as adjourned one or more times
without further notice not later than 130 days after the record date. For the
purposes of determining the Shareholders who are entitled to notice of and to
vote at any meeting the Trustees may, without closing the transfer books, fix a
date not more than 100 days prior to the date of such meeting of Shareholders as
a record date for the determination of the Persons to be treated as Shareholders
of record for such purposes.
SECTION 6.4 QUORUM AND REQUIRED VOTE.
(1) The holders of one-third of the outstanding Shares of the
Trust on the record date present in person or by proxy shall
constitute a quorum at any meeting of the Shareholders for
purposes of conducting business on which a vote of all
Shareholders of the Trust is being taken. The holders of
one-third of the outstanding Shares of one or more Series or
one or more Classes on the record date present in person or by
proxy shall constitute a quorum at any meeting of the
Shareholders for purposes of conducting business on which a
vote of Shareholders of such Series or Series or Class or
Classes is being taken. Shares underlying a proxy as to which
a broker or other intermediary states its absence of authority
to vote with respect to one or more matters shall be treated
as present for purposes of establishing a quorum for taking
action on any such matter only to the extent so determined by
the Trustees at or prior to the meeting of Shareholders at
which such matter is to be considered.
(2) Subject to any provision of applicable law, this Declaration
or a resolution of the Trustees specifying or requiring a
greater or lesser vote requirement for the transaction of any
matter of business at any meeting of Shareholders, (i) the
affirmative vote of a plurality of the Shares entitled to vote
for the election of any Trustee or Trustees shall be the act
of such Shareholders with respect to the election of such
Trustee or Trustees, (ii) the affirmative vote of a majority
of the Shares present in person or represented by proxy and
entitled to vote on any other matter shall be the act of the
Shareholders with respect to such matter, and (iii) where a
separate vote of any Series is required on any matter, the
affirmative vote of a majority of the Shares of such Series
present in person or represented by proxy and entitled to vote
on such matter shall be the act of the Shareholders of such
Series with respect to such matter.
SECTION 6.5 PROXIES, ETC. At any meeting of Shareholders, any holder of
Shares entitled to vote thereat may vote by proxy, provided that no proxy shall
be voted at any meeting unless it shall have been placed on file with the
Secretary, or with such other officer or agent of the Trust as the Secretary may
direct, for verification prior to the time at which such vote shall be taken.
Pursuant to a resolution of a majority of the Trustees, proxies may be solicited
in the name of one or more Trustees or one or more of the officers or employees
of the Trust. Only Shareholders of record shall be entitled to vote. Each full
Share shall be entitled to one vote and each fractional Share shall be entitled
to a vote equal to its fraction of a full Share. When any Share is held jointly
by several persons, any one of them may vote at any meeting in person or by
proxy in respect of such Share, but if more than one of them shall be present at
such meeting in person or by proxy, and such joint owners or their proxies so
present disagree as to any vote to be cast, such vote shall not be received in
respect of such Share. A proxy purporting to be given by or on behalf of a
Shareholder of record on the record date for a meeting shall be deemed valid
unless challenged at or prior to its exercise, and the burden of proving
invalidity shall rest on the challenger. If the holder of any such Share is a
minor or a person of unsound mind, and subject to guardianship or to the legal
control of any other person as regards the charge or management of such Share,
he or she may vote by his or her guardian or such other person appointed or
having such control, and such vote may be given in person or by proxy. The
Trustees shall have the authority to make and modify from time to time
regulations regarding the validity of proxies. In addition to signed proxies,
such regulations may authorize facsimile, telephonic, internet and other legally
permissible methods of appointing a proxy that are subject to such supervision
by or under the direction of the Trustees as the Trustees shall determine.
SECTION 6.6 REPORTS. The Trustees shall cause to be prepared and sent to
Shareholders at least annually and more frequently to the extent and in the form
required by law, regulation or any exchange on which Shares are listed a report
of operations containing financial statements of the Trust prepared in
conformity with generally accepted accounting principles and applicable law. It
is contemplated that separate reports may be prepared for the various Series.
Copies of such reports shall be mailed to all shareholders of record of the
applicable Series within the time required by the 1940 Act, and in any event
within a reasonable period preceding the meeting of Shareholders.
SECTION 6.7 INSPECTION OF RECORDS. The records of the Trust shall be open
to inspection by Persons who have been holders of record of at least $25,000 in
net asset value or liquidation preference of Shares for a continuous period of
not less than six months to the same extent and for the same purposes as is
permitted under the Delaware General Business Corporation Law to shareholders of
a Delaware business corporation.
SECTION 6.8 SHAREHOLDER ACTION BY WRITTEN CONSENT. Any action which may be
taken by Shareholders by vote may be taken without a meeting if the holders of
all of the Shares entitled to vote thereon consent to the action in writing and
the written consents are filed with the records of the meetings of Shareholders.
Such consent shall be treated for all purposes as a vote taken at a meeting of
Shareholders.
ARTICLE VII
Redemption
SECTION 7.1 REDEMPTIONS. All outstanding Shares of any Series of the Trust
may be redeemed at the option of the holders thereof, upon and subject to the
terms and conditions provided in this Article VII. The Trust shall, upon
application by any Shareholder or pursuant to authorization from any Shareholder
of a particular Series or Class, redeem or repurchase from such Shareholder
outstanding Shares of such Series or Class for an amount per share determined by
the application of a formula adopted for such purpose by the Trustees with
respect to such Series (which formula shall be consistent with the
1940 Act); provided that (a) such amount per share shall not exceed any
limitations imposed under applicable law and (b) if so authorized by the
Trustees, the Trust may, at any time and from time to time, charge fees for
effecting such redemption, at such rates as the Trustees may establish, as and
to the extent permitted under the 1940 Act, and may, at any time and from time
to time, pursuant to such Act, suspend such right of redemption. The procedures
for effecting redemption shall be as set forth in the Prospectus with respect to
the applicable Series or Class from time to time. The proceeds of the redemption
of Shares shall be paid in cash or property (tangible of intangible) or any
combination thereof in the sole discretion of the Trust's investment advisor.
The proceeds of the redemption of Shares subject to a contingent deferred sales
charge (including fractional shares) shall be reduced by the amount of any
applicable contingent deferred sales charge payable on such redemption with
respect to the respective Class of such Shares as set forth in the applicable
Prospectus (to the extent consistent with the 1940 Act) or such other charges,
fees or expenses as may be applicable thereto.
SECTION 7.2 DISCLOSURE OF HOLDING. The holders of Shares or other
securities of the Trust shall upon demand disclose to the Trustees in writing
such information with respect to direct and indirect ownership of Shares or
other securities of the Trust as the Trustees deem necessary to comply with the
provisions of the Code or any other applicable laws.
SECTION 7.3 REDEMPTIONS OF SMALL ACCOUNTS. The Trustees shall have the
power to redeem shares of any Series at a redemption price determined in
accordance with Section 7.1 above, (a) if at any time the total investment in
such account does not have a value of at least such minimum amount as may be
specified in the Prospectus for such Series from time to time, (b) as provided
by Section 3.8, or (c) to the extent a Shareholder or other person beneficially
owns Shares equal to or in excess of a percentage of Shares of the Trust or any
Series or Class determined from time to time by the Trustees and specified in
the applicable Prospectus. In the event the Trustees determine to exercise their
power to redeem Shares provided in subsection (a) of this Section 7.3, the
Shareholder shall be notified that the value of his account is less than the
applicable minimum amount and shall be allowed 30 days to make an appropriate
investment before redemption is processed.
ARTICLE VIII
Duration: Termination of Trust; Amendment; Mergers, Etc.
SECTION 8.1 DURATION. Subject to termination in accordance with the
provisions of Section 8.2 hereof, the Trust created hereby shall have perpetual
existence.
SECTION 8.2 TERMINATION.
(1) The Trust or any Series may be dissolved by the affirmative
vote of a majority of the Trustees, and without any vote of
the Shareholders thereof, except as may be required by the
1940 Act. Upon the dissolution of the Trust or any Series:
(1) The Trust or such Series shall carry on no
business except for the purpose of winding up its
affairs.
(2) The Trustees shall proceed to wind up the affairs
of the Trust or such Series and all of the powers
of the Trustees under this Declaration shall
continue until the affairs of the Trust or such
Series shall have been wound up, including the
power to fulfill or discharge the contracts of the
Trust or such Series, collect its assets, sell,
convey, assign, exchange, merger where the Trust
is not the survivor, transfer or
otherwise dispose of all or any part of the
remaining Trust Property to one or more Persons at
public or private sale for consideration which may
consist in whole or in part in cash, securities or
other property of any kind, discharge or pay its
liabilities, and do all other acts appropriate to
liquidate its business; provided that any sale,
conveyance, assignment, exchange, merger in which
the Trust is not the survivor, transfer or other
disposition of all or substantially all the Trust
Property of the Trust or any Series shall require
approval of the principal terms of the transaction
and the nature and amount of the consideration
with the same vote as required for dissolution
pursuant to paragraph (a) above.
(3) After paying or adequately providing for the
payment of all liabilities, and upon receipt of
such releases, indemnities and refunding
agreements, as they deem necessary for their
protection, the Trustees may distribute the
remaining Trust Property of the Trust or any
Series, in cash or in kind or partly each, among
the Shareholders of such Series according to their
respective rights.
(2) After the winding up and termination of the Trust or any
Series and distribution to the Shareholders as herein
provided, a majority of the Trustees shall execute and lodge
among the records of the Trust an instrument in writing
setting forth the fact of such termination and shall execute
and file a certificate of cancellation with the Secretary of
State of the State of Delaware. Upon termination of the Trust,
the Trustees shall thereupon be discharged from all further
liabilities and duties hereunder, and the rights and interests
of all Shareholders shall thereupon cease.
Upon termination of any Series, the Trustees shall thereunder
be discharged from all further liabilities and duties with
respect to such Series, and the rights and interests of all
Shareholders of such Series shall thereupon cease.
SECTION 8.3 AMENDMENT PROCEDURE.
(1) Subject to Section 8.3(b), this Declaration may be amended in
any respect by the affirmative vote of two-thirds of the
Trustees and without any vote of the Shareholders of the Trust
or any Series or Class except as may be required by the 1940
Act.
(2) Nothing contained in this Declaration shall permit the
amendment of this Declaration to impair the exemption from
personal liability of the Shareholders, Trustees, officers,
employees and agents of the Trust or to permit assessments
upon Shareholders. Expenses of the Trust charged directly to
Shareholders pursuant to Section 3.8 hereof or fees or sales
charges payable upon or in connection with redemptions of
Shares pursuant to Section 7.1 hereof shall not constitute
"assessments" for purposes of this Section 8.3(b).
(3) An amendment duly adopted by the requisite vote of the Board
of Trustees and, if required, Shareholders as aforesaid, shall
become effective at the time of such adoption or at such other
time as may be designated by the Board of Trustees or
Shareholders, as the case may be. A certification signed by a
majority of the
Trustees setting forth an amendment and reciting that it was
duly adopted by the Trustees and, if required, Shareholders as
aforesaid, or a copy of the Declaration, as amended, and
executed by a majority of the Trustees, shall be conclusive
evidence of such amendment when lodged among the records of
the Trust or at such other time designated by the Board.
Notwithstanding any other provision hereof, until such time as
Shares are issued and outstanding, this Declaration may be
terminated or amended in any respect by the affirmative vote
of a majority of the Trustees or by an instrument signed by a
majority of the Trustees.
SECTION 8.4 MERGER, CONSOLIDATION AND SALE OF ASSETS. The Trust or any
Series may merge or consolidate with any other corporation, association, trust
or other organization or any Series, sub-trust or other designated portion
thereof or may sell, lease or exchange all or substantially all of the Trust
Property or the property of any Series including its good will or may acquire
all or substantially all of the property of any other corporation, association,
trust or other organization or any series, sub-trust or other designated portion
thereof, upon such terms and conditions and for such consideration when and as
authorized by two-thirds of the Trustees and without any vote by the
Shareholders of the Trust or any Series or Class except as may be required by
the 1940 Act, and any such merger, consolidation, sale, lease, exchange or
purchase shall be determined for all purposes to have been accomplished under
and pursuant to the statutes of the State of Delaware.
ARTICLE IX
Miscellaneous
SECTION 9.1 FILING. This Declaration and any amendment (including any
supplement) hereto shall be filed in such places as may be required or as the
Trustees deem appropriate. Each amendment shall be accompanied by a certificate
signed and acknowledged by a Trustee stating that such action was duly taken in
a manner provided herein, and shall, upon insertion in the Trust's minute book,
be conclusive evidence of all amendments contained therein. A restated
Declaration, containing the original Declaration and all amendments theretofore
made, may be executed from time to time by a majority of the Trustees and shall,
upon insertion in the Trust's minute book, be conclusive evidence of all
amendments contained therein and may thereafter be referred to in lieu of the
original Declaration and the various amendments thereto.
SECTION 9.2 RESIDENT AGENT. The Trust shall maintain a resident agent in
the State of Delaware, which agent shall initially be The Corporation Trust
Company, 0000 Xxxxxx Xxxxxx, Xxxxxxxxxx, Xxxxxxxx 00000. The Trustees may
designate a successor resident agent, provided, however, that such appointment
shall not become effective until written notice thereof is delivered to the
office of the Secretary of the State.
SECTION 9.3 GOVERNING LAW. This Declaration is executed and delivered in
the State of Delaware and with reference to the laws thereof, and the rights of
all parties and the validity and construction of every provision hereof shall be
subject to and construed according to the laws of said State and reference shall
be specifically made to the business corporation law of the State of Delaware as
to the construction of matters not specifically covered herein or as to which an
ambiguity exists, although such law shall not be viewed as limiting the powers
otherwise granted to the Trustees hereunder and any ambiguity shall be viewed in
favor of such powers.
SECTION 9.4 COUNTERPARTS. This Declaration may be simultaneously executed
in several counterparts, each of which shall be deemed to be an original, and
such counterparts, together, shall constitute one and the same instrument, which
shall be sufficiently evidenced by any such original counterpart.
SECTION 9.5 RELIANCE BY THIRD PARTIES. Any certificate executed by an
individual who, according to the records of the Trust, or of any recording
office in which this Declaration may be recorded, appears to be a Trustee
hereunder, certifying to the existence of any fact or facts which in any manner
relate to the affairs of the Trust shall be conclusive evidence as to the
matters so certified in favor of any person dealing with the Trust.
SECTION 9.6 PROVISIONS IN CONFLICT WITH LAW OR REGULATION.
(1) The provisions of this Declaration are severable, and if the
Trustees shall determine, with the advice of counsel, that any
of such provisions is in conflict with the 1940 Act, the
regulated investment company provisions of the Code or with
other applicable laws and regulations, the conflicting
provision shall be deemed never to have constituted a part of
this Declaration to the extent of such conflict; provided,
however, that such determination shall not affect any of the
remaining provisions of this Declaration or render invalid or
improper any action taken or omitted prior to such
determination.
(2) If any provision of this Declaration 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 in any jurisdiction.
IN WITNESS WHEREOF, the undersigned has caused these presents to be
executed as of the day and year first above written.
By:
/s/ E. Xxx Xxxxxxx /s/ Xxxxxxx X. Xxxxxxxx
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E. Xxx Xxxxxxx Xxxxxxx X. Xxxxxxxx
/s/ Xxxxxxx X. Xxxxxxx
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Xxxxxxx X. Xxxxxxx Xxxxx X. Xxxxxxx
/s/ Xxxxxxx X. Xxxxxxxxx /s/ Xxxxxx X. Xxxxxx
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Xxxxxxx X. Xxxxxxxxx Xxxxxx X. Xxxxxx
/s/ Xxxxx X. Van der Eb /s/ Xxxxxxxx X. xxx Xxxxx
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Xxxxx X. Van der Eb Xxxxxxxx X. xxx Xxxxx
