--------------------------------------------------------------------------------
CDC MPT+ FUNDS
TRUST INSTRUMENT
DATED October 8, 1998
--------------------------------------------------------------------------------
TABLE OF CONTENTS
Page
----
ARTICLE I. NAME AND DEFINITIONS. . . . . . . . . . . . . . . . . . . . . . . .1
SECTION 1.1. NAME. . . . . . . . . . . . . . . . . . . . . . . . . . . . .1
SECTION 1.2. DEFINITIONS . . . . . . . . . . . . . . . . . . . . . . . . .1
ARTICLE II. BENEFICIAL INTEREST. . . . . . . . . . . . . . . . . . . . . . . .2
SECTION 2.1. SHARES OF BENEFICIAL INTEREST . . . . . . . . . . . . . . . .2
SECTION 2.2. ISSUANCE OF SHARES. . . . . . . . . . . . . . . . . . . . . .2
SECTION 2.3. REGISTER OF SHARES AND SHARE CERTIFICATES . . . . . . . . . .3
SECTION 2.4. TRANSFER OF SHARES. . . . . . . . . . . . . . . . . . . . . .3
SECTION 2.5. TREASURY SHARES . . . . . . . . . . . . . . . . . . . . . . .3
SECTION 2.6. ESTABLISHMENT OF SERIES . . . . . . . . . . . . . . . . . . .3
SECTION 2.7. INVESTMENT IN THE TRUST . . . . . . . . . . . . . . . . . . .4
SECTION 2.8. ASSETS AND LIABILITIES OF SERIES. . . . . . . . . . . . . . .5
SECTION 2.9. NO PREEMPTIVE RIGHTS. . . . . . . . . . . . . . . . . . . . .6
SECTION 2.10. STATUS OF SHARES; NO PERSONAL LIABILITY OF
SHAREHOLDER. . . . . . . . . . . . . . . . . . . . . . . .6
ARTICLE III. THE TRUSTEES. . . . . . . . . . . . . . . . . . . . . . . . . . .6
SECTION 3.1. MANAGEMENT OF THE TRUST . . . . . . . . . . . . . . . . . . .6
SECTION 3.2. INITIAL TRUSTEE . . . . . . . . . . . . . . . . . . . . . . .7
SECTION 3.3. TERM OF OFFICE. . . . . . . . . . . . . . . . . . . . . . . .7
SECTION 3.4. VACANCIES AND APPOINTMENTS. . . . . . . . . . . . . . . . . .7
SECTION 3.5. TEMPORARY ABSENCE . . . . . . . . . . . . . . . . . . . . . .8
SECTION 3.6. NUMBER OF TRUSTEES. . . . . . . . . . . . . . . . . . . . . .8
SECTION 3.7. EFFECT OF ENDING OF A TRUSTEE'S SERVICE . . . . . . . . . . .8
SECTION 3.8. OWNERSHIP OF ASSETS OF THE TRUST. . . . . . . . . . . . . . .8
ARTICLE IV. POWERS OF THE TRUSTEES . . . . . . . . . . . . . . . . . . . . . .9
SECTION 4.1. POWERS. . . . . . . . . . . . . . . . . . . . . . . . . . . .9
SECTION 4.2. ISSUANCE AND REPURCHASE OF SHARES . . . . . . . . . . . . . 13
SECTION 4.3. TRUSTEES AND OFFICERS AS SHAREHOLDERS . . . . . . . . . . . 13
SECTION 4.4. ACTION BY THE TRUSTEES. . . . . . . . . . . . . . . . . . . 13
SECTION 4.5. CHAIRMAN OF THE BOARD OF TRUSTEES . . . . . . . . . . . . . 14
SECTION 4.6. PRINCIPAL TRANSACTIONS. . . . . . . . . . . . . . . . . . . 14
ARTICLE V. EXPENSES OF THE TRUST . . . . . . . . . . . . . . . . . . . . . . 14
ARTICLE VI. INVESTMENT ADVISER, PRINCIPAL UNDERWRITER, ADMINISTRATOR
AND TRANSFER AGENT . . . . . . . . . . . . . . . . . . . . . 15
SECTION 6.1. INVESTMENT ADVISER. . . . . . . . . . . . . . . . . . . . . 15
SECTION 6.2. PRINCIPAL UNDERWRITER . . . . . . . . . . . . . . . . . . . 15
SECTION 6.3. ADMINISTRATION. . . . . . . . . . . . . . . . . . . . . . . 16
SECTION 6.4. TRANSFER AGENT. . . . . . . . . . . . . . . . . . . . . . . 16
i
SECTION 6.5. PARTIES TO CONTRACT . . . . . . . . . . . . . . . . . . . . 16
SECTION 6.6. PROVISIONS AND AMENDMENTS . . . . . . . . . . . . . . . . . 17
ARTICLE VII. SHAREHOLDERS' VOTING POWERS AND MEETINGS. . . . . . . . . . . . 17
SECTION 7.1. VOTING POWERS . . . . . . . . . . . . . . . . . . . . . . . 17
SECTION 7.2. MEETINGS. . . . . . . . . . . . . . . . . . . . . . . . . . 18
SECTION 7.3. QUORUM AND REQUIRED VOTE. . . . . . . . . . . . . . . . . . 18
ARTICLE VIII. CUSTODIAN. . . . . . . . . . . . . . . . . . . . . . . . . . . 19
SECTION 8.1. APPOINTMENT AND DUTIES. . . . . . . . . . . . . . . . . . . 19
SECTION 8.2. CENTRAL CERTIFICATE SYSTEM. . . . . . . . . . . . . . . . . 20
ARTICLE IX. DISTRIBUTIONS AND REDEMPTIONS. . . . . . . . . . . . . . . . . . 20
SECTION 9.1. DISTRIBUTIONS . . . . . . . . . . . . . . . . . . . . . . . 20
SECTION 9.2. REDEMPTIONS . . . . . . . . . . . . . . . . . . . . . . . . 21
SECTION 9.3. DETERMINATION OF NET ASSET VALUE AND VALUATION OF
PORTFOLIO ASSETS . . . . . . . . . . . . . . . . . . . . 21
SECTION 9.4. SUSPENSION OF THE RIGHT OF REDEMPTION . . . . . . . . . . . 22
SECTION 9.5. REDEMPTION OF SHARES IN ORDER TO QUALIFY AS
REGULATED INVESTMENT COMPANY . . . . . . . . . . . . . . 22
ARTICLE X. LIMITATION OF LIABILITY AND INDEMNIFICATION . . . . . . . . . . . 23
SECTION 10.1. LIMITATION OF LIABILITY. . . . . . . . . . . . . . . . . . 23
SECTION 10.2. INDEMNIFICATION. . . . . . . . . . . . . . . . . . . . . . 23
SECTION 10.3. SHAREHOLDERS . . . . . . . . . . . . . . . . . . . . . . . 25
ARTICLE XI. MISCELLANEOUS. . . . . . . . . . . . . . . . . . . . . . . . . . 25
SECTION 11.1. TRUST NOT A PARTNERSHIP. . . . . . . . . . . . . . . . . . 25
SECTION 11.2. TRUSTEE'S GOOD FAITH ACTION, EXPERT ADVICE, NO
BOND OR SURETY . . . . . . . . . . . . . . . . . . . . . 26
SECTION 11.3. ESTABLISHMENT OF RECORD DATES. . . . . . . . . . . . . . . 26
SECTION 11.4. TERMINATION OF TRUST . . . . . . . . . . . . . . . . . . . 26
SECTION 11.5. REORGANIZATION . . . . . . . . . . . . . . . . . . . . . . 27
SECTION 11.6. FILING OF COPIES, REFERENCES, HEADINGS . . . . . . . . . . 28
SECTION 11.7. APPLICABLE LAW . . . . . . . . . . . . . . . . . . . . . . 28
SECTION 11.8. AMENDMENTS . . . . . . . . . . . . . . . . . . . . . . . . 29
SECTION 11.9. FISCAL YEAR. . . . . . . . . . . . . . . . . . . . . . . . 30
SECTION 11.10. PROVISIONS IN CONFLICT WITH LAW . . . . . . . . . . . . . 30
ii
CDC MPT+ FUNDS
October 8, 1998
TRUST INSTRUMENT, made by Xxxxxx X. Xxxxxx as sole initial trustee.
WHEREAS, the Trustees desire to establish a business trust for the
investment and reinvestment of funds contributed thereto;
NOW THEREFORE, the Trustees declare that all money and property
contributed to the trust hereunder shall be held and managed in trust under this
Trust Instrument as herein set forth below.
ARTICLE I.
NAME AND DEFINITIONS
SECTION 1.1. NAME. The name of the trust created hereby is "CDC MPT+
Funds".
SECTION 1.2. DEFINITIONS. Wherever used herein, unless otherwise
required by the context or specifically provided:
(a) The "1940 Act" means the Investment Company Act of 1940, as
amended. Whenever reference is made hereunder to the 1940 Act, such reference
shall be interpreted as including any applicable order or orders of the
Commission or any rules or regulations adopted by the Commission thereunder or
interpretive releases of the Commission staff;
(b) "Bylaws" means the Bylaws of the Trust as adopted by the
Trustees, as amended from time to time;
(c) "Commission" has the meaning given it in the 1940 Act. In
addition, "Affiliated Person," "Assignment," "Interested Person" and "Principal
Underwriter" shall have the respective meanings given them in the 1940 Act.
"Majority Shareholder Vote" shall have the same meaning as the term "vote of a
majority of the outstanding voting securities" under the 1940 Act;
(d) "Delaware Act" refers to Chapter 38 of Title 12 of the Delaware
Code entitled "Treatment of Delaware Business Trusts," as amended from time to
time;
(e) "Net Asset Value" means the net asset value of each Series of
the Trust determined in the manner provided in Article IX, Section 9.3 hereof;
(f) "Outstanding Shares" means those Shares shown from time to time
in the books of the Trust or its transfer agent as then issued and outstanding,
but shall not include Shares which
have been redeemed or repurchased by the Trust and which are at the time held in
the treasury of the Trust;
(g) "Series" means a series of Shares of the Trust established in
accordance with the provisions of Article II, Section 2.6 hereof;
(h) "Shareholder" means a record owner of Outstanding Shares of the
Trust;
(i) "Shares" means the equal proportionate transferable units of
beneficial interest into which the beneficial interest of each Series of the
Trust or class thereof shall be divided and may include fractions of Shares as
well as whole Shares;
(j) The "Trust" means CDC MPT+ Funds, a Delaware business trust,
and reference to the Trust when applicable to one or more Series of the Trust,
shall refer to any such Series;
(k) The "Trustee" or "Trustees" means the person or persons who has
or have signed this Trust Instrument so long as he or they shall continue in
office in accordance with the terms hereof and all other persons who may from
time to time be duly qualified and serving as Trustees in accordance with the
provisions of Article III hereof, and reference herein to a Trustee or to the
Trustees shall refer to the individual Trustees in their respective capacity as
Trustees hereunder;
(l) "Trust Property" means any and all property, real or personal,
tangible or intangible, which is owned or held by or for the account of one or
more of the Trust or any Series, or the Trustees on behalf of the Trust or any
Series.
ARTICLE II.
BENEFICIAL INTEREST
SECTION 2.1. SHARES OF BENEFICIAL INTEREST. The beneficial interest
in the Trust shall be divided into such Shares of one or more separate and
distinct Series or classes of a Series as set forth in Section 2.6 or as the
Trustees shall otherwise from time to time create and establish as provided in
Section 2.6. The number of Shares of each Series and class thereof authorized
hereunder is unlimited. All Shares issued hereunder, including without
limitation, Shares issued in connection with a dividend paid in Shares or a
split of Shares, shall be fully paid and non-assessable.
SECTION 2.2. ISSUANCE OF SHARES. The Trustees in their discretion
may, from time to time, without a vote of the Shareholders, issue Shares, 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, subject to applicable law, including cash or securities, at such
time or
2
times and on such terms as the Trustees may deem appropriate, 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. In
connection with any issuance of Shares, the Trustees may issue fractional Shares
and Shares held in the treasury. The Trustees may from time to time divide or
combine the Shares into a greater or lesser number without thereby changing the
proportionate beneficial interests in the Trust. Contributions to the Trust may
be accepted for, and Shares shall be redeemed as, whole Shares and/or 1/1000th
of a Share or integral multiples thereof. The Trustees or any person the
Trustees may authorize for the purpose may, in their discretion, reject any
application for the issuance of shares.
SECTION 2.3. REGISTER OF SHARES AND SHARE CERTIFICATES. A register
shall be kept at the principal office of the Trust or an office of the Trust's
transfer agent which shall contain the names and addresses of the Shareholders
of each Series, the number of Shares of that Series (or any class or classes
thereof) held by them respectively and a record of all transfers thereof. No
share certificates shall be issued by the Trust except as the Trustees may
otherwise authorize, and the persons indicated as shareholders in such register
shall be entitled to receive dividends or other distributions or otherwise to
exercise or enjoy the rights of Shareholders. No Shareholder shall be entitled
to receive payment of any dividend or other distribution, nor to have notice
given to him as herein or in the Bylaws provided, until he has given his address
to the transfer agent or such officer or other agent of the Trustees as shall
keep the said register for entry thereon.
SECTION 2.4. TRANSFER OF SHARES. Except as otherwise provided by the
Trustees, Shares shall be transferable on the records of the Trust only by the
record holder thereof or by his agent thereunto duly authorized in writing, upon
delivery to the Trustees or the Trust's transfer agent of a duly executed
instrument of transfer and such evidence of the genuineness of such execution
and authorization and of such other matters as may be required by the Trustees.
Upon such delivery the transfer shall be recorded on the 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 hereunder and neither the Trustees nor
the Trust, 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.
SECTION 2.5. TREASURY SHARES. Shares held in the treasury shall,
until reissued pursuant to Section 2.2 hereof, not confer any voting rights on
the Trustees, nor shall such Shares be entitled to any dividends or other
distributions declared with respect to the Shares.
SECTION 2.6. ESTABLISHMENT OF SERIES. The Trust created hereby shall
consist initially of three Series: U.S. Core
3
Equity Fund; Aggressive Equity Fund and Global Independence Fund. Distinct
records shall be maintained by the Trust for each Series and the assets
associated with each Series shall be held and accounted for separately from the
assets of the Trust or any other Series. The Trustees shall have full power and
authority, in their sole discretion and without obtaining any prior
authorization or vote of the Shareholders of any Series, to establish and
designate and to change in any manner any Series or any classes of initial or
additional Series and to fix such preferences, voting powers, rights and
privileges of such Series or classes thereof as the Trustees may from time to
time determine, to divide or combine the Shares or any Series or classes thereof
into a greater or lesser number, to classify or reclassify any issued Shares or
any Series or classes thereof into one or more Series or classes of Shares, and
to take such other action with respect to the Shares as the Trustees may deem
desirable. The establishment and designation of any Series (other than those
established pursuant to the first sentence of this Section 2.6) shall be
effective upon the adoption of a resolution by a majority of the Trustees
setting forth such establishment and designation and the relative rights and
preferences of the Shares of such Series. A Series may issue any number of
Shares, but need not issue Shares. At any time that there are no Shares
outstanding of any particular Series previously established and designated, the
Trustees may by a majority vote abolish that Series and the establishment and
designation thereof.
All references to Shares in this Trust Instrument shall be deemed to
be Shares of any or all Series, or classes thereof 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, except as the context otherwise requires.
Each Share of a Series of the Trust shall represent an equal
beneficial interest in the net assets of such Series. Each holder of Shares of
a Series shall be entitled to receive his proportionate share of all
distributions made with respect to such Series, based upon the number of full
and fractional Shares of the Series held. Upon redemption of his Shares, such
Shareholder shall be paid solely out of the funds and property of such Series of
the Trust.
SECTION 2.7. INVESTMENT IN THE TRUST. The Trustees shall accept
investments in any Series from such persons and on such terms as they may from
time to time authorize. At the Trustees' discretion, such investments, subject
to applicable law, may be in the form of cash or securities in which the
affected Series is authorized to invest, valued as provided in Article IX
Section 9.3. Investments in a Series shall be credited to each Shareholder's
account in the form of full and fractional Shares at the net asset value per
Share next determined after the investment is received or accepted as may be
determined by the Trustees; provided, however, that the Trustees
4
may, in their sole discretion, (a) fix minimum amounts for initial and
subsequent investments or (b) impose a sales charge upon investments in such
manner and at such time determined by the Trustees.
SECTION 2.8. ASSETS AND LIABILITIES OF 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 (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 be held and accounted for separately from the other assets
of the Trust and of every other Series and may be referred to herein as "assets
belonging to" that Series. The assets belonging to a particular Series shall
belong to that Series for all purposes, and to no other Series, and shall be
subject only to the rights of creditors of that Series. In addition, any
assets, income, earnings, profits or funds, or payments and proceeds with
respect thereto, which are not readily identifiable as belonging to any
particular Series shall be allocated by the Trustees between and among one or
more of the Series in such manner as the Trustees, in their sole discretion,
deem fair and equitable. Each such allocation shall be conclusive and binding
upon the Shareholders of all Series for all purposes, and such assets, income,
earnings, profits or funds, or payments and proceeds with respect thereto shall
be assets belonging to that Series. The assets belonging to a particular Series
shall be so recorded upon the books of the Trust, and shall be held by the
Trustees in trust for the benefit of the holders of Shares of that Series. The
assets belonging to each particular Series shall be charged with the liabilities
of that Series and all expenses, costs, charges and reserves attributable to
that Series. Any general liabilities, expenses, costs, charges or reserves of
the Trust which are not readily identifiable as belonging to any particular
Series shall be allocated and charged by the Trustees between or among any one
or more of the Series in such manner as the Trustees in their sole discretion
deem fair nd equitable. Each such allocation shall be conclusive and binding
upon the Shareholders of all Series for all purposes without limitation of the
foregoing provisions of this Section 2.8, but subject to the right of the
Trustees in their discretion to allocate general liabilities, expenses, costs,
changes or reserves as herein provided, the debts, liabilities, obligations and
expenses incurred, contracted for or otherwise existing with respect to a
particular Series shall be enforceable against the assets of such Series only,
and not against the assets of the Trust generally. Notice of this contractual
limitation on inter-Series liabilities may, in the Trustee's sole discretion, be
set forth in the certificate of trust of the Trust (whether originally or by
amendment) as filed or to be filed in the Office of the Secretary of State of
the State of Delaware pursuant to the Delaware Act, and upon the giving of such
notice in the certificate of trust,
5
the statutory provisions of Section 3804 of the Delaware Act relating to
limitations on inter-Series liabilities (and the statutory effect under Section
3804 of setting forth such notice in the certificate of trust) shall become
applicable to the Trust and each Series. Any person extending credit to,
contracting with or having any claim against any Series may look only to the
assets of that Series to satisfy or enforce any debt, with respect to that
Series. No Shareholder or former Shareholder of any Series shall have a claim
on or any right to any assets allocated or belonging to any other Series.
SECTION 2.9. NO PREEMPTIVE RIGHTS. Shareholders shall have no
preemptive or other right to subscribe to any additional Shares or other
securities issued by the Trust or the Trustees, whether of the same or other
Series.
SECTION 2.10. STATUS OF SHARES; NO PERSONAL LIABILITY OF SHAREHOLDER.
Shares shall be deemed to be personal property giving Shareholders only the
rights provided in this Trust Instrument. Every Shareholder, by virtue of
having acquired a Share, shall be held expressly to have assented to and agreed
to be bound by the terms of this Trust Instrument and to have become a party
hereto. No Shareholder shall be personally liable for the debts, liabilities,
obligations and expenses incurred by, contracted for, or otherwise existing with
respect to, the Trust or any Series. Neither the Trust nor the Trustees shall
have any power to bind any Shareholder personally or to demand payment from any
Shareholder for anything, other than as agreed by the Shareholder. Shareholders
shall have the same limitation of personal liability as is extended to
shareholders of a private corporation for profit incorporated in the State of
Delaware. Every written obligation of the Trust or any Series shall contain a
statement to the effect that such obligation may only be enforced against the
assets of the Trust or such Series; however, the omission of such statement
shall not operate to bind or create personal liability for any Shareholder or
Trustee.
ARTICLE III.
THE TRUSTEES
SECTION 3.1. MANAGEMENT OF THE TRUST. The Trustees shall have
exclusive and absolute control over the Trust Property and over the business of
the Trust 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 Trust Instrument. The Trustees shall
have power to conduct the business of the Trust 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, in any and all commonwealths, territories, dependencies,
colonies, or possessions of the United States of America, and in any foreign
jurisdiction and to do all such other things and execute all such instruments as
they deem necessary,
6
proper or desirable in order to promote the interests of the Trust although such
things are not herein specifically mentioned. 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 Trust Instrument, the
presumption shall be in favor of a grant of power to the Trustees.
The enumeration of any specific power in this Trust Instrument shall
not be construed as limiting the aforesaid power. The powers of the Trustees
may be exercised without order of or resort to any court.
Except for the Trustees named herein or appointed to fill vacancies
pursuant to Section 3.4 of this Article III, the Trustees shall be elected by
the Shareholders owning of record a plurality of the Shares voting at a meeting
of Shareholders. Any Shareholder meeting held for such purpose shall be held on
a date fixed by the Trustees. In the event that less than a majority of the
Trustees holding office have been elected by Shareholders, the Trustees then in
office will call a Shareholders' meeting for the election of Trustees in
accordance with the provisions of the 1940 Act.
SECTION 3.2. INITIAL TRUSTEE. The initial Trustee shall be the
person named herein.
SECTION 3.3. TERM OF OFFICE. The Trustees shall hold office during
the lifetime of this Trust, and until its termination as herein provided; except
(a) that any Trustee may resign his trust by written instrument signed by him
and delivered to the other Trustees, which shall take effect upon such delivery
or upon such later date as is specified therein; (b) that any Trustee may be
removed 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; (c) that any Trustee who requests in writing to be
retired or who has died, becomes physically or mentally incapacitated by reason
of illness or otherwise, or is otherwise unable to serve, may be retired by
written instrument signed by a majority of the other Trustees, specifying the
date of his retirement; and (d) that a Trustee may be removed at any meeting of
the Shareholders of the Trust by a vote of Shareholders owning at least
two-thirds of the Outstanding Shares of the Trust.
SECTION 3.4. VACANCIES AND APPOINTMENTS. In case of a Trustee's
declination to serve, death, resignation, retirement, removal, physical or
mental incapacity by reason of illness, disease or otherwise, or if a Trustee is
otherwise unable to serve, or if there is an increase in the number of Trustees,
a vacancy shall occur. Whenever a vacancy in the Board of Trustees shall occur,
until such vacancy is filled, the other Trustees shall have all the powers
hereunder and the certificate of the
7
other Trustees of such vacancy shall be conclusive. In the case of a vacancy,
the remaining Trustees shall fill such vacancy by appointing such other person
as they in their discretion see fit, to the extent consistent with the
limitations provided under the 1940 Act. Such appointment shall be evidenced by
a written instrument signed by a majority of the Trustees in office or by
resolution of the Trustees, duly adopted, which shall be recorded in the minutes
of a meeting of the Trustees, whereupon the appointment shall take effect.
An appointment of a Trustee may be made by the Trustees then in office
in anticipation of a vacancy to occur by reason of retirement, resignation or
increase in number of Trustees effective at a later date, provided that said
appointment shall become effective only at or after the effective date of said
retirement, resignation or increase in number of Trustees. As soon as any
person appointed as a Trustee pursuant to this Section 3.4 shall have accepted
this Trust, and such person shall be deemed a Trustee.
SECTION 3.5. TEMPORARY ABSENCE. Any Trustee may, by power of
attorney, delegate his power for a period not exceeding six months at any time,
unless otherwise extended for one or more additional consecutive six (6) month
periods, to any other Trustee or Trustees, provided that in no case shall fewer
than two Trustees personally exercise the other powers hereunder except as
herein otherwise expressly provided.
SECTION 3.6. NUMBER OF TRUSTEES. The number of Trustees (other than
the Initial Trustee) shall be at least two (2), and thereafter shall be such
number as shall be fixed from time to time by a majority of the Trustees,
provided, however, that the number of Trustees shall in no event be more than
twelve (12).
SECTION 3.7. EFFECT OF ENDING OF A TRUSTEE'S SERVICE. The
declination to serve, death, resignation, retirement, removal, incapacity, or
inability of the Trustees, or any one of them, shall not operate to terminate
the Trust or to revoke any existing agency created pursuant to the terms of this
Trust Instrument.
SECTION 3.8. OWNERSHIP OF ASSETS OF THE TRUST. The assets of the
Trust and of each Series shall be held separate and apart from any assets now or
hereafter held in any capacity other than as Trustee hereunder by the Trustees
or any successor Trustees. Legal title in all of the assets of the Trust and
the right to conduct any business shall at all times be considered as vested in
the Trust, except that the Trustees may cause legal title to any Trust Property
to be held by, or in the name of, one or more of the Grantees acting for and on
behalf of the Trust or in the name of any person as nominee. No Shareholder
shall be deemed to have a severable ownership in any individual asset of the
Trust or of any Series or any right of partition or
8
possession thereof but each Shareholder shall have, except as otherwise provided
for herein, a proportionate undivided beneficial interest in the Trust or Series
based upon the number of Shares owned. The Shares shall be personal property
giving only the rights specifically set forth in this Trust Instrument.
ARTICLE IV.
POWERS OF THE TRUSTEES
SECTION 4.1. POWERS. The Trustees in all instances shall act as
principals, and are and shall be free from the control of the Shareholders. The
Trustees shall have full power and authority to do any and all acts and to make
and execute any and all contracts and instruments that they may consider
necessary or appropriate in connection with the management of the Trust. The
Trustees shall not in any way be bound or limited by present or future laws or
customs in regard to trust investments, but shall have full authority and power
to make any and all investments which they, in their sole discretion, shall deem
proper to accomplish the purpose of this Trust without recourse to any court or
other authority. Subject to any applicable limitation in this Trust Instrument
or the Bylaws of the Trust, the Trustees shall have the power and authority:
(a) To invest and reinvest cash and other property (including
investment, notwithstanding any other provision hereof, of all of the assets of
any Series in a single open-end investment company, including investment by
means of transfer of such assets in exchange for an interest or interests in
such investment company), and to hold cash or other property of the Trust
uninvested, without in any event being bound or limited by any present or future
law or custom in regard to investments by trustees, and to sell, exchange, lend,
pledge, mortgage, hypothecate, write options on and lease any or all of the
assets of the Trust;
(b) To operate as and carry on the business of an investment
company, and exercise all the powers necessary and appropriate to the conduct of
such operations;
(c) To borrow money and in this connection issue notes or other
evidence of indebtedness; to secure borrowings by mortgaging, pledging or
otherwise subjecting as security the Trust Property; to endorse, guarantee, or
undertake the performance of an obligation or engagement of any other person and
to lend Trust Property;
(d) To provide for the distribution of interests of the Trust
either through a Principal Underwriter in the manner hereinafter provided for or
by the Trust itself, or both, or otherwise pursuant to a plan of distribution of
any kind;
(e) To adopt Bylaws not inconsistent with this Trust Instrument
providing for the conduct of the business of the Trust
9
and to amend and repeal them to the extent that they do not reserve that right
to the Shareholders; such Bylaws shall be deemed incorporated and included in
this Trust Instrument;
(f) To elect and remove such officers and appoint and terminate
such agents as they consider appropriate;
(g) 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 of any assets of the Trust subject to any
conditions set forth in this Trust Instrument or in the Bylaws;
(h) To retain one or more transfer agents and shareholder servicing
agents, or both;
(i) To set record dates in the manner provided herein or in the
Bylaws;
(j) To delegate such authority as they consider desirable to any
officers of the Trust and to any investment adviser, manager, custodian,
underwriter or other agent or independent contractor in accordance with the
provisions of the 1940 Act;
(k) To sell or exchange any or all of the assets of the Trust,
subject to the provisions of Article XI, subsection 11.4(b) hereof;
(l) 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 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;
(m) To exercise powers and rights of subscription or otherwise
which in any manner arise out of ownership of securities;
(n) To hold any security or property in a form not indicating any
trust, whether in bearer, book entry, unregistered or other negotiable form; or
either in the name of the Trust or in the name of a custodian or a nominee or
nominees, subject in either case to proper safeguards according to the usual
practice of Delaware business trusts or investment companies;
(o) To establish separate and distinct Series with separately
defined investment objectives and policies and distinct investment purposes in
accordance with the provisions of Article II hereof and to establish classes of
such Series having relative rights, powers and duties as they may provide
consistent with applicable law;
10
(p) To the full extent permitted by Section 3804 of the Delaware
Act, to allocate assets, liabilities and expenses of the Trust to a particular
Series or to apportion the same between or among two or more Series, provided
that any liabilities or expenses incurred by a particular Series shall be
payable solely out of the assets belonging to that Series as provided for in
Article II hereof;
(q) To consent to or participate in any plan for the
reorganization, consolidation or merger of any corporation or concern, any
security of which is held in the Trust; to consent to any contract, lease,
mortgage, purchase, or sale of property by such corporation or concern, and to
pay calls or subscriptions with respect to any security held in the Trust;
(r) 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;
(s) To make distributions of income and of capital gains to
Shareholders in the manner provided herein;
(t) To establish, from time to time, minimum investments for
Shareholders in the Trust or in one or more Series or class, and to require the
redemption of the Shares of any Shareholders whose investment is less than such
minimums upon giving notice to such Shareholder;
(u) To establish one or more committees, to delegate any of the
powers of the Trustees to said committees and to adopt a committee charter
providing for such responsibilities, membership (including Trustees, officers or
other agents of the Trust therein) and any other characteristics of said
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 Trust Instrument or of the Bylaws, the Trustees may by resolution appoint a
committee consisting of less than the whole number of 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 the institution, prosecution, dismissal, settlement,
review or investigation of any action, suit or proceeding which shall be pending
or threatened to be brought before any court, administrative agency or other
adjudicatory body;
(v) To interpret the investment policies, practices or limitations
of any Series;
(w) To establish a registered office and have a registered agent in
the State of Delaware;
11
(x) 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;
(y) to purchase and pay for entirely out of the Trust Estate such
insurance as the Trustees may deem necessary or appropriate for the conduct of
the business, including without limitation, insurance policies insuring the
assets of the Trust or payment of distributions and principal on its portfolio
investments, subject to applicable law, and any restrictions set forth in the
by-laws, insurance policies insuring the Shareholders, Trustees, Officers,
Employees, Agents, Investment Advisors, 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 Advisor, 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;
(z) to enter into contracts of any kind and description;
(aa) to take any other action that may be taken by a board of
directors of a business corporation organized under the laws of the State of
Delaware; and
(bb) In general to carry on any other business in connection with or
incidental to any of the foregoing powers, to do everything necessary, suitable
or proper for the accomplishment of any purpose or the attainment of any object
or the furtherance of any power hereinbefore set forth, either alone or in
association with others, and to do every other act or thing incidental or
appurtenant to or growing out of or connected with the aforesaid business or
purposes, objects or powers.
The foregoing clauses shall be construed as objects and powers, and
the foregoing enumeration of specific powers shall not be held to limit or
restrict in any manner the general powers of the Trustees. Any action by one or
more of the Trustees in their capacity as such hereunder shall be deemed an
action on behalf of the Trust or the applicable Series, and not an action in an
individual capacity.
The Trustees shall not be limited to investing in obligations maturing
before the possible termination of the Trust.
No one dealing with the Trustees shall be under any obligation to make
any inquiry concerning the authority of the
12
Trustees, or to see the application of any payments made or property transferred
to the Trustees or upon their order.
SECTION 4.2. ISSUANCE AND REPURCHASE OF SHARES. The Trustees shall
have the power to issue, sell, repurchase, redeem, retire, cancel, acquire,
hold, resell, reissue, dispose of and otherwise deal in Shares and, subject to
the provisions set forth in Article II and Article IX, to apply to any such
repurchase, redemption, retirement, cancellation or acquisition of Shares any
funds or property of the Trust, or the particular Series of the Trust, with
respect to which such Shares are issued.
SECTION 4.3. TRUSTEES AND OFFICERS AS SHAREHOLDERS. Any Trustee,
officer or other 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 or cause to be issued and sold Shares to and buy such Shares
from any such person or any firm or company in which he is interested, subject
only to the general limitations herein contained as to the sale and purchase of
such Shares; and all subject to any restrictions which may be contained in the
Bylaws.
SECTION 4.4. ACTION BY THE TRUSTEES. In any action taken by the
Trustees hereunder, unless otherwise specified herein or under the 1940 Act, the
Trustees shall act by majority vote at a meeting duly called or by unanimous
written consent without a meeting or by telephone meeting provided a quorum of
Trustees participate in any such telephone meeting, unless the 1940 Act requires
that a particular action be taken only at a meeting at which the Trustees are
present in person. At any meeting of the Trustees, a majority of the Trustees
shall constitute a quorum. Meetings of the Trustees may be called orally or in
writing by the Chairman of the Board of Trustees or by any two other Trustees.
Notice of the time, date and place of all meetings of the Trustees shall be
given by the person calling the meeting to each Trustee by telephone, facsimile
or other electronic mechanism sent to his home or business address at least
twenty-four hours in advance of the meeting or by written notice mailed to his
home or business address at least seventy-two hours in advance of the meeting.
Notice need not be given to any Trustee who attends the meeting without
objecting to the lack of notice or who executes a written waiver of notice with
respect to the meeting. Any meeting conducted by telephone shall be deemed to
take place at the principal office of the Trust, as determined by the Bylaws or
by the Trustees. Subject to the requirements of the 1940 Act, the Trustees by
majority vote may delegate to any one or more of their number their authority to
approve particular matters or take particular actions on behalf of the Trust.
Written consents or waivers of the Trustees may be executed in one or more
counterparts. Execution of a written consent or waiver and delivery thereof to
the Trust may be accomplished by facsimile or other similar electronic
mechanism.
13
SECTION 4.5. CHAIRMAN OF THE BOARD OF TRUSTEES. The Trustees shall
appoint one of their number to be Chairman of the Board of Trustees. The
Chairman shall preside at all meetings of the Trustees, shall be responsible for
the execution of policies established by the Trustees and the administration of
the Trust, and may be (but is not required to be) the chief executive, financial
and/or accounting officer of the Trust.
SECTION 4.6. PRINCIPAL TRANSACTIONS. Except to the extent prohibited
by applicable law, the Trustees may, on behalf of the Trust, buy any securities
from or sell any securities to, or lend any assets of the Trust to, any Trustee
or officer of the Trust or any firm of which any such Trustee or officer is a
member acting as principal, or have any such dealings with any investment
adviser, administrator, distributor or transfer agent for the Trust or with any
interested person of such person; and the Trust may employ any such person, or
firm or company in which such person is an interested person, as broker, legal
counsel, registrar, investment adviser, administrator, distributor, transfer
agent, dividend disbursing agent, custodian or in any other capacity upon
customary terms.
ARTICLE V.
EXPENSES OF THE TRUST
Subject to the provisions of Article II, Section 2.8, the Trustees
shall be reimbursed from the Trust estate or the assets belonging to the
appropriate Series for their expenses and disbursements, including, without
limitation, interest charges, taxes, brokerage fees and commissions; expenses of
issue, repurchase and redemption of Shares; certain insurance premiums;
applicable fees, interest charges and expenses of third parties, including the
Trust's investment advisers, managers, administrators, distributors, custodians,
transfer agent and fund accountant; fees of pricing, interest, dividend, credit
and other reporting services; costs of membership in trade associations;
telecommunications expenses; funds transmission expenses; auditing, legal and
compliance expenses; costs of forming the Trust and maintaining its existence;
costs of preparing and printing the Trust's prospectuses, statements of
additional information and shareholder reports and delivering them to existing
Shareholders; expenses of meetings of Shareholders and proxy solicitations
therefor; costs of maintaining books and accounts; costs of reproduction,
stationery and supplies; fees and expenses of the Trustees; compensation of the
Trust's officers and employees and costs of other personnel performing services
for the Trust; costs of Trustee meetings, including travel expenses; Commission
registration fees and related expenses; state or foreign securities laws
registration fees and related expenses and for such non-recurring items as may
arise, including litigation to which the Trust (or a Trustee acting as such) is
a party, and for all losses and liabilities by them incurred in administering
the Trust, and for the payment of such expenses, disbursements, losses and
liabilities the Trustees
14
shall have a lien on the assets belonging to the appropriate Series, or in the
case of an expense allocable to more than one Series, on the assets of each such
Series, prior to any rights or interests of the Shareholders thereto. This
section shall not preclude the Trust from directly paying any of the
aforementioned fees and expenses.
ARTICLE VI.
INVESTMENT ADVISER, PRINCIPAL UNDERWRITER,
ADMINISTRATOR AND TRANSFER AGENT
SECTION 6.1. INVESTMENT ADVISER.
(a) The Trustees may in their discretion, from time to time, enter
into an investment advisory contract or contracts with respect to the Trust or
any Series whereby the other party or parties to such contract or contracts
shall undertake to furnish the Trustees with such investment advisory,
statistical and research facilities and services and such other facilities and
services, if any, all upon such terms and conditions (including any Shareholder
vote) that may be required under the 1940 Act, as may be prescribed in the
Bylaws, or as the Trustees may in their discretion determine (such terms and
conditions not to be inconsistent with the provisions of this Trust Instrument
or of the Bylaws). Notwithstanding any other provision of this Trust
Instrument, the Trustees may authorize any investment adviser (subject to such
general or specific instructions as the Trustees may from time to time adopt) to
effect purchases, sales or exchanges of portfolio securities, other investment
instruments of the Trust, or other Trust Property on behalf of the Trustees, or
may authorize any officer, agent, or Trustee to effect such purchases, sales or
exchanges pursuant to recommendations of the investment adviser (and all without
further action by the Trustees). Any such purchases, sales and exchanges shall
be deemed to have been authorized by all of the Trustees.
(b) The Trustees may authorize the investment adviser to employ, from
time to time, one or more sub-advisers to perform such of the acts and services
of the investment adviser, and upon such terms and conditions, as may be agreed
upon between the investment adviser and sub-adviser (such terms and conditions
not to be inconsistent with the provisions of this Trust Instrument or of the
Bylaws). Any reference in this Trust Instrument to the investment adviser shall
be deemed to include such sub-advisers, unless the context otherwise requires;
provided that no Shareholder approval shall be required with respect to any
sub-adviser unless required under the 1940 Act or other law, contract or order
applicable to the Trust.
SECTION 6.2. PRINCIPAL UNDERWRITER. The Trustees may in their
discretion from time to time enter into an exclusive or non-exclusive
underwriting contract or contracts providing for the sale of Shares, whereby the
Trust may either agree to sell
15
Shares to the other party to the contract or appoint such other party its sales
agent for such Shares. In either case, the contract shall be on such terms and
conditions as may be prescribed in the Bylaws and as the Trustees may in their
discretion determine (such terms and conditions not to be inconsistent with the
provisions of this Trust Instrument or of the Bylaws); and such contract may
also provide for the repurchase or sale of Shares by such other party as
principal or as agent of the Trust.
SECTION 6.3. ADMINISTRATION. The Trustees may in their discretion
from time to time enter into one or more management or administrative contracts
whereby the other party or parties shall undertake to furnish the Trustees with
management or administrative services. The contract or contracts shall be on
such terms and conditions as may be prescribed in the Bylaws and as the Trustees
may in their discretion determine (such terms and conditions not to be
inconsistent with the provisions of this Trust Instrument or of the Bylaws).
SECTION 6.4. TRANSFER AGENT. The Trustees may in their discretion
from time to time enter into one or more transfer agency and shareholder service
contracts whereby the other party or parties shall undertake to furnish the
Trustees with transfer agency and shareholder services. The contract or
contracts shall be on such terms and conditions as may be prescribed in the
Bylaws and as the Trustees may in their discretion determine (such terms and
conditions not to be inconsistent with the provisions of this Trust Instrument
or of the Bylaws).
SECTION 6.5. PARTIES TO CONTRACT. Any contract of the character
described in Sections 6.1, 6.2, 6.3 and 6.4 of this Article VI or any contract
of the character described in Article VIII hereof may be entered into with any
corporation, firm, partnership, trust or association, although one or more of
the Trustees or officers of the Trust may be an officer, director, trustee,
shareholder, or member of such other party to the contract, and no such contract
shall be invalidated or rendered void or voidable by reason of the existence of
any relationship, nor shall any person holding such relationship be disqualified
from voting on or executing the same in his capacity as Shareholder and/or
Trustee, nor shall any person holding such relationship be liable merely by
reason of such relationship for any loss or expense to the Trust under or by
reason of said contract or accountable for any profit realized directly or
indirectly therefrom, provided that the contract when entered into was not
inconsistent with the provisions of this Article VI or Article VIII hereof or of
the Bylaws. The same person (including a corporation, firm, partnership, trust,
or association) may be the other party to contracts entered into pursuant to
Sections 6.1, 6.2, 6.3 and 6.4 of this Article VI or pursuant to Article VIII
hereof and any individual may be financially interested or otherwise affiliated
with persons who
16
are parties to any or all of the contracts mentioned in this Section 6.5.
SECTION 6.6. PROVISIONS AND AMENDMENTS. Any contract entered into
pursuant to Section 6.1 or 6.2 of this Article VI shall be consistent with and
subject to the requirements of Section 15 of the 1940 Act, if applicable, or
other applicable Act of Congress hereafter enacted with respect to its
continuance in effect, its termination, and the method of authorization and
approval of such contract or renewal thereof, and no amendment to any contract
entered into pursuant to Section 6.1 or 6.2 of this Article VI shall be
effective unless assented to in a manner consistent with the requirements of
said Section 15, as modified by any applicable rule, regulation or order of the
Commission.
ARTICLE VII.
SHAREHOLDERS' VOTING POWERS AND MEETINGS
SECTION 7.1. VOTING POWERS.
(a) The Shareholders shall have power to vote only (a) for the
election of Trustees to the extent provided in Article III, Section 3.1 hereof,
(b) for the removal of Trustees to the extent provided in Article III, Section
3.3(d) hereof, (c) with respect to any investment advisory contract to the
extent provided in Article VI, Section 6.1 hereof, (d) with respect to an
amendment of this Trust Instrument, to the extent provided in Article XI,
Section 11.8, and (e) with respect to such additional matters relating to the
Trust as may be required by law, by this Trust Instrument, or any registration
of the Trust with the Commission or any State, or as the Trustees may consider
desirable.
(b) Notwithstanding paragraph (a) of this Section 7.1 or any other
provision of this Trust Instrument (including the Bylaws) which would by its
terms provide for or require a vote of Shareholders, the Trustees may take
action without a Shareholder vote if (i) the Trustees shall have obtained an
opinion of counsel that a vote or approval of such action by Shareholders is not
required under (A) the 1940 Act or any other applicable laws, or (B) any
registrations, undertakings or agreements of the Trust known to such counsel,
and the taking of such action without a Shareholder vote would be consistent
with the best interests of the Shareholders.
(c) On any matter submitted to a vote of the Shareholders, all
Shares shall be voted in the aggregate and not by individual Series, except that
whenever the Trustees determine that the matter affects only certain Series,
such matter may be submitted for a vote by only such Series, except (i) when
required by the 1940 Act, Shares shall be voted in the aggregate and not by
individual Series; and (ii) when the Trustees have determined that the matter
affects the interests of more than one Series and that voting by shareholders of
all Series would be
17
consistent with the 1940 Act, then the Shareholders of all such Series shall be
entitled to vote thereon (either by individual Series or by Xxxxxx voted in the
aggregate, as the Trustees in their discretion may determine). Each whole Share
shall be entitled to one vote as to any matter on which it is entitled to vote,
and each fractional Share shall be entitled to a proportionate fractional vote.
There shall be no cumulative voting in the election of Trustees. Shares may be
voted in person or by proxy or in any manner provided for in the Bylaws. A
proxy may be given in writing. The Bylaws 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 herein or in the Bylaws, in the
event a proposal by anyone other than the officers or Trustees of the Trust is
submitted to a vote of the Shareholders, or in the event of any proxy contest or
proxy solicitation or proposal in opposition to any proposal by the officers or
Trustees of the Trust, Shares may be voted only in person or by written proxy.
Until Shares are issued, the Trustees may exercise all rights of Shareholders
and may take any action required or permitted by law, this Trust Instrument or
any of the Bylaws of the Trust to be taken by Shareholders.
SECTION 7.2. MEETINGS. Meetings may be held within or without the
State of Delaware. Special meetings of the Shareholders of any Series may be
called by the Trustees and shall be called by the Trustees upon the written
request of Shareholders owning at least one tenth of the Outstanding Shares of
the Trust entitled to vote. Whenever ten or more Shareholders meeting the
qualifications set forth in Section 16(c) of the 1940 Act seek the opportunity
of furnishing materials to the other Shareholders with a view to obtaining
signatures on such a request for a meeting, the Trustees shall comply with the
provisions of said Section 16(c) with respect to providing such Shareholders
access to the list of the Shareholders of record of the Trust or the mailing of
such materials to such Shareholders of record, subject to any rights provided to
the Trust or any Trustees provided by said Section 16(c). Notice shall be sent,
by First Class Mail or such other means determined by the Trustees, at least 10
days prior to any such meeting. Notwithstanding anything to the contrary in
this Section 7.2, the Trustees shall not be required to call a special meeting
of the Shareholders of any Series or to provide Shareholders seeking the
opportunity of furnishing the materials to other Shareholders with a view to
obtaining signatures on a request for a meeting except to the extent required
under the 1940 Act.
SECTION 7.3. QUORUM AND REQUIRED VOTE. One-third of Shares
outstanding and entitled to vote in person or by proxy as of the record date for
a Shareholders' meeting shall be a quorum for the transaction of business at
such Shareholders' meeting, except that where any provision of law or of this
Trust Instrument permits or requires that holders of any Series shall vote as a
Series (or that holders of a class shall vote as a
18
class), then one-third of the aggregate number of Shares of that Series (or that
class) entitled to vote shall be necessary to constitute a quorum for the
transaction of business by that Series (or that class). Any meeting of
Shareholders may be adjourned from time to time by a majority of the votes
properly cast upon the question of adjourning a meeting to another date and
time, whether or not a quorum is present. Any adjourned session or sessions may
be held, within a reasonable time after the date set for the original meeting,
without the necessity of further notice. Except when a larger vote is required
by law or by any provision of this Trust Instrument or the Bylaws, a majority of
the Shares voted in person or by proxy shall decide any questions and a
plurality shall elect a Trustee, provided that where any provision of law or of
this Trust Instrument permits or requires that the holders of any Series shall
vote as a Series (or that the holders of any class shall vote as a class), then
a majority of the Shares present in person or by proxy of that Series (or
class), voted on the matter in person or by proxy shall decide that matter
insofar as that Series (or class) is concerned. Shareholders may act by
unanimous written consent, to the extent not inconsistent with the 1940 Act, and
any such actions taken by a Series (or class) may be consented to unanimously in
writing by Shareholders of that Series (or class).
ARTICLE VIII.
CUSTODIAN
SECTION 8.1. APPOINTMENT AND DUTIES. The Trustees shall employ a
bank, a company that is a member of a national securities exchange, or a trust
company, that in each case shall have capital, surplus and undivided profits of
at least twenty million dollars ($20,000,000) and that is a member of the
Depository Trust Company (or such other person or entity as may be permitted to
act as custodian of the Trust's assets under the 1940 Act) as custodian with
authority as its agent, but subject to such restrictions, limitations and other
requirements, if any, as may be contained in the Bylaws of the Trust: (a) to
hold the securities owned by the Trust and deliver the same upon written order
or oral order confirmed in writing; (b) to receive and receipt for any moneys
due to the Trust and deposit the same in its own banking department or elsewhere
as the Trustees may direct; and (c) to disburse such funds upon orders or
vouchers.
The Trustees may also authorize the custodian to employ one or more
sub-custodians from time to time to perform such of the acts and services of the
custodian, and upon such terms and conditions, as may be agreed upon between the
custodian and such sub-custodian and approved by the Trustees, provided that in
every case such sub-custodian shall be a bank, a company that is a member of a
national securities exchange, or a trust company organized under the laws of the
United States or one of the states thereof and having capital, surplus and
undivided profits of at least twenty million dollars ($20,000,000) and that is a
member of the Depository Trust Company or such other person or
19
entity as may be permitted by the Commission or is otherwise able to act as
custodian of the Trust's assets in accordance with the 1940 Act.
SECTION 8.2. CENTRAL CERTIFICATE SYSTEM. Subject to the 1940 Act and
such other rules, regulations and orders as the Commission may adopt, the
Trustees may direct the custodian to deposit all or any part of the securities
owned by the Trust in a system for the central handling of securities
established by a national securities exchange or a national securities
association registered with the Commission under the Securities Exchange Act of
1934, or such other person as may be permitted by the Commission, or otherwise
in accordance with the 1940 Act, pursuant to which system all securities of any
particular class or series of any issuer deposited within the system are treated
as fungible and may be transferred or pledged by bookkeeping entry without
physical delivery of such securities, provided that all such deposits shall be
subject to withdrawal only upon the order of the Trust or its custodians,
sub-custodians or other agents.
ARTICLE IX.
DISTRIBUTIONS AND REDEMPTIONS
SECTION 9.1. DISTRIBUTIONS
(a) The Trustees may from time to time declare and pay dividends or
other distributions with respect to any Series and/or class of a Series. The
amount of such dividends or distributions and the payment of them and whether
they are in cash or any other Trust Property shall be wholly in the discretion
of the Trustees. All dividends and other distributions on Shares of a
particular Series shall be distributed pro rata to the Shareholders of that
Series in proportion to the number of Shares of that Series they held on the
record date established for such payment, except that such dividends and
distributions shall appropriately reflect expenses allocated to the Series.
(b) Dividends and other distributions may be paid or made to the
Shareholders of record at the time of declaring a dividend or other distribution
or among the Shareholders of record at such other date or time or dates or times
as the Trustees shall determine, which dividends or distributions, at the
election of the Trustees, may be paid pursuant to a standing resolution or
resolutions adopted only once or with such frequency as the Trustees may
determine. The Trustees may adopt and offer to Shareholders such dividend
reinvestment plans, cash dividend payout plans or related plans as the Trustees
shall deem appropriate.
(c) Anything in this Trust Instrument to the contrary
notwithstanding, the Trustees may at any time declare and distribute a stock
dividend to the Shareholders of a particular
20
Series, or class thereof, as of the record date of that Series fixed as provided
in Section 11.3 hereof.
SECTION 9.2. REDEMPTIONS. In case any holder of record of Shares of
a particular Series desires to dispose of his Shares or any portion thereof he
may deposit at the office of the transfer agent or other authorized agent of
that Series a written request or such other form of request as the Trustees may
from time to time authorize, requesting that the Series purchase the Shares in
accordance with this Section 9.2; and, subject to Section 9.4 hereof, the
Shareholder so requesting shall be entitled to require the Series to purchase,
and the Series or the Principal Underwriter of the Series shall purchase his
said Shares, but only at the Net Asset Value thereof (as described in Section
9.3 of this Article IX). The Series shall make payment for any such Shares to
be redeemed, as aforesaid, in cash or property from the assets of that Series
and, subject to Section 9.4 hereof, payment for such Shares shall be made by the
Series or the Principal Underwriter of the Series to the Shareholder of record
within seven (7) days after the date upon which the request is effective. Upon
redemption, shares shall become Treasury shares and may be re-issued from time
to time.
SECTION 9.3. DETERMINATION OF NET ASSET VALUE AND VALUATION OF
PORTFOLIO ASSETS. The term "Net Asset Value" of any Series shall mean that
amount by which the assets of that Series exceed its liabilities, all as
determined by or under the direction of the Trustees. The Trustees may delegate
any of their powers and duties under this Section 9.3 with respect to valuation
of assets and liabilities. Such value shall be determined separately for each
Series and shall be determined on such days and at such times as the Trustees
may determine. Such determination shall be made with respect to securities and
other instruments for which market quotations are readily available, at the
market value of such securities or other instruments; and with respect to other
securities and assets, at the fair value as determined in good faith by the
Trustees; provided, however, that the Trustees, without Shareholder approval,
may alter the method of valuing portfolio securities or other instruments
insofar as permitted under the 1940 Act. The resulting amount, which shall
represent the total Net Asset Value of the particular Series, shall be divided
by the total number of shares of that Series outstanding at the time and the
quotient so obtained shall be the Net Asset Value per Share of that Series. At
any time the Trustees may cause the Net Asset Value per Share last determined to
be determined again in similar manner and may fix the time when such
redetermined value shall become effective.
The Trustees shall not be required to adopt, but may at any time
adopt, discontinue or amend a practice of seeking to maintain the Net Asset
Value per Share of the Series at a constant amount. If, for any reason, the net
income of any Series, determined at any time, is a negative amount, the Trustees
shall have the power with respect to that Series (a) to
21
offset each Shareholder's pro rata share of such negative amount from the
accrued dividend account of such Shareholder, (b) to reduce the number of
Outstanding Shares of such Series by reducing the number of Shares in the
account of each Shareholder by a pro rata portion of that number of full and
fractional Shares which represents the amount of such excess negative net
income, (c) to cause to be recorded on the books of such Series an asset account
in the amount of such negative net income (provided that the same shall
thereupon become the property of such Series with respect to such Series and
shall not be paid to any Shareholder), which account may be reduced by the
amount of dividends declared thereafter upon the Outstanding Shares of such
Series on the day such negative net income is experienced, until such asset
account is reduced to zero; (d) to combine the methods described in clauses (a)
and (b) and (c) of this sentence; or (e) to take any other action they deem
appropriate, in order to cause (or in order to assist in causing) the Net Asset
Value per Share of such Series to remain at a constant amount per Outstanding
Share immediately after each such determination and declaration. The Trustees
shall also have the power not to declare a dividend out of net income for the
purpose of causing the Net Asset Value per Share to be increased.
In the event that any Series is divided into classes, the provisions
of this Section 9.3, to the extent applicable as determined in the discretion of
the Trustees and consistent with the 1940 Act and other applicable law, may be
equally applied to each such class.
SECTION 9.4. SUSPENSION OF THE RIGHT OF REDEMPTION. The Trustees may
declare a suspension of the right of redemption or postpone the date of payment
if permitted under the 1940 Act. Such suspension shall take effect at such time
as the Trustees shall specify but not later than the close of business on the
business day next following the declaration of suspension, and thereafter there
shall be no right of redemption or payment until the Trustees shall declare the
suspension at an end. In the case of a suspension of the right of redemption, a
Shareholder may either withdraw his request for redemption or receive payment
based on the Net Asset Value per Share next determined after the termination of
the suspension.
SECTION 9.5. REDEMPTION OF SHARES IN ORDER TO QUALIFY AS REGULATED
INVESTMENT COMPANY. If the Trustees shall, at any time and in good faith, be of
the opinion that direct or indirect ownership of Shares of any Series has or may
become concentrated in any Person to an extent which would disqualify any Series
as a regulated investment company under the Internal Revenue Code of 1986 as
amended, then the Trustees shall have the power (but not the obligation) by lot
or other means deemed equitable by them (a) to call for redemption by any such
person of a number, or principal amount, of Shares sufficient to maintain or
bring the direct or indirect ownership of Shares into conformity with the
requirements for such qualification and (b) to refuse to transfer
22
or issue Shares to any person whose acquisition of Shares in question would
result in such disqualification. The redemption shall be effected at the
redemption price and in the manner provided in this Article IX.
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 requirements of any taxing
authority or this Section 9.5.
ARTICLE X.
LIMITATION OF LIABILITY AND INDEMNIFICATION
SECTION 10.1. LIMITATION OF LIABILITY. Neither a Trustee nor an
officer of the Trust, when acting in such capacity, shall be personally liable
to any person other than the Trust or the Shareholders for any act, omission or
obligation of the Trust, any Trustee or any officer of the Trust. Neither a
Trustee nor an officer of the Trust shall be liable for any act or omission or
any conduct whatsoever in his capacity as Trustee or as an officer of the Trust,
provided that nothing contained herein or in the Delaware Act shall protect any
Trustee or any officer of the Trust against any liability to the Trust or to
Shareholders to which he would otherwise be subject by reason of willful
misfeasance, bad faith, gross negligence or reckless disregard of the duties
involved in the conduct of the office of Trustee or officer of the Trust
hereunder.
SECTION 10.2. INDEMNIFICATION.
(a) Subject to the exceptions and limitations contained in
Subsection 10.2(b):
(i) every person who is, or has been, a Trustee or officer of the
Trust (including any individual who serves at its request as Director,
Officer, Partner, Trustee or the like of another organization in which it
has any interest as a shareholder, creditor or otherwise), and such
Person's heirs, executors, administrators and other legal representatives
(hereinafter referred to as a "Covered Person") shall be indemnified by the
Trust or Series to the fullest extent permitted by law against liability
and against all expenses reasonably incurred or paid by him in connection
with any claim, action, suit or proceeding in which he becomes involved as
a party or otherwise by virtue of his being or having been a Covered Person
and against amounts paid or incurred by him in the settlement thereof; and
(ii) the words "claim," "action," "suit," or "proceeding" shall
apply to all claims, actions, suits or proceedings (civil, criminal or
other, including
23
appeals), actual or threatened while in office or thereafter, and the words
"liability" and "expenses" shall include, without limitation, attorneys'
fees, costs, judgments, amounts paid in settlement, fines, penalties and
other liabilities.
(b) No indemnification shall be provided hereunder to a Covered
Person:
(i) who shall have been adjudicated by a court or body before which
the proceeding was brought (A) to be liable to the Trust or its
Shareholders by reason of willful misfeasance, bad faith, gross negligence
or reckless disregard of the duties involved in the conduct of his office
or (B) not to have acted in good faith in the reasonable belief that his
action was in the best interest of the Trust; or
(ii) in the event of a settlement, unless there has been a
determination that such Trustee or officer did not engage in willful
misfeasance, bad faith, gross negligence or reckless disregard of the
duties involved in the conduct of his office, (A) by the court or other
body approving the settlement; (B) by at least a majority of those Trustees
who are neither interested persons of the Trust nor are parties to the
matter based upon a review of readily available facts (as opposed to a full
trial-type inquiry); (C) by written opinion of independent legal counsel
based upon a review of readily available facts (as opposed to a full
trial-type inquiry) or (D) by a vote of a majority of the Outstanding
Shares entitled to vote (excluding any Outstanding Shares owned of record
or beneficially by such Covered Person).
(c) The rights of indemnification herein provided may be insured
against by policies maintained by the Trust, shall be severable, shall not be
exclusive of or affect any other rights to which any Covered Person may now or
hereafter be entitled, shall continue as to a person who has ceased to be a
Covered Person and shall inure to the benefit of the heirs, executors and
administrators of such a person. Nothing contained herein shall affect any
rights to indemnification to which Trust personnel, other than Covered Persons,
and other persons may be entitled by contract or otherwise under law.
(d) Expenses in connection with the preparation and presentation of
a defense to any claim, action, suit or proceeding of the character described in
Subsection (a) of this Section 10.2 may be paid by the Trust or Series from time
to time prior to final disposition thereof upon receipt of an undertaking by or
on behalf of such Covered Person that such amount will be paid over by him to
the Trust or Series if it is ultimately determined that he is not entitled to
indemnification under this
24
Section 10.2; provided, however, that either (i) such Covered Person shall have
provided appropriate security for such undertaking, (ii) the Trust is insured
against losses arising out of any such advance payments or (iii) either a
majority of the Trustees who are neither interested persons of the Trust nor
parties to the matter, or independent legal counsel in a written opinion, shall
have determined, based upon a review of readily available facts (as opposed to a
trial-type inquiry or full investigation), that there is reason to believe that
such Covered Person will be found entitled to indemnification under this Section
10.2.
(e) any repeal or modification of this Article X by the
Shareholders, or adoption or modification of any other provisions of this Trust
Instrument or By-laws inconsistent with this Article, shall be prospectively
only to the extent that such repeal or modification would, if applied
retrospectively, adversely affect any limitation on the liability of any Covered
Person or indemnification available to any Covered Person with respect to any
act or omission which occurred prior to such repeal, modification or adoption.
SECTION 10.3. SHAREHOLDERS. In case any Shareholder of any Series
shall be held to be personally liable solely by reason of his being or having
been a Shareholder of such Series and not because of his acts or omissions or
for some other reason, the Shareholder or former Shareholder (or his heirs,
executors, administrators or other legal representatives, or, in the case of a
corporation or other entity, its corporate or other general successor) shall be
entitled out of the assets belonging to the applicable Series to be held
harmless from and indemnified against all loss and expense arising from such
liability. The Trust, on behalf of the affected Series, shall, upon request by
the Shareholder, assume the defense of any claim made against the Shareholder
for any act or obligation of the Series and satisfy any judgment thereon from
the assets of the Series.
ARTICLE XI.
MISCELLANEOUS
SECTION 11.1. TRUST NOT A PARTNERSHIP. It is hereby expressly
declared that a trust and not a partnership is created hereby. No Trustee
hereunder shall have any power to bind personally either the Trust officers or
any Shareholder. 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
appropriate Series or (if the Trustees shall have yet to have established
Series) of the Trust for payment under such credit, contract or claim; and
neither the Shareholders nor the Trustees, nor any of their agents, whether
past, present or future, shall be personally liable therefor. Nothing in this
Trust Instrument shall protect a Trustee against any liability to which the
Trustee would otherwise be subject by reason of willful misfeasance, bad faith,
gross negligence or reckless disregard of
25
the duties involved in the conduct of the office of Trustee hereunder.
SECTION 11.2. TRUSTEE'S GOOD FAITH ACTION, EXPERT ADVICE, NO BOND OR
SURETY. The exercise by the Trustees or the officers of the Trust of their
powers and discretion hereunder in good faith and with reasonable care under the
circumstances then prevailing shall be binding upon everyone interested.
Subject to the provisions of Article X hereof and to Section 11.1 of this
Article XI, the Trustees and the officers of the Trust shall not be liable for
errors of judgment or mistakes of fact or law. The Trustees and the officers of
the Trust may take advice of counsel or other experts with respect to the
meaning and operation of this Trust Instrument, and subject to the provisions of
Article X hereof and Section 11.1 of this Article XI, shall be under no
liability for any act or omission in accordance with such advice or for failing
to follow such advice. The Trustees and the officers of the Trust shall not be
required to give any bond as such, nor any surety if a bond is obtained.
SECTION 11.3. ESTABLISHMENT OF RECORD DATES. The Trustees may close
the Share transfer books of the Trust for a period not exceeding ninety (90)
days preceding the date of any meeting of Shareholders, or the date for the
payment of any dividends or other distributions, or the date for the allotment
of rights, or the date when any change or conversion or exchange of Shares shall
go into effect; or in lieu of closing the stock transfer books as aforesaid, the
Trustees may fix in advance a date, not exceeding ninety (90) days preceding the
date of any meeting of Shareholders, or the date for payment of any dividend or
other distribution, or the date for the allotment of rights, or the date when
any change or conversion or exchange of Shares shall go into effect, as a record
date for the determination of the Shareholders entitled to notice of, and to
vote at, any such meeting, or entitled to receive payment of any such dividend
or other distribution, or to any such allotment of rights, or to exercise the
rights in respect of any such change, conversion or exchange of Shares, and in
such case such Shareholders and only such Shareholders as shall be Shareholders
of record on the date so fixed shall be entitled to such notice of, and to vote
at, such meeting, or to receive payment of such dividend or other distribution,
or to receive such allotment or rights, or to exercise such rights, as the case
may be, notwithstanding any transfer of any Shares on the books of the Trust
after any such record date fixed as aforesaid.
SECTION 11.4. TERMINATION OF TRUST.
(a) This Trust shall continue without limitation of time but
subject to the provisions of Subsection 11.4(b).
(b) The Trustees may, subject to any necessary Shareholder,
Trustee, and regulatory approvals:
26
(i) sell and convey all or substantially all of the assets of the
Trust or any affected Series to another trust, partnership, association or
corporation, or to a separate series of shares thereof, organized under the
laws of any state which trust, partnership, association or corporation is
an open-end management investment company as defined in the 1940 Act, or is
a series thereof, for adequate consideration which may include the
assumption of all outstanding obligations, taxes and other liabilities,
accrued or contingent, of the Trust or any affected Series, and which may
include shares of beneficial interest, stock or other ownership interests
of such trust, partnership, association or corporation or of a series
thereof;
(ii) enter into a plan of liquidation in order to terminate and
liquidate any Series (or class) of the Trust, or the Trust; or
(iii) at any time sell and convert into money all of the assets of
the Trust or any affected Series.
Upon making reasonable provision, in the determination of the Trustees, for the
payment of all liabilities by assumption or otherwise, the Trustees shall
distribute the remaining proceeds or assets (as the case may be) of each Series
(or class) ratably among the holders of Shares of the affected Series, based
upon the ratio that each Shareholder's Shares bears to the number of Shares of
such Series (or class) then outstanding.
(c) Upon completion of the distribution of the remaining proceeds
or the remaining assets as provided in Subsection 11.4(b), the Trust or any
affected Series shall terminate and the Trustees and the Trust shall be
discharged of any and all further liabilities and duties hereunder and the
right, title and interest of all parties with respect to the Trust or Series
shall be canceled and discharged.
Upon termination of the Trust, following completion of winding up of
its 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.
SECTION 11.5. REORGANIZATION.
(a) Notwithstanding anything else herein, the Trustees, in order to
change the form or jurisdiction of organization of the Trust, may (i) cause the
Trust to merge or consolidate with or into one or more trusts, partnerships
(general or limited), associations or corporations so long as the surviving or
resulting entity is an open-end management investment company under the 1940
Act, or is a series thereof, that will succeed to or assume the Trust's
registration under
27
that Act and which is formed, organized or existing under the laws of a state,
commonwealth, possession or colony of the United States or (ii) cause the Trust
to incorporate under the laws of Delaware.
(b) The Trustees may, subject to a vote of a majority of the
Trustees and any shareholder vote required under the 1940 Act, if any, cause the
Trust to merge or consolidate with or into one or more trusts, partnerships
(general or limited), associations, limited liability companies or corporations
formed, organized or existing under the laws of a state, commonwealth,
possession or colony of the United States.
(c) Any agreement of merger or consolidation or certificate of
merger or consolidation may be signed by a majority of Trustees and facsimile
signatures conveyed by electronic or telecommunication means shall be valid.
(d) 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 Trust Instrument, an agreement of merger or consolidation
approved by the Trustees in accordance with paragraph (a) or (b) of this Section
11.5 may effect any amendment to the Trust Instrument or effect the adoption of
a new trust instrument of the Trust if it is the surviving or resulting trust in
the merger or consolidation.
SECTION 11.6. FILING OF COPIES, REFERENCES, HEADINGS. The original
or a copy of this Trust Instrument and of each amendment hereof or Trust
Instrument supplemental 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 or Trustee of the Trust as to whether or not any
such amendments or supplements have been made and as to any matters in
connection with the Trust hereunder, and with the same effect as if it were the
original, may rely on a copy certified by an officer or Trustee of the Trust to
be a copy of this Trust Instrument or of any such amendment or supplemental
Trust Instrument. In this Trust Instrument or in any such amendment or
supplemental Trust Instrument, references to this Trust Instrument, and all
expressions such as "herein," "hereof" and "hereunder," shall be deemed to refer
to this Trust Instrument as amended or affected by any such supplemental Trust
Instrument. All expressions like "his," "the" and "him," shall be deemed to
include the feminine and neuter, as well as masculine, genders. Headings are
placed herein for convenience of reference only and in case of any conflict, the
text of this Trust Instrument, rather than the headings, shall control. This
Trust Instrument may be executed in any number of counterparts each of which
shall be deemed an original.
SECTION 11.7. APPLICABLE LAW. The trust set forth in this instrument
is made in the State of Delaware, and the Trust and this Trust Instrument, and
the rights and obligations of the
28
Trustees and Shareholders hereunder, are to be governed by and construed and
administered according to the Delaware Act and the laws of said State; provided,
however, that there shall not be applicable to the Trust, the Trustees or this
Trust Instrument (unless separately required under the 1940 Act) (a) the
provisions of Section 3540 of Title 12 of the Delaware Code or (b) any
provisions of the laws (statutory or common) of the State of Delaware (other
than the Delaware Act) pertaining to trusts which 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 court or other governmental approval concerning the
acquisition, holding or disposition of real or personal property, (iv) fees or
other sums payable 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 of responsibilities or limitations on the acts or powers of
trustees, which are inconsistent with the limitations or liabilities or
authorities and powers of the Trustees set forth or referenced in this Trust
Instrument. The Trust shall be of the type commonly called a "business trust,"
and without limiting the provisions hereof, the Trust may exercise all powers
which are ordinarily exercised by such a trust under Delaware law. The Trust
specifically reserves the right to exercise any of the powers or privileges
afforded to trusts or ctions that may be engaged in by 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.
SECTION 11.8. AMENDMENTS. Except as specifically provided herein,
the Trustees may, without shareholder vote, amend or otherwise supplement this
Trust Instrument by making an amendment, a Trust Instrument supplemental hereto
or an amended and restated Trust Instrument. Shareholders shall have the right
to vote (a) on any amendment which would adversely affect their rights under
this Trust Instrument, (b) on any amendment to this Section 11.8, (c) on any
amendment as may be required by law or by the Trust's registration statement
filed with the Commission and (d) on any amendment submitted to them by the
Trustees. Any amendment required or permitted to be submitted to Shareholders
which, as the Trustees determine, shall affect the Shareholders of one or more
Series shall be authorized by vote of the Shareholders of each Series affected
and no vote of shareholders of a Series not affected shall be required.
Notwithstanding any other provision of this Trust Instrument, any amendment to
Article X hereof shall not limit the rights to indemnification or insurance
provided therein with respect to action or omission of Covered Persons prior to
such amendment.
29
SECTION 11.9. FISCAL YEAR. The fiscal year of the Trust shall end on
a specified date as set forth in the Bylaws, provided, however, that the
Trustees may change the fiscal year of the Trust.
SECTION 11.10. PROVISIONS IN CONFLICT WITH LAW. The provisions of
this Trust Instrument are severable, and if the Trustees shall determine, with
the advice of counsel, that any of such provisions are in conflict with the 1940
Act, the regulated investment company provisions of the Internal Revenue Code of
1986, as amended, or with other applicable laws and regulations, the conflicting
provision shall be deemed never to have constituted a part of this Trust
Instrument; provided, however, that such determination shall not affect any of
the remaining provisions of this Trust Instrument or render invalid or improper
any action taken or omitted prior to such determination. If any provision of
this Trust Instrument 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 Trust Instrument in any
jurisdiction.
30
IN WITNESS WHEREOF, the undersigned, being the sole initial Trustee of
the Trust, has executed this Instrument as of the date first written above.
/s/ Xxxxxx X. Xxxxxx,
-----------------------------
Xxxxxx X. Xxxxxx, as Trustee
and not individually
31
