AMENDED AND RESTATED AGREEMENT AND DECLARATION OF TRUST OF MANAGER DIRECTED PORTFOLIOS
AMENDED AND RESTATED
OF
The Amended and Restated Agreement and Declaration of Trust of Manager Directed Portfolios f/k/a “The Roxbury Funds” (the “Trust,”), dated as of March 20, 2007, as amended May 15, 2017, November 13, 2018, and March 30, 2022, is hereby amended and restated as of July 26, 2023 among the Trustees and each person who becomes a Shareholder (as defined in Section 1.2) in accordance with the terms hereinafter set forth.
WHEREAS, the Trustees have determined that the business of the Trust shall be conducted under the name of Manager Directed Portfolios and that a Certificate of Trust was filed with the Secretary of State of the State of Delaware on April 4, 2006 to form the Trust under the name “The Roxbury Funds,” and a Certificate of Amendment was filed with the Secretary of State of the State of Delaware on June 7, 2016, to change the name of the Trust to Manager Directed Portfolios effective July 1, 2016;
NOW, THEREFORE, the Trustees do hereby declare that all money and property contributed to the Trust hereunder shall be held and managed in trust under this Agreement and Declaration of Trust, for the benefit of the Shareholders as set forth below.
ARTICLE 1
Section 1.1 NAME. This trust shall be known as “Manager Directed Portfolios” and the Trustees shall conduct the business of the Trust under that name or any other name as they may from time to time determine.
1.2.1 “BY-LAWS” shall mean the By-Laws of the Trust as amended from time to time.
1.2.2 “CLASS” shall mean a portion of Shares of a Portfolio of the Trust established in accordance with the provisions of Article 3 hereof.
1.2.3 “COVERED PERSON” shall have the meaning assigned to it in Section 9.2.1.
1.2.4 “DECLARATION OF TRUST” shall mean this Amended and Restated Agreement and Declaration of Trust, as amended or restated from time to time.
1.2.5 “DELAWARE ACT” refers to the Delaware Statutory Trust Act, 12 Del. C. Section 3801 et seq., as such act may be amended from time to time.
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1.2.6 “CLASS EXPENSES” shall mean expenses incurred by a particular Class in connection with a shareholder services arrangement or a distribution plan that is specific to such Class or any other differing share of expenses or differing fees, in each case, pursuant to a plan adopted by the Trust pursuant to Rule 18f-3 under the 1940 Act, as such plan or rule may be amended from time to time.
1.2.7 “COMMISSION” shall mean the Securities and Exchange Commission.
1.2.8 “GENERAL ASSETS” shall have the meaning set forth in Section 3.4.1 hereof.
1.2.9 “INTERESTED PERSON” shall have the meaning set forth in Section 2(a)(19) of the 1940 Act.
1.2.10 “INVESTMENT MANAGER” or “MANAGER” shall mean a party furnishing services to the Trust pursuant to any contract described in Section 6.1 hereof.
1.2.11 “PERSON” shall mean and include any of the following: individuals, limited liability companies, corporations, partnerships, trusts, foundations, plans, associations, joint ventures, estates and other entities, whether or not legal entities, and governments and agencies and political subdivisions thereof, whether domestic or foreign.
1.2.12 “PORTFOLIO” refers to each series of Shares established and designated under or in accordance with the provisions of Article 3 hereof.
1.2.13 “PRINCIPAL UNDERWRITER” shall have the meaning set forth in Section (2)(a)(29) of the 1940 Act.
1.2.14 “PROPORTIONATE INTEREST” shall have the meaning set forth in Section 3.2.2 hereof.
1.2.15 “SHARES” means the shares of beneficial interest into which the beneficial interest in the Trust shall be divided from time to time and/or, when used in relation to any particular Portfolio or Class of Shares established by the Trustees pursuant to Section 3.2 hereof, shares of beneficial interest into which such Portfolio or Class of Shares shall be divided from time to time in accordance with the terms hereof. The term “Shares” includes fractions of Shares as well as whole Shares.
1.2.16 “SHAREHOLDER” means a record owner of outstanding Shares of the Trust.
1.2.17 “SUCCESSOR ENTITY” shall have the meaning set forth in Section 10.3.
1.2.18 “TRUST” refers to the Delaware statutory trust established by this Declaration of Trust.
1.2.19 “TRUSTEES” refers to Xxxxxxxx X. Xxxxxxxxx, Xxxxx Xxxxxx Xxxxx, Xxxxxxx X. Xxxxx and Xxxxx X. Xxxxxxxxx, so long as they continue in office in accordance with the terms hereof, and all other persons who may from time to time be duly elected or appointed to serve on the Board of Trustees in accordance with the provisions hereof, and reference herein to a Trustee or the Trustees shall refer to such person or persons in their capacity as trustees hereunder.
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1.2.20 “TRUST PROPERTY” means any and all property, real or personal, tangible or intangible, which is owned or held by or for the account of the Trust or any portfolio of the Trust.
1.2.21 “1940 ACT” refers to the Investment Company Act of 1940, and the rules and regulations promulgated thereunder, each as amended from time to time. References herein to specific sections of the 1940 Act shall be deemed to include such rules and regulations as are applicable to such sections as determined by the Trustees or their designees.
ARTICLE 2
The purpose of the Trust is to conduct, operate and carry on the business of an open-end management investment company registered under the 1940 Act through one or more Portfolios investing primarily in securities and to carry on such other business as the Trustees may from time to time determine pursuant to authority under this Declaration of Trust.
ARTICLE 3
3.1.1 The beneficial interest in the Trust shall at all times be divided into an unlimited number of Shares, with a par value of $.01 per Share, PROVIDED that the Shares of a Portfolio that is established by the Trustees to be taxable as a separate partnership for federal income tax purposes shall have no par value. Shares shall be validly issued, fully paid and non-assessable when issued for such consideration as the Trustees shall determine. All Shares issued in connection with a dividend or other distribution in Shares or a split or reverse split of Shares shall be fully paid and non-assessable.
3.1.2 Pursuant to Section 3806(b) of the Delaware Act, the Trustees shall have authority, from time to time, (a) to establish Shares of one or more series, each of which constitutes a “Portfolio” and shall be separate and distinct from the Shares in any other Portfolio and (b) to further divide Shares of any Portfolio into one or more separate and distinct classes of Shares, each of which constitutes a “Class.”
3.1.3 The Portfolios shall include, without limitation, those Portfolios specifically established and designated in Section 3.2.3 hereof, and such other Portfolios as the Trustees may deem necessary or desirable. The Trustees shall have exclusive power, without the requirement of Shareholder approval, from time to time, to establish and designate separate and distinct Portfolios, and, subject to the provisions of this Declaration of Trust and the 1940 Act, to fix and determine the rights of Shareholders of Shares in such Portfolios. If only one Portfolio shall be established, unless provided for otherwise, the Shares shall have the rights and preferences provided for herein and in Section 3.4 hereof to the extent relevant.
3.1.4 This Trust is a series trust pursuant to Sections 3804(a) and 3806(b) of the Delaware Act, and each Portfolio shall be a separate series of the Trust within the meaning of Section 3806(b)(2) of the Delaware Act. As such, separate and distinct records shall be maintained for each Portfolio and the assets of the Trust associated with each Portfolio shall be held in such separate and distinct records (directly or
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indirectly, including through a nominee or otherwise) and accounted for in such separate and distinct records separately from the other assets of the Trust or any other Portfolio. The debts, liabilities, obligations and expenses incurred, contracted for or otherwise existing with respect to each Portfolio shall be enforceable against the assets of such Portfolio only, and not against the assets of the Trust generally or the assets of any other Portfolio nor shall the assets of any Portfolio be charged with the debts, liabilities, obligations and expenses incurred, contracted for or otherwise existing with respect to another Portfolio, or, except as otherwise provided herein, the Trust generally.
3.1.5 Notwithstanding anything contained herein to the contrary, the Trustees in their discretion may, from time to time, without vote of the Shareholders, determine to issue Shares of any Portfolio or Class only in lots of such aggregate number of Shares as shall be determined at any time by the Trustees in their sole discretion to be called “Creation Units,” and in connection with the issuance of such Creation Units, to charge such transaction fees or such other fees as the Trustees shall determine, provided however that the Trustees in their discretion may, from time to time, without vote of the Shareholders, determine to alter the number of Shares constituting a Creation Unit.
Section 3.2 ESTABLISHMENT AND DESIGNATION OF PORTFOLIOS AND CLASSES.
3.2.1 PORTFOLIOS. The Trust shall consist of one or more separate and distinct Portfolios, each with an unlimited number of Shares unless otherwise specified by the Trustees. Any fractional Share of a Portfolio shall have proportionately all rights and obligations of a whole share of such Portfolio, including rights with respect to voting, receipt of dividends and distributions and redemptions of Shares as set forth in Section 3.4 hereof.
3.2.2 CLASSES. The Trustees may establish one or more Classes of Shares of any Portfolio, each with an unlimited number of Shares unless otherwise specified by the Trustees. Each Class so established and designated shall represent a proportionate undivided interest, as determined by or at the direction of, or pursuant to authority granted by, the Trustees (“Proportionate Interest”), in the net assets belonging to that Portfolio and shall have identical voting, dividend, liquidation and other rights, preferences, powers, restrictions, limitations and designations and be subject to the same terms and conditions, except as established by the Trustees, including without limitation:
(a) each Class may be subject to separate initial and/or deferred sales charges, each as determined by the Trustees;
(b) class Expenses allocated to a Class for which such expenses were incurred shall be borne solely by that Class;
(c) other expenses, costs charges and reserves allocated to a Class in accordance with Section 3.4.2 may be borne solely by that Class, provided that the allocation of such other expenses, costs, charges, and reserves is not specifically required to be set forth in a plan adopted by the Trust pursuant to Rule 18f-3 under the 1940 Act;
(d) dividends declared and payable to a Class pursuant to section 3.4.3 shall reflect the items separately allocated thereto pursuant to the preceding clauses; and
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(e) each Class may have separate rights to convert to another Class, exchange rights, and similar rights, each as determined by the Trustees.
3.2.3 ESTABLISHMENT AND DESIGNATION BY ACTION OF THE TRUSTEES.
The Trustees or their predecessors have previously established and designated certain Portfolios and Classes as set forth in the records of the Trust. Each additional Portfolio and the Classes of such additional Portfolio shall be established by the adoption of a resolution adopted by a majority of the Trustees. Each such resolution is incorporated herein by reference and made a part of the Declaration of Trust whether or not expressly stated in such resolution, and shall be effective upon the occurrence of the date stated therein (or, if no such date is stated, upon the date of such adoption).
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3.4.2 LIABILITIES HELD WITH RESPECT TO A PARTICULAR PORTFOLIO OR CLASS.
(a) SPECIFIC LIABILITIES. The assets of the Trust held with respect to each Portfolio shall be charged with the liabilities of the Trust with respect to such Portfolio and all expenses, costs, charges and reserves attributable to such Portfolio. Class Expenses shall, in all cases, be allocated to the Class for which such Class Expenses were incurred.
(b) GENERAL LIABILITIES. Any general liabilities, expenses, costs, charges or reserves of the Trust or any Portfolio that are not readily identifiable as belonging to a particular Portfolio or any particular Class thereof shall be allocated and charged by the Trustees, between or among any one or more of the portfolios or Classes in such manner and on such basis as the Trustees in their sole discretion deem fair and equitable. Each allocation of liabilities, expenses, costs, charges and reserves by the Trustees shall be conclusive and binding upon the Shareholders of all Portfolios for all purposes in the absence of manifest error. Liabilities of the Trust for indemnification and advancement of expenses of a Covered Person under Section 9.2 may be paid out of the assets of a particular Portfolio or Class notwithstanding the fact, if it be the case, that the indemnification or advancement of expenses relates in whole or in part to acts or omissions of the Covered Person with respect to another Portfolio or Class.
(c) CLAIMS OF CREDITORS. All Persons who have extended credit which has been allocated to a particular Portfolio, or who have a claim or contract which has been allocated to a Portfolio, shall look exclusively to the assets held with respect to such Portfolio for payment of such credit, claim, or contract. None of the debts, liabilities, obligations and expenses incurred, contracted or otherwise existing with respect to the Trust generally that have not been allocated to a specified Portfolio, or with respect to any other Portfolio, shall be enforceable against the assets of such specified Portfolio. Each creditor, claimant and contracting party shall be deemed nevertheless to have agreed to such limitation unless an express provision to the contrary has been incorporated in the written contract or other document establishing the contractual relationship.
3.4.3 DIVIDENDS, DISTRIBUTIONS, REDEMPTIONS AND REPURCHASES.
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(a) DIVIDENDS AND DISTRIBUTIONS. Shareholders of any Portfolio shall be entitled to receive dividends and distributions, when, if and as declared with respect thereto in the manner provided in Section 8.1 hereof. The Trustees shall have full discretion 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 in the absence of manifest error. The Trustees may adopt and offer to Shareholders such dividend reinvestment plans, cash distribution payment plans, or similar plans as the Trustees deem appropriate.
(b) NO PRIORITY OR PREFERENCE. No Share shall have any priority or preference over any other Share of the same Portfolio or Class thereof with respect to dividends or distributions of the Trust or otherwise. All dividends and other distributions on Shares of a particular Portfolio or Class shall be distributed pro rata to the Shareholders of such Portfolio or Class, as the case may be, in proportion to the number of Shares of such Portfolio or Class they held on the record date established for such payment, PROVIDED that such dividends and other distributions on Shares of a Class shall appropriately reflect Class Expenses and other expenses allocated to that Class.
(c) SOURCE OF DIVIDENDS AND DISTRIBUTIONS. No dividend or distribution including, without limitation, any distribution paid upon termination of the Trust or of any Portfolio or Class with respect to, or any redemption or repurchase of, the Shares of any Portfolio or Class shall be effected by the Trust other than from the assets held with respect to such Portfolio or Class, nor shall any Shareholder of any Portfolio or Class otherwise have any right or claim against the assets held with respect to any other Portfolio or Class except to the extent that such Shareholder has such a right or claim hereunder as a Shareholder of such other Portfolio or Class.
(a) if a matter to be voted on affects only the interests of certain Portfolios, then only the Shareholders of such affected Portfolios shall be entitled to vote on the matter;
(b) if a matter to be voted on affects only the interests of a single Portfolio, then only the Shareholders of such Portfolio shall be entitled to vote on the matter;
(c) if a matter to be voted on affects only the interests of certain Classes, then only the Shareholders of such affected Classes shall be entitled to vote on the matter; and
(d) if a matter to be voted on affects only the interests of a single Class, then only the Shareholders of such Class shall be entitled to vote on the matter.
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(b) if sent by electronic transmission to the Shareholder of record at the Shareholder’s last known address for electronic delivery as recorded on the register of the Trust, (c) if mailed or sent by electronic delivery to one or more members of the Shareholder’s household in accordance with applicable law or regulation, or (d) if otherwise sent in accordance with applicable law or regulation.
3.8.1 Shares shall be deemed to be personal property giving only the rights provided in this Declaration of Trust, the By-Laws of the Trust and the resolutions of the Board of Trustees. Every Shareholder by virtue of having become a Shareholder shall be held to have expressly assented and agreed to the terms thereof. The death of a Shareholder during the existence of the Trust shall not operate to terminate the Trust, nor entitle the representative of any deceased Shareholder to an accounting or to take any action in court or elsewhere against the Trust or the Trustees, but shall entitle such representative only to the rights of said deceased Shareholder under this Declaration of Trust. Ownership of Shares shall not entitle a Shareholder to any title in or to the whole or any part of the Trust Property or right to call for a partition or division of the same or for an accounting, nor shall the ownership of Shares constitute the Shareholders as partners or joint venturers except as specifically provided for pursuant to Article 3 herein or by resolution of the Board of Trustees.
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3.8.2 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 Portfolio. Neither the Trust nor the Trustees, nor any officer, employee or agent of the Trust shall have any power to bind personally any Shareholder, or to call upon any Shareholder for the payment of any sum of money or assessment whatsoever other than such as the Shareholder may at any time agree to pay. Shareholders shall have the same limitation of personal liability as is extended to shareholders of private corporations for profit organized under the general corporation law of the State of Delaware.
3.8.3 If any Shareholder or former Shareholder of any Portfolio shall be held personally liable solely by reason of his being or having been a Shareholder 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 any entity, its general successor) shall be entitled out of the assets belonging to the applicable Portfolio to be held harmless from and indemnified against all loss and expense arising from such liability. The Trust, on behalf of the affected Portfolio, shall, upon request by such Shareholder, assume the defense of any such claim made against such Shareholder for any act or obligation of the Portfolio and satisfy any judgment thereon from the assets of the Portfolio.
ARTICLE 4
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powers granted to the Trustees and shall discharge all the duties imposed upon the Trustees by this Declaration of Trust.
ARTICLE 5
Section 5.1 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 extent as if the Trustees were the sole owners of the Trust Property and business in their own right, but with such powers of delegations as may be permitted by this Declaration of Trust. 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 and all foreign jurisdictions and to do all such other things and execute any and all such instruments that they may consider desirable, necessary or appropriate 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 Declaration of Trust, the presumption shall be in favor of a grant of power to the Trustees and unless otherwise specified herein or required by the 1940 Act or other applicable law, any action by the Board of Trustees shall be deemed effective if approved or taken by a majority of the Trustees then in office or a majority of any duly constituted committee of Trustees. The enumeration of any specific power in this Declaration of Trust 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 or other authority.
(a) a majority of the Trustees or the members of the committee (as the case may be) present at a meeting at which a quorum is present, including any meeting held by means of a conference telephone circuit or similar communications equipment by means of which all persons participating in the meeting can hear each other; or
(b) a written consent signed by a majority of the Trustees, or members of the committee, as the case may be, filed with the minutes of the proceedings of the Board of Trustees, or committee.
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5.3.1 To operate as, and to carry on the business of, an investment company, and exercise all the powers necessary and appropriate to the conduct of such operations;
5.3.2 To invest and reinvest cash and cash items, to hold cash uninvested, and to subscribe for, invest in, reinvest in, purchase or otherwise acquire, own, hold, pledge, sell, assign, transfer, exchange, distribute, write options on, lend or otherwise deal in or dispose of contracts for the future acquisition or delivery of all types of securities (as used herein to include any and all investments), futures contracts and options thereon, and forward currency contracts of every nature and kind, including, without limitation, all types of bonds, debentures, stocks, preferred stocks, negotiable or non-negotiable instruments, obligations, evidences of indebtedness, certificates of deposit or indebtedness, commercial paper, repurchase agreements, bankers’ acceptances, and other securities of any kind, issued, created, guaranteed, or sponsored by any and all Persons, including, without limitation, the government of the United States and any agencies or instrumentalities thereof, states, territories, and possessions of the United States and the District of Columbia and any political subdivision, agency, or instrumentality thereof, any foreign government or any political subdivision of the U.S. Government or any foreign government, or any international instrumentality or organization, or by any bank or savings institution, or by any corporation or organization organized under the laws of the United States or of any state, territory, or possession thereof, or by any corporation or organization organized under any foreign law, or in “when issued” contracts for any such securities, futures contracts and options thereon, and forward currency contracts; to change the investments of the assets of the Trust; and to exercise any and all rights, powers, and privileges of ownership or interest in respect of any and all such investments of every kind and description, including, without limitation, the right to consent and otherwise act with respect thereto, with power to designate one or more Persons, to exercise any of said rights, powers, and privileges in respect of any of said instruments;
5.3.3 To sell, exchange, lend, pledge, mortgage, hypothecate, lease, or write options with respect to or otherwise deal in any property rights relating to any or all of the assets of the Trust or any Portfolio;
5.3.4 To vote or give assent, or exercise any rights of ownership, with respect to stock or other securities or property; and to execute and deliver proxies or powers of attorney to such person or persons as the Trustees shall deem proper, granting to such person or persons such power and discretion with relation to securities or property as the Trustees shall deem proper;
5.3.5 To exercise powers and rights of subscription or otherwise which in any manner arise out of ownership of securities or property;
5.3.6 To hold any security or property in a form not indicating that it is Trust Property, whether in bearer, book entry, unregistered or other negotiable form, or in its own name or in the name of a custodian or sub-custodian or a nominee or nominees or otherwise or to authorize the custodian or a sub-custodian or a nominee or nominees to deposit the same in a securities depository, subject in each case to the applicable provisions of the 1940 Act;
5.3.7 To consent to, or participate in, any plan for the reorganization, consolidation or merger of any corporation or issuer of any security which is held in the Trust; to consent to any contract, lease,
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mortgage, purchase or sale of property by such corporation or issuer; and to pay calls or subscriptions with respect to any security held in the Trust;
5.3.8 To join with other security holders in acting through a committee, depositary, voting trustee or otherwise, and in that connection to deposit any security with, or transfer any security to, any such committee, depositary or trustee, and to delegate to them such power and authority with relation to any security (whether or not so deposited or transferred) as the Trustees shall deem proper, and to agree to pay, and to pay, such portion of the expenses and compensation of such committee, depositary or trustee as the Trustees shall deem proper;
5.3.9 To litigate, compromise, arbitrate, settle or otherwise adjust claims in favor of or against the Trust or a Portfolio, or any matter in controversy, including but not limited to claims for taxes;
5.3.10 To enter into joint ventures, general or limited partnerships and any other combinations or associations;
5.3.11 To borrow funds or other property in the name of the Trust or Portfolio exclusively for Trust purposes;
5.3.12 To endorse or guarantee the payment of any notes or other obligations of any Person; to make contracts of guaranty or suretyship, or otherwise assume liability for payment thereof;
5.3.13 Subject to Article 9, to purchase and pay for entirely out of Trust Property such insurance as the Trustees may deem necessary, desirable or appropriate for the conduct of the business, including, without limitation, insurance policies insuring the assets of the Trust or payment of distributions and principal on its portfolio investments, and insurance policies insuring the Shareholders, Trustees, officers, employees, agents, any Investment Manager, Principal Underwriter, 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 taken or omitted, or alleged to have been taken or omitted, by any such Person as Trustee, officer, employee, agent, Investment Manager, Principal Underwriter, or independent contractor, including any action taken or omitted that may be determined to constitute negligence;
5.3.14 Subject to the provisions of Section 3804 of the Delaware Act, to allocate assets, liabilities and expenses of the Trust to a particular Portfolio or to apportion the same between or among two or more Portfolios, provided that any liabilities or expenses incurred by a particular Portfolio shall be payable solely out of the assets of that Portfolio;
5.3.15 To adopt, establish and carry out pension, profit-sharing, share bonus, share purchase, savings, thrift and other retirement, incentive and benefit plans, trusts and provisions, including the purchasing of life insurance and annuity contracts as a means of providing such retirement and other benefits, for any or all of the Trustees, officers, employees and agents of the Trust;
5.3.16 To adopt, amend and repeal By-Laws not inconsistent with this Declaration of Trust providing for the regulation and management of the affairs of the Trust;
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5.3.17 To elect and remove such officers and appoint and terminate such agents as they consider appropriate;
5.3.18 To appoint from their own and establish and terminate one or more committees consisting of two or more Trustees who may exercise the powers and authority of the Board of Trustees to the extent that the Trustees determine and to adopt a committee charter providing for such responsibilities;
5.3.19 Subject to the 1940 Act and in accordance with Section 6.1, to retain one or more Investment Managers to manage the assets of the Trust (or any Portfolio) and to authorize such Investment Managers to employ one or more sub-advisers;
5.3.20 In accordance with Section 6.3, to employ one or more custodians of the assets of the Trust and to authorize such custodians to employ sub-custodians and to deposit all or any part of such assets in a system or systems for the central handling of securities or with a Federal Reserve Bank;
5.3.21 In accordance with Section 6.3, to retain one or more administrators, transfer agents or shareholder servicing agents;
5.3.22 Subject to the 1940 Act and in accordance with Section 6.2, to provide for the issuance and distribution of Shares by the Trust directly or through one or more Principal Underwriters or otherwise;
5.3.23 To set record dates for the determination of Shareholders with respect to various matters; declare and pay dividends and distributions to Shareholders of each Portfolio from the assets of such Portfolio;
5.3.24 To establish from time to time one or more separate and distinct Portfolios with separately defined investment objectives and policies and distinct investment purposes in accordance with Article 3 hereof;
5.3.25 To interpret the investment policies, practices or limitations of any Portfolio;
5.3.26 To establish, from time to time, a minimum investment for Shareholders in the Trust or in one or more Portfolios, or to require the redemption of the Shares of any Shareholder whose investment is less than such minimum upon giving notice to such Shareholder or in accordance with Section 8.3;
5.3.27 To delegate such authority as they consider desirable to any officer of the Trust, to any committee of the Trustees and to any agent or employee of the Trust or to any such custodian, administrator, transfer or servicing agents, Investment Manager or Principal Underwriter;
5.3.28 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 set forth herein, either alone or in association with others, and to do every other act or thing incidental or appurtenant to or arising from the businesses, purposes, objects or powers set forth above.
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The Trust shall not be limited to investing in obligations maturing before the possible termination of the Trust or one or more of its Portfolios. The Trust shall not in any way be bound or limited by any present or future law or custom in regard to investment by fiduciaries. The Trust shall not be required to obtain any court order to deal with any assets of the Trust or take any other action hereunder.
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Declaration of Trust which would adversely affect to a material degree the rights and preferences of the Shares of such Portfolio or to increase or decrease the par value of the Shares of such Portfolio.
ARTICLE 6
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(a) any of the Shareholders, Trustees, or officers of the Trust is a shareholder, director, officer, partner, trustee, employee, Manager, adviser, Principal Underwriter, distributor, or affiliate or agent of or for any Person with which an advisory, management or administration contract, or Principal Underwriter’s or distributor’s contract, or transfer, shareholder servicing or other type of service contract may be made, or
(b) any Person with which an advisory, management or administration contract or Principal Underwriter’s or distributor’s contract, or transfer, shareholder servicing or other type of service contract may be made also has an advisory, management or administration contract, or Principal Underwriter’s or distributor’s contract, or transfer, shareholder servicing or other service contract, or has other business or interests with any other Person, shall not affect the validity of any such contract or disqualify any Shareholder, Trustee or officer of the Trust from voting upon or executing the same, or create any liability or accountability to the Trust or its Shareholders, PROVIDED approval of each such contract is made pursuant to the applicable requirements of the 1940 Act.
ARTICLE 7
(a) for removal of Trustees as provided in Section 4.2 hereof;
(b) with respect to such additional matters relating to the Trust as may be required by applicable provisions of law, including the 1940 Act;
(c) with respect to matters specified in Section 10.2; and
(d) on such other matters as the Trustees may consider necessary or desirable.
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. A proxy purporting to be executed by or on behalf of a Shareholder shall be deemed valid unless challenged at or prior to its exercise and the burden of proving invalidity shall rest on the challenger.
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ARTICLE 8
NET ASSET VALUE, DISTRIBUTIONS, AND REDEMPTIONS
Section 8.1 DETERMINATION OF NET ASSET VALUE, NET INCOME, AND
DISTRIBUTIONS.
8.1.1 The Trustees, in their absolute discretion, may prescribe and shall set forth in the By-laws or in a duly adopted resolution of the Trustees such bases and time for determining the per Share net asset value of the Shares of any Portfolio and the net income attributable to the Shares of any Portfolio and the declaration and payment of dividends and distributions on the Shares of any Portfolio, as they may deem necessary or desirable.
8.1.2 The Trustees may determine to maintain the net asset value per Share of any Portfolio at a designated constant dollar amount and in connection therewith may adopt procedures not inconsistent
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with the 1940 Act for the continuing declarations of income attributable to that Portfolio or Class thereof as dividends payable in additional Shares of that Portfolio or Class thereof at the designated constant dollar amount and for the handing of any losses attributable to that Portfolio or Class thereof. Such procedures may, among other things, provide that in the event of any loss each Shareholder of a Portfolio or Class thereof shall be deemed to have contributed to the capital of the Trust attributable to that Portfolio or Class thereof such Shareholder’s pro rata portion of the total number of Shares required to be cancelled in order to permit the net asset value per Share of that Portfolio or Class thereof to be maintained, after reflecting such loss, at the designated constant dollar amount. Each Shareholder of the Trust shall be deemed to have agreed, by such Shareholder’s investment in the Trust, to make the contribution referred to in the preceding sentence in the event of any such loss.
8.2.1 The Trust shall purchase such Shares as are offered by any Shareholder for redemption, in accordance with the conditions regarding the redemption of Shares as may be described in the applicable registration statement and in a manner consistent with the 1940 Act, the rules and regulations thereunder, or by the Commission through exemptive, no-action, or other relief, including without limitation, prescribed numbers of Shares which must be presented together for redemption, upon receipt of a request in proper form directed to the Trust or a Person designated by the Trust that the Trust redeem such Shares or in accordance with such procedures for redemption as the Trustees may from time to time authorize; and the Trust will pay therefor the net asset value thereof, less any applicable redemption fee and sales charge, in accordance with the By-Laws, the applicable provisions of the 1940 Act or as further provided by resolution of the Trustees. Payment for said Shares shall be made by the Trust to the Shareholder within seven days after the date on which the request for redemption is received in proper form. The obligation set forth in this Section 8.2 is subject to the provision that in the event that any time the New York Stock Exchange (the “EXCHANGE”) is closed for other than weekends or holidays, or if permitted by the rules of the Commission during periods when trading on the Exchange is restricted or during any emergency which makes it impracticable for the Trust to dispose of the investments of the applicable Portfolio or to determine fairly the value of the net assets held with respect to such Portfolio or during any other period permitted by order of the Commission for the protection of investors, such obligations may be suspended or postponed by the Trustees.
8.2.2 The redemption price may in any case or cases be paid in cash or wholly or partly in kind in accordance with the 1940 Act. In no case shall the Trust be liable for any delay of any corporation or other Person in transferring securities selected for delivery as all or part of any payment in kind.
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and excessive trading in Shares of a Portfolio, the Trust may require such Shareholder to redeem such Shareholder’s Shares at the net asset value thereof as described in Section 8.1, less any applicable redemption fee and sales charge.
To the extent permitted by law, the Trustees may retain the proceeds of any redemption of Shares required by them for payments of amounts due and owing by a Shareholder to the Trust or any Portfolio.
ARTICLE 9
9.1.1 No Trustee, officer, employee or agent of the Trust shall be subject to any personal liability whatsoever to any Person, other than the Trust or its Shareholders for any act, omission or obligation of the Trust or any Trustee; and all Persons shall look solely to the Trust Property for satisfaction of claims of any nature arising in connection with the affairs of the Trust. No Trustee, officer, employee or agent of the Trust shall be liable to the Trust or to any Shareholder, Trustee, officer, employee, or agent of the Trust for any action or failure to act (including without limitation the failure to compel in any way any former or acting Trustee to redress any breach of trust) except for his or her own bad faith, willful misfeasance, gross negligence or reckless disregard of his or her duties involved in the conduct of his or her office.
9.1.3 Every note, bond, contract, instrument, certificate or undertaking and every other act or thing whatsoever issued, executed or done by or on behalf of the Trust or the Trustees or any of them in connection with the Trust shall be conclusively deemed to have been issued, executed or done only in or with respect to their or his or her capacity as Trustees or Trustee, and such Trustees or Trustee shall not be personally liable thereon.
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9.2.1 Subject to Section 9.2.2, the Trust shall indemnify and hold harmless each and every Trustee and officer of the Trust and each former Trustee and officer of the Trust (each hereinafter referred to as a “Covered Person”) from and against any and all claims, demands, costs, losses, expenses, and damages whatsoever arising out of or related to such Covered Person’s performance of his or her duties as a Trustee or officer of the Trust or otherwise relating to any act, omission, or obligation of the Trust.
9.2.2 Indemnification pursuant to Section 9.2.1 shall be provided to a Covered Person if:
(a) the court or other body before which the proceeding was brought determines, in a final decision on the merits, that the Covered Person was not liable by reason of bad faith, willful misfeasance, gross negligence or reckless disregard of the duties involved in the conduct of that individual’s office; or
(b) in the event of a settlement involving a payment by a Trustee, or officer or other disposition not involving a final adjudication as provided in paragraph (a) above resulting in a payment by a Covered Person, there has been either a determination that such Covered Person did not engage in bad faith, willful misfeasance, gross negligence or reckless disregard of the duties involved in the conduct of that individual’s office by the court or other body approving the settlement or other disposition or a reasonable determination, based upon a review of readily available facts (as opposed to a full trial-type inquiry) that that individual did not engage in such conduct:
(i) by vote of a majority (as defined below) of the Disinterested Trustees (as defined below) acting on the matter (provided that a majority of the Disinterested Trustees then in office act on the matter); or
(ii) by written opinion of legal counsel chosen by a majority of the Trustees and determined by them in their reasonable judgment to be independent.
9.2.3 The rights of indemnification herein provided may be insured against by policies maintained by the Trust, shall be severable, shall not 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 person. Nothing contained herein shall affect any rights to indemnification to which personnel, including Covered Persons, may be entitled by contract or otherwise under law.
9.2.4 Expenses of preparation and presentation of a defense to any claim, action, suit, or proceeding of the character described in Section 9.2.1 shall be advanced by the Trust prior to final disposition thereof upon receipt of an undertaking by or on behalf of the Covered Person to repay such amount if it is ultimately determined that the Covered Person is not entitled to indemnification under this Section 9.2, provided that either:
(a) such undertaking is secured by a surety bond or some other appropriate security or the Trust shall be insured against losses arising out of any such advances; or
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(b) a majority of the Disinterested Trustees acting on the matter (provided that a majority (as defined below) of the Disinterested Trustees then in office act on the matter) or legal counsel selected as provided in Section 9.2.2(b)(ii) above in a written opinion, shall determine, based upon a review of readily available facts (as opposed to a full trial-type inquiry), that there is reason to believe that the Covered Person ultimately will be found entitled to indemnification.
9.2.5 As used in this Section 9.2 in relation to any claim for indemnification or advances of expenses in relation to any claim, action, suit, or proceeding, a “Disinterested Trustee” is one (a) who is not an “Interested Person” of the Trust (including anyone who has been exempted from being an “Interested Person” by any rule, regulation or order of the Commission), and (b) against whom neither such claim, action, suit or proceeding nor another claim, action, suit or proceeding on the same or similar grounds is then or had been pending.. For avoidance of doubt, for purposes of Section 9.2.2 and 9.2.4, a vote of the majority of the Disinterested Trustees will be considered to include the single vote of one Disinterested Trustee, when the number of Disinterested Trustees on the Board at the time of the vote is one.
9.2.6 In making a determination under Section 9.2.2(b) as to whether a Covered Person engaged in the conduct described therein, or under Section 9.2.4(b) as to whether there is reason to believe that a Covered Person ultimately will be found entitled to indemnification, the Disinterested Trustees or legal counsel making the determination shall afford the Covered Person a rebuttable presumption that the Covered Person has not engaged in bad faith, willful misfeasance, gross negligence or reckless disregard of the duties involved in the conduct of the Covered Person’s office.
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or proceeding in which he or she becomes involved by virtue of his or her capacity or former capacity with the Trust.
(a) the Shareholder or Shareholders must make a pre-suit demand upon the Trustees to bring the subject action unless an effort to cause the Trustees to bring such an action is not likely to succeed; and a demand on the Trustees shall only be deemed not likely to succeed and therefore excused if a majority of the Trustees, or a majority of any committee established to consider the merits of such action, has a personal financial interest in the transaction at issue, and a Trustee shall not be deemed interested in a transaction or otherwise disqualified from ruling on the merits of a Shareholder demand by virtue of the fact that such Trustee receives remuneration for his service as a Trustee of the Trust or as a trustee or director of one or more investment companies that are under common management with or otherwise affiliated with the Trust; and (b) unless a demand is not required under clause (a) of this sentence, the Trustees must be afforded a reasonable amount of time to consider such Shareholder request and to investigate the basis of such claim; and the Trustees shall be entitled to retain counsel or other advisors in considering the merits of the request and shall require an undertaking by the Shareholder(s) making such request to reimburse the Trust for the expense of any such advisors in the event that the Trustees determine not to bring such action. For purposes of this Section 9.6, the Trustees may designate a committee of one Trustee to consider a Shareholder demand if necessary to create a committee with a majority of Trustees who do not have a personal financial interest in the transaction at issue.
ARTICLE 10
10.1.1 Unless terminated as provided herein, the Trust shall continue without limitation of time. The Trust may be terminated at any time by the Trustees without shareholder approval following prior written notice to the Shareholders. Any Portfolio or Class may be terminated at any time without shareholder approval by the Trustees following prior written notice to the Shareholders of that Portfolio
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or Class. Any action to terminate the Trust shall be deemed also to be an action to terminate each Portfolio and each Class thereof and any action to terminate a Portfolio shall be deemed also to be an action to terminate each Class thereof.
10.1.2 Upon termination of the Trust (or any Portfolio or Class, as the case may be), after paying or otherwise providing for all charges, taxes, expenses and liabilities held, severally, with respect to each Portfolio or Class (or the applicable Portfolio or Class, as the case may be), whether due or accrued or anticipated as may be determined by the Trustees, the Trust shall, in accordance with such procedures as the Trustees consider appropriate, reduce the remaining assets held, severally, with respect to each Portfolio or Class (or the applicable Portfolio or Class, as the case may be), to distributable form in cash or shares or other securities, and any combination thereof, and distribute the proceeds held with respect to each Portfolio or Class (or the applicable Portfolio or Class, as the case may be), (a) to the Shareholders of a Portfolio or Class not taxable as a partnership for federal income tax purposes, pro rata according to the number of Shares of that Portfolio or Class held by the several Shareholders on the date of termination and, (b) to the Shareholders of a Portfolio or Class, taxable as a partnership for federal income tax purposes, in accordance with the positive Book Capital Account balances of the Shareholders.
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exchanges, transfers or sales of assets, in-kind redemptions and purchases, exchange offers, or any other method approved by the Trustees.
ARTICLE 11
11.5.1 The provisions of this Declaration of Trust are severable, and if the Trustees shall determine, with the advice of counsel, that any of such provisions is in conflict with the 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 Declaration of Trust; provided, however, that such determination shall not affect any of the remaining provisions of this Declaration of Trust or render invalid or improper any action taken or omitted prior to such determination.
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11.5.2 If any provision of this Declaration of Trust shall be held invalid or unenforceable in any jurisdiction, such invalidity or unenforceability shall attach only to such provision in such jurisdiction and shall not in any manner affect such provision in any other jurisdiction or any other provision of this Declaration of Trust in any jurisdiction.
/s/ Xxxxx X. Xxxxxxxx_______ Xxxxx X. Xxxxxxxxx Independent Trustee | /s/ Xxxxx Xxxxxx Xxxxx Xxxxx Xxxxxx Xxxxx Lead Independent Trustee | ||||
/s/ Xxxxxxx X. Xxxxx Xxxxxxx X. Xxxxx Independent Trustee | /s/ Xxxxxxxx X. Xxxxxxxxx Xxxxxxxx X. Xxxxxxxxx Independent Trustee |
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