AGREEMENT AND DECLARATION OF TRUST
of
TIFF INVESTMENT PROGRAM
a Delaware Statutory Trust
TABLE OF CONTENTS
Page
ARTICLE I NAME; OFFICES; REGISTERED
AGENT; DEFINITIONS 2
Section 1. Name 2
Section 2. Offices of the Trust 2
Section 3. Registerd Agent and Registered Office 2
Section 4. Definitions 2
ARTICLE II PURPOSE OF TRUST 4
ARTICLE III SHARES 8
Section 1. Division of Beneficial Interest 8
Section 2. Ownership of Shares 9
Section 3. Sale of Shares 10
Section 4. Status of Shares and Limitation of Personal
Liability 10
Section 5. Power of Board of Trustees to Make Tax
Status Election 11
Section 6. Establishment and Designation of Series
and Classes 11
Section 7. Dissolution or Termination.
..........................Error! Bookmark not defined.
Section 8. Indemnification of Shareholders 15
ARTICLE IV THE BOARD OF TRUSTEES 16
Section 1. Number, Election, Term, Removal and
Resignation 16
Section 2. Trustee Action by Written Consent Without
a Meeting 16
Section 3. Powers; Other Business Interests; Quorum
and Required Vote 17
Section 4. Payment of Expenses by the Trust 19
Section 5. Payment of Expenses by Shareholders 20
Section 6. Ownership of Trust Property 20
Section 7. Service Contracts 20
ARTICLE V SHAREHOLDERS VOTING POWERS
AND MEETINGS 21
Section 1. Voting Powers 21
Section 2. Quorum and Required Vote 22
Section 3. Shareholder Action by Written Consent
Without a Meeting 22
Section 4. Record Dates 23
i
Section 5. Additional Provisions 24
ARTICLE VI NET ASSET VALUE;
DISTRIBUTIONS;
REDEMPTIONS; TRANSFERS 24
Section 1. Determination of Net Asset Value, Net
Income and Distributions 24
Section 2. Redemptions at the Option of a Shareholder
26
Section 3. Redemptions at the Option of the Trust 28
Section 4. Transfer of Shares 28
ARTICLE VII LIMITATION OF LIABILITY AND
INDEMNIFICATION
OF AGENT 28
Section 1. Limitation of Liability 28
Section 2. Indemnification. 29
Section 3. Insurance 31
Section 4. Derivative Actions 31
ARTICLE VIII CERTAIN TRANSACTIONS
32
Section 1. Dissolution of Trust or Series 32
Section 2. Merger or Consolidation; Conversion;
Reorganization 33
Section 3. Master Feeder Structure 35
Section 4. Absence of Appraisal or Dissenters Rights
35
ARTICLE IX AMENDMENTS 35
Section 1. Amendments Generally 35
ARTICLE X MISCELLANEOUS 36
Section 1. References; Headings; Counterparts 36
Section 2. Applicable Law 36
Section 3. Provisions in Conflict with Law or
Regulations 37
Section 4. Statutory Trust Only 37
Section 5. Use of the Names TIFF and The Investment
Fund for foundations . 38
AGREEMENT AND DECLARATION OF TRUST OF
TIFF INVESTMENT PROGRAM
THIS AGREEMENT AND DECLARATION OF
TRUST is made as of this 11th day of September, 2014,
by the Trustees hereunder and by the holders of Shares
to be issued by TIFF Investment Program (the Trust) as
hereinafter provided.
WITNESSETH:
WHEREAS this Trust is being formed to carry on the
business of an open-end management investment
company as defined in the 1940 Act; and
WHEREAS this Trust is authorized to divide its Shares
into two or more Classes, to issue its Shares in separate
Series, to divide Shares of any Series into two or more
Classes and to issue Classes of the Trust or the Series, if
any, all in accordance with the provisions hereinafter
set forth; and
WHEREAS the Trustees have agreed to manage all
property coming into their hands as trustees of a
Delaware statutory trust in accordance with the
provisions of the Delaware Statutory Trust Act, as
amended from time to time, and the provisions
hereinafter set forth;
NOW, THEREFORE, the Trustees hereby declare that:
(i) the Trustees will hold all cash, securities and
other assets that they may from time to time acquire in
any manner as Trustees hereunder IN TRUST and will
manage and dispose of the same upon the following
terms and conditions for the benefit of the holders from
time to time of Xxxxxx created hereunder as hereinafter
set forth; and
(ii) this Declaration of Trust and the By-Laws shall
be binding in accordance with their terms on every
Trustee, by virtue of having become a Trustee of the
Trust, and on every Shareholder, by virtue of having
become a Shareholder of the Trust, pursuant to the
terms of this Declaration of Trust and the By-Laws.
ARTICLE I
NAME; OFFICES; REGISTERED AGENT;
DEFINITIONS
Section 1. Name. This Trust shall be known as TIFF
Investment Program and the Board of Trustees shall
conduct the business of the Trust under that name, or
any other name as it may from time to time designate.
Section 2. Offices of the Trust. The Board may at any
time establish offices of the Trust at any place or places
where the Trust intends to do business.
Section 3. Registered Agent and Registered Office. The
name of the registered agent of the Trust and the
address of the registered office of the Trust are as set
forth in the Trusts Certificate of Trust.
Section 4. Definitions. Whenever used herein, unless
otherwise required by the context or specifically
provided:
(a) 1940 Act shall mean the Investment Company
Act of 1940 and the rules and regulations thereunder,
all as adopted or amended from time to time;
(b) Affiliate shall have the same meaning as
affiliated person as such term is defined in the 1940 Act
when used with reference to a specified Person, as
defined below.
(c) Board of Trustees shall mean the governing
body of the Trust, that is comprised of the number of
Trustees of the Trust fixed from time to time pursuant
to Article IV hereof, having the powers and duties set
forth herein;
(d) By-Laws shall mean By-Laws of the Trust, as
amended or restated from time to time in accordance
with Article VIII therein. Such By-Laws may contain
any provision not inconsistent with applicable law or
this Declaration of Trust, relating to the governance of
the Trust;
(e) Certificate of Trust shall mean the certificate of
trust of the Trust to be filed on September 11, 2014
with the office of the Secretary of State of the State of
Delaware as required under the DSTA, as amended
from time to time, to form the Trust, as such certificate
shall be amended or restated from time to time;
(f) Class shall mean each class of Shares of the
Trust or of a Series of the Trust established and
designated under and in accordance with the provisions
of Article III hereof;
(g) Code shall mean the Internal Revenue Code of
1986 and the rules and regulations thereunder, all as
adopted or amended from time to time;
(h) Commission shall have the meaning given that
term in the 1940 Act;
(i) DSTA shall mean the Delaware Statutory Trust
Act (12 Del. C. 3801, et seq.), as amended from time
to time;
(j) Declaration of Trust shall mean this Agreement
and Declaration of Trust, as amended or restated from
time to time;
(k) General Liabilities shall have the meaning given
it in Article III, Section 6(b) of this Declaration of
Trust;
Act;
(l) Interested Person shall have the meaning given
that term in the 1940
(m) Investment Adviser or Adviser shall mean a
Person, as defined below, furnishing investment
advisory services to the Trust and/or selecting and
supervising Money Managers for a Series of the Trust
pursuant to any investment advisory or investment
management contract described in Article IV, Section
7(a) hereof;
(n) Money Manager shall mean a Person, as defined
below, selected and supervised by the Investment
Adviser that furnishes sub-advisory services to a Series
of the Trust pursuant to any investment advisory or
investment management contract described in Article
IV, Section 7(a) hereof;
(o) National Financial Emergency shall mean the
whole or any part of any period during (i) which an
emergency exists as a result of which disposal by the
Trust of securities or other assets owned by the Trust is
not reasonably practicable; (ii) which it is not
reasonably practicable for the Trust fairly to determine
the net asset value of its assets; or (iii) such other period
as the Commission may by order permit for the
protection of investors;
(p) Person shall mean a natural person, partnership,
limited partnership, limited liability company, trust,
estate, association, corporation, organization, custodian,
nominee or any other individual or entity in its own or
any representative capacity, in each case, whether
domestic or foreign, and a statutory trust or a foreign
statutory or business trust;
1940 Act;
(q) Principal Underwriter shall have the meaning
given that term in the
(r) Series shall mean each Series of Shares
established and designated under and in accordance
with the provisions of Article III hereof;
(s) Shares shall mean the transferable shares of
beneficial interest into which the beneficial interest in
the Trust have been or shall be divided from time to
time, and shall include fractional and whole Shares;
Laws;
(t) Shareholder shall mean a record owner of
Shares pursuant to the By-
(u) Trust shall mean TIFF Investment Program, the
Delaware statutory trust formed hereby and by the
filing of the Certificate of Trust with the office of the
Secretary of State of the State of Delaware;
(v) Trust Property shall mean any and all property,
real or personal, tangible or intangible, which is owned
or held by or for the account of the Trust, or one or
more of any Series thereof, including, without
limitation, the rights referenced in Article X, Section 5
hereof; and
(w) Trustee or Trustees shall mean each Person who
signs this Declaration of Trust as a trustee and all other
Persons who may, from time to time, be duly elected or
appointed, qualified and serving on the Board of
Trustees in accordance with the provisions hereof and
the By-Laws, so long as such signatory or other Person
continues in office in accordance with the terms hereof
and the By-Laws. Reference herein to a Trustee or the
Trustees shall refer to such Person or Persons in such
Persons or Persons capacity as a trustee or trustees
hereunder and under the By-Laws.
ARTICLE II PURPOSE OF TRUST
The purpose of the Trust is to conduct, operate and
carry on the business of a registered
management investment company registered under the
1940 Act, directly, or if one or more Series is
established hereunder, through one or more Series, and
to exercise all of the powers, rights and privileges
granted to, or conferred upon, a statutory trust formed
under the DSTA, including, without limitation, the
following powers:
(a) To hold, invest and reinvest its funds, and in
connection therewith, to make any changes in the
investment of the assets of the Trust, to hold part or all
of its funds in cash, to hold cash uninvested, to
subscribe for, invest in, reinvest in, purchase or
otherwise acquire, own, hold, pledge, sell, assign,
mortgage, transfer, exchange, distribute, write options
on, lend or otherwise deal in or dispose of contracts for
the future acquisition or delivery of fixed income or
other securities, and securities or property of every
nature and kind, including, without limitation, all types
of bonds, debentures, stocks, shares, units of beneficial
interest, preferred stocks, negotiable or non-negotiable
instruments, obligations, evidences of indebtedness,
money market instruments, certificates of deposit or
indebtedness, bills, notes, mortgages, commercial
paper, repurchase or reverse repurchase agreements,
bankers acceptances, finance paper, and any options,
certificates, receipts, warrants, futures contracts,
derivative instruments, or other instruments
representing rights to receive, purchase or subscribe for
the same, or evidencing or representing any other rights
or interests therein or in any property or assets, and
other securities of any kind, as the foregoing are issued,
created, guaranteed, or sponsored by any and all
Persons, including, without limitation, states,
territories, and possessions of the United States and the
District of Columbia and any political subdivision,
agency, or instrumentality thereof, any foreign
government or any political subdivision of the U.S.
Government or any foreign government, or any
international instrumentality, or by any bank or savings
institution, or by any corporation or organization
organized under the laws of the United States or of any
state, territory, or possession thereof, or by any
corporation or organization organized under any foreign
law, or in when issued contracts for any such securities;
(b) To exercise any and all rights, powers and
privileges with reference to or incident to ownership or
interest, use and enjoyment of any of such securities
and other instruments or property of every kind and
description, including, but without limitation, the right,
power and privilege to own, vote, hold, purchase, sell,
negotiate, assign, exchange, lend, transfer, mortgage,
hypothecate, lease, pledge or write options with respect
to or otherwise deal with, dispose of, use, exercise or
enjoy any rights, title, interest, powers or privileges
under or with reference to any of such securities and
other instruments or property, the right to consent and
otherwise act with respect thereto, with power to
designate one or more Persons, to exercise any of said
rights, powers, and privileges in respect of any of said
instruments, and to do any and all acts and things for
the preservation, protection, improvement and
enhancement in value of any of such securities and
other instruments or property;
(c) To sell, exchange, lend, pledge, mortgage,
hypothecate, lease or write options with respect to or
otherwise deal in any property rights relating to any or
all of the assets of the Trust or any Series, subject to
any requirements of the 1940 Act;
(d) To vote or give assent, or exercise any rights of
ownership, with respect to stock or other securities,
instruments, 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, instruments, or property as the
Trustees shall deem proper;
(e) To exercise powers and rights of subscription or
otherwise which in any manner arise out of ownership
of securities and/or other property;
(f) To hold any security, instrument, or property in
a form not indicating that it is trust property, whether in
bearer, unregistered or other negotiable form, or in its
own name or in the name of a custodian or
subcustodian or a nominee or nominees or otherwise or
to authorize the custodian or a subcustodian or a
nominee or nominees to deposit the same in a
securities depository, subject in each case to proper
safeguards according to the usual practice of investment
companies or any rules or regulations applicable
thereto;
(g) To consent to, or participate in, any plan for the
reorganization, consolidation or merger of any
corporation or issuer of any security which is held in
the Trust; to consent to any contract, lease, mortgage,
purchase or sale of property by such corporation or
issuer; and to pay calls or subscriptions with respect to
any security held in the Trust;
(h) To join with other security holders in acting
through a committee, depositary, voting trustee or
otherwise, and in that connection to deposit any
security with, or transfer any security to, any such
committee, depositary or trustee, and to delegate to
them such power and authority with relation to any
security (whether or not so deposited or transferred) as
the Trustees shall deem proper, and to agree to pay, and
to pay, such portion of the expenses and compensation
of such committee, depositary or trustee as the Trustees
shall deem proper;
(i) To compromise, arbitrate or otherwise adjust
claims in favor of or against the Trust or any matter in
controversy, including but not limited to claims for
taxes;
(j) To enter into joint ventures, general or limited
partnerships and any other combinations or
associations;
(k) To endorse or guarantee the payment of any
notes or other obligations of any Person; to make
contracts of guaranty or suretyship, or otherwise
assume liability for payment thereof;
(l) To purchase and pay for entirely out of Trust
Property such insurance as the Board of Trustees may
deem necessary or appropriate for the conduct of the
business, including, without limitation, insurance
policies insuring the assets of the Trust or payment of
distributions and principal on its portfolio investments,
and insurance policies insuring the Shareholders,
Trustees, officers, employees, agents, Investment
Advisers, Money Managers, Principal Underwriters, or
independent contractors of the Trust, individually
against all claims and liabilities of every nature arising
by reason of holding Shares, holding, being or having
held any such office or position, or by reason of any
action alleged to have been taken or omitted by any
such Person as Trustee, officer, employee, agent,
Investment Adviser, Money Manager, Principal
Underwriter, or independent contractor, to the fullest
extent permitted by this Declaration of Trust, the By-
Laws and by applicable law;
(m) To adopt, establish and carry out pension,
profit-sharing, share bonus, share purchase, savings,
thrift, matching gift and other retirement, incentive and
benefit plans, trusts and provisions, including the
purchasing of life insurance and annuity contracts as a
means of providing such retirement and other benefits,
for any or all of the Trustees, officers, employees and
agents of the Trust;
(n) To purchase or otherwise acquire, own, hold,
sell, negotiate, exchange, assign, transfer, mortgage,
pledge or otherwise deal with, dispose of, use, exercise
or enjoy, property of all kinds;
(o) To buy, sell, mortgage, encumber, hold, own,
exchange, rent or otherwise acquire and dispose of, and
to develop, improve, manage, subdivide, and generally
to deal and trade in real property, improved and
unimproved, and wheresoever situated; and to build,
erect, construct, alter and maintain buildings, structures,
and other improvements on real property;
(p) To borrow or raise moneys for any of the
purposes of the Trust, and to mortgage or pledge the
whole or any part of the property and franchises of the
Trust, real, personal, and mixed, tangible or intangible,
and wheresoever situated;
(q) To enter into, make and perform contracts and
undertakings of every kind for any lawful purpose,
without limit as to amount;
(r) To issue, purchase, sell and transfer, reacquire,
hold, trade and deal in stocks, Shares, bonds,
debentures and other securities, instruments or other
property of the Trust, from time to time, to such extent
as the Board of Trustees shall, consistent with the
provisions of this Declaration of Trust, determine; and
to re-acquire and redeem, from time to time, its Shares
or, if any, its bonds, debentures and other securities;
(s) To engage in and to prosecute, defend,
compromise, abandon, or adjust, by arbitration, or
otherwise, any actions, suits, proceedings, disputes,
claims, and demands relating to the Trust, and out of
the assets of the Trust to pay or to satisfy any debts,
claims or expenses incurred in connection therewith,
including those of litigation, and such power shall
include without limitation the power of the Trustees or
any appropriate committee thereof, in the exercise of
their or its good faith business judgment, to dismiss any
action, suit, proceeding, dispute, claim, or demand,
derivative or otherwise, brought by any Person,
including a Shareholder in the Shareholders own name
or the name of the Trust, whether or not the Trust or
any of the Trustees may be named individually therein
or the subject matter arises by reason of business for or
on behalf of the Trust;
(t) To exercise and enjoy, in Delaware and in any
other states, territories, districts and United States
dependencies and in foreign countries, all of the
foregoing powers, rights and privileges, and the
enumeration of the foregoing powers shall not be
deemed to exclude any powers, rights or privileges so
granted or conferred;
(u) To open accounts necessary to carry on any
business in connection with or incidental to its trust
purposes; and
(v) In general, to carry on any other business in
connection with or incidental to its trust purposes, to do
everything necessary, suitable or proper for the
accomplishment of such purposes or for the attainment
of any object or the furtherance of any power
hereinbefore set forth, either alone or in association
with others, and to do every other act or thing incidental
or appurtenant to, or growing out of, or connected with,
its business or purposes, objects or powers.
The Trust shall not be limited to investing in
obligations maturing before the possible dissolution of
the Trust or one or more of its Series. Neither the Trust
nor the Board of Trustees shall be required to obtain
any court order to deal with any assets of the Trust or
take any other action hereunder.
The foregoing clauses shall each be construed as
purposes, objects and powers, and it is hereby expressly
provided that the foregoing enumeration of specific
purposes, objects and powers shall not be held to limit
or restrict in any manner the powers of the Trust, and
that they are in furtherance of, and in addition to, and
not in limitation of, the general powers conferred upon
the Trust by the DSTA and the other laws of the State
of Delaware or otherwise; nor shall the enumeration of
one thing be deemed to exclude another, although it be
of like nature, not expressed.
ARTICLE III SHARES
Section 1. Division of Beneficial Interest.
(a) The beneficial interest in the Trust shall be
divided into Shares, each Share with a par value of
$0.001. The number of Shares in the Trust authorized
hereunder, and of each Series and Class as may be
established from time to time, is unlimited. The Board
of Trustees may authorize the division of Shares into
separate Classes of Shares and into separate and distinct
Series of Shares and the division of any Series into
separate Classes of Shares in accordance with this
Declaration of Trust and, when applicable, the 1940
Act. The different Series and Classes shall be
established and designated pursuant to Article III,
Section 6 hereof. If no separate Series or Classes of
Series shall be established, the Shares shall have the
rights, powers and duties provided for herein and in
Article III, Section 6 hereof to the extent relevant and
not otherwise provided for herein, and all references to
Series and Classes shall be construed (as the context
may require) to refer to the Trust.
(i) The fact that the Trust shall have one or more
established and designated Classes of the Trust shall not
limit the authority of the Board of Trustees to establish
and designate additional Classes of the Trust. The fact
that one or more Classes of the Trust shall have initially
been established and designated without any specific
establishment or designation of a Series (i.e., that all
Shares of the Trust are initially Shares of one or more
Classes) shall not limit the authority of the Board of
Trustees to later establish and designate a Series and
establish and designate the Class or Classes of the Trust
as Class or Classes, respectively, of such Series.
(ii) The fact that a Series shall have initially been
established and designated without any specific
establishment or designation of Classes (i.e., that all
Shares of such Series are initially of a single Class)
shall not limit the authority of the Board of Trustees to
establish and designate separate Classes of said Series.
The fact that a Series shall have more than one
established and designated
Class shall not limit the authority of the Board of
Trustees to establish and designate additional Classes of
said Series.
(b) The Board of Trustees shall have the power to
issue authorized, but unissued Shares of beneficial
interest of the Trust, or any Series and Class thereof,
from time to time for such consideration paid wholly or
partly in cash, securities or other property, as may be
determined from time to time by the Board of Trustees,
subject to any requirements or limitations of the 1940
Act. The Board of Trustees, on behalf of the Trust, may
acquire and hold as treasury shares, reissue for such
consideration and on such terms as it may determine, or
cancel, at its discretion from time to time, any Shares
reacquired by the Trust. The Board of Trustees may
classify or reclassify any Shares of the Trust or any
Series or Class thereof (whether the Shares to be
classified or reclassified are issued and outstanding or
unissued and whether such Shares constitute part or all
of the Shares of the Trust or such Series or Class of
Shares). Notwithstanding the foregoing, the Trust and
any Series thereof may acquire, hold, sell and
otherwise deal in, for purposes of investment or
otherwise, the Shares of any other Series of the Trust or
Shares of the Trust, and such Shares shall not be
deemed treasury shares or cancelled. The Board of
Trustees may take any other action with respect to the
Shares of the Trust or any Series or Class of Shares as
the Board of Trustees deems desirable.
(c) Subject to the provisions of Section 6 of this
Article III, each Share shall entitle the holder to voting
rights as provided in Article V hereof. Shareholders
shall have no preemptive or other right to subscribe for
new or additional authorized, but unissued Shares or
other securities issued by the Trust or any Series
thereof. The Board of Trustees may from time to time
divide or combine the Shares of the Trust or any
particular Series thereof into a greater or lesser number
of Shares of the Trust or that Series, respectively. Such
division or combination shall not materially change the
proportionate beneficial interests of the holders of
Shares of the Trust or that Series, as the case may be, in
the Trust Property at the time of such division or
combination that is held with respect to the Trust or that
Series, as the case may be.
(d) Any Trustee, officer or other agent of the Trust,
and any organization in which any such Person has an
economic or other interest, may acquire, own, hold and
dispose of Shares of beneficial interest in the Trust or
any Series and Class thereof, whether such Shares are
authorized but unissued, or already outstanding, to the
same extent as if such Person were not a Trustee,
officer or other agent of the Trust; and the Trust or any
Series may issue and sell and may purchase such Shares
from any such Person or any such organization, subject
to the limitations, restrictions or other provisions
applicable to the sale or purchase of such Shares herein
and the 1940 Act.
Section 2. Ownership of Shares. The ownership of
Shares shall be recorded on the books of the Trust kept
by the Trust or by a transfer or similar agent for the
Trust, which books shall be maintained separately for
the Shares of the Trust and each Series and each Class
thereof that has been established and designated. No
certificates certifying the ownership of Shares shall be
issued except as the Board of Trustees may otherwise
determine from time to time. The Board of Trustees
may make such rules not inconsistent with the
provisions of the 1940 Act as it considers appropriate
for the issuance of Share certificates, the transfer of
Shares of the Trust and each Series and Class thereof, if
any, and similar matters. The record books of the Trust
as kept by the Trust or any transfer or similar agent, as
the case may be, shall be conclusive as to who are the
Shareholders of the Trust and each Series and Class
thereof and as to the number of Shares of the Trust and
each Series and Class thereof held from time to time by
each such Shareholder.
Section 3. Sale of Shares. Subject to the 1940 Act and
applicable law, the Trust may sell its authorized but
unissued Shares of beneficial interest to such Persons,
at such times, on such terms, and for such consideration
as the Board of Trustees may from time to time
authorize. The Board of Trustees may, from time to
time, without the vote or consent of Shareholders,
establish uniform standards for the Trust or a Series or
Class of the Trust with respect to the minimum net asset
value of a Shareholder account, minimum investment
that may be made by a Shareholder, or other eligibility
criteria for Shareholders or Shareholder accounts. The
Board of Trustees may authorize the closing of those
Shareholder accounts not meeting any standards so
established by the Board of Trustees.
Each sale shall be credited to the individual purchasers
account in the form of full or fractional Shares of the
Trust or such Series thereof (and Class thereof, if any),
as the purchaser may select, at the net asset value per
Share, subject to Section 22 of the 1940 Act, and the
rules and regulations adopted thereunder; provided,
however, that the Board of Trustees may, in its sole
discretion, permit the Trust to impose a fee or the
Principal Underwriter to impose a sales charge or other
fee upon any such sale. Every Shareholder by virtue of
having become a Shareholder shall be deemed to have
expressly assented and agreed to the terms of this
Declaration of Trust and to have become bound as a
party hereto.
Section 4. Status of Shares and Limitation of Personal
Liability. Shares shall be deemed to be personal
property giving to Shareholders only the rights
provided in this Declaration of Trust, the By-Laws, and
under applicable law. Ownership of Shares shall not
entitle the Shareholder to any title in or to the whole or
any part of the Trust Property or right to call for a
partition or division of the same or for an accounting,
nor shall the ownership of Shares constitute the
Shareholders as partners. Subject to Article VIII,
Section 1 hereof, the death, incapacity, dissolution,
termination, or bankruptcy of a Shareholder during the
existence of the Trust and any Series thereof shall not
operate to dissolve the Trust or any such Series, nor
entitle the representative of any deceased, incapacitated,
dissolved, terminated or bankrupt Shareholder to an
accounting or to take any action in court or elsewhere
against the Trust, the Trustees or any such Series, but
entitles such representative only to the rights of said
deceased, incapacitated, dissolved, terminated or
bankrupt Shareholder under this Declaration of Trust.
Neither the Trust nor the Trustees, nor any officer,
employee or agent of the Trust, shall have any power to
bind personally any Shareholder, nor, except as
specifically provided herein, to call upon any
Shareholder for the payment of any sum of money other
than such as the Shareholder may at any time
personally agree to pay. Each Share, when issued on the
terms determined by the Board of Trustees, shall be
fully paid and nonassessable. As provided in the DSTA,
Shareholders shall be entitled to the same limitation of
personal liability as that
10
extended to stockholders of a private corporation
organized for profit under the General Corporation Law
of the State of Delaware.
Section 5. Power of Board of Trustees to Make Tax
Status Election. The Board of Trustees shall have the
power, in its discretion, to make an initial entity
classification election, and to change any such entity
classification election, of the Trust and any Series for
U.S. federal income tax purposes as may be
permitted or required under the Code, without the vote
or consent of any Shareholder. In furtherance thereof,
the Board of Trustees, or an appropriate officer as
determined by the Board of Trustees, is authorized (but
not required) to make and sign any such entity
classification election on Form 8832, Entity
Classification Election (or successor form thereto), on
behalf of the Trust or any Series, sign the consent
statement contained therein on behalf of all of the
Shareholders thereof, and file the same with the U.S.
Internal Revenue Service.
Section 6. Establishment and Designation of Series and
Classes. The establishment and designation of any
Series or Class shall be effective, without the
requirement of Shareholder approval, upon the adoption
of a resolution by at least a majority of the then Board
of Trustees (or such later date as may be determined),
which resolution shall set forth such establishment and
designation, or otherwise identify, such Series or Class
of Shares, whether directly in such resolution or by
reference to, or approval of, another document that sets
forth the designation of, or otherwise identifies, such
Series or Class of Shares, including, without limitation
any registration statement filed with the Commission,
any amendment and/or restatement of this Declaration
of Trust or as otherwise provided in such resolution.
Such resolution or other document may provide, to the
extent permitted by the DSTA, for rights, powers and
duties of such Series or Class (including variations in
the relative rights and preferences as between the
different Series and Classes) otherwise than as provided
herein. Each such resolution shall be incorporated
herein upon adoption. Any such resolution may be
amended by a further resolution of a majority of the
Board of Trustees, and if Shareholder approval would
be required to make such an amendment to the
language set forth in this Declaration of Trust, such
further resolution shall require the same Shareholder
approval that would be necessary to make such
amendment to the language set forth in this Declaration
of Trust. Each such further resolution shall be
incorporated herein by reference upon adoption.
Each Series shall be separate and distinct from any
other Series, separate and distinct records on the books
of the Trust shall be maintained for each Series, and the
assets and liabilities belonging to any such Series shall
be held and accounted for separately from the assets
and liabilities of the Trust or any other Series. Each
Class of the Trust shall be separate and distinct from
any other Class of the Trust. Each Class of a Series
shall be separate and distinct from any other Class of
the Series. As appropriate, in a manner determined by
the Board of Trustees, the liabilities belonging to any
such Class shall be held and accounted for separately
from the liabilities of the Trust, the Series or any other
Class and separate and distinct records on the books of
the Trust for the Class shall be maintained for this
purpose. Subject to Article II hereof, each such Series
shall operate as a separate and distinct investment
medium, with separately defined investment objectives
and policies.
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Shares of each Series (and Class where applicable)
established and designated pursuant to this Section 6
shall have the following rights, powers and duties,
unless otherwise provided, to the extent permitted by
the DSTA, in the resolution establishing and
designating such Series or Class:
(a) Assets Held with Respect to a Particular Series.
All consideration received by the Trust for the issue or
sale of Shares of a particular Series, together with all
assets in which such consideration is invested or
reinvested, all income, earnings, profits, and proceeds
thereof from whatever source derived, including,
without limitation, any proceeds derived from the sale,
exchange or liquidation of such assets, and any funds or
payments derived from any reinvestment of such
proceeds in whatever form the same may be, shall
irrevocably be held with respect to that Series for all
purposes, subject only to the rights of creditors with
respect to that Series, and shall be so recorded upon
the books of account of the Trust. Such consideration,
assets, income, earnings, profits and proceeds thereof,
from whatever source derived, including, without
limitation, any proceeds derived from the sale,
exchange or liquidation of such assets, and any funds or
payments derived from any reinvestment of such
proceeds, in whatever form the same may be, are herein
referred to as assets held with respect to that Series. In
the event that there are any assets, income, earnings,
profits and proceeds thereof, funds or payments which
are not readily identifiable as assets held with respect to
any particular Series (collectively General Assets), the
Board of Trustees, or an appropriate officer as
determined by the Board of Trustees, shall allocate such
General Assets to, between or among any one or more
of the Series in such manner and on such basis as the
Board of Trustees or such officer, in its or his sole
discretion, deems fair and equitable, and any General
Asset so allocated to a particular Series shall be held
with respect to that Series. Each such allocation by or
under the direction of the Board of Trustees shall be
conclusive and binding upon the Shareholders of all
Series for all purposes.
(b) Liabilities Held with Respect to a Particular
Series or Class. The assets of the Trust held with
respect to a particular Series shall be charged with the
liabilities, debts, obligations, costs, charges, reserves
and expenses of the Trust incurred, contracted for or
otherwise existing with respect to such Series. Such
liabilities, debts, obligations, costs, charges, reserves
and expenses incurred, contracted for or otherwise
existing with respect to a particular Series are herein
referred to as liabilities held with respect to that Series.
Any liabilities, debts, obligations, costs, charges,
reserves and expenses of the Trust which are not readily
identifiable as being liabilities held with respect to any
particular Series (collectively General Liabilities) shall
be allocated by the Board of Trustees, or an appropriate
officer as determined by the Board of Trustees, to and
among any one or more of the Series in such manner
and on such basis as the Board of Trustees or such
officer, in its or his sole discretion, deems fair and
equitable. Each allocation of liabilities, debts,
obligations, costs, charges, reserves and expenses by or
under the direction of the Board of Trustees shall be
conclusive and binding upon the Shareholders of all
Series for all purposes. All Persons who have extended
credit that has been allocated to a particular Series, or
who have a claim or contract that has been allocated to
any particular Series, shall look exclusively to the
assets of that particular Series for payment of such
credit, claim, or contract. In the absence of an express
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contractual agreement so limiting the claims of such
creditors, claimants and contract providers, each
creditor, claimant and contract provider shall be
deemed nevertheless to have impliedly agreed to such
limitation.
Subject to the right of the Board of Trustees in its
discretion to allocate General Liabilities as provided
herein, the debts, liabilities, obligations and expenses
incurred, contracted for or otherwise existing with
respect to a particular Series, whether such Series is
now or hereafter authorized and existing pursuant to
this Declaration of Trust, shall be enforceable against
the assets held with respect to that Series only, and not
against the assets of any other Series or the Trust
generally and none of the debts, liabilities, obligations
and expenses incurred, contracted for or otherwise
existing with respect to the Trust generally or any other
Series thereof shall be enforceable against the assets
held with respect to such Series. Notice of this
limitation on liabilities between and among Series has
been set forth in the Certificate of Trust to be filed in
the Office of the Secretary of State of the State of
Delaware pursuant to the DSTA, and having given of
such notice in the Certificate of Trust, the statutory
provisions of Section 3804 of the DSTA relating to
limitations on liabilities between and among Series (and
the statutory effect under Section 3804 of setting forth
such notice in the Certificate of Trust) are applicable to
the Trust and each Series.
Liabilities, debts, obligations, costs, charges, reserves
and expenses related to the distribution of, and other
identified expenses that should or may properly be
allocated to, the Shares of a particular Class may be
charged to and borne solely by such Class. The bearing
of expenses solely by a particular Class of Shares may
be appropriately reflected (in a manner determined by
the Board of Trustees) and may affect the net asset
value attributable to, and the dividend, redemption and
liquidation rights of, such Class. Each allocation of
liabilities, debts, obligations, costs, charges, reserves
and expenses by or under the direction of the Board of
Trustees shall be conclusive and binding upon the
Shareholders of all Classes for all purposes. All Persons
who have extended credit that has been allocated to a
particular Class, or who have a claim or contract that
has been allocated to any particular Class, shall look,
and may be required by contract to look, exclusively to
that particular Class for payment of such credit, claim,
or contract.
(c) Dividends, Distributions and Redemptions.
Notwithstanding any other provisions of this
Declaration of Trust, including, without limitation,
Article VI hereof, no dividend or distribution including,
without limitation, any distribution paid upon
dissolution of the Trust or of any Series with respect to,
nor any redemption of, the Shares of any Series or
Class of such Series shall be effected by the Trust other
than from the assets held with respect to such Series,
nor, except as specifically provided in Section 7 of this
Article III, shall any Shareholder of any particular
Series otherwise have any right or claim against the
assets held with respect to any other Series or the Trust
generally except, in the case of a right or claim against
the assets held with respect to any other Series, to the
extent that such Shareholder has such a right or claim
hereunder as a Shareholder of such other Series. The
Board of Trustees shall have full discretion, to the
extent not inconsistent with the 1940 Act, to determine
which items shall be treated as income and which items
as capital; and each such determination and
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allocation shall be conclusive and binding upon the
Shareholders. In addition, the Board may delegate to a
committee of the Board or an officer of the Trust, the
authority to fix the amount and other terms of any
dividend or distribution, including without limitation,
the power to fix the declaration, record, ex-dividend,
payment and reinvestment dates of the dividend or
distribution.
(d) Voting. All Shares of the Trust entitled to vote
on a matter shall vote in the aggregate without
differentiation between the Shares of the separate
Series, if any, or separate Classes, if any; provided that
(i) with respect to any matter that affects only the
interests of some but not all Series, then only the Shares
of such affected Series, voting separately, shall be
entitled to vote on the matter, (ii) with respect to any
matter that affects only the interests of some but not all
Classes, then only the Shares of such affected Classes,
voting separately, shall be entitled to vote on the matter;
and (iii) notwithstanding the foregoing, with respect to
any matter as to which the 1940 Act or other applicable
law or regulation requires voting, by Series or by Class,
then the Shares of the Trust shall vote as prescribed in
such law or regulation.
(e) Equality. Each Share of any particular Series
shall be equal to each other Share of such Series
(subject to the rights and preferences with respect to
separate Classes of such Series).
(f) Fractions. A fractional Share of a Series shall
carry proportionately all the rights and obligations of a
whole Share of such Series, including rights with
respect to voting, receipt of dividends and distributions,
redemption of Shares and dissolution of the Trust or
that Series.
(g) Exchange Privilege. The Board of Trustees shall
have the authority to provide that the holders of Shares
of any Series shall have the right to exchange said
Shares for Shares of one or more other Series in
accordance with such requirements and procedures as
may be established by the Board of Trustees, and in
accordance with the 1940 Act.
(h) Combination of Series or Classes.
(i) The Board of Trustees shall have the authority,
without the approval, vote or consent of the
Shareholders of any Series, unless otherwise required
by applicable law, to combine the assets and liabilities
held with respect to any two or more Series into assets
and liabilities held with respect to a single Series;
provided that upon completion of such combination of
Series, the interest of each Shareholder, in the
combined assets and liabilities held with respect to the
combined Series shall equal the interest of each such
Shareholder in the aggregate of the assets and liabilities
held with respect to the Series that were combined.
(ii) The Board of Trustees shall have the authority,
without the approval, vote or consent of the
Shareholders of any Series or Class, unless otherwise
required by applicable law, to combine, merge or
otherwise consolidate the Shares of two or more
Classes of Shares of a Series with and/or into a single
Class of Shares of such Series, with such designation,
preference, conversion or other rights, voting powers,
restrictions, limitations as to dividends, qualifications,
terms and conditions of redemption and other
characteristics as the Trustees may determine; provided,
however, that the Trustees shall provide written notice
to the affected Shareholders of any such transaction.
(iii) The transactions in (i) and (ii) above in this
paragraph (h) may be effected through share-for-share
exchanges, transfers or sales of assets, Shareholder in-
kind redemptions and purchases, exchange offers, or
any other method approved by the Trustees.
Section 7. Dissolution or Termination. Any particular
Series shall be dissolved upon the occurrence of the
applicable dissolution events set forth in Article VIII,
Section 1 hereof. Upon dissolution of a particular
Series, the Trustees shall wind up the affairs of such
Series in accordance with Article VIII, Section 1 hereof
and thereafter, rescind the establishment and
designation thereof. The Board of Trustees shall
terminate any particular Class and rescind the
establishment and designation thereof: (i) upon
approval by a majority of votes cast at a meeting of the
Shareholders of such Class, provided a quorum of
Shareholders of such Class is present, or by action of
the Shareholders of such Class by written consent
without a meeting pursuant to Article V, Section 3; or
(ii) at the discretion of the Board of Trustees either (A)
at any time there are no Shares outstanding of such
Class, or (B) upon prior written notice to the
Shareholders of such Class; provided, however, that
upon the rescission of the establishment and
designation of any particular Series, every Class of such
Series shall thereby be terminated and its establishment
and designation rescinded. Each resolution of the Board
of Trustees pursuant to this Section 7 shall be
incorporated herein by reference upon adoption.
Section 8. Indemnification of Shareholders. No
shareholder as such shall be subject to any personal
liability whatsoever to any Person in connection with
Trust Property or the acts, obligations or affairs of the
Trust. If any Shareholder or former Shareholder shall
be exposed to liability, charged with liability, or held
personally liable, for any obligations or liability of the
Trust, by reason of a claim or demand relating
exclusively to his or her being or having been a
Shareholder of the Trust or a Shareholder of a particular
Series thereof, and not because of such Shareholders
actions or omissions, such Shareholder or former
Shareholder (or, in the case of a natural person, his or
her heirs, executors, administrators, or other legal
representatives or, in the case of a corporation or other
entity, its corporate or other general successor) shall be
entitled to be held harmless from and indemnified out
of the assets of the Trust or out of the assets of such
Series thereof, as the case may be, against all loss and
expense, including without limitation, attorneys fees,
arising from such claim or demand; provided, however,
such indemnity shall not cover (i) any taxes due or paid
by reason of such Shareholders ownership of any
Shares and (ii) expenses charged to a Shareholder
pursuant to Article IV, Section 5 hereof.
ARTICLE IV
THE BOARD OF TRUSTEES
Section 1. Number, Election, Term, Removal and
Resignation.
(a) In accordance with Section 3801 of the DSTA,
each Trustee shall become a Trustee and be bound by
this Declaration of Trust and the By-Laws when such
Person signs this Declaration of Trust as a trustee
and/or is duly elected or appointed, qualified and
serving on the Board of Trustees in accordance with the
provisions hereof and the By-Laws, so long as such
signatory or other Person continues in office in
accordance with the terms hereof.
(b) The number of Trustees constituting the entire
Board of Trustees may be fixed from time to time by
the vote of a majority of the then Board of Trustees;
provided, however, that the number of Trustees shall in
no event be less than one (1) nor more than twelve (12).
The number of Trustees shall not be reduced so as to
shorten the term of any Trustee then in office.
(c) Each Trustee shall hold office for the lifetime of
the Trust or until such Trustees earlier death,
resignation, removal, retirement or inability otherwise
to serve, or, if sooner than any of such events, until the
next meeting of Shareholders called for the purpose of
electing Trustees or consent of Shareholders in lieu
thereof for the election of Trustees, and until the
election and qualification of his or her successor.
(d) Any Trustee may be removed, with or without
cause, by the Board of Trustees, by action of a majority
of the Trustees then in office, or by vote of the
Shareholders at any meeting called for that purpose.
The Board of Trustees may fill vacancies in the Board
of Trustees as provided in Article III, Section I of the
By-Laws.
(e) Any Trustee may resign at any time by giving
written notice to the chairman of the Board of Trustees
or the secretary of the Trust or to a meeting of the
Board of Trustees. Such resignation shall be effective
upon receipt, unless specified to be effective at some
later time.
Section 2. Trustee Action by Written Consent Without
a Meeting. To the extent not inconsistent with the
provisions of the 1940 Act, any action that may be
taken at any meeting of the Board of Trustees or any
committee thereof may be taken without a meeting and
without prior written notice if a consent or consents in
writing setting forth the action so taken is signed by the
Trustees having at least the minimum number of votes
that would be necessary to authorize or take that action
at a meeting at which all Trustees on the Board of
Trustees or any committee thereof, as the case may be,
were present and voted. Written consents of the
Trustees may be executed in one or more counterparts.
A consent transmitted by electronic transmission (as
defined in Section 3806 of the DSTA) by a Trustee
shall be deemed to be written and signed for purposes
of this Section. All such consents shall be filed with the
secretary of the Trust and shall be maintained in the
Trusts records.
Section 3. Powers; Other Business Interests; Quorum
and Required Vote.
(a) Powers. Subject to the provisions of this
Declaration of Trust, the business of the Trust
(including every Series thereof) shall be managed by or
under the direction of the Board of Trustees, and such
Board of Trustees shall have all powers necessary or
convenient to carry out that responsibility. The Board
of Trustees shall have full power and authority to do
any and all acts and to make and execute any and all
contracts and instruments that it may consider
necessary or appropriate in connection with the
operation and administration of the Trust (including
every Series thereof). The Board of Trustees shall not
be bound or limited by present or future laws or
customs with regard to investments by trustees or
fiduciaries, but, subject to the other provisions of this
Declaration of Trust and the By-Laws, shall have full
authority and absolute power and control over the assets
and the business of the Trust (including every Series
thereof) to the same extent as if the Board of Trustees
was the sole owner of such assets and business in its
own right, including such authority, power and control
to do all acts and things as it, in its sole discretion, shall
deem proper to accomplish the purposes of this Trust.
Without limiting the foregoing, the Board of Trustees
may, subject to the requisite vote for such actions as set
forth in this Declaration of Trust and the By-Laws: (1)
adopt By-Laws not inconsistent with applicable law or
this Declaration of Trust; (2) amend, restate and repeal
such By-Laws, subject to and in accordance with the
provisions of such By- Laws; (3) fill vacancies on the
Board of Trustees in accordance with this Declaration
of Trust and the By-Laws; (4) elect and remove such
officers and appoint and terminate such agents as it
considers appropriate, in accordance with this
Declaration of Trust and the By-Laws; (5) establish and
terminate one or more committees of the Board of
Trustees pursuant to the By- Laws; (6) place Trust
Property in custody as required by the 1940 Act,
employ one or more custodians of the Trust Property
and authorize such custodians to employ sub-custodians
and to place all or any part of such Trust Property with
a custodian or a custodial system meeting the
requirements of the 1940 Act; (7) retain a transfer
agent, dividend disbursing agent, a shareholder
servicing agent or administrative services agent, or any
number thereof or any other service provider as deemed
appropriate; (8) provide for the issuance and
distribution of shares of beneficial interest in the Trust
or other securities or financial instruments directly or
through one or more Principal Underwriters or
otherwise; (9) retain one or more Investment Adviser(s)
or Money Manager(s); (10) re-acquire and redeem
Shares on behalf of the Trust and transfer Shares
pursuant to applicable law; (11) set record dates for the
determination of Shareholders with respect to various
matters, in the manner provided in Article V, Section 4
of this Declaration of Trust; (12) declare and pay
dividends and distributions to Shareholders from the
Trust Property, in accordance with this Declaration of
Trust and the By-Laws; (13) establish, designate and
redesignate from time to time, in accordance with the
provisions of Article III, Section 6 hereof, any Series or
Class of the Trust or of a Series; (14) hire personnel as
staff for the Trust, Board of Trustees or, for those
Trustees who are not Interested Persons of the Trust,
the Investment Adviser, the Money Manager, or the
Principal Underwriter, set the compensation to be paid
by the Trust to such personnel, exercise exclusive
supervision of such personnel, and remove one or more
of such personnel, at the discretion of the Board of
Trustees; (15) retain counsel, other experts and/or
consultants for the Trust, the Board of
17
Trustees, for those Trustees who are not Interested
Persons of the Trust, the Investment Adviser, the
Money Manager, or the Principal Underwriter, and/or
for one or more of the committees of the Board of
Trustees, set the compensation to be paid by the Trust
to such counsel, other experts and/or consultants, and
remove one or more of such counsel, other experts
and/or consultants, at the discretion of the Board of
Trustees; (16) engage in and prosecute, defend,
compromise, abandon, or adjust, by arbitration, or
otherwise, any actions, suits, proceedings, disputes,
claims, and demands relating to the Trust, and out of
the assets of the Trust to pay or to satisfy any debts,
claims or expenses incurred in connection therewith,
including those of litigation, and such power shall
include, without limitation, the power of the Trustees,
or any appropriate committee thereof, in the exercise of
their or its good faith business judgment, to dismiss any
action, suit, proceeding, dispute, claim or demand,
derivative or otherwise, brought by any person,
including a shareholder in its own name or in the name
of the Trust, whether or not the Trust or any of the
Trustees may be named individually therein or the
subject matter arises by reason of business for or on
behalf of the Trust; and (17) in general delegate such
authority as it considers desirable to any Trustee or
officer of the Trust, to any committee of the Trust, to
any agent or employee of the Trust or to any custodian,
transfer, dividend disbursing, shareholder servicing
agent, Principal Underwriter, Investment Adviser,
Money Manager, or other service provider.
The powers of the Board of Trustees set forth in this
Section 3(a) are without prejudice to any other powers
of the Board of Trustees set forth in this Declaration of
Trust and the By- Laws. Any determination as to what
is in the best interests of the Trust or any Series or Class
thereof and its Shareholders made by the Board of
Trustees in good faith shall be conclusive. In construing
the provisions of this Declaration of Trust, the
presumption shall be in favor of a grant of power to the
Board of Trustees.
The Trustees shall be subject to the same fiduciary
duties to which the directors of a Delaware corporation
would be subject if the Trust were a Delaware
corporation, the Shareholders were shareholders of such
Delaware corporation and the Trustees were directors
of such Delaware corporation, and such modified duties
shall replace any fiduciary duties to which the Trustees
would otherwise be subject. Without limiting the
generality of the foregoing, all actions and omissions of
the Trustees shall be evaluated under the doctrine
commonly referred to as the business judgment rule, as
defined and developed under Delaware law, to the same
extent that the same actions or omissions of directors of
a Delaware corporation in a substantially similar
circumstance would be evaluated under such doctrine.
Notwithstanding the foregoing, the provisions of this
Declaration of Trust and the By-Laws, to the extent that
they restrict or eliminate the duties (including fiduciary
duties) and liabilities relating thereto of a Trustee
otherwise applicable under the foregoing standard or
otherwise existing at law or in equity, are agreed by
each Shareholder and the Trust to replace such other
duties and liabilities of such Trustee.
The appointment, designation or identification of a
Trustee as chair of the Board of Trustees, a member or
chair of a committee of the Trustees, an expert on any
topic or in any area (including an audit committee
financial expert), or the lead independent Trustee, or
any
18
other special appointment, designation or identification
of a Trustee, shall not impose on that person any
standard of care or liability that is greater than that
imposed on that person as a Trustee in the absence of
the appointment, designation or identification, and no
Trustee who has special skills or expertise, or is
appointed, designated or identified as aforesaid, shall be
held to a higher standard of care by virtue thereof. In
addition, no appointment, designation or identification
of a Trustee as aforesaid shall affect in any way that
Trustees rights or entitlement to indemnification or
advancement of expenses.
(b) Other Business Interests. The Trustees shall
devote to the affairs of the Trust (including every Series
thereof) such time as may be necessary for the proper
performance of their duties hereunder, but neither the
Trustees nor the officers, directors, shareholders,
partners or employees of the Trustees, if any, shall be
expected to devote their full time to the performance of
such duties. The Trustees, or any Affiliate, shareholder,
officer, director, partner or employee thereof, or any
Person owning a legal or beneficial interest therein,
may engage in, or possess an interest in, any business or
venture other than the Trust or any Series thereof, of
any nature and description, independently or with or for
the account of others. None of the Trust, any Series
thereof or any Shareholder shall have the right to
participate or share in such other business or venture or
any profit or compensation derived therefrom.
(c) Quorum and Required Vote. At all meetings of
the Board of Trustees, one-third of the Board of
Trustees then in office shall be present in person in
order to constitute a quorum for the transaction of
business. A meeting at which a quorum is initially
present may continue to transact business
notwithstanding the departure of Trustees from the
meeting, if any action taken is approved by at least a
majority of the required quorum for that meeting.
Subject to Article III, Sections 1 and 6 of the By-Laws
and except as otherwise provided herein or required by
applicable law, the vote of at least a majority of the
Trustees present at a meeting at which a quorum is
present shall be the act of the Board of Trustees.
Section 4. Payment of Expenses by the Trust. Subject to
the provisions of Article III, Section 6 hereof, an
authorized officer of the Trust shall pay or cause to be
paid out of the principal or income of the Trust or any
particular Series or Class thereof, or partly out of the
principal and partly out of the income of the Trust or
any particular Series or Class thereof, and charge or
allocate the same to, between or among such one or
more of the Series or Classes that may be established or
designated pursuant to Article III, Section 6 hereof, as
such officer deems fair, all expenses, fees, charges,
taxes and liabilities incurred by or arising in connection
with the maintenance or operation of the Trust or a
particular Series or Class thereof, or in connection with
the management thereof, including, but not limited to,
the Trustees compensation and such expenses, fees,
charges, taxes and liabilities associated with the
services of the Trusts officers, employees, Investment
Adviser(s), Money Manager(s), Principal Underwriter,
auditors, counsel, custodian, sub-custodian, transfer
agent, dividend disbursing agent, shareholder servicing
agent, and such other agents or independent contractors
and such other expenses, fees, charges, taxes and
liabilities as the Board of Trustees may deem necessary
or desirable to incur.
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Section 5. Payment of Expenses by Shareholders. The
Board of Trustees shall have the power, as frequently as
it may determine, to cause any Shareholder to pay
directly, in advance or arrears, an amount fixed from
time to time by the Board of Trustees or an officer of
the Trust for charges of the Trusts custodian or transfer,
dividend disbursing, shareholder servicing or similar
agent that are not customarily charged generally to the
Trust, a Series or a Class, where such services are
provided to such Shareholder individually, rather than
to all Shareholders collectively, by setting off such
amount due from such Shareholder from the amount of
(i) declared but unpaid dividends or distributions owed
such Shareholder, or (ii) proceeds from the redemption
by the Trust of Shares from such Shareholder pursuant
to Article VI hereof.
Section 6. Ownership of Trust Property. Legal title to
all of the Trust Property shall at all times be vested in
the Trust, except that the Board of Trustees shall have
the power to cause legal title to any Trust Property to be
held by or in the name of any Person as nominee, on
such terms as the Board of Trustees may determine, in
accordance with applicable law.
Section 7. Service Contracts.
(a) Subject to this Declaration of Trust, the By-
Laws and the 1940 Act, the Board of Trustees may, at
any time and from time to time, contract for exclusive
or nonexclusive investment advisory or investment
management services for the Trust or for any Series
thereof with any corporation, trust, association or other
organization, including any Affiliate; and any such
contract may contain such other terms as the Board of
Trustees may determine, including without limitation,
delegation of authority to the Investment Adviser or
Money Manager to determine from time to time without
prior consultation with the Board of Trustees what
securities and other instruments or property shall be
purchased or otherwise acquired, owned, held, invested
or reinvested in, sold, exchanged, transferred,
mortgaged, pledged, assigned, negotiated, or otherwise
dealt with or disposed of, and what portion, if any, of
the Trust Property shall be held uninvested and to make
changes in the Trusts or a particular Series investments,
or to engage in such other activities, including
administrative services, as may specifically be
delegated to such party.
(b) The Board of Trustees may also, at any time and
from time to time, contract with any Person, including
any Affiliate, appointing it or them as the exclusive or
nonexclusive placement agent, distributor or Principal
Underwriter for the Shares of beneficial interest of the
Trust or one or more of the Series or Classes thereof, or
for other securities or financial instruments to be issued
by the Trust, or appointing it or them to act as the
administrator, fund accountant or accounting agent,
custodian, transfer agent, dividend disbursing agent
and/or shareholder servicing agent for the Trust or one
or more of the Series or Classes thereof.
(c) The Board of Trustees is further empowered, at
any time and from time to time, to contract with any
Persons, including any Affiliates, to provide such other
services to
20
the Trust or one or more of its Series, as the Board of
Trustees determines to be in the best interests of the
Trust, such Series and its Shareholders.
(d) None of the following facts or circumstances
shall affect the validity of any of the contracts provided
for in this Article IV, Section 7, or disqualify any
Shareholder, Trustee, employee or officer of the Trust
from voting upon or executing the same, or create any
liability or accountability to the Trust, any Series
thereof or the Shareholders, provided that the
establishment of and performance of each such contract
is permissible under the 1940 Act, and provided further
that such Person is authorized to vote upon such
contract under the 1940 Act:
(i) the fact that any of the Shareholders, Trustees,
employees or officers of the Trust is a shareholder,
director, officer, partner, trustee, employee, manager,
Adviser, placement agent, Principal Underwriter,
distributor, or Affiliate or agent of or for any Person, or
for any parent or Affiliate of any Person, with which
any type of service contract provided for in this Article
IV, Section 7 may have been or may hereafter be made,
or that any such Person, or any parent or Affiliate
thereof, is a Shareholder or has an interest in the Trust,
or
(ii) the fact that any Person with which any type of
service contract provided for in this Article IV, Section
7 may have been or may hereafter be made also has
such a service contract with one or more other Persons,
or has other business or interests.
(e) Every contract referred to in this Section 7 is
required to comply with this Declaration of Trust, the
By-Laws, the 1940 Act, other applicable law and any
stipulation by resolution of the Board of Trustees.
ARTICLE V
SHAREHOLDERS VOTING POWERS AND
MEETINGS
Section 1. Voting Powers. Subject to the provisions of
Article III, Section 6 hereof, the Shareholders shall
have the power to vote only (i) on such matters required
by this Declaration of Trust, the By-Laws, the 1940
Act, other applicable law and any registration statement
of the Trust filed with the Commission, the registration
of which is effective; and (ii) on such other matters as
the Board of Trustees may consider necessary or
desirable. Subject to Article III hereof, the Shareholder
of record (as of the record date established pursuant to
Section 4 of this Article V) of each Share shall be
entitled to one vote for each dollar, and a proportionate
fraction of a vote for each fraction of a dollar, of net
asset value of such Share held by such Shareholder (as
of the record date established pursuant to Section 4 of
this Article V). Shareholders shall not be entitled to
cumulative voting in the election of Trustees or on any
other matter.
21
Section 2. Quorum and Required Vote.
(a) The presence in person or by proxy of the
holders of record of Shares issued and outstanding and
entitled to vote representing at least one-third of the
total combined net asset value of all Shares issued and
outstanding and entitled to vote at a Shareholders
meeting shall constitute a quorum for the transaction of
any business at the Shareholders meeting, except when
a larger quorum is required by this Declaration of Trust,
the By-Laws, applicable law or the requirements of any
securities exchange on which Shares are listed for
trading, in which case such quorum shall comply with
such requirements. When a separate vote by one or
more Series or Classes is required, one third of the total
combined net asset value of all Shares of each such
Series or Class issued and outstanding and entitled to
vote at a Shareholders meeting of such Series or Class,
which are present in person or represented by proxy,
shall constitute a quorum at the Shareholders meeting
of such Series or Class, except when a larger quorum is
required by this Declaration of Trust, the By-Laws,
applicable law or the requirements of any securities
exchange on which Shares of such Series or Class are
listed for trading, in which case such quorum shall
comply with such requirements.
(b) Subject to the provisions of Article III, Section
6(d), when a quorum is present at any meeting, a
majority of the votes cast shall decide any questions
and a plurality shall elect a Trustee, except when a
larger vote is required by any provision of this
Declaration of Trust or the By-Laws or by applicable
law. Pursuant to Article III, Section 6(d) hereof, where
a separate vote by Series and, if applicable, by Class is
required, the preceding sentence shall apply to such
separate votes by Series and Classes.
(c) Abstentions and broker non-votes will be treated
as votes present at a Shareholders meeting; abstentions
and broker non-votes will not be treated as votes cast at
such meeting. Abstentions and broker non-votes
therefore (i) will be included for purposes of
determining whether a quorum is present; and (ii) will
have no effect on proposals that require a plurality for
approval, or on proposals requiring an affirmative vote
of a majority of votes cast for approval.
Section 3. Shareholder Action by Written Consent
Without a Meeting. Any action which may be taken at
any meeting of Shareholders may be taken without a
meeting if a consent or consents in writing setting forth
the action so taken is or are signed by the holders of
Shares representing a majority of the combined net
asset value of all Shares issued and outstanding and
entitled to vote on such action (or such different
proportion thereof as shall be required by law, the
Declaration of Trust or the By-Laws for approval of
such action) and is or are received by the secretary of
the Trust either: (i) by the date set by resolution of the
Board of Trustees for the shareholder vote on such
action; or (ii) if no date is set by resolution of the
Board, within 30 days after the record date for such
action as determined by reference to Article V, Section
4(b) hereof. The written consent for any such action
may be executed in one or more counterparts, each of
which shall be deemed an original, and all of which
when taken together shall constitute one and the same
instrument. A consent transmitted by electronic
transmission (as defined in the DSTA) by a Shareholder
or by
a Person or Persons authorized to act for a Shareholder
shall be deemed to be written and signed for purposes
of this Section. All such consents shall be filed with the
secretary of the Trust and shall be maintained in the
Trusts records. Any Shareholder that has given a
written consent or the Shareholders proxyholder or a
personal representative or authorized agent of the
Shareholder or its respective proxyholder may revoke
the consent by a writing received by the secretary of the
Trust either: (i) before the date set by resolution of the
Board of Trustees for the shareholder vote on such
action; or (ii) if no date is set by resolution of the
Board, within 30 days after the record date for such
action as determined by reference to Article V, Section
4(b) hereof.
Section 4. Record Dates.
(a) For purposes of determining the Shareholders
entitled to notice of, and to vote at, any meeting of
Shareholders, the Board of Trustees may fix a record
date, which record date shall not precede the date upon
which the resolution fixing the record date is adopted
by the Board of Trustees, and which record date shall
not be more than one hundred and twenty (120) days
nor less than seven (7) days before the date of any such
meeting. A determination of Shareholders of record
entitled to notice of or to vote at a meeting of
Shareholders shall apply to any adjournment of the
meeting; provided, however, that the Board of Trustees
may fix a new record date for the adjourned meeting
and shall fix a new record date for any meeting that is
adjourned for more than sixty (60) days from the date
set for the original meeting. For purposes of
determining the Shareholders entitled to vote on any
action without a meeting, the Board of Trustees may fix
a record date, which record date shall not precede the
date upon which the resolution fixing the record date is
adopted by the Board of Trustees, and which record
date shall not be more than thirty (30) days after the
date upon which the resolution fixing the record date is
adopted by the Board of Trustees.
(b) If the Board of Trustees does not so fix a record
date:
(i) the record date for determining Shareholders
entitled to notice of, and to vote at, a meeting of
Shareholders shall be at the close of business on the day
that is two business days prior to the day on which
notice is given or, if notice is waived, at the close of
business on the day next preceding the day on which
the meeting is held; and
(ii) the record date for determining Shareholders
entitled to vote on any action by consent in writing
without a meeting of Shareholders, (1) when no prior
action by the Board of Trustees has been taken, shall be
the day on which the first signed written consent setting
forth the action taken is delivered to the Trust, or
(2) when prior action of the Board of Trustees has been
taken, shall be at the close of business on the day on
which the Board of Trustees adopts the resolution
taking such prior action.
Nothing in this Section shall be construed as precluding
the Board of Trustees from setting different record
dates for different Series or Classes.
Section 5. Additional Provisions. The By-Laws may
include further provisions for Shareholders votes,
meetings and related matters.
ARTICLE VI
NET ASSET VALUE; DISTRIBUTIONS;
REDEMPTIONS; TRANSFERS
Section 1. Determination of Net Asset Value, Net
Income and Distributions.
(a) Subject to Article III, Section 6 hereof, the
Board of Trustees shall have the power to determine
from time to time the offering price for authorized, but
unissued, Shares of beneficial interest of the Trust or
any Series or Class thereof, respectively, that shall yield
to the Trust or such Series or Class at least the net asset
value thereof, in addition to the amount of any fee paid
to the Trust in connection with the purchase or sale of
such Shares or applicable sales charge to be paid to the
Principal Underwriter or the selling broker or dealer in
connection with the sale of such Shares, at which price
the Shares of the Trust or such Series or Class,
respectively, shall be offered for sale, subject to any
other eligibility criteria, requirements or limitations
established by the Board of Trustees or of the 1940 Act.
(b) Subject to Article III, Section 6 hereof, the
Board of Trustees may, subject to the 1940 Act,
prescribe and shall set forth in the By-Laws, this
Declaration of Trust or in a resolution of the Board of
Trustees such time for determining the net asset value
per Share of the Trust or any Series or Class thereof, or
net income attributable to the Shares of the Trust or any
Series or Class thereof or the declaration and payment
of dividends and distributions on the Shares of the Trust
or any Series or Class thereof, as it may deem necessary
or desirable, and such dividends and distributions may
vary between the Classes to reflect differing allocations
of the expenses of the Trust between such Classes to
such extent and for such purposes as the Trustees may
deem appropriate.
(c) The Shareholders of the Trust or any Series or
Class, if any, shall be entitled to receive dividends and
distributions, when, if and as declared by the Board of
Trustees, or an appropriate officer as determined by the
Board of Trustees, with respect thereto, provided that
with respect to Classes, such dividends and
distributions shall comply with the 1940 Act. The right
of Shareholders to receive dividends or other
distributions on Shares of any Class may be set forth in
a plan adopted by the Board of Trustees and amended
from time to time pursuant to the 1940 Act. No Share
shall have any priority or preference over any other
Share of the Trust with respect to dividends or
distributions paid in the ordinary course of business or
distributions upon dissolution of the Trust made
pursuant to Article VIII, Section 1 hereof; provided
however, that
(i) if the Shares of the Trust are divided into Series
thereof, no Share of a particular Series shall have any
priority or preference over any other Share of the same
Series with respect to dividends or distributions paid in
the ordinary course of business or distributions upon
dissolution of the Trust or of such Series made pursuant
to Article VIII, Section 1 hereof;
(ii) if the Shares of the Trust are divided into
Classes thereof, no Share of a particular Class shall
have any priority or preference over any other Share of
the same Class with respect to dividends or
distributions paid in the ordinary course of business or
distributions upon dissolution of the Trust made
pursuant to Article VIII, Section 1 hereof; and
(iii) if the Shares of a Series are divided into Classes
thereof, no Share of a particular Class of such Series
shall have any priority or preference over any other
Share of the same Class of such Series with respect to
dividends or distributions paid in the ordinary course of
business or distributions upon dissolution of such Series
made pursuant to Article VIII, Section 1 hereof.
All dividends and distributions shall be made ratably
among all Shareholders of the Trust, a particular Class
of the Trust, a particular Series, or a particular Class of
a Series from the Trust Property held with respect to the
Trust, such Series or such Class, respectively, according
to the number of Shares of the Trust, such Series or
such Class held of record by such Shareholders on the
record date for any dividend or distribution; provided
however, that
(iv) if the Shares of the Trust are divided into Series
thereof, all dividends and distributions from the Trust
Property and, if applicable, held with respect to such
Series, shall be distributed to each Series thereof
according to the net asset value computed for such
Series and within such particular Series, shall be
distributed ratably to the Shareholders of such Series
according to the number of Shares of such Series held
of record by such Shareholders on the record date for
any dividend or distribution; and
(v) if the Shares of the Trust or of a Series are
divided into Classes thereof, all dividends and
distributions from the Trust Property and, if applicable,
held with respect to the Trust or such Series, shall be
distributed to each Class thereof according to the net
asset value computed for such Class and within such
particular Class, shall be distributed ratably to the
Shareholders of such Class according to the number of
Shares of such Class held of
record by such Shareholders on the record date for any
dividend or distribution.
Dividends and distributions may be paid in cash, in
kind or in Shares.
(d) Before payment of any dividend there may be
set aside out of any funds of the Trust, or the applicable
Series thereof, available for dividends such sum or
sums as the Board of Trustees, or an appropriate officer
as determined by the Board of Trustees, may from time
to time, in its or his absolute discretion, think proper as
a reserve fund to meet contingencies, or for equalizing
dividends, or for repairing or maintaining any property
of the Trust, or any Series thereof, or for such other
lawful purpose as the Board of Trustees or such officer
of the Trust shall deem to be in the best interests of the
Trust, or the applicable Series, as the case may be, and
the Board of Trustees or such officer may abolish any
such reserve in the manner in which the reserve was
created.
(e) For the purpose of determining the Shareholders
of the Trust or any Series or Class thereof who are
entitled to receive payment of any dividend or of any
other distribution of assets of the Trust or any Series or
Class thereof (other than in connection with a
dissolution of the Trust or a Series, a merger,
consolidation, conversion, reorganization, or any other
transactions, in each case that is governed by Article
VIII of the Declaration of Trust), the Board of Trustees
may:
(i) from time to time fix a record date, which
record date shall not precede the date upon which the
resolution fixing the record date is adopted, and which
record date shall not be more than sixty
(60) days before the date for the payment of such
dividend and/or such other distribution;
(ii) adopt standing resolutions fixing record dates
and related payment dates at periodic intervals of any
duration for the payment of such dividend and/or such
other distribution; and/or
(iii) delegate to an appropriate officer or officers of
the Trust the determination of such periodic record
and/or payments dates with respect to such dividend
and/or such other distribution.
Section 2. Redemptions at the Option of a Shareholder.
Unless otherwise provided in the prospectus of the
Trust relating to the Shares, as such prospectus may be
amended from time to time:
(a) Except as otherwise provided or permitted by
the 1940 Act or pursuant to any exemptive order issued
by the Commission upon which the Trust or the
applicable Series relies, or a rule or interpretation that
may be adopted or issued by the Commission, the Trust
shall purchase such Shares as are offered by any
Shareholder for redemption in accordance with any
procedures for redemption (including the time and
business days therefor) as the
Board of Trustees may from time to time authorize and
in accordance with the Trusts registration statement.
(b) The Trust shall pay for such Shares the net asset
value thereof (excluding any applicable exit or
redemption fee or sales load), in accordance with the
Trusts registration statement, Declaration of Trust, the
By-Laws, the 1940 Act, any exemptive order issued by
the Commission upon which the Trust or the applicable
Series relies, or a rule or interpretation that may be
adopted or issued by the Commission, and other
applicable law. Payments for Shares so redeemed by
the Trust shall be made in cash, except payment for
such Shares may, at the option of the Board of Trustees,
or such officer or officers as it may duly authorize in its
complete discretion, be made in kind or partially in cash
and partially in kind. In case of any payment in kind,
the Board of Trustees, or its authorized officers, shall
have absolute discretion, subject to the 1940 Act and
any exemption therefrom issued by the Commission
upon which the Trust or applicable Series relies, as to
what security or securities of the Trust or the applicable
Series shall be distributed in kind and the amount of the
same; and the securities shall be valued for purposes of
distribution at the value at which they were appraised in
computing the then current net asset value of the
Shares, provided that any Shareholder who cannot
legally acquire securities so distributed in kind shall
receive cash to the extent permitted by the 1940 Act.
Shareholders shall bear the expenses of in-kind
transactions, including, but not limited to, transfer
agency fees, custodian fees and costs of disposition of
such securities.
(c) Subject to the 1940 Act and any exemption
therefrom issued by the Commission upon which the
Trust or applicable Series relies, payment by the Trust
for such redemption of Shares shall be made by the
Trust to the Shareholder within seven days after the
date on which the redemption request is received in
proper form and/or such other procedures authorized by
the Board of Trustees are complied with; provided,
however, that if payment shall be made other than
exclusively in cash, any securities to be delivered as
part of such payment shall be delivered as promptly as
any necessary transfers of such securities on the books
of the several corporations whose securities are to be
delivered practicably can be made, which may not
necessarily occur within such seven-day period. In no
case shall the Trust be liable for any delay of any
corporation or other Person in transferring securities
selected for delivery as all or part of any payment in
kind.
(d) The obligations of the Trust set forth in this
Section 2 are subject to the provision that such
obligations may be suspended or postponed by the
Board of Trustees (1) during any time the New York
Stock Exchange (the Exchange) is closed for other than
customary weekends or holidays; (2) if permitted by the
rules of the Commission, during periods when trading
on the Exchange is restricted; or (3) during any
National Financial Emergency. The Board of Trustees
may, in its discretion, declare that the suspension
relating to a National Financial Emergency shall
terminate, as the case may be, on the first business day
on which the Exchange shall have reopened or the
period specified above shall have expired (as to which,
in the absence of an official ruling by the Commission,
the determination of the Board of Trustees shall be
conclusive).
(e) The right of any Shareholder of the Trust or any
Series or Class thereof to receive dividends or other
distributions on Shares redeemed and all other rights of
such Shareholder with respect to the Shares so
redeemed, except the right of such Shareholder to
receive payment for such Shares, shall cease at the time
the redemption price of such Shares shall have been
fixed, as provided above.
Section 3. Redemptions at the Option of the Trust. At
the option of the Board of Trustees, the Trust may, from
time to time, without the vote of the Shareholders, but
subject to the 1940 Act, redeem Shares or authorize the
closing of any Shareholder account, subject to such
conditions as may be established from time to time by
the Board of Trustees.
Section 4. Transfer of Shares. Shares shall be
transferable in accordance with the provisions of the
By-Laws. Until any such transfer is recorded, the
Shareholder of record of the Shares shall be deemed to
be the Shareholder with respect to such Shares for all
purposes hereunder and neither the Board of 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 a proposed transfer.
ARTICLE VII LIMITATION OF LIABILITY
AND INDEMNIFICATION OF AGENT
Section 1. Limitation of Liability.
(a) For the purpose of this Article, Agent means
any Person who is or was a Trustee, officer, employee
or other agent of the Trust or a predecessor corporation
or is or was serving at the request of the Trust as a
trustee, director, officer, employee or other agent of
another foreign or domestic corporation, partnership,
joint venture, trust or other enterprise; Proceeding
means any threatened, pending or completed action or
proceeding, whether civil, criminal, administrative or
investigative; and Expenses include without limitation
attorneys fees and any expenses of establishing a right
to indemnification under this Article.
(b) An Agent shall be liable to the Trust and to any
Shareholder for any act or omission that constitutes a
bad faith violation of the implied contractual covenant
of good faith and fair dealing, for such Agents own
willful misfeasance, bad faith, gross negligence or
reckless disregard of the duties involved in the conduct
of such Agent (such conduct referred to herein as
Disqualifying Conduct), and for nothing else.
(c) Subject to subsection (b) of this Section 1 and to
the fullest extent that limitations on the liability of
Agents are permitted by the DSTA, the Agents shall not
be responsible or liable in any event for any act or
omission of any other Agent of the Trust or any
Investment Adviser, Money Manager, or Principal
Underwriter of the Trust.
(d) No Agent, when acting in its respective capacity
as such, shall be personally liable to any Person, other
than the Trust or a Shareholder to the extent provided in
subsections (b) and (c) of this Section 1, for any act,
omission or obligation of the Trust or any Trustee
thereof.
(e) Each Trustee, officer and employee of the Trust
shall, in the performance of his or her duties, be fully
and completely justified and protected with regard to
any act or any failure to act resulting from reliance in
good faith upon the books of account or other records
of the Trust, upon an opinion of counsel, or upon
reports made to the Trust by any of its officers or
employees or by the Investment Adviser, the Money
Manager, the Principal Underwriter, any other Agent,
selected dealers, accountants, appraisers or other
experts or consultants selected with reasonable care by
the Trustees, officers or employees of the Trust,
regardless of whether such counsel or expert may also
be a Trustee. The officers and Trustees may obtain the
advice of counsel or other experts with respect to the
meaning and operation of this Declaration of Trust, the
By-Laws, applicable law and their respective duties as
officers or Trustees. No such officer or Trustee shall be
liable for any act or omission in accordance with such
advice, records and/or reports and no inference
concerning liability shall arise from a failure to follow
such advice, records and/or reports. The officers and
Trustees shall not be required to give any bond
hereunder, nor any surety if a bond is required by
applicable law.
(f) The failure to make timely collection of
dividends or interest, or to take timely action with
respect to entitlements, on the Trusts securities issued
in emerging countries, shall not be deemed to be
negligence or other fault on the part of any Agent, and
no Agent shall have any liability for such failure or for
any loss or damage resulting from the imposition by
any government of exchange control restrictions which
might affect the liquidity of the Trusts assets or from
any war or political act of any foreign government to
which such assets might be exposed, except, in the case
of a Trustee or officer, for liability resulting from such
Trustees or officers Disqualifying Conduct.
(g) The indemnification and limitations on liability
contained in this Article apply to events occurring at the
time a Person serves as an Agent whether or not such
Person is an Agent at the time of any Proceeding in
which liability is asserted.
(h) No amendment or repeal of this Article shall
adversely affect any right or protection of an Agent that
exists at the time of such amendment or repeal.
Section 2. Indemnification.
(a) Indemnification by Trust. The Trust shall
indemnify, out of Trust Property, to the fullest extent
permitted under applicable law, any Person who was or
is a party or is threatened to be made a party to any
Proceeding by reason of the fact that such Person is or
was an Agent of the Trust, against Expenses,
judgments, fines, settlements and other amounts
actually and reasonably incurred in connection with
such Proceeding if such Person acted in good faith or in
the case of a criminal proceeding, had no reasonable
cause to believe the conduct of such Person was
unlawful. The termination of any Proceeding by
judgment,
order, settlement, conviction or plea of nolo contendere
or its equivalent shall not of itself create a presumption
that the Person did not act in good faith or that the
Person had reasonable cause to believe that the Persons
conduct was unlawful. Notwithstanding any other
provision in this Declaration of Trust or the By-Laws to
the contrary, any liability and/or expense against which
any Person is indemnified hereunder and any
advancement of expenses to which any Person is
entitled hereunder shall be deemed to be joint and
several obligations of the Trust and each Series, and the
assets of the Trust and each Series shall be subject to
the claims of any such Person therefor; provided that
any such liability, expense or obligation may be
allocated and charged by the Board of Trustees between
or among the Trust and/or any one or more Series and
Classes of Shares in such manner as the Board of
Trustees in its sole discretion deems fair and equitable.
(b) Exclusion of Indemnification. Notwithstanding
any provision to the contrary contained herein, there
shall be no right to indemnification for any liability
arising by reason of the Agents Disqualifying Conduct.
In respect of any claim, issue or matter as to which that
Person shall have been adjudged to be liable in the
performance of that Persons duty to the Trust or the
Shareholders, indemnification shall be made only to the
extent that the court in which that action was brought
shall determine, upon application or otherwise, that in
view of all the circumstances of the case, that Person
was not liable by reason of that Persons Disqualifying
Conduct.
(c) Required Approval. Any indemnification under
this Article shall be made by the Trust if authorized in
the specific case on a determination that
indemnification of the Agent is proper in the
circumstances by (i) a final decision on the merits by a
court or other body before whom the proceeding was
brought that the Agent was not liable by reason of
Disqualifying Conduct (including, but not limited to,
dismissal of either a court action or an administrative
proceeding against the Agent for insufficiency of
evidence of any Disqualifying Conduct) or, (ii) in the
absence of such a decision, a reasonable determination,
based upon a review of the facts, that the Agent was not
liable by reason of Disqualifying Conduct, by (1) the
vote of a majority of a quorum of the Trustees who are
not (x) interested persons of the Trust as defined in
Section 2(a)(19) of the 1940 Act, (y) parties to the
proceeding, or (z) parties who have any economic or
other interest in connection with such specific case (the
disinterested, non-party Trustees); or (2) by
independent legal counsel in a written opinion.
(d) Advancement of Expenses. Expenses incurred
by an Agent in defending any Proceeding may be
advanced by the Trust before the final disposition of the
Proceeding on receipt of an undertaking by or on behalf
of the Agent to repay the amount of the advance if it
shall be determined ultimately that the Agent is not
entitled to be indemnified as authorized in this Article;
provided, that at least one of the following conditions
for the advancement of expenses is met: (i) the Agent
shall provide a security for his undertaking, (ii) the
Trust shall be insured against losses arising by reason
of any lawful advances, or (iii) a majority of a quorum
of the disinterested, non-party Trustees of the Trust, or
an independent legal counsel in a written opinion, shall
determine, based on a review of readily available facts
(as opposed to a full trial-
type inquiry), that there is reason to believe that the
Agent ultimately will be found entitled to
indemnification.
(e) Other Contractual Rights. Nothing contained in
this Article shall affect any right to indemnification to
which Persons other than Trustees and officers of the
Trust or any subsidiary thereof may be entitled by
contract or otherwise.
(f) Fiduciaries of Employee Benefit Plan. This
Article does not apply to any Proceeding against any
trustee, investment manager or other fiduciary of an
employee benefit plan in that Persons capacity as such,
even though that Person may also be an Agent of the
Trust as defined in Section 1 of this Article. Nothing
contained in this Article shall limit any right to
indemnification to which such a trustee, investment
manager, or other fiduciary may be entitled by contract
or otherwise which shall be enforceable to the extent
permitted by applicable law other than this Article.
Section 3. Insurance. To the fullest extent permitted by
applicable law, the Board of Trustees shall have the
authority to purchase with Trust Property, insurance for
liability and for all Expenses reasonably incurred or
paid or expected to be paid by an Agent in connection
with any Proceeding in which such Agent becomes
involved by virtue of such Agents actions, or omissions
to act, in its capacity or former capacity with the Trust,
whether or not the Trust would have the power to
indemnify such Agent against such liability.
Section 4. Derivative Actions. In addition to the
requirements set forth in Section 3816 of the DSTA, a
Shareholder or Shareholders may bring a derivative
action on behalf of the Trust only if the following
conditions are met:
(a) The Shareholder or Shareholders must make a
pre-suit demand upon the Board of Trustees to bring the
subject action unless an effort to cause the Board of
Trustees to bring such an action is not likely to succeed.
For purposes of this Section 4, a demand on the Board
of Trustees shall only be deemed not likely to succeed
and therefore excused if a majority of the Board of
Trustees, or a majority of any committee established to
consider the merits of such action, is composed of
Trustees who are not independent trustees (as such term
is defined in the DSTA).
(b) Unless a demand is not required under
paragraph (a) of this Section 4, Shareholders eligible to
bring such derivative action under the DSTA who hold
at least 10% of the outstanding Shares of the Trust, or
10% of the outstanding Shares of the Series or Class to
which such action relates, shall join in the request for
the Board of Trustees to commence such action; and
(c) Unless a demand is not required under
paragraph (a) of this Section 4, the Board of Trustees
must be afforded a reasonable amount of time to
consider such Shareholder request and to investigate the
basis of such claim. The Board of Trustees shall be
entitled to retain counsel or other advisors in
considering the merits of the request and shall
31
require an undertaking by the Shareholders making
such request to reimburse the Trust for the expense of
any such advisors in the event that the Board of
Trustees determines not to bring such action.
(d) For purposes of this Section 4, the Board of
Trustees may designate a committee of one Trustee to
consider a Shareholder demand if necessary to create a
committee with a majority of Trustees who are
independent trustees (as such term in defined in the
DSTA).
ARTICLE VIII CERTAIN TRANSACTIONS
Section 1. Dissolution of Trust or Series. The Trust and
each Series
shall have perpetual existence, except that the Trust (or
a particular Series) shall be dissolved:
(a) With respect to the Trust, (i) upon approval by a
majority of votes cast at a meeting of the Shareholders
of the Trust, provided a quorum of Shareholders of the
Trust is present, or by action of the Shareholders of the
Trust by written consent without a meeting pursuant to
Article V, Section 3, or (ii) at the discretion of the
Board of Trustees either (A) at any time there are no
Shares outstanding of the Trust, or (B) upon prior
written notice to the Shareholders of the Trust; or
(b) With respect to a particular Series, (i) upon
approval by a majority of votes cast at a meeting of the
Shareholders of such Series, provided a quorum of
Shareholders of such Series is present, or by action of
the Shareholders of such Series by written consent
without a meeting pursuant to Article V, Section 3, or
(ii) at the discretion of the Board of Trustees either (A)
at any time there are no Shares outstanding of such
Series, or (B) upon prior written notice to the
Shareholders of such Series; or
(c) With respect to the Trust (or a particular Series),
upon the occurrence of a dissolution or termination
event pursuant to any other provision of this
Declaration of Trust (including Article VIII, Section 2)
or the DSTA; or
the Trust.
(d) With respect to any Series, upon any event that
causes the dissolution of
Upon dissolution of the Trust (or a particular Series, as
the case may be), the Board of Trustees shall (in
accordance with Section 3808 of the DSTA) pay or
make reasonable provision to pay all claims and
obligations of the Trust and/or each Series (or the
particular Series, as the case may be), including all
contingent, conditional or unmatured claims and
obligations known to the Trust, and all claims and
obligations which are known to the Trust, but for which
the identity of the claimant is unknown. If there are
sufficient assets held with respect to the Trust and/or
each Series of the Trust (or the particular Series, as the
case may be), such claims and obligations shall be paid
in full and any such provisions for payment shall be
made in full. If
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there are insufficient assets held with respect to the
Trust and/or each Series of the Trust (or the particular
Series, as the case may be), such claims and obligations
shall be paid or provided for according to their priority
and, among claims and obligations of equal priority,
ratably to the extent of assets available therefor. Any
remaining assets (including, without limitation, cash,
securities or any combination thereof) held with respect
to the Trust and/or each Series of the Trust (or the
particular Series, as the case may be) shall be
distributed to the Shareholders of the Trust and/or each
Series of the Trust (or the particular Series, as the case
may be) ratably according to the number of Shares of
the Trust and/or such Series thereof (or the particular
Series, as the case may be) held of record by the several
Shareholders on the date for such dissolution
distribution; provided, however, that if the Shares of the
Trust or a Series are divided into Classes thereof, any
remaining assets (including, without limitation, cash,
securities or any combination thereof) held with respect
to the Trust or such Series, as applicable, shall be
distributed to each Class of the Trust or such Series
according to the net asset value computed for such
Class and within such particular Class, shall be
distributed ratably to the Shareholders of such Class
according to the number of Shares of such Class held of
record by the several Shareholders on the date for such
dissolution distribution. Upon the winding up of the
Trust in accordance with Section 3808 of the DSTA
and its termination, any one (1) Trustee shall execute,
and cause to be filed, a certificate of cancellation, with
the office of the Secretary of State of the State of
Delaware in accordance with the provisions of Section
3810 of the DSTA.
In connection with the dissolution and liquidation of the
Trust or any Series, and in connection with the
termination of any Class of Shares, the Board of
Trustees may provide for the establishment of a
liquidating trust or similar vehicle.
Section 2. Merger or Consolidation; Conversion;
Reorganization.
(a) Merger or Consolidation. Pursuant to an
agreement of merger or consolidation, the Board of
Trustees, by vote of a majority of the Trustees, may
cause the Trust to merge or consolidate with or into one
or more statutory trusts or other business entities (as
defined in Section 3801 of the DSTA) formed or
organized or existing under the laws of the State of
Delaware or any other state of the United States or any
foreign country or other foreign jurisdiction. Any such
merger or consolidation shall not require the vote of the
Shareholders unless such vote is required by the 1940
Act; provided however, that the Board of Trustees shall
provide at least thirty (30) days prior written notice to
the Shareholders of such merger or consolidation. By
reference to Section 3815(f) of the DSTA, any
agreement of merger or consolidation approved in
accordance with this Section 2(a) may, without a
Shareholder vote, unless required by the 1940 Act, the
requirements of any securities exchange on which
Shares are listed for trading, or any other provision of
this Declaration of Trust or the By-Laws, effect any
amendment to this Declaration of Trust or the By-Laws
or effect the adoption of a new governing instrument if
the Trust is the surviving or resulting statutory trust in
the merger or consolidation, which amendment or new
governing instrument shall be effective at the effective
time or date of the merger or consolidation. In all
respects not governed by the DSTA, the 1940 Act,
other applicable law or the requirements of any
securities exchange on which Shares are listed for
trading, the Board of Trustees shall have the power to
prescribe additional procedures necessary or
appropriate to accomplish a merger or consolidation,
including the
33
power to create one or more separate statutory trusts to
which all or any part of the assets, liabilities, profits or
losses of the Trust may be transferred and to provide for
the conversion of Shares into beneficial interests in
such separate statutory trust or trusts. Upon completion
of the merger or consolidation, if the Trust is the
surviving or resulting statutory trust, any one (1)
Trustee shall execute, and cause to be filed, a certificate
of merger or consolidation in accordance with Section
3815 of the DSTA.
(b) Conversion. The Board of Trustees, by vote of a
majority of the Trustees, may cause (i) the Trust to
convert to an other business entity (as defined in
Section 3801 of the DSTA) formed or organized under
the laws of the State of Delaware as permitted pursuant
to Section 3821 of the DSTA; (ii) the Shares of the
Trust or any Series to be converted into beneficial
interests in another statutory trust (or series thereof)
created pursuant to this Section 2 of this Article VIII, or
(iii) the Shares to be exchanged under or pursuant to
any state or federal statute to the extent permitted by
law. Any such statutory conversion, Share conversion
or Share exchange shall not require the vote of the
Shareholders unless such vote is required by the 1940
Act; provided however, that the Board of Trustees shall
provide at least thirty (30) days prior written notice to
the Shareholders of the Trust of any conversion of
Shares of the Trust pursuant to Subsections (b)(i) or
(b)(ii) of this Section 2 or exchange of Shares of the
Trust pursuant to Subsection (b)(iii) of this Section 2,
and at least thirty (30) days prior written notice to the
Shareholders of a particular Series of any conversion of
Shares of such Series pursuant to Subsection (b)(ii) of
this Section 2 or exchange of Shares of such Series
pursuant to Subsection (b)(iii) of this Section 2. In all
respects not governed by the DSTA, the 1940 Act,
other applicable law, or the requirements of any
securities exchange on which Shares are listed for
trading, the Board of Trustees shall have the power to
prescribe additional procedures necessary or
appropriate to accomplish a statutory conversion, Share
conversion or Share exchange, including the power to
create one or more separate statutory trusts to which all
or any part of the assets, liabilities, profits or losses of
the Trust may be transferred and to provide for the
conversion of Shares of the Trust or any Series thereof
into beneficial interests in such separate statutory trust
or trusts (or series thereof).
(c) Reorganization. The Board of Trustees, by vote
of a majority of the Trustees, may cause the Trust to
sell, convey and transfer all or substantially all of the
assets of the Trust (sale of Trust assets) or all or
substantially all of the assets associated with any one or
more Series (sale of such Series assets), to another trust,
statutory trust, partnership, limited partnership, limited
liability company, corporation or other association
organized under the laws of any state, or to one or more
separate series thereof, or to the Trust to be held as
assets associated with one or more other Series of the
Trust, in exchange for cash, shares or other securities
(including, without limitation, in the case of a transfer
to another Series of the Trust, Shares of such other
Series) with such sale, conveyance and transfer either
(a) being made subject to, or with the assumption by the
transferee of, the liabilities associated with the Trust or
the liabilities associated with the Series the assets of
which are so transferred, as applicable, or (b) not being
made subject to, or not with the assumption of, such
liabilities. Any such sale, conveyance and transfer shall
not require the vote of the Shareholders unless such
vote is required by the 1940 Act; provided however,
that the Board of Trustees shall provide at
34
least thirty (30) days prior written notice to the
Shareholders of the Trust of any such sale of Trust
assets, and at least thirty (30) days prior written notice
to the Shareholders of a particular Series of any sale of
such Series assets. Following such sale of Trust assets,
the Board of Trustees shall distribute such cash, shares
or other securities ratably among the Shareholders of
the Trust (giving due effect to the assets and liabilities
associated with and any other differences among the
various Series the assets associated with which have
been so sold, conveyed and transferred, and due effect
to the differences among the various Classes within
each such Series). Following a sale of such Series
assets, the Board of Trustees shall distribute such cash,
shares or other securities ratably among the
Shareholders of such Series (giving due effect to the
differences among the various Classes within each such
Series). If all of the assets of the Trust have been so
sold, conveyed and transferred, the Trust shall be
dissolved; and if all of the assets of a Series have been
so sold, conveyed and transferred, such Series and the
Classes thereof shall be dissolved. In all respects not
governed by the DSTA, the 1940 Act or other
applicable law, the Board of Trustees shall have the
power to prescribe additional procedures necessary or
appropriate to accomplish such sale, conveyance and
transfer, including the power to create one or more
separate statutory trusts to which all or any part of the
assets, liabilities, profits or losses of the Trust may be
transferred and to provide for the conversion of Shares
into beneficial interests in such separate statutory trust
or trusts.
Section 3. Master Feeder Structure. If permitted by the
1940 Act or any exemptive order issued by the
Commission or a rule or interpretation that may be
adopted or issued by the Commission upon which the
Trust or any Series relies, the Board of Trustees, by
vote of a majority of the Trustees, and without a
Shareholder vote, may cause the Trust or any one or
more Series to convert to a master feeder structure (a
structure in which a feeder fund invests all of its assets
in a master fund, rather than making investments in
securities directly) and thereby cause existing Series of
the Trust to either become feeders in a master fund, or
to become master funds in which other funds are
feeders.
Section 4. Absence of Appraisal or Dissenters Rights.
No Shareholder shall be entitled, as a matter of right, to
relief as a dissenting Shareholder in respect of any
proposal or action involving the Trust or any Series or
any Class thereof.
ARTICLE IX AMENDMENTS
Section 1. Amendments Generally. This Declaration of
Trust may be
restated and/or amended at any time by an instrument in
writing signed by at least a majority of the Board of
Trustees and, to the extent required by this Declaration
of Trust, the 1940 Act or the requirements of any
securities exchange on which Shares are listed for
trading, by approval of such amendment by the
Shareholders in accordance with Article III, Section 6
hereof and Article V hereof. Any such restatement
and/or amendment hereto shall be effective
immediately upon execution and approval or upon such
future date and time as may be stated therein. The
Certificate of Trust shall be restated and/or amended at
any time by the Board of
35
Trustees, without Shareholder approval, to correct any
inaccuracy contained therein. Any such restatement
and/or amendment of the Certificate of Trust shall be
executed by at least one (1) Trustee and shall be
effective immediately upon its filing with the office of
the Secretary of State of the State of Delaware or upon
such future date as may be stated therein.
ARTICLE X MISCELLANEOUS
Section 1. References: Headings: Counterparts. In this
Declaration of
Trust and in any restatement hereof and/or amendment
hereto, references to this instrument, and all expressions
of similar effect to herein, hereof and hereunder, shall
be deemed to refer to this instrument as so restated
and/or amended. Headings are placed herein for
convenience of reference only and shall not be taken as
a part hereof or control or affect the meaning,
construction or effect of this instrument. Whenever the
singular number is used herein, the same shall include
the plural; and the neuter, masculine and feminine
genders shall include each other, as applicable. Any
references herein to specific sections of the DSTA, the
Code or the 1940 Act shall refer to such sections as
amended from time to time or any successor sections
thereof. This instrument may be executed in any
number of counterparts, each of which shall be deemed
an original.
To the extent permitted by the 1940 Act, (i) any
document, consent, instrument, or notice referenced in
or contemplated by this Declaration of Trust or the By-
Laws that is to be executed by one or more Trustees
may be executed by means of original, facsimile, or
electronic signature and (ii) any document, consent,
instrument, or notice referenced in or contemplated by
the Declaration of Trust or the By-Laws that is to be
delivered by one or more Trustees may be delivered by
facsimile or electronic means (including e-mail), unless,
in the case of either clause (i) or (ii), otherwise
expressly provided herein or in the By-Laws or
determined by the Board of Trustees. The terms
include, includes and including, and any comparable
terms shall be deemed to mean including, without
limitation.
Section 2. Applicable Law. This Declaration of Trust is
created under and is to be governed by and construed
and administered according to the laws of the State of
Delaware and the applicable provisions of the 1940 Act
and the Code; provided, that, all matters relating to or in
connection with the conduct of Shareholders and
Trustees meetings (excluding, however, the
Shareholders right to vote), including, without
limitation, matters relating to or in connection with
record dates, notices to Shareholders or Trustees,
nominations and elections of Trustees, voting by, and
the validity of, Shareholder proxies, quorum
requirements, meeting adjournments, meeting
postponements and inspectors, which are not
specifically addressed in this Declaration of Trust, in
the By-Laws or in the DSTA (other than DSTA Section
3809), or as to which an ambiguity exists, shall be
governed by the Delaware General Corporation Law,
and judicial interpretations thereunder, as if the Trust
were a Delaware corporation, the Shareholders were
shareholders of such Delaware corporation and the
Trustees were directors of such Delaware corporation;
provided, further,
however, that there shall not be applicable to the Trust,
the Trustees, the Shareholders or any other Person or to
this Declaration of Trust or the By-Laws (a) the
provisions of Sections 3533, 3540 and 3583(a) 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 DSTA) 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 or
responsibilities or limitations on the indemnification,
acts or powers of trustees or other Persons, which are
inconsistent with the limitations of liabilities or
authorities and powers of the Trustees or officers of the
Trust set forth or referenced in this Declaration of Trust
or the By-Laws. The Trust shall be a Delaware statutory
trust pursuant to the DSTA, and without limiting the
provisions hereof, the Trust may exercise all powers
that are ordinarily exercised by such a statutory trust.
Section 3. Provisions in Conflict with Law or
Regulations.
(a) The provisions of this Declaration of Trust are
severable, and if the Board of Trustees shall determine,
with the advice of counsel, that any of such provisions
is in conflict with the 1940 Act, the Code, the DSTA, or
with other applicable laws and regulations, the
conflicting provision shall be deemed not to have
constituted a part of this Declaration of Trust from the
time when such provisions became inconsistent with
such laws or regulations; provided, however, that such
determination shall not affect any of the remaining
provisions of this Declaration of Trust or render invalid
or improper any action taken or omitted prior to such
determination.
(b) If any provision of this Declaration of Trust
shall be held invalid or unenforceable in any
jurisdiction, such invalidity or unenforceability shall
attach only to such provision in such jurisdiction and
shall not in any manner affect such provision in any
other jurisdiction or any other provision of this
Declaration of Trust in any jurisdiction.
Section 4. Statutory Trust Only. It is the intention of the
Trustees to create hereby a statutory trust pursuant to
the DSTA, and thereby to create the relationship of
trustee and beneficial owners within the meaning of the
DSTA between, respectively, the Trustees and each
Shareholder. It is not the intention of the Trustees to
create a general or limited partnership, limited liability
company, joint stock association, corporation, bailment,
or any form of legal relationship other than a statutory
trust pursuant to the DSTA. Nothing in this Declaration
of Trust shall be construed to make the Shareholders,
either by themselves or with the Trustees, partners or
members of a joint stock association.
Section 5. Use of the Name TIFF and/or The
Investment Fund for Foundations. The Board of
Trustees expressly agrees and acknowledges that the
names TIFF and The Investment Fund for Foundations
are the sole property of TIFF Advisory Services, Inc.
(TAS). TAS has granted to the Trust a non-exclusive
license to use such names as part of the name of the
Trust now and in the future. The Board of Trustees
further expressly agrees and acknowledges that the non-
exclusive license granted herein may be terminated by
TAS if the Trust ceases to use TAS or one of its
Affiliates as Investment Adviser or to use other
Affiliates or successors of TAS for such purposes. In
such event, the nonexclusive license may be revoked by
TAS and the Trust shall cease using the names TIFF
and/or The Investment Fund for Foundations or any
name misleadingly implying a continuing relationship
between the Trust and TAS or any of its Affiliates, as
part of its name unless otherwise consented to by TAS
or any successor to its interests in such names.
The Board of Trustees further understands and agrees
that so long as TAS and/or any future advisory Affiliate
of TAS shall continue to serve as the Trusts Investment
Adviser, other registered open- or closed-end
investment companies (funds) as may be sponsored or
advised by TAS or its Affiliates shall have the right
permanently to adopt and to use the names TIFF and/or
The Investment Fund for Foundations in their names
and in the names of any series or class of shares of such
funds.
Remainder of the page left intentionally blank.
IN WITNESS WHEREOF, the Trustees of TIFF
Investment Program named below does hereby make
and enter into this Agreement and Declaration of Trust
as of the date first written above.
Xxx X. Xxxxxxx, Trustee
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