AMENDED AND RESTATED
AGREEMENT AND DECLARATION OF TRUST
of
THE DFA INVESTMENT TRUST COMPANY
a Delaware Statutory Trust
(Original Agreement and Declaration of Trust was adopted
December 27, 1993;
current Amended and Restated Agreement and Declaration of Trust
adopted effective June 5, 2009.)
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. Registered 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 9
Section 4. Status of Shares and Limitation of Personal Liability 9
Section 5. Tax Status; Partnership Provisions 10
Section 6. Establishment and Designation of Series and Classes 10
(a) Assets Held with Respect to a Particular Series 11
(b) Liabilities Held with Respect to a Particular Series or Class 12
(c) Dividends, Distributions and Redemptions 13
(d) Voting 13
(e) Equality 14
(f) Fractions 14
(g) Exchange Privilege 14
(h) Combination of Series or Classes. 14
(i) Dissolution or Termination 14
Section 7. Indemnification of Shareholders 15
ARTICLE IV. - THE BOARD OF TRUSTEES 15
Section 1. Number, Election, Term, Removal and Resignation. 15
Section 2. Trustee Action by Written Consent Without a Meeting 16
Section 3. Powers; Other Business Interests; Quorum and Required Vote. 16
(a) Powers 16
(b) Other Business Interests 18
(c) Quorum and Required Vote 18
Section 4. Payment of Expenses by the Trust 18
Section 5. Payment of Expenses by Shareholders 19
Section 6. Ownership of Trust Property 19
Section 7. Service Contracts. 19
ARTICLE V. - SHAREHOLDERS' VOTING POWERS AND MEETINGS 20
Section 1. Voting Powers 20
Section 2. Quorum and Required Vote. 20
Section 3. Shareholder Action by Written Consent Without a Meeting 21
Section 4. Record Dates. 21
Section 5. Additional Provisions 23
ARTICLE VI. - NET ASSET VALUE; DISTRIBUTIONS; REDEMPTIONS; TRANSFERS 23
Section 1. Determination of Net Asset Value, Net
Income and Distributions. 23
Section 2. Redemptions at the Option of a Shareholder 25
Section 3. Redemptions at the Option of the Trust 26
Section 4. Transfer of Shares 26
ARTICLE VII. - LIMITATION OF LIABILITY AND INDEMNIFICATION OF AGENT 26
Section 1. Limitation of Liability. 26
Section 2. Indemnification. 27
(a) Indemnification by Trust 27
(b) Exclusion of Indemnification 28
(c) Required Approval 28
(d) Advancement of Expenses 28
(e) Other Contractual Rights 28
(f) Fiduciaries of Employee Benefit Plan 28
Section 3. Insurance 29
Section 4. Derivative Actions 29
ARTICLE VIII. - CERTAIN TRANSACTIONS 29
Section 1. Dissolution of Trust or Series 29
Section 2. Merger or Consolidation; Conversion; Reorganization. 30
(a) Merger or Consolidation 30
(b) Conversion 31
(c) Reorganization 31
Section 3. Master Feeder Structure 32
Section 4. Absence of Appraisal or Dissenters' Rights 32
ARTICLE IX. - AMENDMENTS 32
Section 1. Amendments Generally 32
ARTICLE X. - MISCELLANEOUS 33
Section 1. References; Headings; Counterparts 33
Section 2. Applicable Law 33
Section 3. Provisions in Conflict with Law or Regulations. 34
Section 4. Statutory Trust Only 34
Section 5. Use of the Name "DFA" 34
APPENDIX A - SERIES AND CLASSES OF THE TRUST A-1
AMENDED AND RESTATED AGREEMENT AND DECLARATION OF TRUST
OF
THE DFA INVESTMENT TRUST COMPANY
THIS AMENDED AND RESTATED AGREEMENT AND DECLARATION OF
TRUST is made as of this ____ day of ____________, 2009, by the
Trustees and (i) incorporates herein and makes a part of this
Amended and Restated Agreement and Declaration of Trust the
resolutions of the Board of Trustees of The DFA Investment Trust
Company (the "Trust") adopted prior to the date set forth above,
pursuant to the provisions of the original Agreement and
Declaration of Trust, dated December 27, 1993, as amended and
restated to date (the "Original Declaration of Trust"),
regarding the establishment and designation of Series and/or
Classes of the Shares of the Trust, and any amendments or
modifications to such resolutions adopted through the date
hereof, as of the date of the adoption of each such resolution;
and (ii) amends and restates the Original Declaration of Trust
pursuant to Article VIII, Section 4 of such Original Declaration
of Trust, as hereinafter provided.
WITNESSETH:
WHEREAS, the Trust was 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 Original Declaration of Trust is amended and
restated in its entirety in the manner herein set forth;
(ii) the Trustees will hold all cash, securities, and other
assets that they may acquire, from time to time, in any manner
as Trustees hereunder IN TRUST and will manage and dispose of
the same, from time to time, upon the following terms and
conditions for the benefit of the holders of Shares issued
hereunder as hereinafter set forth; and
(iii) this Declaration of Trust and the Bylaws 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 the Original Declaration of
Trust and/or this Declaration of Trust and the Bylaws.
ARTICLE I
NAME; OFFICES; REGISTERED AGENT; DEFINITIONS
Section 1. Name. The Trust shall be known as "The DFA
Investment Trust Company" and the Board of Trustees shall
conduct the business of the Trust under that name, or any other
name as the Board of Trustees may designate, from time to time.
The Trustees may, without Shareholder approval, change the name
of the Trust or any Series or Class thereof. In the event of
any such change, the Trustees shall cause notice to be given to
the affected Shareholders within a reasonable time after the
implementation of any such change.
Section 2. Offices of the Trust. The Board at any time may
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 in the State of Delaware are as
set forth in the Trust's Certificate of Trust. The Trustees
may, without Shareholder approval, change the registered agent
and the registered office of the 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;
(c) "Board of Trustees" or "Board" shall mean the
governing body of the Trust, which 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) "Bylaws" shall mean Bylaws of the Trust, as
amended or restated, from time to time, in accordance with
Article VIII therein. Such Bylaws may contain any provision not
inconsistent with applicable law or this Declaration of Trust,
relating to the governance of the Trust. The Bylaws are
expressly herein incorporated by reference as part of the
"governing instrument" of the Trust within the meaning of the
DSTA;
(e) "Certificate of Trust" shall mean the certificate
of trust of the Trust filed on October 27, 1992 with the Office
of the Secretary of State of the State of Delaware, as required
under the Delaware Statutory Trust Act, as such certificate has
been or 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 or the corresponding provisions of the Original
Declaration of Trust;
(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) "DGCL" shall mean the General Corporation Law of
the State of Delaware (8 Del. C. ? 101, et seq.), as amended
from time to time;
(j) "DSTA" shall mean the Delaware Statutory Trust
Act (12 Del. C. ? 3801, et seq.), as amended, from time to time;
(k) "Declaration of Trust" shall mean this Amended
and Restated Agreement and Declaration of Trust, including
resolutions of the Board of Trustees of the Trust that have been
adopted prior to the date of this Declaration of Trust, or that
may be adopted hereafter, regarding the establishment and
designation of Series and/or Classes of Shares of the Trust, and
any amendments or modifications to such resolutions, as of the
date of the adoption of each such resolution;
(l) "General Liabilities" shall have the meaning
given it in Article III, Section 6(b) of this Declaration of
Trust;
(m) "Interested Person" shall have the meaning given
that term in the 1940 Act;
(n) "Investment Adviser" or "Adviser" shall mean a
Person, as defined below, furnishing services to 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, as
determined by the Board in its sole discretion, 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 to
determine fairly 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, government or any political subdivision,
agency or instrumentality thereof 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;
(q) "Principal Underwriter" shall have the meaning
given that term in the 1940 Act;
(r) "Series" shall mean each Series of Shares
established and designated under and in accordance with the
provisions of Article III hereof, or the corresponding
provisions of the Original Declaration of Trust;
(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;
(t) "Shareholder" shall mean a record owner of Shares
pursuant to this Declaration of Trust and the Bylaws;
(u) "Trust" shall mean The DFA Investment Trust
Company, the Delaware statutory trust formed by the Original
Declaration of Trust and by filing 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, from time to time, may be duly elected or
appointed, qualified, and serving on the Board of Trustees in
accordance with the provisions hereof and the Bylaws, so long as
such signatory or other Person continues in office in accordance
with the terms hereof and the Bylaws. Reference herein to a
Trustee or the Trustees shall refer to such Person or Persons in
such Person's or Persons' capacity as a Trustee or Trustees
hereunder and under the Bylaws.
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,
investing primarily in securities, 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, 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 or
property; and to execute and deliver proxies or powers of
attorney to such Person or Persons as the Board of Trustees
shall deem proper, granting to such Person or Persons such power
and discretion with relation to securities or property as the
Board of Trustees shall deem proper;
(e) To exercise powers and rights of subscription or
otherwise that arise in any manner out of ownership of
securities and/or other property;
(f) To hold any security 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
Board of 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 Board of 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 such insurance as the
Board of Trustees may deem necessary or appropriate for the
conduct of the business entirely out of Trust Property,
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, Principal Underwriters, or independent contractors of
the Trust, individually against all claims and liabilities of
every nature arising by reason of holding Shares, holding,
being, or having held any such office or position, or by reason
of any action alleged to have been taken or omitted by any such
Person as Trustee, officer, employee, agent, Investment Adviser,
Principal Underwriter, or independent contractor, to the fullest
extent permitted by this Declaration of Trust, the Bylaws, and
by applicable law;
(m) To adopt, establish, and carry out pension,
profit-sharing, share bonus, share purchase, savings, thrift,
and other retirement, incentive, and benefit plans, trusts and
provisions, including the purchasing of life insurance and
annuity contracts as a means of providing such retirement and
other benefits, for any or all of the Trustees, officers,
employees, and agents of the Trust;
(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
determine, consistent with the provisions of this Declaration of
Trust; and to reacquire and purchase, 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 Board
of 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 Shareholder's 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; and
(u) 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 each shall 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 without a par value. The number
of Shares in the Trust authorized under the Original Declaration
of Trust and 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 of Shares into separate
Classes of Shares in accordance with the 1940 Act. As of the
effective date of this Declaration of Trust, any new Series and
Classes, if any, shall be established and designated by the
Board of Trustees pursuant to Article III, Section 6 hereof. If
no separate Series or Classes shall be established, the Shares
of the Trust shall have the rights, powers, and duties provided
for herein, including Article III, Section 6 hereof to the
extent relevant and not otherwise provided for herein. All
references to Shares in this Declaration of Trust shall be
deemed to be Shares of the Trust or any or all Series or Classes
thereof that may be established from time to time, as the
context may require.
(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 been established
initially 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) Subject to any requirements or limitations of the
1940 Act, 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. 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 the Board of Trustees 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 unissued Shares of beneficial
interest, or any Shares of beneficial interest of the Trust or
any Series or Class thereof, which were previously issued and
are reacquired, into one or more Series or Classes that may be
established and designated, from time to time. 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. Shares held in the treasury shall not
confer any voting rights on the Trustees and shall not be
entitled to any dividends or other distributions declared with
respect to the Shares.
(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 and the Bylaws.
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, from time to time, may 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, 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 in the 1940 Act.
Section 2. Ownership of Shares. The Board of Trustees may
make such rules not inconsistent with the provisions of the 1940
Act as the Board of Trustees considers appropriate for recording
the ownership of Shares, the issuance of Share certificates, the
transfer of Shares of the Trust, and each Series and Class
thereof, if any, and similar matters.
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 authorize, from time to time. All consideration received by
the Trust in each sale shall be credited to the individual
purchaser's 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, as
determined by the Board of Trustees in accordance with
Article VI hereof, 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 Principal Underwriter or the selling broker or dealer to
impose a sales charge 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 Bylaws, and under applicable law.
Ownership of Shares shall not entitle the Shareholders 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, the Bylaws and
applicable law. 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 personally,
at any time may 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
extended to stockholders of a private corporation organized for
profit under the DGCL.
Section 5. Tax Status; Partnership Provisions.
(a) Power 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.
(b) Series Established as a Partnership. In
accordance with Section 5(a) and Section 6 of this Article III,
the resolution, as may be amended, establishing or changing the
classification of a Series as a Partnership for U.S. federal
income tax purposes may provide, among other things, that
notwithstanding anything in this Declaration of Trust to the
contrary (i) Book Capital Accounts (as defined in any resolution
establishing and designating such Series) are to be determined
and maintained for each Shareholder in accordance with Section
704(b) of the Code (and any successor provision thereto); (ii)
upon liquidation of a Series (or any Shareholder's interest
therein), liquidating distributions shall be made in accordance
with the positive Book Capital Account balances of the
Shareholders; and, (iii) if any Shareholder in such Series has a
deficit balance in his Book Capital Account following the
liquidation of his interest in the Series, such Shareholder is
unconditionally required to restore the amount of such deficit
balance to the Series, or in lieu thereof, the resolution
establishing the Series contain a "qualified income offset"
within the meaning of Treasury Regulations Section 1.704-
1(b)(2)(ii)(d).
Section 6. Establishment and Designation of Series and
Classes. Without limiting the authority of the Trustees to
establish and designate any further Series or Classes, to
classify or reclassify all or any part of the issued Shares of
any Series to make them part of an existing or newly created
Class or to amend rights and preferences of any new or existing
Series or Class, including the Series and Classes, if any,
listed on Appendix A hereto, all without Shareholder approval,
the Trustees hereby establish and designate fourteen (14)
separate Series of Shares (and any designated Classes thereof,
if any) as listed on Appendix A to this Declaration of Trust,
which may be amended or supplemented from time to time
hereafter. The establishment and designation of any additional
Series or Class shall be effective, without the requirement of
Shareholder approval, upon the adoption of a resolution by not
less than a majority of the then Board of Trustees, which
resolution shall set forth such establishment and designation
and 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), thereof or of the Trust as the
Board of Trustees may determine from time to time, which rights,
powers and duties may be senior or subordinate to any existing
Series or Class. Such resolution may establish such Series or
Classes directly in such resolution or by reference to, or
approval of, another document that sets forth such Series or
Classes, including without limitation, any registration
statement of the Trust, or as otherwise provided in such
resolution. Each such resolution shall be incorporated herein
upon adoption, and the resolutions that have been adopted prior
to _________, 2009 regarding the establishment and designation
of Series and/or Classes of Shares of the Trust pursuant to the
applicable provisions of the Original Declaration of Trust, and
any amendments or modifications to such resolutions through the
date hereof, are hereby incorporated herein as of the date of
their 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.
Shares of each Series (and Class where applicable)
established and designated pursuant to this Section 6 or the
corresponding provisions of the Original Declaration of Trust
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, in its 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 that are not identifiable
readily 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 in its 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 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 agreed impliedly 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 authorized and
existing pursuant to the Original Declaration of Trust, or is
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 filed in the Office of the Secretary of
State of the State of Delaware pursuant to the DSTA, and having
given 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 properly should or may 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 reflected appropriately (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 allocation shall be conclusive and binding
upon the Shareholders. In addition, the Board of Trustees may
delegate to a committee of the Board of Trustees 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 date 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 the Trust shall be equal
to each other Share of the Trust (subject to the rights and
preferences with respect to separate Series or Classes of the
Trust).
(f) Fractions. A fractional Share of the Trust shall
carry proportionately all the rights and obligations of a whole
Share of the Trust, including rights with respect to voting,
receipt of dividends and distributions, redemption of Shares,
and dissolution of the Trust.
(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 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.
(i) 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 thereby shall
be terminated and its establishment and designation rescinded.
Each resolution of the Board of Trustees pursuant to this
Section 6(i) shall be incorporated herein by reference upon
adoption.
Section 7. 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, her or it being or having been a Shareholder
and not because of such Shareholder's 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 Shareholder's 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 Bylaws 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 Bylaws, 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 shall initially be equal to the number of
Persons signing this Declaration of Trust as of the date first
written above and, thereafter, 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 fifteen (15). 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 Trustee's 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.
(e) Any Trustee may resign at any time by giving
written notice to the secretary of the Trust or to 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 not less than 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 Trust's 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 Bylaws, 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 the Board of Trustees, in its sole
discretion, shall deem proper to accomplish the purposes of this
Trust. Without limiting the foregoing, the Board of Trustees,
subject to the requisite vote for such actions as set forth in
this Declaration of Trust and the Bylaws, may: (i) adopt Bylaws
not inconsistent with applicable law or this Declaration of
Trust; (ii) amend, restate, and repeal such Bylaws, subject to
and in accordance with the provisions of such Bylaws; (iii)
remove Trustees and fill vacancies on the Board of Trustees in
accordance with this Declaration of Trust and the Bylaws; (iv)
elect and remove such officers and appoint and terminate such
agents as the Board of Trustees considers appropriate, in
accordance with this Declaration of Trust and the Bylaws; (v)
establish and terminate one or more committees of the Board of
Trustees pursuant to the Bylaws; (vi) 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 subcustodians 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; (vii) retain a transfer agent,
dividend disbursing agent, shareholder servicing agent, or
administrative services agent, or any number thereof, or any
other service provider, as deemed appropriate; (viii) provide
for the issuance and distribution of Shares or other securities
or financial instruments directly or through one or more
Principal Underwriters or otherwise; (ix) retain one or more
Investment Adviser(s); (x) reacquire and redeem Shares on behalf
of the Trust and transfer Shares pursuant to applicable law;
(xi) 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; (xii) declare and pay
dividends and distributions to Shareholders from the Trust
Property in accordance with this Declaration of Trust and the
Bylaws; (xiii) establish, designate, and redesignate any Series
or Class of the Trust or Class of a Series, from time to time,
in accordance with the provisions of Article III, Section 6
hereof; (xiv) hire personnel as staff for the Board of Trustees,
or for those Trustees who are not Interested Persons of the
Trust, the Investment Adviser, 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; (xv) retain special counsel, other experts, and/or
consultants for the Board of Trustees, for those Trustees who
are not Interested Persons of the Trust, the Investment Adviser,
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 special counsel, other experts, and/or
consultants, and remove one or more of such special counsel,
other experts, and/or consultants at the discretion of the Board
of Trustees; (xvi) 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 Board of Trustees
or any appropriate committee thereof, in the exercise of 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 (xvii) in general, delegate such authority as the
Board of Trustees 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 or shareholder servicing agent, Principal
Underwriter, Investment Adviser, 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
Bylaws. 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 Bylaws, 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.
(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, serve as a director, trustee or
officer of, 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,
without such activities or ownership being deemed to be a
violation of a duty of loyalty. 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, a majority 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 Bylaws, and except as otherwise provided
herein or required by applicable law, the vote of not less than
a majority of the Trustees present at a meeting at which a
quorum is present shall be the act of the Board of Trustees.
Trustees may not vote by proxy.
Section 4. Payment of Expenses by the Trust. Subject to the
provisions of Article III, Section 6 hereof, an officer of the
Trust authorized by the Board of Trustees 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 Trust's
officers, employees, Investment Adviser(s), Principal
Underwriter, auditors, counsel, custodian, subcustodian,
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 proper to incur.
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 Trust's
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, including, without
limitation, 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 Bylaws,
and the 1940 Act, the Board of Trustees, at any time and from
time to time, may 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 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 Trust's or a
particular Series' investments, or to engage in such other
activities, including administrative services, as may be
delegated specifically to such party.
(b) The Board of Trustees also, at any time and from
time to time, may 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 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 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 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, Investment 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 be
made hereafter, 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 be made hereafter
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 Bylaws,
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 Bylaws, 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, each
Shareholder of record (as of the record date established
pursuant to Section 4 of this Article V) shall be entitled to
one vote for each full Share and a fractional vote for each
fractional Share held by such Shareholder. Shareholders shall
not be entitled to cumulative voting in the election of Trustees
or on any other matter.
Section 2. Quorum and Required Vote.
(a) Forty percent (40%) of the outstanding Shares
entitled to vote at a Shareholders' meeting, which are present
in person or represented by proxy, shall constitute a quorum at
such Shareholders' meeting, except when a larger quorum is
required by this Declaration of Trust, the Bylaws, 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, forty percent (40%) of the
outstanding Shares of each such Series or Class 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 Bylaws, 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 Bylaws 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
Shareholders' 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 a majority of the Shares entitled to
vote on such action (or such different proportion thereof as
shall be required by law, this Declaration of Trust, or the
Bylaws 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 Shareholders' vote
on such action; or (ii) if no date is set by resolution of the
Board, within thirty (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
Trust's records. Any Shareholder that has given a written
consent or the Shareholder's proxyholder or a personal
representative 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 thirty
(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 ten (10) 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 next preceding 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/or
(ii) the record date for determining Shareholders
entitled to vote on any action by consent in
writing without a meeting of Shareholders (A)
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 (B) 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.
(c) 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, sale of all or substantially
all of its assets, or any other transaction, in each case that
is governed by Article VIII of this 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 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.
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 Bylaws 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 and any
applicable requirement or limitation of the 1940 Act, the Board
of Trustees shall have the power to determine, from time to
time, the offering price for authorized but unissued Shares of
the Trust, or any Series or Class thereof, as applicable, which
shall yield to the Trust or the applicable Series or Class not
less than the net asset value thereof, in addition to any amount
of 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 such Shares shall be
offered for sale.
(b) Subject to Article III, Section 6 hereof, the
Board of Trustees, subject to the 1940 Act, may prescribe and
shall set forth in the Bylaws, this Declaration of Trust, or in
a resolution of the Board of Trustees such bases and 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 the
Board of Trustees 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. Any resolution may set forth
such information directly in such resolution or by reference to,
or approval of, another document that sets forth such
information, including, without limitation, any registration
statement of the Trust, or as otherwise provided in such
resolution. The Board of Trustees may delegate the power or
duty to determine net asset value per Share of the Trust or any
Series or Class thereof or the net income attributable to the
Shares of the Trust or any Series or Class thereof to one or
more Trustees or officers of the Trust or to a custodian,
depositary or other agent appointed for such purpose.
(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
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
(i) 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
(ii) 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 or distribution,
there may be set aside out of any funds of the Trust, or the
applicable Series thereof, available for dividends or
distributions such sum or sums as the Board of Trustees, from
time to time, in its absolute discretion, may think proper as a
reserve fund to meet contingencies, or for equalizing dividends
or distributions, 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 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 may abolish any such reserve
in the manner in which the reserve was created.
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) The Trust shall purchase such Shares as are
offered by any Shareholder for redemption upon the presentation
of a proper instrument of transfer, together with a request
directed to the Trust or a Person designated by the Trust that
the Trust purchase such Shares and/or in accordance with such
other procedures for redemption as the Board of Trustees may
authorize, from time to time. If certificates have been issued
to a Shareholder, any request for redemption by such Shareholder
must be accompanied by surrender of any outstanding certificate
or certificates for such Shares in form for transfer, together
with such proof of the authenticity of signatures as may
reasonably be required on such Shares and accompanied by proper
stock transfer stamps, if applicable.
(b) The Trust shall pay for such Shares the net asset
value thereof (excluding any applicable redemption fee or sales
load) in accordance with this Declaration of Trust, the Bylaws,
the 1940 Act, and other applicable law. Payments for Shares so
redeemed by the Trust shall be made in cash, except payment for
such Shares, at the option of the Board of Trustees or such
officer or officers as it may duly authorize in its complete
discretion, may 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 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 legally cannot 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) Payment by the Trust for such redemption of
Shares shall be made by the Trust to the Shareholder within
seven (7) 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 occur necessarily within such seven- (7) 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 (i) during
any time the New York Stock Exchange (the "Exchange") is closed
for other than weekends or holidays; (ii) if permitted by the
rules of the Commission, during periods when trading on the
Exchange is restricted; or (iii) during any National Financial
Emergency. The Board of Trustees, in its discretion, may
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 purchase 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, from time to time,
without the vote of the Shareholders but subject to the 1940
Act, may 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 this Declaration of Trust
and the Bylaws.
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 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, arbitral, 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 Agent's 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 or
Principal Underwriter of the Trust.
(d) No Agent, when acting in its respective capacity
as such, shall be liable personally 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 be justified fully and completely in the performance of
his or her duties, 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
Principal Underwriter, any other Agent, selected dealers,
accountants, appraisers, or other experts or consultants
reasonably believed by such Trustee, officer or employee of the
Trust to be within such Person's professional or expert
competence, 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 Bylaws,
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 Trust's 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
that might affect the liquidity of the Trust's 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 Trustee's or
officer's Disqualifying Conduct.
(g) The limitation on liability contained in this
Article applies 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 Person's
conduct was unlawful.
(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 Agent's 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 Person's 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 Person's 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
(A) the vote of a majority of a quorum of the Trustees who are
not (x) Interested Persons of the Trust, (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 (B) 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
appropriate 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 Person's 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 Agent's 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 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 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.
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 the vote of
the holders of not less than a majority of the Shares of the
Trust cast, 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 the
vote of the holders of not less than a majority of the Shares of
such Series cast, 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
(d) With respect to any Series, upon any event that
causes the dissolution of the Trust.
Upon dissolution of the Trust (or a particular Series, as
the case may be), the Board of Trustees (in accordance with
Section 3808 of the DSTA) shall 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 that 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 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 completion of the winding up of the
Trust in accordance with Section 3808 of the DSTA, any one
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.
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 effect any
amendment to this Declaration of Trust or the Bylaws or effect
the adoption of a new governing instrument without a Shareholder
vote, unless required by the 1940 Act or any other provision of
this Declaration of Trust or the Bylaws, 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, or other applicable law, the Board of Trustees shall
have the power to prescribe additional procedures necessary or
appropriate to accomplish a merger or consolidation, 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. In order to effect any such merger
or consolidation, if the Trust is the surviving or resulting
statutory trust, any one 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, or other applicable law, 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) Sale of Assets. 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 (i)
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 (ii) 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
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, if all or substantially all of the
assets of the Trust have been so sold, conveyed, and
transferred, the Trust shall be dissolved. Following a sale of
such Series' assets, if all or substantially all of the assets
of such 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 of the Trust into beneficial interests in
such separate statutory trust or trusts.
Section 3. Master Feeder Structure. If permitted by the
1940 Act, 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
appraisal rights or to any other 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 not less than a majority of the Board of
Trustees and, to the extent required by this Declaration of
Trust or the 1940 Act, by approval of such amendment by the
Shareholders in accordance with Article III, Section 6 hereof
and Article V hereof. Any such restatement hereof and/or
amendment hereto shall be effective immediately upon execution
and, if applicable, Shareholder 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 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 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 to 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 Declaration of Trust may be executed in any number of
counterparts, each of which shall be deemed an original. To the
extent permitted by the 1940 Act, (a) any document, consent,
instrument or notice referenced in or contemplated by this
Declaration of Trust or the Bylaws that is to be executed by one
or more Trustees may be executed by means of original, facsimile
or electronic signature and (b) any document, consent,
instrument or notice referenced in or contemplated by this
Declaration of Trust or the Bylaws 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
(a) or (b), otherwise expressly provided herein or in the Bylaws
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 Bylaws or in the
DSTA (other than DSTA Section 3809), or as to which an ambiguity
exists, shall be governed by the DGCL, 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 Bylaws (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 Bylaws. 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 the
Trustees and each Shareholder, respectively. 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 except as
specifically provided for U.S. federal income tax purposes
pursuant to Article III, Section 5(a) and Section 6 herein or by
resolution of the Board of Trustees.
Section 5. Use of the Name "DFA." The Board of Trustees
expressly agrees and acknowledges that the name "DFA" is the
sole property of Dimensional Fund Advisors LP ("DFALP"). DFALP
has granted to the Trust a non-exclusive license to use such
name 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 DFALP if the Trust ceases to use DFALP or one of its
Affiliates as Investment Adviser or to use other Affiliates or
successors of DFALP for such purposes. In such event, the
nonexclusive license may be revoked by DFALP and the Trust shall
cease using the name "DFA," or any name misleadingly implying a
continuing relationship between the Trust and DFALP or any of
its Affiliates, as part of its name unless otherwise consented
to by DFALP or any successor to its interests in such names.
The Board of Trustees further understands and agrees that
so long as DFALP and/or any future advisory Affiliate of DFALP
shall continue to serve as the Trust's Investment Adviser, other
registered open- or closed-end investment companies ("funds") as
may be sponsored or advised by DFALP or its Affiliates shall
have the right permanently to adopt and to use the name "DFA" in
their names and in the names of any series or Class of shares of
such funds.
IN WITNESS WHEREOF, the Trustees of The DFA Investment
Trust Company named below do hereby make and enter into this
Amended and Restated Agreement and Declaration of Trust as of
the date first written above.
/s/ Xxxxx X. Xxxxx /s/ Xxxxxx X. Xxxxxxxxxxxxxx
Xxxxx X. Xxxxx, Trustee Xxxxxx X. Xxxxxxxxxxxxxx, Trustee
/s/ Xxxx X. Xxxxx /s/ Xxxxx X. Xxxxxxxx
Xxxx X. Xxxxx, Trustee Xxxxx X. Xxxxxxxx, Trustee
/s/ Xxxxxx X. Xxxxxx /s/ Xxxxxxx X. Xxxxxxx
Xxxxxx X. Xxxxxx, Trustee Xxxxxxx X. Xxxxxxx, Trustee
/s/ Xxxxx X. Xxxxxxx /s/ Xxxxx X. Xxxxx
Xxxxx X. Xxxxxxx, Trustee Xxxxx X. Xxxxx, Trustee
APPENDIX A
The U.S. Large Company Series
The U.S. Large Cap Value Series
The Tax-Managed U.S. Marketwide Value Series
The Tax-Managed U.S. Equity Series
The DFA International Value Series
The Japanese Small Company Series
The Asia Pacific Small Company Series
The United Kingdom Small Company Series
The Continental Small Company Series
The Canadian Small Company Series
The Emerging Markets Series
The Emerging Markets Small Cap Series
The DFA One-Year Fixed Income Series
The DFA Two-Year Global Fixed Income Series
As of June 5, 2009
