AGREEMENT AND DECLARATION OF TRUST OF NETS TRUST Dated as of October 29, 2007
Exhibit (a)(2)
Dated as of October 29, 2007
THIS AGREEMENT AND DECLARATION OF TRUST is made as of this 29th day of October, 2007 by the
undersigned Trustee (together with all other persons from time to time duly elected, qualified and
serving as Trustees in accordance with the provisions of Article II hereof, the “Trustees”) under
the Maryland Act (as defined below);
WHEREAS, the Trustees desire to establish a trust for the investment and reinvestment of funds
contributed thereto;
WHEREAS, the Trustees desire that the beneficial interest in the trust assets be divided into
transferable shares of beneficial interest, as hereinafter provided;
WHEREAS, the Trustees declare that all money and property contributed to the trust established
hereunder shall be held and managed in trust for the benefit of the holders, from time to time, of
the shares of beneficial interest issued hereunder and subject to the provisions hereof;
NOW, THEREFORE, in consideration of the foregoing premises and the agreements contained
herein, the undersigned, being all of the Trustees of the Trust, hereby direct that the Certificate
of Trust be filed with the State Department of Assessments and Taxation of Maryland and do hereby
declare as follows:
ARTICLE I
NAME AND DEFINITIONS
Section 1. Name. The name of the Trust created by this Agreement and Declaration of
Trust is “NETS Trust” and the Trustees shall conduct the business of the Trust under that name or
any other name as they may from time to time determine.
Section 2. Definitions. Unless otherwise provided or required by the context:
(a) “Administrator” or “Administrators” means the party or parties, other than
the Trust, to any contract described in Article III, Section 3 hereof.
(b) “By-laws” means the By-laws of the Trust adopted by the Trustees, as amended from
time to time, which By-laws are expressly herein incorporated by reference as part of the
“governing instrument” within the meaning of the Maryland Act; provided that in the event of a
conflict between the provisions of this Declaration and the By-laws, the provisions of this
Declaration shall control.
(c) “Certificate of Trust” means the certificate of trust of the Trust, as filed with
the SDAT (as defined below) in accordance with the Maryland Act, and as such certificate of trust
may be amended or amended and restated from time to time.
(d) “Class” means any class of Shares of a Series established pursuant to Article V.
(e) “Commission,” “Interested Person” and “Principal Underwriter” have
the meanings provided in the 1940 Act. Except as such term may be otherwise defined by the
Trustees in conjunction with the establishment of any Series of Shares, the term “vote of a
majority of the Shares outstanding and entitled to vote” or “Shares representing a majority
of the votes entitled to be cast” shall have the same meaning as is assigned to the term
“vote of a majority of the outstanding voting securities” in the 1940 Act (except as shall
be necessary to give effect to voting on a net asset basis in accordance with Article VII, Section
1).
(f) “Covered Person” means a person so defined in Article IV, Section 3.
(g) “Creation Unit” has the meaning set forth in Article V, Section 3.
(h) “Custodian” means any Person other than the Trust who has custody of any Trust
Property as required by Section 17(f) of the 1940 Act, but does not include a system for the
central handling of securities described in said Section 17(f).
(i) “Declaration” shall mean this Agreement and Declaration of Trust, as amended or
restated from time to time. Reference in this Agreement and Declaration of Trust to “Declaration,”
“hereof,” “herein,” and “hereunder” shall be deemed to refer to this Declaration rather than
exclusively to the article or section in which such words appear.
(j) “Distributor” means the party, other than the Trust, to the contract described in
Article III, Section 1 hereof.
(k) “His” shall include the feminine and neuter, as well as the masculine, genders.
(l) “Investment Adviser” or Investment Advisers” means the party or parties,
other than the Trust, to any contract described in Article III, Section 2 hereof.
(m) “Maryland Act” means Title 12 of the Corporations and Associations Article of the
Annotated Code of Maryland, as amended from time to time.
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(n) “Net Asset Value” means the net asset value of each Series of the Trust,
determined as provided in Article VI, Section 3.
(o) “Person” means natural persons, corporations, partnerships, limited partnerships,
limited liability companies, associations, joint ventures, trusts, estates and other individuals or
entities, and governments and agencies and political subdivisions, thereof, whether domestic or
foreign.
(p) “SDAT” means the State Department of Assessments and Taxation of Maryland.
(q) “Series” means a series of Shares established pursuant to Article V.
(r) “Shareholder” means a record owner of Outstanding Shares.
(s) “Shares” means the equal proportionate transferable units of interest into which
the beneficial interest of each Series or Class is divided from time to time (including whole
Shares and fractions of Shares). “Outstanding Shares” means Shares shown in the books of
the Trust or its transfer agent as then issued and outstanding, but does not include Shares which
have been repurchased, redeemed, cancelled or terminated by the Trust.
(t) “Transfer Agent” means any Person other than the Trust who maintains the
Shareholder records of the Trust, such as the list of Shareholders, the number of Shares credited
to each account, and the like.
(u) “Trust” means NETs Trust established under the Maryland Act by this Declaration
and the filing of the Certificate of Trust with the SDAT, and reference to the Trust, when
applicable to one or more Series, refers to such Series.
(v) “Trustees” means the person who has signed this Declaration, so long as he or she
shall continue in office in accordance with the terms hereof, and all other persons who may from
time to time be duly qualified and serving as Trustees in accordance with Article II, in all cases
in their capacities as Trustees hereunder.
(w) “Trust Property” means any and all property, real or personal, tangible or
intangible, which is owned or held by or for the account of the Trust or any Series or by the
Trustees on behalf of the Trust or any Series.
(x) The “1940 Act” means the Investment Company Act of 1940, as amended from time to
time.
Section 3. Nature and Purpose of Trust. The purpose of the Trust is to engage in,
operate and carry on the business of an open-end management investment company through one or more
Series, and to do any and all acts or things as are necessary, convenient, appropriate, incidental
or customary in connection therewith, both within and without the State of Maryland, and without
limiting the foregoing or the other provisions hereof, the Trust may exercise all
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powers conferred by the laws of the State of Maryland upon a Maryland business trust formed
pursuant to the Maryland Act.
Section 4. Principal Place of Business; Registered Agent. The principal place of
business of the Trust in the State of Maryland is 000 Xxxx Xxxxxxx Xxxxxx, Xxxxxxxxx, Xxxxxxxx
00000. Unless otherwise required by applicable law, the Trust shall at all times maintain at least
one resident agent who shall be either a citizen of the State of Maryland who resides in such State
or a Maryland corporation. The Trustees may change the principal place of business or such
resident agent of the Trust from time to time by making the appropriate filing or filings with the
SDAT.
ARTICLE II
THE TRUSTEES
Section 1. Management of the Trust. The business and affairs of the Trust shall be
managed by or under the direction of the Trustees, and they shall have all powers necessary or
desirable to carry out that responsibility. The Trustees may execute all instruments and take all
action they deem necessary or desirable to promote the interests of the Trust. Any determination
made by the Trustees in good faith as to what is in the interests of the Trust shall be conclusive.
In construing the provisions of this Declaration, the presumption shall be in favor of a grant of
power to the Trustees.
Section 2. Powers. The Trustees in all instances shall act as principals, free of the
control of the Shareholders. The Trustees shall have full power and authority to take or refrain
from taking any action and to execute any contracts and instruments that they may consider
necessary or desirable in the management of the Trust. The Trustees shall not in any way be bound
or limited by current or future laws or customs applicable to trust investments, but shall have
full power and authority to make any investments which they, in their sole discretion, deem proper
to accomplish the purposes of the Trust. The Trustees may exercise all of their powers without
recourse to any court or other authority. Subject to any applicable limitation herein or in the
By-laws or resolutions of the Trust, the Trustees shall have power and authority, without
limitation to, or to cause the Trust to:
(a) Operate as and carry on the business of an investment company, and exercise all the powers
necessary and appropriate to the conduct of such operations.
(b) Invest in, hold for investment, or reinvest in, cash, including foreign currencies;
securities, including common, preferred and preference stocks; warrants; subscription rights;
profit-sharing interests or participation and all other contracts for or evidence of equity
interests; bonds, debentures, bills, time notes and all other evidences of indebtedness; negotiable
or non-negotiable instruments; government securities, including securities of any state,
municipality or other political subdivision thereof, or any governmental or quasi-governmental
agency or instrumentality; and money market instruments including bank certificates of deposit,
finance paper, commercial paper, bankers’ acceptances and all kinds of repurchase agreements,
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of any corporation, company, trust, association, firm or other business organization however
established, and of any country, state, municipality or other political subdivision, or any
governmental or quasi-governmental agency or instrumentality; or any other security, foreign
currency, property or instrument in which the Trust or any of its Series shall be authorized to
invest.
(c) Acquire (by purchase, subscription or otherwise), to hold, to trade in and deal in, to
acquire any rights or options to purchase or sell, to sell or otherwise dispose of, to lend and to
pledge any such securities and foreign currencies to enter into repurchase agreements, reverse
repurchase agreements, firm commitment agreements and forward foreign currency exchange contracts,
to purchase and sell options on securities, securities indices, currencies and other financial
assets, futures contracts and options on futures contracts of all descriptions and to engage in all
other types of transactions in which the Trust or any of its Series shall be authorized to engage.
(d) Exercise all rights, powers and privileges of ownership or interest in all securities,
foreign currencies, repurchase agreements and other property and instruments included in the Trust
Property, including the right to vote thereon and otherwise act with respect thereto and to do all
acts for the preservation, protection, improvement and enhancement in value of all such securities,
foreign currencies and repurchase agreements.
(e) Acquire (by purchase, lease or otherwise) and to hold, use, maintain, develop and dispose
of (by sale or otherwise) any property, real or personal, including cash or foreign currency, and
any interest therein.
(f) Borrow money or other property in the name of the Trust or any of its Series exclusively
for Trust purposes and in this connection issue notes or other evidence of indebtedness; to secure
borrowings by mortgaging, pledging or otherwise subjecting as security the Trust Property; and to
endorse, guarantee, or undertake the performance of any obligation or engagement of any other
Person and to lend Trust Property.
(g) Aid by further investment any corporation, company, trust, association or firm, any
obligation of or interest in which is included in the Trust Property or in the affairs of which the
Trustees have any direct or indirect interest; to do all acts and things designed to protect,
preserve, improve or enhance the value of such obligation or interest; and to guarantee or become
surety on any or all of the contracts, stocks, bonds, notes, debentures and other obligations of
any such corporation, company, trust, association or firm.
(h) Adopt By-laws not inconsistent with this Declaration providing for the conduct of the
business of the Trust and to amend and repeal them to the extent such right is not reserved to the
Shareholders.
(i) Elect and remove such officers and appoint and terminate such agents as they deem
appropriate.
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(j) Employ as custodian of any assets of the Trust, subject to any provisions herein or in the
By-laws, one or more banks, trust companies or companies that are members of a national securities
exchange, or other entities permitted by the Commission to serve as such.
(k) Retain one or more transfer agents and shareholder servicing agents, or both.
(l) Provide for the distribution of Shares either through a Principal Underwriter as provided
herein or by the Trust itself, or both, or pursuant to a distribution plan of any kind and to adopt
on behalf of any Series or Class distribution, authorized dealer service, administration, service
or other plans providing for the compensation by such Series or Class for distribution,
administration, shareholder liaison or similar services.
(m) Set record dates in the manner provided for herein or in the By-laws.
(n) Delegate such authority as they consider desirable to any officers of the Trust and to any
agent, independent contractor, manager, investment adviser, custodian, underwriter or other Person.
(o) Hold any security or other property (i) in a form not indicating any trust, whether in
bearer, book entry, unregistered or other negotiable form, or (ii) either in the Trust’s or
Trustees’ own name or in the name of a custodian or a nominee or nominees, subject to safeguards
according to the usual practice of business trusts or investment companies.
(p) Establish separate and distinct Series with separately defined investment objectives and
policies and distinct investment purposes, and with separate Shares representing beneficial
interests in such Series, and to establish separate Classes, all in accordance with the provisions
of Article V.
(q) Allocate assets, liabilities and expenses of the Trust to a particular Series and assets,
liabilities and expenses to a particular Class or apportion the same between or among two or more
Series or Classes, to the full extent permitted by Section 12-501 of the Maryland Act, provided
that any liabilities or expenses incurred by a particular Series or Class shall be payable solely
out of the assets belonging to that Series or Class as provided for in Article V, Section 4.
(r) Consent to or participate in any plan for the reorganization, consolidation or merger of
any corporation or concern whose securities are held by the Trust; to consent to any contract,
lease, mortgage, purchase, or sale of property by such corporation or concern; and to pay calls or
subscriptions with respect to any security held in the Trust.
(s) 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.
(t) Make distributions of income, capital gains, returns of capital (if any) and redemption
proceeds to Shareholders in the manner hereinafter provided for.
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(u) Establish committees for such purposes, with such membership, and with such
responsibilities as the Trustees may consider proper.
(v) Issue, sell, repurchase, redeem, cancel, retire, acquire, hold, resell, reissue, dispose
of and otherwise deal in Shares; to establish terms and conditions regarding the issuance, sale,
repurchase, redemption, cancellation, retirement, acquisition, holding, resale, reissuance,
disposition of or dealing in Shares; and, subject to Articles V and VI, to apply to any such
repurchase, redemption, retirement, cancellation or acquisition of Shares any funds or property of
the Trust or of the particular Series or Class with respect to which such Shares are issued.
(w) Invest part or all of the Trust Property (or part or all of the assets of any Series), or
Dispose of part or all of the Trust Property (or part or all of the assets of any Series) and
invest the proceeds of such disposition, in interests issued by one or more other investment
companies or pooled portfolios (including investment by means of transfer of part or all of the
Trust Property in exchange for an interest or interests in such one or more investment companies or
pooled portfolios) all without any requirement of approval by Shareholders. Any such other
investment company or pooled portfolio may (but need not) be a trust (formed under the laws of any
state or jurisdiction) which is classified as a partnership for federal income tax purposes.
(x) Sell or exchange any or all of the assets of the Trust, subject to Article IX,
Section 4.
(y) Enter into joint ventures, partnerships and other combinations and associations.
(z) Join with other security holders in acting through a committee, depositary, voting trustee
or otherwise, and in that connection to deposit any security with, or transfer any security to, any
such committee, depositary or trustee, and to delegate to them such power and authority with
relation to any security (whether or not so deposited or transferred) as the Trustees shall deem
proper, and to agree to pay, and to pay, such portion of the expenses and compensation of such
committee, depositary or trustee as the Trustees shall deem proper.
(aa) Purchase and pay for entirely out of Trust Property such insurance as the Trustees may
deem necessary or appropriate for the conduct of the business, including, without limitation,
insurance policies insuring the assets of the Trust or payment of distributions and principal on
its portfolio investments, and, subject to applicable law and any restrictions set forth in the
By-laws, 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, including any action taken or omitted that may be
determined to constitute negligence, whether or not the Trust would have the power to indemnify
such Person against liability.
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(bb) Adopt, establish and carry out pension, profit-sharing, share bonus, share purchase,
savings, thrift and other retirement, incentive and benefit plans and trusts, 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.
(cc) Enter into contracts of any kind and description.
(dd) Interpret the investment policies, practices or limitations of any Series or Class.
(ee) Guarantee indebtedness and contractual obligations of others.
(ff) Take any other action that may be taken by a Board of Directors of a business corporation
organized under the laws of the State of Maryland.
(gg) 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 or any Series thereof to pay or to satisfy any debts, claims or
expenses incurred in connection therewith, including those of litigation, and such power shall
include without limitation the power of the Trustees or any appropriate committee thereof, in the
exercise of their or its good faith business judgment, to dismiss any action, suit, proceeding,
dispute, claim or demand, derivative or otherwise, brought by any person, including a Shareholder
in its own name or 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.
(hh) Carry on any other business in connection with or incidental to any of the foregoing
powers, to do everything necessary or desirable to accomplish any purpose or to further any of the
foregoing powers, and to take every other action incidental to the foregoing business or purposes,
objects or powers.
The clauses above shall be construed as objects and powers, and the enumeration of specific
powers shall not limit in any way the general powers of the Trustees. Any action by one or more of
the Trustees in their capacity as such hereunder shall be deemed an action on behalf of the Trust
or the applicable Series, and not an action in an individual capacity. No one dealing with the
Trustees shall be under any obligation to make any inquiry concerning the authority of the
Trustees, or to see to the application of any payments made or property transferred to the Trustees
or upon their order. In construing this Declaration, the presumption shall be in favor of a grant
of power to the Trustees.
Section 3. Certain Transactions. Except as prohibited by applicable law, the Trustees
may, on behalf of the Trust, cause the Trust to buy any securities from or sell any securities to,
or lend any assets of the Trust to, any Trustee or officer of the Trust or any firm of which any
such Trustee or officer is a member acting as principal, or have any such dealings with any
investment adviser, administrator, distributor or transfer agent for the Trust or with any
Interested Person of such person. The Trust may employ any such person or entity in which such
person is an
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Interested Person, as broker, legal counsel, registrar, investment adviser, administrator,
distributor, transfer agent, dividend disbursing agent, custodian or in any other capacity upon
customary terms.
Section 4. Initial Trustees; Election and Number of Trustees. The initial Trustees
shall be the persons initially signing this Declaration. The number of Trustees (other than the
initial Trustees) shall be fixed from time to time by a majority of the Trustees; provided, that
there shall be at least one (1) Trustee. The Trustee (other than the initial Trustees) shall be
appointed by the Trustees pursuant to Section 6 of this Article II, provided that the Trustees
shall be elected by the Shareholders as and to the extent required under the 1940 Act on such dates
as the Trustees may fix from time to time. The Trustees are sometimes referred to in this
Declaration as the “Board of Trustees.”
Section 5. Term of Office of Trustees. Each Trustee shall hold office for life (or
until the attainment of any mandatory retirement age or term limits established by a majority of
the Trustees) or until his successor is elected and qualifies or the Trust terminates; except that
(a) any Trustee may resign by delivering to the other Trustees or to any Trust officer a written
resignation effective upon such delivery or a later date specified therein; (b) any Trustee may be
removed with or without cause at any time by a written instrument signed by at least a majority of
the then Trustees, specifying the effective date of removal; (c) any Trustee who requests to be
retired, or who is declared bankrupt or has become physically or mentally incapacitated or is
otherwise unable to serve, may be retired either by a written instrument signed by a majority of
the other Trustees or in accordance with a By-law or other action approved by a majority of the
other Trustees, in each case, specifying the effective date of retirement; and (d) any Trustee may
be removed at any meeting of the Shareholders by a vote of at least two-thirds of the Outstanding
Shares.
Section 6. Vacancies; Appointment of Trustees. Whenever a vacancy shall exist in the
Board of Trustees, regardless of the reason for such vacancy, the remaining Trustees may appoint
any person as they determine in their sole discretion to fill that vacancy, consistent with the
limitations under the 1940 Act, unless the remaining Trustees determine to decrease the size of the
Board to the number of remaining Trustees. Such appointment shall be made by a written instrument
signed by a majority of the Trustees or by a resolution of the Trustees, duly adopted and recorded
in the records of the Trust, specifying the effective date of the appointment. The Trustees may
appoint a new Trustee as provided above in anticipation of a vacancy expected to occur because of
the retirement, resignation or removal of a Trustee, or an increase in number of Trustees, provided
that such appointment shall become effective only at or after the expected vacancy occurs. Upon
acceptance of his appointment, the trust estate shall vest in the new Trustee, together with the
continuing Trustees, without any further act or conveyance, and he shall be deemed a Trustee
hereunder. The Trustees’ power of appointment is subject to Section 16 of the 1940 Act. Whenever
a vacancy in the number of Trustees shall occur, until such vacancy is filled as provided in this
Article II, the Trustees in office, regardless of their number, shall have all the powers granted
to the Trustees and shall discharge all the duties imposed upon the Trustees by the Declaration.
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Section 7. Temporary Vacancy or Absence. Whenever a vacancy in the Board of Trustees
shall occur, until such vacancy is filled, or while any Trustee is absent from his domicile (unless
that Trustee has made arrangements to be informed about, and to participate in, the affairs of the
Trust during such absence), or is physically or mentally incapacitated, the remaining Trustees
shall have all the powers hereunder and their certificate as to such vacancy, absence, or
incapacity shall be conclusive. Any Trustee may, by power of attorney, delegate his powers as
Trustee for a period not exceeding six (6) months at any one time to any other Trustee or Trustees.
Section 8. Chairman. The Trustees may, but need not, appoint from among their number
a Chairman. When present he may preside at the meetings of the Shareholders and of the Trustees.
He may call meetings of the Trustees and of any committee thereof whenever he deems it necessary.
The Chairman shall have such other powers and duties as from time to time may be conferred upon or
assigned to him by this Declaration, the By-laws or the Trustees, but shall not by reason of
performing and executing those powers and duties be deemed an officer or employee of the Trust.
Section 9. Action by the Trustees. Except as otherwise provided by law or as provided
herein with respect to action taken by any Trustee or Trustees or committee pursuant to delegation
by a majority vote of the Trustees, the Trustees shall act by majority vote at a meeting duly
called at which a quorum is present, including a meeting held by conference telephone,
teleconference or other electronic media or communication equipment by means of which all persons
participating in the meeting can communicate with each other; or by written consent of a majority
of Trustees (or such greater number as may be required by applicable law) without a meeting. A
quorum for all meetings of the Trustees shall be one-third, but not less than two, of the Trustees
in office. If there is only one Trustee in office, the quorum shall be one. Meetings of the
Trustees may be called orally or in writing by the President or by any one of the Trustees. Notice
of the time, date and place of all Trustees’ meetings shall be given to each Trustee as set forth
in the By-laws. In the absence of a quorum, a majority of the Trustees present may adjourn the
meeting from time to time until a quorum shall be present. Notice of an adjourned meeting need not
be given. Subject to applicable law, the Trustees by majority vote may delegate to any Trustee or
Trustees or committee (which may, in addition to or in lieu of Trustees, include officers of the
Trust) authority to approve particular matters or take any particular actions on behalf of the
Trust including action for and binding upon the Trustees and the Trust with respect to the
institution, prosecution, dismissal, settlement, review or investigation of any legal action, suit
or proceeding pending or threatened. Approval of any particular matter or the taking of any
particular action on behalf of the Trust pursuant to any such delegation shall be taken by a
majority of the Trustees or committee to whom the authority is delegated (unless a single Trustee
is delegated to act with respect thereto or unless the Trustees in delegating such responsibility
shall specify a different standard or a different standard is otherwise required by applicable
law). Any written consent or waiver may be provided and delivered to the Trust by facsimile or
other electronic transmission.
Section 10. Ownership of Trust Property. The Trust Property of the Trust and of each
Series shall be held separate and apart from any assets now or hereafter held in any capacity other
than as Trustee hereunder by the Trustees or any successor Trustees. Legal title in and
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beneficial ownership of all of the assets of the Trust shall at all times be vested in the Trust, except
that the Trustees may cause legal title in and beneficial ownership of any Trust Property to be
held by, or in the name of one or more of the Trustees acting for and on behalf of the Trust, or in
the name of any person as nominee acting for and on behalf of the Trust. No Shareholder shall be
deemed to have a severable ownership in any individual asset of the Trust or of any Series or any
right of partition or possession thereof, but each Shareholder shall have, as provided in Article
V, a proportionate undivided beneficial interest in the Trust or Series or Class thereof
represented by Shares. The Shares shall be personal property giving only the rights specifically
set forth in this Declaration. The Trust, or at the determination of the Trustees one or more of
the Trustees or a nominee acting for and on behalf of the Trust, shall be deemed to hold legal
title and beneficial ownership of any income earned on securities of the Trust issued by any
business entities formed, organized, or existing, under the laws of any jurisdiction, including the
laws of any foreign country. Upon the resignation or removal of a Trustee, or his otherwise
ceasing to be a Trustee (other than as a result of his death or incapacity), he shall execute and
deliver such documents as the remaining Trustees shall require for the purpose of conveying to the
Trust or the remaining Trustees any Trust Property held in the name of the resigning or removed
Trustee. Upon the incapacity or death of any Trustee, his legal representative shall execute and
deliver on his behalf such documents as the remaining Trustees shall require as provided in the
preceding sentence.
Section 11. Effect of Trustees Not Serving. The death, resignation, retirement,
removal, incapacity or inability or refusal to serve of the Trustees, or any one or more or all of
them, shall not operate to annul the Trust or to revoke any existing agency created pursuant to the
terms of this Declaration.
Section 12. Trustees, etc. as Shareholders. Subject to any restrictions in the
By-laws, any Trustee, officer, agent or independent contractor of the Trust may acquire, own and
dispose of Shares to the same extent as any other Shareholder; and the Trustees may issue and sell
Shares to and buy Shares from any such person or any firm or company in which such person is
interested, subject only to any general limitations herein.
Section 13. Series of Trustees. In connection with the establishment of one or more
Series or Classes, the Trustees establishing such Series or Class may appoint, to the extent
permitted by the Maryland Act, separate Trustees with respect to such Series or Classes (the
“Series Trustees”). To the extent provided by the Trustees in the appointment of Series Trustees,
the Series Trustees: (a) may, but are not required to, serve as Trustees of the Trust or any other
Series or Class of the Trust; (b) may have, to the exclusion of any other Trustee of the Trust, all
the powers and authorities of Trustees hereunder with respect to such Series or Class, including,
without limitation, the power to appoint additional or successor Series Trustees; and/or (c) may
have no power or authority with respect to any other Series or Class. Any provision of this
Declaration relating to election of Trustees by Shareholders only shall entitle the Shareholders of
a Series or Class for which Series Trustees have been appointed to vote with respect to the
election of such Series Trustees and the Shareholders of any other Series or Class shall not be
entitled to participate in such vote. In the event that Series Trustees are appointed, the
Trustees initially appointing such Series Trustees shall, without the approval of any Outstanding
Shares, amend either the Declaration or the By-laws to provide for the respective rights, duties,
powers,
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authorities and responsibilities of the Trustees and the Series Trustees in circumstances
where an
action of the Trustees or Series Trustees affects all Series of the Trust or two or more
Series represented by different Trustees.
ARTICLE III
CONTRACTS WITH SERVICE PROVIDERS
Section 1. Underwriting Contract. The Trustees may in their discretion from time to
time approve an exclusive or non-exclusive distribution contract or contracts providing for the
sale of the Shares whereby the Trust may either agree to sell the Shares to the other party to the
contract or appoint such other party as the Trust’s sales agent for the Shares, and in either case
on such terms and conditions, if any, as may be prescribed in the By-laws, and such further terms
and conditions as the Trustees may in their discretion determine not inconsistent with the
provisions of this Article III or of the By-laws; and such contract may also provide for the
repurchase of the Shares by such other party as agent of the Trust.
Section 2. Advisory or Management Contract. The Trustees may in their discretion from
time to time approve one or more investment advisory or management contracts or, if the Trustees
establish multiple Series, separate investment advisory or management contracts with respect to one
or more Series whereby the other party or parties to any such contracts shall undertake to furnish
the Trust or such Series management, investment advisory, administration, accounting, legal,
statistical and research facilities and services, promotional or marketing activities, and such
other facilities and services, if any, as the Trustees shall from time to time consider desirable
and all upon such terms and conditions as the Trustees may in their discretion determine.
Notwithstanding any provisions of the Declaration, the Trustees may authorize the Investment
Advisers or persons to whom the Investment Advisers delegate certain or all of their duties, or any
of them, under any such contracts (subject to such general or specific instructions as the Trustees
may from time to time adopt), including duties relating to purchases, sales, loans or exchanges of
portfolio securities and other investments of the Trust or may authorize any officer, employee or
Trustee to effect such duties, including those relating to purchases, sales, loans or exchanges
pursuant to recommendations of such Investment Advisers, or any of them (and all without further
action by the Trustees). Any such purchases, sales, loans and exchanges shall be deemed to have
been authorized by all of the Trustees.
Section 3. Administration Agreement. The Trustees may in their discretion from time to
time approve an administration agreement or, if the Trustees establish multiple Series or Classes,
separate administration agreements with respect to each Series or Class, whereby the other party or
parties to such agreement shall undertake to manage the business affairs of the Trust or of a
Series or Class thereof of the Trust and furnish the Trust or a Series or a Class thereof with
office facilities, and shall be responsible for the ordinary clerical, bookkeeping and
recordkeeping services at such office facilities, and other facilities and services, if any, and
all upon such terms and conditions as the Trustees may in their discretion determine.
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Section 4. Service Agreements. The Trustees may in their discretion from time to time
approve service agreements with respect to one or more Series or Classes of Shares whereby
the other parties to such service agreements will provide or arrange for the provision of
distribution, administration and/or support services pursuant to distribution, authorized dealer
service, administration, service or similar plans, including without limitation plans subject to
Rule 12b-1 under the 1940 Act, and all upon such terms and conditions as the Trustees in their
discretion may determine.
Section 5. Transfer Agent. The Trustees may in their discretion from time to time
approve one or more transfer agency and shareholder service contracts whereby the other party to
such contracts shall undertake to furnish transfer agency and shareholder services to the Trust or
one or more Classes of Shares. The contracts shall have such terms and conditions as the Trustees
may in their discretion determine not inconsistent with the Declaration. Such services may be
provided by one or more Persons.
Section 6. Custodian. The Trustees may appoint or otherwise engage one or more banks
or trust companies, or any other entity, to serve as Custodian with authority as the Trust’s agent,
but subject to such restrictions, limitations and other requirements, if any, as may be contained
in the By-laws of the Trust. The Trustees may also authorize the Custodian to employ one or more
sub-custodians, including such foreign banks and securities depositories, upon such terms and
conditions as may be agreed upon between the Custodian and such sub-custodian, to hold securities
and other assets of the Trust and to perform the acts and services of the Custodian, subject to
applicable provisions of law and resolutions adopted by the Trustees.
Section 7. Other Contracts. Subject to compliance with the provisions of the 1940
Act, but notwithstanding any limitations of present and future law or custom in regard to
delegation of powers by trustees generally, the Trustees may, at any time and from time to time and
without limiting the generality of their powers and authority otherwise set forth herein, approve
other contracts with any one or more corporations, trusts, associations, partnerships, limited
partnerships, other type of organizations, or individuals to provide for the performance and
assumption of such other services, duties and responsibilities in addition to those set forth above
as the Trustees may determine to be appropriate.
Section 8. Affiliations of Trustees or Officers, Etc. The fact that:
(i) any of the Shareholders, Trustees or officers of the Trust or any Series thereof is
a shareholder, director, officer, partner, trustee, employee, manager, adviser or
distributor of or for any partnership, corporation, trust, association or other organization
or of or for any parent or affiliate of any organization, with which a contract of the
character described in Sections 1, 2, 3, or 4 of this Article III, or for services as
Custodian, Transfer Agent, disbursing agent or for any other services approved by the
Trustees with respect to any Series or Class may have been or may hereafter be made, or that
any such organization, or any parent or affiliate thereof, is a Shareholder of or has an
interest in the Trust, or that
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(ii) any partnership, corporation, trust, association or other organization with which
a contract of the character described in Sections 1, 2, 3 or 4 of this Article III or for
services as Custodian, Transfer Agent or disbursing agent or for any
other services approved by the Trustees with respect to any Series or Class may have
been or may hereafter be made also has any one or more of such contracts with one or more
other partnerships, corporations, trusts, associations or other organizations, or has other
business or interests,
shall not affect the validity of any such contract or disqualify any Shareholder, Trustee or
officer of the Trust from voting upon or executing the same or create any liability or
accountability to the Trust or its Shareholders.
ARTICLE IV
COMPENSATION, LIMITATION OF LIABILITY AND INDEMNIFICATION
Section 1. Compensation. The Trustees as such shall be entitled to reasonable
compensation from the Trust, and they may fix the amount of such compensation. Nothing herein
shall in any way prevent the employment of any Trustee for advisory, management, legal, accounting,
investment banking or other services and payment for the same by the Trust.
Section 2. Limitation of Liability.
(a) No Liability to Third Parties. A Trustee, when acting in such capacity, shall not
be personally liable to any Person other than the Trust or a Shareholder of the Trust for any act,
omission or obligation of the Trust or any Trustee. All persons contracting with or having any
claim against the Trust or a particular Series shall look only to the assets of the Trust or such
particular Series for payment under such contract or claim; and neither the Trustees nor, when
acting in such capacity, any of the Trust’s officers, employees or agents, whether past, present or
future, shall be personally liable therefor.
(b) Limitation of Liability to Trust and Shareholders. Subject to applicable federal
law, no person who is or has been a trustee or officer of the Trust shall be liable to the Trust or
to any Shareholder for money damages except for liability resulting from (i) actual receipt of an
improper benefit or profit in money, property or services or (ii) active and deliberate dishonesty
established by a final judgment and which is material to the cause of action.
(c) No Liability for Acts of Others. Without limiting the foregoing limitations of
liability contained in this Section 2, the Trustees and officers of the Trust shall not be
responsible or liable for any act or omission or for neglect or wrongdoing of any officer, agent,
employee, investment adviser or independent contractor of the Trust, or of any other Person, but
nothing contained in this Declaration or in the Maryland Act shall protect any Trustee or officer
of the Trust against liability to the Trust or to Shareholders to which he would
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otherwise be
subject by reason of willful misfeasance, bad faith, gross negligence or reckless disregard of the
duties involved in the conduct of his office.
Section 3. Indemnification. (a) Subject to subsection (b) below:
(i) every person who is, or has been, a Trustee or an officer of the Trust or any
Series (including any individual who serves at its request as director, officer,
partner, trustee or the like of another organization in which it has any interest as
a shareholder, creditor or otherwise) and such person’s heirs, executors,
administrators and other legal representatives (“Covered Person”) shall be
indemnified by the Trust or the appropriate Series to the fullest extent permitted
by law against liability and against all expenses reasonably incurred or paid by him
in connection with any claim, action, suit or proceeding in which he becomes
involved as a party or otherwise by virtue of his being or having been a Covered
Person and against amounts paid or incurred by him in the settlement thereof; and
(ii) as used herein, the words “claim,” “action,” “suit,” or “proceeding” shall
apply to all claims, actions, suits, investigations, regulatory inquiries or
proceedings (civil, criminal or other, including appeals before any court or
administrative or legislative body), actual or threatened, and the words “liability”
and “expenses” shall include, without limitation, reasonable attorneys’ fees, costs,
judgments, amounts paid in settlement, fines, penalties and other liabilities.
(b) No indemnification shall be provided hereunder to a Covered Person to the extent such
indemnification is prohibited by applicable law.
(c) The rights of indemnification herein provided may be insured against by policies
maintained by the Trust, shall be severable, shall not be exclusive of or affect any other rights
to which any Covered Person may now or hereafter be entitled, and shall inure to the benefit of the
heirs, executors and administrators of a Covered Person.
(d) To the maximum extent permitted by applicable law, expenses in connection with the
preparation and presentation of a defense to any claim, action, suit or proceeding of the character
described in subsection (a) of this Section may be paid by the Trust or applicable Series from time
to time prior to final disposition thereof.
(e) Any repeal or modification of this Article IV by the Shareholders, or adoption or
modification of any other provision of the Declaration or By-laws inconsistent with this Article,
shall be prospective only, to the extent that such repeal, or modification would, if applied
retrospectively, adversely affect any limitation on the liability of any Covered Person or
indemnification available to any Covered Person with respect to any act or omission which occurred
prior to such repeal, modification or adoption.
(f) The right of indemnification provided by this Section 3 shall not be exclusive of or
affect any other rights to which any Covered Person may be entitled.
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Section 4. Indemnification of Shareholders. If any Shareholder or former Shareholder
of any Series shall be held personally liable solely by reason of his being or having been a
Shareholder and not because of his acts or omissions or for some other reason, the Shareholder or
former Shareholder (or his heirs, executors, administrators or other legal representatives or in
the case of any entity, its general successor) shall be entitled to be held harmless from and
indemnified
against all loss and expense arising from such liability out of the assets belonging to the
applicable Series whose Shares were held by such Shareholder at the time the act or event occurred
and to which the liability against the Shareholder relates. The Trust, on behalf of the affected
Series, shall, upon request by such Shareholder, assume the defense of any claim made against such
Shareholder for any act or obligation of the Series and satisfy any judgment thereon from the
assets of such Series.
Section 5. No Bond Required of Trustees. No Trustee shall be obligated to give any
bond or other security for the performance of any of his duties hereunder.
Section 6. No Duty of Investigation, Notice in Trust Instruments, Etc. No purchaser,
lender, transfer agent or other Person dealing with the Trustees or any officer, employee or agent
of the Trust or a Series thereof shall be bound to make any inquiry concerning the validity of any
transaction purporting to be made by the Trustees or by said officer, employee or agent or be
liable for the application of money or property paid, loaned, or delivered to or on the order of
the Trustees or of said officer, employee or agent. Every obligation, contract, instrument,
certificate, Share, other security of the Trust or a Series thereof or undertaking, and every other
act or thing whatsoever executed in connection with the Trust shall be conclusively presumed to
have been executed or done by the executors thereof only in their capacity as Trustees under this
Declaration or in their capacity as officers, employees or agents of the Trust or a Series thereof.
Every written obligation, contract, instrument, certificate, Share, other security of the Trust or
a Series or Class thereof or undertaking made or issued by the Trustees may recite that the same is
executed or made by them not individually, but as Trustees under the Declaration, and that the
obligations of the Trust or a Series or Class thereof under any such instrument are not binding
upon any of the Trustees, officers or Shareholders individually, but bind only the Trust Property
or the Trust Property of the applicable Series or Class, and may contain any further recital which
they may deem appropriate, but the omission of such recital shall not operate to bind the Trustees,
officers or Shareholders individually. The Trustees may maintain insurance for the protection of
the Trust Property or the Trust Property of the applicable Series, its Shareholders, Trustees,
officers, employees and agents in such amount as the Trustees, officers or Shareholders shall deem
adequate to cover possible tort liability, and such other insurance as the Trustees in their sole
judgment shall deem advisable and as required by the 1940 Act.
Section 7. Reliance on Experts, Etc. Each Trustee, officer or employee of the Trust
or a Series thereof shall, in the performance of his duties, powers and discretion hereunder be
fully and completely justified and protected with regard to any act or any failure to act resulting
from reliance in good faith upon the books of account or other records of the Trust or a Series or
Class thereof, upon an opinion of counsel, or upon reports made to the Trust or a Series or Class
thereof by any of its officers or employees or by the Investment Adviser, the Administrator, the
Distributor, Transfer Agent, selected dealers, accountants, appraisers or other experts or
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consultants selected with reasonable care by the Trustees, officers or employees of the Trust,
regardless of whether such counsel or other Person may also be a Trustee.
Section 8. No Accounting. Except to the extent required by the 1940 Act, or by the
other Trustees if determined by them to be necessary or appropriate under circumstances which would
justify his removal for cause, no person ceasing to be a Trustee for reasons including, but
not limited to, death, resignation, retirement, removal or incapacity (nor the estate of any
such person) shall be required to make an accounting to the Shareholders or remaining Trustees upon
such cessation.
ARTICLE V
SERIES; CLASSES, SHARES
Section 1. Establishment of Series or Class. The Trust shall consist of one or more
Series and Classes listed on Schedule A hereto and separate and distinct records shall be
maintained by the Trust for each Series and Class. The Trustees shall have full power and
authority, in their sole discretion, and without obtaining any prior authorization or vote of the
Shareholders of any Series or Class of the Trust, to establish and designate and to change in any
manner any initial or additional Series or Classes and to fix such preferences, voting powers,
rights and privileges of such Series or Classes as the Trustees may from time to time determine, to
divide or combine the Shares or any Series or Classes into a greater or lesser number, to classify
or reclassify any issued Shares or any Series or Classes into one or more Series or Classes of
Shares, and to take such other action with respect to the Shares as the Trustees may deem
desirable. Unless another time is specified by the Trustees, the establishment and designation of
any Series or Class shall be effective upon the adoption of a resolution by the Trustees setting
forth such establishment and designation and the preferences, powers, rights and privileges of the
Shares of such Series or Class, whether directly in such resolution or by reference to, or approval
of, another document that sets forth such relative rights and preferences of such Series or Class
including, without limitation, any registration statement of the Trust, or as otherwise provided in
such resolution. The Trust may issue any number of Shares of each Series or Class and need not
issue certificates for any Shares.
All references to Shares in this Declaration shall be deemed to be Shares of any or all Series
or Classes as the context may require. All provisions herein relating to the Trust shall apply
equally to each Series and Class of the Trust except as the context otherwise requires.
All Shares of each Class of a particular Series shall represent an equal proportionate
interest in the assets belonging to that Series (subject to the liabilities belonging to the
Series, and, in the case of each Class, to the liabilities belonging to that Class), and each Share
of any Class of a particular Series shall be equal to each other Share of that Class; but the
provisions of this sentence shall not restrict any distinctions permissible under this Section 1.
Section 2. Shares. The beneficial interest in the Trust shall be divided into
transferable Shares of one or more separate and distinct Series or Classes established by the
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Trustees. The number of Shares of each Series and Class is unlimited and each Share shall have
$.0001 par value per Share or such other amount as the Trustees may establish. All Shares issued
hereunder shall be fully paid and nonassessable. Shareholders shall have no preemptive or other
right to subscribe to any additional Shares or other securities issued by the Trust. The Trustees
shall have full power and authority, in their sole discretion and without obtaining Shareholder
approval, to issue original or additional Shares at such times and on such terms and conditions
and for such consideration as they deem appropriate; to issue fractional Shares; to establish
and to change in any manner Shares of any Series or Classes with such preferences, terms of
conversion, voting powers, rights and privileges as the Trustees may determine; to divide or
combine the Shares of any Series or Classes into a greater or lesser number; to classify or
reclassify any unissued Shares of any Series or Classes into one or more Series or Classes of
Shares; to abolish any one or more Series or Classes of Shares; to issue Shares to acquire other
assets (including assets subject to, and in connection with, the assumption of liabilities) and
businesses; and to take such other action with respect to the Shares as the Trustees may deem
desirable.
Section 3. Investment in the Trust. Subject to applicable law, the Trustees shall
accept investments in any Series or Class from such persons and on such terms as they may from time
to time authorize. Without limiting the generality of the foregoing, at the Trustees’ discretion,
such investments may be in the form of cash or securities in which that Series is authorized to
invest, valued as provided in Article VI, Section 3. The Shares of any Series, if the Trustees so
determine, shall be issued only in aggregations of such number of those Shares (each, a “Creation
Unit”) and on such days as the Trustees determine or as determined pursuant to procedures or
methods the Trustees prescribe or approve from time to time with respect to such Series; a Series
will not issue fractional Creation Units. The Trustees shall have the unrestricted power to alter
the number of Shares constituting a Creation Unit by resolution adopted by them, at any time.
Investment in a Series shall be credited to the investing Shareholder’s account in the form of full
(and, unless the Shareholder is purchasing a Creation Unit, fractional) Shares at the Net Asset
Value per Share next determined after the investment is received or accepted, as the Trustees
determine; provided that the Trustees may, in their sole discretion, (a) impose a sales charge,
transaction fee, or other fee in connection with the sale of, or purchase price adjustment upon
investments in, Shares of any Series or Class, (b) issue fractional Shares, (c) determine the Net
Asset Value per Share of the initial capital contribution or (d) authorize the issuance of Shares
at a price other than Net Asset Value to the extent permitted by the 1940 Act or any rule, order or
interpretation of the Commission thereunder for any Series. The Trustees shall have the right to
refuse to accept investments in any Series at any time without any cause or reason therefore
whatsoever.
Section 4. Assets and Liabilities of Series. All consideration received by the Trust
for the issue or sale of Shares of a particular Series or Class, together with all assets in which
such consideration is invested or reinvested, all income, earnings, profits, and proceeds thereof
(including any proceeds derived from the sale, exchange or liquidation of such assets, and any
funds or payments derived from any reinvestment of such proceeds in whatever form the same may be),
shall be held and accounted for separately from the assets of every other Series and the Trust
generally and are referred to as “assets belonging to” that Series. The assets belonging to a
Series shall belong only to that Series for all purposes, and to no other Series, subject only to
the
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rights of creditors of that Series. Any assets, income, earnings, profits, and proceeds
thereof, funds, or payments which are not readily identifiable as belonging to any particular
Series shall be allocated by the Trustees between and among one or more Series as the Trustees deem
fair and equitable. Each such allocation shall be conclusive and binding upon the Shareholders of
all Series for all purposes, and such assets, earnings, income, profits or funds, or payments and
proceeds thereof shall be referred to as assets belonging to that Series. The assets belonging to
a Series shall be so recorded upon the books of such Series in a manner that is separate and
distinct
from the records of any other Series of the Trust generally and such assets shall be held by
the Trustees in trust for the benefit of the Shareholders of that Series. The assets belonging to
a Series shall be charged with the liabilities of that Series and all expenses, costs, charges and
reserves attributable to that Series, except that liabilities, expenses, costs, charges and
reserves allocated by the Trustees solely to a particular Class shall be borne by that Class. Any
general liabilities, expenses, costs, charges or reserves of the Trust which are not readily
identifiable as belonging to any particular Series or Class shall be allocated and charged by the
Trustees between or among any one or more of the Series or Classes in such manner as the Trustees
deem fair and equitable. Each such allocation shall be conclusive and binding upon the
Shareholders of all Series and Classes for all purposes.
Without limiting the foregoing, but subject to the right of the Trustees to allocate general
liabilities, expenses, costs, charges or reserves as herein provided, the debts, liabilities,
obligations and expenses incurred, contracted for or otherwise existing with respect to a
particular Series shall be enforceable against the assets of such Series only, and not against the
assets of the Trust generally, including the assets of any other Series. Notice of this
contractual limitation on liabilities among Series shall be set forth in the certificate of trust
of the Trust (whether originally or by amendment) as filed or to be filed with the SDAT pursuant to
the Maryland Act, and upon the giving of such notice in the certificate of trust, the provisions
relating to limitations on liabilities among Series shall become applicable to the Trust and each
Series. Any person extending credit to, contracting with or having any claim against any Series
may look only to the assets of that Series to satisfy or enforce any debt, with respect to that
Series. No Shareholder or former Shareholder of any Series shall have a claim on or any right to
any assets allocated or belonging to any other Series.
Section 5. Ownership and Transfer of Shares. The Trust or a transfer or similar agent
for the Trust shall maintain a register containing the names and addresses of the Shareholders of
each Series and Class thereof, the number of Shares of each Series and Class held by such
Shareholders, and a record of all Share transfers. The register shall be conclusive as to the
identity of Shareholders of record and the number of Shares held by them from time to time. The
Trustees may authorize the issuance of certificates representing Shares and adopt rules governing
their use. The Trustees may make rules governing the transfer of Shares, whether or not
represented by certificates. Except as otherwise provided by the Trustees, Shares shall be
transferable on the books of the Trust only by the record holder thereof or by his duly authorized
agent upon delivery to the Trustees or the Trust’s Transfer Agent of a duly executed instrument of
transfer, together with a Share certificate if one is outstanding, and such evidence or the
genuineness of each such execution and authorization and of such other matters as may be required
by the Trustees. Upon such delivery, and subject to any further requirements specified by the
Trustees or contained in the By-laws, the transfer shall be recorded on the books of the
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Trust.
Until a transfer is so recorded, the Shareholder of record of Shares shall be deemed to be the
holder of such Shares for all purposes hereunder and neither the Trustees nor the Trust, nor any
transfer agent or registrar or any officer, employee or agent of the Trust, shall be affected by
any notice of a proposed transfer.
Section 6. Status of Shares; Limitation of Shareholder Liability. Shares shall be
deemed to be personal property giving Shareholders only the rights provided in this Declaration.
Every Shareholder, by virtue of having acquired a Share, shall be held expressly to have
assented to and agreed to be bound by the terms of this Declaration and the By-laws. No
Shareholder shall be personally liable for the debts, liabilities, obligations and expenses
incurred by, contracted for, or otherwise existing with respect to, the Trust or any Series solely
by reason of being a shareholder. The death, incapacity, dissolution, termination or bankruptcy of
a Shareholder during the existence of the Trust shall not operate to terminate the Trust, nor
entitle the representative of any such Shareholder to an accounting or to take any action in court
or elsewhere against the Trust or the Trustees, but entitles such representative only to the rights
of such Shareholder under this Trust. Ownership of Shares shall not entitle the Shareholder to any
title in or to the whole or any part of the Trust Property or right to call for a partition or
division of the same or for an accounting, nor shall the ownership of Shares constitute the
Shareholders as partners. Neither the Trust nor the Trustees shall have any power to bind any
Shareholder personally or to demand payment from any Shareholder for anything, other than as agreed
by the Shareholder. Shareholders shall have the same limitation of personal liability as is
extended to shareholders of a corporation incorporated in the State of Maryland.
ARTICLE VI
DISTRIBUTIONS AND REDEMPTIONS
Section 1. Distributions. The Trustees or a committee of one or more Trustees and/or
one or more officers may authorize and cause the Trust to declare and pay dividends and other
distributions, including dividends on Shares of a particular Series and other distributions from
the assets belonging to that Series. No dividend or distribution, including, without limitation,
any distribution paid upon termination of the Trust or of any Series (or Class) with respect to,
nor any redemption or repurchase of, the Shares of any Series (or Class) shall be effected by the
Trust other than from the assets held with respect to such Series, nor shall any Shareholder of any
particular Series otherwise have any right or claim against the assets held with respect to any
other Series except to the extent that such Shareholder has such a right or claim hereunder as a
Shareholder of such other Series. The Trustees shall have full discretion to determine which items
shall be treated as income and which items as capital; and each such determination and allocation
shall be conclusive and binding upon the Shareholders. The amount and payment of dividends or
distributions and their form, whether they are in cash, Shares or other Trust Property, shall be
determined by the Trustees. Dividends and other distributions may be paid pursuant to a standing
resolution adopted once or more often as the Trustees determine. All dividends and other
distributions on Shares of a particular Class shall be distributed pro rata to the Shareholders of
that Class in proportion to the number of Shares of that Class they held on the record date
established for such payment, except that in connection
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with any dividend or distribution program
or procedure the Trustees may determine that no dividend or distribution shall be payable on Shares
as to which the Shareholder’s purchase order and/or payment in the prescribed form has not been
received by the time or times established by the Trustees under such program or procedure. The
Trustees may adopt and offer to Shareholders such dividend reinvestment plans, cash dividend payout
plans or similar plans as the Trustees deem appropriate.
Section 2. Redemptions. Each holder of Shares in the form of Creation Unit(s) , on
request to the Trust in accordance with procedures the Trustees establish, shall be entitled to
require the Trust to redeem all or any number of such holder’s Shares standing in the holder’s name
on the Trust’s books (but only in full Creation Units in the case of any Series as to which the
Trustees have determined that its Shares shall be redeemable only in full Creation Units), at a
redemption price per share equal to an amount determined by the Trustees in accordance with
applicable laws. The Trustees may specify conditions, prices (based on the Net Asset Value per
Share next determined after receipt of a proper order therefore), and places of redemption, binding
requirements for the proper form or forms of requests for redemption, and the amount of any
deferred sales charge to be withheld from redemption proceeds. Payment of the redemption price may
be wholly or partly made in cash and/or securities or other assets at their value used in
determining the Net Asset Value per Share on which such redemption price is based. After
redemption, Shares may be reissued from time to time. The Trustees may require Shareholders to
redeem Shares for any reason under terms the Trustees set, including, but not limited to (a) the
failure of a Shareholder to supply a taxpayer identification number if required to do so, to have
the minimum investment required (which may vary by Series or Class), to pay when due for the
purchase of Shares issued to him, or to pay any charge relating to a transaction effected for the
benefit of such Shareholder as provided in the prospectus relating to such Shares; or (b) the
determination by the Trustees in their sole discretion that failure to so redeem may have
materially adverse consequences to the Shareholders of any Series or Class of the Trust. To the
extent permitted by law, the Trustees may retain the proceeds of any redemption of Shares they
require for payment of amounts due and owing by a Shareholder to the Trust or any Series or Class
or any governmental authority. Notwithstanding the foregoing, the Trustees may postpone payment of
the redemption price and may suspend the right of the Shareholders to require any Series or Class
to redeem Shares during any period of time when and to the extent permissible under the 1940 Act.
The Shares of any Series or Class shall be redeemable only in such Creation Unit aggregations and
on such days as the Trustees determine or as determined pursuant to procedures or methods the
Trustees prescribe or approve from time to time with respect to such Series or Class; provided,
however, that the Trustees may, in their sole discretion, specify that Shares of any Series or
Class may be redeemable individually and not in Creation Unit aggregations.
Section 3. Determination of Net Asset Value. The Trustees shall cause the Net Asset
Value of Shares of each Series or Class to be determined from time to time in a manner consistent
with applicable laws and regulations. The Trustees may delegate the power and duty to determine
Net Asset Value per Share to one or more Trustees or officers of the Trust or to a custodian,
depository or other agent appointed for such purpose. The Net Asset Value of Shares shall be
determined separately for each Series or Class at such times as may be prescribed by the Trustees
or, in the absence of action by the Trustees, as of the close of regular trading on the
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New York
Stock Exchange on each day for all or part of which such Exchange is open for unrestricted trading.
The Trustees may determine to maintain the Net Asset Value per Share of any Series or Class at
a designated constant dollar amount and in connection therewith may adopt procedures not
inconsistent with the 1940 Act for the continuing declarations of income attributable to that
Series or Class as dividends payable in additional Shares of that Series or Class at the designated
constant dollar amount and for the handling of any losses attributable to that Series or Class.
Such procedures may provide that in the event of any loss each Shareholder of a Series or Class
shall be deemed to have contributed to the capital of the Trust attributable to that Series or
Class his pro rata portion of the total number of Shares required to be cancelled in order to
permit the Net Asset Value per Share of that Series or Class to be maintained, after reflecting
such loss, at the designated constant dollar amount. Each Shareholder of the Trust shall be deemed
to have agreed, by his investment in the Trust, to make the contribution referred to in the
preceding sentence in the event of any such loss.
Section 4. Suspension of Right of Redemption. If, as referred to in Section 2 of this
Article, the Trustees suspend the right of Shareholders to redeem their Shares, such suspension
shall take effect at the time the Trustees shall specify. Thereafter, Shareholders shall have no
right of redemption or payment until the Trustees declare the end of the suspension. If the right
of redemption is suspended, any Shareholder having tendered a redemption request may either
withdraw his request for redemption or receive payment based on the Net Asset Value per Share next
determined after the suspension terminates.
Section 5. Repurchase by Agreement. In addition to the redemption of Shares otherwise
provided in this Article VI, the Trust may repurchase Shares directly, or through the Distributor
or another agent designated for the purpose, by agreement with the owner thereof at a price not
exceeding the Net Asset Value per Share determined as of the time when the purchase or contract of
purchase is made or the Net Asset Value as of any time which may be later determined.
ARTICLE VII
SHAREHOLDERS’ VOTING POWERS AND MEETINGS
Section 1. Voting Powers. The Shareholders shall have power to vote only with respect
to (a) the election of Trustees to the extent and as provided in Section 4 of Article II; (b) the
removal of Trustees as provided in Article II, Section 5(d); (c) any matter required to be approved
by Shareholders of the Trust or any Series or Class thereof under the 1940 Act; (d) any termination
of the Trust to the extent and as provided in Article IX, Section 4; (e) the amendment of this
Declaration to the extent and as provided in Article IX, Section 8; (f) the matters referred to in
Article IX, Section 12; and (g) such additional matters relating to the Trust as may be required by
law, this Declaration, or the By-laws or any registration of the Trust with the Commission or any
State, or as the Trustees may consider desirable.
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On any matter submitted to a vote of the Shareholders, unless the Trustees determine
otherwise, all Shares shall be voted in the aggregate and not by individual Series or Class, except
(a) when required by the 1940 Act, other applicable law or the attributes applicable to any Series
or Class, Shares shall be voted by individual Series or Class, and (b) when the Trustees have
determined that the matter affects the interests of only one or more Series or Class, then only the
Shareholders of all such Series or Classes shall be entitled to vote thereon. As determined by the
Trustees without the vote or consent of Shareholders, on any matter submitted to a vote of
Shareholders, either (i) each whole Share shall be entitled to one vote as to such matter on which
it is entitled to vote and each fractional Share shall be entitled to a proportionate fractional
vote or (ii) each dollar of Net Asset Value (number of Shares owned times Net Asset Value per share
of such Series or Class, as applicable) shall be entitled to one vote on such matter on which such
Shares are entitled to vote and each fractional dollar amount shall be entitled to a proportionate
fractional vote. Without limiting the power of the Trustees in any way to designate otherwise in
accordance with the preceding sentence, the Trustees hereby establish that each whole Share shall
be entitled to one vote as to any matter on which it is entitled to vote and each fractional Share
shall be entitled to a proportionate fractional vote. There shall be no cumulative voting in the
election of Trustees. Shares may be voted in person or by proxy or in any manner provided for in
the By-laws. The By-laws may provide that proxies may be given by any electronic or
telecommunications device or in any other manner, but if a proposal by anyone other than the
officers or Trustees is submitted to a vote of the Shareholders of any Series or Class, or if there
is a proxy contest or proxy solicitation or proposal in opposition to any proposal by the officers
or Trustees, Shares may be voted only in person or by written proxy. Until Shares of a Series are
issued, as to that Series the Trustees may exercise all rights of Shareholders and may take any
action required or permitted to be taken by Shareholders by law, this Declaration or the By-laws.
Meetings of Shareholders (including meetings involving only the holders of Shares of one or more
but less than all Series or Classes) may be called by the Trustees from time to time to be held at
such place within or without the State of Maryland, and on such date as may be designated in the
call thereof for the purpose of taking action upon any matter as to which the vote or authority of
the Shareholders is required or permitted as provided in this Declaration. Special meetings of the
Shareholders shall be called by the Trustees upon the written request of Shareholders owning at
least a majority of the Shares outstanding and entitled to vote, except to the extent that a lesser
percentage is prescribed by the 1940 Act. Notice thereof and record dates therefor shall be given
and set as provided in the By-laws.
Section 2. Quorum, Required Vote. Holders of Shares of the Trust, Series or Class, as
applicable, representing one-third of the votes entitled to be cast at the meeting in person or by
proxy shall be a quorum for the transaction of business at a Shareholders’ meeting. Any lesser
number shall be sufficient for adjournments. Any adjourned session of a Shareholders’ meeting may
be held within a reasonable time without further notice. Except when a larger vote is required by
law, this Declaration, the By-laws or the Trustees, holders of Shares representing a majority of
votes cast at a Shareholders’ meeting in person or by proxy shall decide any matters to be voted
upon with respect to the entire Trust except that a plurality of votes cast shall elect a Trustee;
provided, that if this Declaration or applicable law permits or requires that Shares be voted on
any matter by individual Series or Classes, then holders, except when a larger vote is required by
law, this Declaration, the By-laws or the Trustees, of Shares of that Series or Class representing
a majority of the votes cast at a Shareholders’ meeting in person or by proxy on the
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matter shall
decide that matter insofar as that Series or Class is concerned, except that a plurality of such
votes cast shall elect a Series Trustee. With respect to any matter presented to the Shareholders
for approval, the Shareholders may act as to the Trust or any Series or Class by the written
consent of holders of Shares of the Trust, Series or Class, as the case may be, representing a
majority (or such other amount as may be required by applicable law) of the votes entitled to be
cast on the matter subject to such consent. Such consent shall be treated for all purposes as a
vote taken at a meeting of Shareholders.
Section 3. Access to Trust Records. Except to the extent otherwise required by law,
Shareholders shall only have such right to inspect the records, documents, accounts and books of
the Trust as may be granted from time to time by the Trustees.
Section 4. Additional Provisions. The By-laws may include further provisions for
Shareholders’ votes and meetings and related matters.
ARTICLE VIII
EXPENSES OF THE TRUST AND SERIES
Section 1. Payment of Expenses by the Trust. Subject to Article IV, Section 4, and
Article IV, Section 3, the Trust or a particular Series shall pay, or shall reimburse the Trustees
from the assets belonging to all Series or the particular Series, for their expenses (or the
expenses of a Class of such Series) and disbursements, including, but not limited to, interest
charges, taxes, brokerage fees and commissions; expenses of issue, repurchase and redemption of
Shares; insurance premiums; applicable fees, interest charges and expenses of third parties,
including the Trust’s investment advisers, managers, administrators, distributors, custodians,
transfer agents and fund accountants; fees of pricing, interest, dividend, credit and other
reporting services; costs of membership in trade associations; telecommunications expenses; funds
transmission expenses; auditing, legal and compliance expenses (including, if approved by the
Trustees, an allocated portion of the legal, accounting and compliance expenses incurred by the
Investment Advisers, Administrators or other service providers to the Trust); costs of forming the
Trust and its Series and maintaining its existence; costs of preparing and printing the
prospectuses of the Trust and each Series, statements of additional information and Shareholder
reports and delivering them to Shareholders; expenses of meetings of Shareholders and proxy
solicitations therefor; costs of maintaining books and accounts; costs of reproduction, stationery
and supplies; fees and expenses of the Trustees; compensation of the Trust’s officers and employees
and costs of other personnel performing services for the Trust or any Series; costs of Trustee
meetings; Commission registration fees and related expenses; state or foreign securities laws
registration fees and related expenses; and for such non-recurring items as may arise, including
litigation to which the Trust or a Series (or a Trustee or officer of the Trust acting as such) is
a party, and for all losses and liabilities by them incurred in administering the Trust.
Section 2. Payment of Expenses by Shareholders. The Trustees shall have the power, as
frequently as they may determine, to cause each Shareholder, or each Shareholder of any particular
Series or Class thereof, to pay directly, in advance or arrears, for charges of the
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Trust’s
custodian or transfer, shareholder servicing or similar agent, an amount fixed from time to time by
the Trustees, by setting off such charges due from such Shareholder from declared but unpaid
dividends owed such Shareholder and/or by reducing the number of Shares in the account of such
Shareholder by that number of full and/or fractional Shares which represents the outstanding amount
of such charges due from such Shareholder.
ARTICLE IX
MISCELLANEOUS
Section 1. Trust Not a Partnership. This Declaration creates a trust and not a
partnership. No Trustee shall have any power to bind personally either the Trust’s officers or any
Shareholder.
Section 2. Trustee Action. Any action taken or determination made by or pursuant to
the direction of the Trustees in good faith and consistent with the provisions of this Declaration
shall be final and conclusive and shall be binding upon the Trust, every holder at any time of
Shares and any other Person.
Section 3. Record Dates. The Trustees may close the Share transfer books of the Trust
or any Series or Class for a period not exceeding one hundred twenty (120) days preceding the date
of any meeting of Shareholders, or the date for the payment of any dividends or other
distributions, or the date for the allotment of rights, or the date when any change or conversion
or exchange of Shares shall go into effect; or in lieu of closing the stock transfer books as
aforesaid, the Trustees may fix in advance a date not exceeding one hundred twenty (120) days
before the scheduled date of any Shareholders’ meeting, or the date for the payment of any
dividends or other distributions, or the date for the allotment of rights, or the date when any
change or conversion or exchange of Shares shall go into effect as a record date for the
determination of the Shareholders entitled to notice of, and to vote at, any such meeting, or
entitled to receive payment of such dividend or other distribution, or to receive any such
allotment of rights, or to exercise such rights in respect of any such change, conversion or
exchange of Shares, and in such case such Shareholders and only such Shareholders shall be
Shareholders of record on the date so fixed and entitled to such notice of, and to vote at, such
meeting, or to receive payment of such dividend or other distribution, or to receive such allotment
of rights, or to exercise such rights, as the case may be, notwithstanding any transfer of any
Shares on the books of the Trust after any such record date fixed as aforesaid. Nothing in this
Section shall be construed as precluding the Trustees from setting different record dates for, or
from closing the register or transfer books with respect to, different Series (or Classes).
Section 4. Termination of the Trust. (a) This Trust shall have perpetual existence.
Nonetheless, the Trustees may:
(i) sell and convey all or substantially all of the assets of all Series or any affected
Series or Class to another Series or to another trust, partnership, association, corporation
or other entity, or to a separate series or class thereof, organized under the laws of any
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jurisdiction, for adequate consideration, which may include the assumption of all
outstanding obligations, taxes and other liabilities, accrued or contingent, of the Trust or
any affected Series or Class, and which may include shares of or interests in such Series,
trust, partnership, association, corporation or other entity, or series or class thereof; or
(ii) at any time sell and convert into money all or substantially all of the assets of all
Series or any affected Series or Class.
Subject to the provisions of Article IX, Section 12, upon paying or making reasonable
provision for the payment of all known liabilities of all Series or any affected Series or Class in
either (i) or (ii), by such assumption or otherwise, the Shareholders of each Class of a Series
involved in such sale or conversion shall be entitled to receive, as a Class, when and as declared
by the Trustees, the excess of the assets belonging to that Series that are allocated to such Class
over the liabilities belonging to that Series that are allocated to such Class. The assets so
distributable to the Shareholders of any particular Class of a Series shall be distributed among
such Shareholders in proportion to the number of Shares of that Class held by them and recorded on
the books of the Trust.
(b) Subject to the provisions of Article IX, Section 12, the Trustees may take any of the
actions specified in subsection (a) (i) and (ii) above without obtaining the vote of a majority of
the Outstanding Shares entitled to vote of the Trust or any Series or Class if a majority of the
Trustees determines, in their sole discretion, that the continuation of the Trust or such Series or
Class is not in the best interests of the Trust, such Series, such Class or their respective
Shareholders. In reaching such determination, the Trustees may consider such factors as the
Trustees, in their sole discretion, deem to be appropriate, which factors may include the inability
of the Trust or a Series or Class to maintain its assets at an appropriate size, changes in laws or
regulations governing the Trust or the Series or Class or affecting assets of the type in which the
Trust or such Series invests, or economic developments or trends having a significant adverse
impact on the business or operations of the Trust or such Series or Class.
(c) Upon completion of the distribution of the remaining proceeds or assets pursuant to
subsection (a), the Trust or any affected Series or Class shall terminate and the Trustees and the
Trust shall be discharged of any and all further liabilities and duties hereunder with respect
thereto and the right, title and interest of all parties therein shall be canceled and discharged.
Upon termination of the Trust, following completion of winding up of its business, the Trustees
shall cause a certificate of cancellation of the Trust’s certificate of trust to be filed in
accordance with the Maryland Act, which certificate of cancellation may be signed by a majority of
the Trustees or by an officer of the Trust duly authorized by a majority of the Trustees.
Section 5. Reorganization and Master/Feeder. (a) Notwithstanding anything else herein
other than the provisions of Article IX, Section 12, a majority of the Trustees may, without
Shareholder approval unless such approval is required by applicable law, (i) cause the Trust to
merge or consolidate with or into one or more trusts, partnerships, associations, corporations or
other entities organized under the laws of any jurisdiction, (ii) cause the Shares to be exchanged
under or pursuant to any state or federal statute to the extent permitted by law, or (iii) cause
the Trust to incorporate under the laws of Maryland or any other jurisdiction. Any
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agreement of
merger or consolidation or certificate of merger may be signed by a majority of Trustees and
facsimile signatures conveyed by electronic or telecommunication means shall be valid.
(b) Pursuant to and in accordance with the provisions of Section 12-607 of the Maryland Act,
an agreement of merger or consolidation approved by the Trustees in accordance with this Section 5
may effect any amendment to the Declaration or effect the adoption of a new governing instrument of
the Trust if it is the successor trust in the merger or consolidation.
(c) The Trustees may cause to be organized or assist in organizing a corporation or
corporations under the laws of any jurisdiction or any other trust, partnership, association or
other organization to take over all or portion of the Trust Property or the Trust Property
allocated or belonging to any one or more Series or to carry on any business in which the Trust
shall directly or indirectly have any interest, or to sell, convey and transfer all or a portion of
the Trust Property or the Trust Property allocated or belonging to such Series to any such
corporation, trust, association or organization in exchange for the shares or securities thereof or
otherwise, and to lend money to, subscribe for the shares or securities of, and enter into any
contracts with any such corporation, trust, partnership, association, or organization or any
corporation, partnership, trust, association or organization in which the Trust or such Series
holds or is about to acquire shares or any other interest. The Trustees may also cause a merger or
consolidation between the Trust or any successor thereto and any such corporation, trust,
partnership, association or other organization if and to the extent permitted by law, as provided
under the law then in effect. Nothing contained herein shall be construed as requiring approval of
Shareholders for the Trustees to organize or assist in organizing one or more corporations, trusts,
partnerships, associations or other organizations and to sell, convey or transfer all or a portion
of the Trust Property to such organizations or entities.
(d) Notwithstanding anything else herein, the Trustees may, without Shareholder approval
unless such approval is required by applicable law, invest all or a portion of the Trust Property
of any Series, or dispose of all or a portion of the Trust Property of any Series, and invest the
proceeds of such disposition in interests issued by one or more other investment companies or
pooled portfolios. Any such other investment company or pooled portfolio may (but need not) be a
trust (formed under the laws of any state or jurisdiction) (or subtrust thereof) which is
classified as a partnership for federal income tax purposes. Notwithstanding anything else herein,
the Trustees may, without Shareholder approval unless such approval is required by applicable law,
cause a Series that is organized in the master/feeder fund structure to withdraw or redeem its
Trust Property from the master fund and cause such Series to invest its Trust Property directly in
securities and other financial instruments or in another master fund.
Section 6. Declaration of Trust. The original or a copy of this Declaration of Trust
and of each amendment hereto or Declaration of Trust supplemental shall be kept at the office of
the Trust where it may be inspected by any Shareholder. Anyone dealing with the Trust may rely on
a certificate by a Trustee or an officer of the Trust as to the authenticity of the Declaration of
Trust or any such amendments or supplements and as to any matters in connection with the Trust.
Headings herein are for convenience only and shall not affect the construction of
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this Declaration
of Trust. This Declaration of Trust may be executed in any number of counterparts, each of which
shall be deemed an original.
Section 7. Applicable Law. This Declaration and the Trust organized hereunder are
governed by and construed and administered according to the Maryland Act and the applicable laws of
the State of Maryland; provided, however, that there shall not be applicable to the Trust, the
Trustees or this Declaration of Trust any provisions of the laws (statutory or common) of the State
of Maryland pertaining to trusts which relate to or regulate (i) the filing with any court or
governmental body or agency of trustee accounts or schedules of trustee fees and charges, (ii)
affirmative requirements to post bonds for trustees, officers, agents or employees of a trust,
(iii) the necessity for obtaining court or other governmental approval concerning the acquisition,
holding or disposition of real or personal property, (iv) fees or other sums payable to trustees,
officers, agents or employees of a trust, (v) the allocation of receipts and expenditures to income
or principal, (vi) restrictions or limitations on the permissible nature, amount or concentration
of trust investments or requirements relating to the titling, storage or other manner of holding of
trust assets, or (vii) the establishment of fiduciary or other standards of responsibilities or
limitations on the acts or powers of trustees, which are inconsistent with the limitations or
liabilities or authorities and powers of the Trustees set forth or referenced in this Declaration.
The Trust shall be of the type commonly called a Maryland business trust, and, without limiting the
provisions hereof, the Trust may exercise all powers which are ordinarily exercised by such a trust
under Maryland law. The Trust specifically reserves the right to exercise any of the powers or
privileges afforded to trusts or actions that may be engaged in by trusts under the Maryland Act,
and the absence of a specific reference herein to any such power, privilege or action shall not
imply that the Trust may not exercise such power or privilege or take such actions.
Section 8. Amendments. The Trustees may, without any Shareholder vote, amend or
otherwise supplement this Declaration by making an amendment, a Declaration of Trust supplemental
hereto or an amended and restated trust instrument; provided, that Shareholders shall have the
right to vote on any amendment (a) which would adversely affect the voting rights of Shareholders
granted in Article VII, Section 1, (b) to this Section 8, (c) required to be approved by
Shareholders by law or by the Trust’s registration statements filed with the Commission, and (d)
submitted to them by the Trustees in their discretion. Any amendment submitted to Shareholders
which the Trustees determine would affect the Shareholders of one or more Series or Classes shall
be authorized by vote of the Shareholders of each Series or Class affected and no vote shall be
required of Shareholders of a Series or Class not affected. Notwithstanding anything else herein,
any amendment to Article IV which would have the effect of reducing the indemnification and other
rights provided thereby to Trustees or officers of the Trust or to Shareholders or former
Shareholders, and any repeal or amendment of this sentence shall each require the affirmative vote
of the holders of two-thirds of the Outstanding Shares of the Trust entitled to vote thereon.
Section 9. Derivative Actions. A Shareholder may bring a derivative action on behalf
of the Trust only if the following conditions are met:
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(a) Shareholders 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 Trustees to commence such action; and
(b) the Trustees must be afforded a reasonable amount of time to consider such Shareholder
request and to investigate the basis of such claim. The Trustees shall be entitled to retain
counsel or other advisers 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 advisers
in the event that the Trustees determine not to bring such action.
No person, other than the Trustees, who is not a Shareholder of a particular Series or Class
shall be entitled to bring any derivative action, suit or other proceeding on behalf of or with
respect to such Series or Class.
Section 10. Fiscal Year. The fiscal year of the Trust and of each Series shall end on
a specified date as determined from time to time by the Trustees; provided that different Series
may have different fiscal years. The Trustees may change the fiscal year of the Trust or any
Series without Shareholder approval.
Section 11. Severability. The provisions of this Declaration are severable. If the
Trustees determine, with the advice of counsel, that any provision hereof conflicts with the 1940
Act, the regulated investment company provisions of the Internal Revenue Code or with other
applicable laws and regulations, the conflicting provision shall be deemed never to have
constituted a part of this Declaration; provided, however, that such determination shall not affect
any of the remaining provisions of this Declaration or render invalid or improper any action taken
or omitted prior to such determination. If any provision hereof shall be held invalid or
unenforceable in any jurisdiction, such invalidity or unenforceability shall attach only to such
provision only in such jurisdiction and shall not affect any other provision of this Declaration.
Section 12. Special Treatment of Holders of Shares of Same Class. Notwithstanding
anything else herein, in connection with the termination or reorganization of the Trust or any
Series or Class by way of merger, consolidation, the sale of all or substantially all of the
assets, or otherwise, the Trustees may classify the holders of Shares of a Class into one or more
separate groups by reference to any facts or circumstances that the Trustees deem relevant in their
sole discretion and may provide for the mandatory treatment for Shares of the Class held by
particular groups of Shareholders that differs materially from the treatment accorded other groups
of Shareholders holding Shares of the same Class, provided that (a) each group of holders of any
Shares of a Class so classified who are to receive the same treatment shall be entitled to vote as
a special class in respect of such termination or reorganization regardless of any limitations
stated in this Declaration or the By-laws on the voting rights of any Class, and (b) such
termination or reorganization shall be approved by a majority of the outstanding voting securities
(as defined in the 0000 Xxx) of each such special class.
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IN WITNESS WHEREOF, the undersigned has executed this instrument as of the date first written
above.
| /s/ Xxxxx X. Xxxxx | ||||
| Xxxxx X. Xxxxx | ||||
| as sole initial Trustee and not individually | ||||
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SCHEDULE A
