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EXHIBIT 99.a
Effective as of _________________________
AGREEMENT AND DECLARATION OF TRUST
OF
THE VANTAGEPOINT FUNDS
a Delaware Business Trust
Principal Place of Business:
000 XXXXX XXXXXXX XXXXXX, XX, XXX. 000
XXXXXXXXXX, X.X. 00000
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TABLE OF CONTENTS
ARTICLE I Page 4
Name and Definitions Page 4
Section 1. Name Page 4
Section 2. Definitions Page 4
ARTICLE II Page 5
Purpose Page 5
ARTICLE III Page 6
Shares Page 6
Section 1. Division of Beneficial Interest Page 6
Section 2. Ownership of Shares Page 7
Section 3. Transfer of Shares Page 7
Section 4. Investments in the Trust Page 7
Section 5. Status of Shares and Limitation of
Personal Liability Page 7
Section 6. Power of Board of Directors to Change
Provisions Relating to Shares Page 8
Section 7. Establishment and Designation of
Shares Page 8
Section 8. Indemnification of Shareholders Page 10
ARTICLE IV Page 10
The Board of Directors Page 10
Section 1. Number, Classes and Tenure Page 10
Section 2. Election of Directors by Shareholders Page 11
Section 3. Nomination of Directors Page 11
Section 4. Removal and Resignation of Directors Page 11
Section 5. Mandatory Interim Shareholder Election Page 11
Section 6. Effect of Death, Resignation, etc., of
a Director Page 12
Section 7. Powers Page 12
Section 8. Payment of Expenses by the Trust Page 15
Section 9. Payment of Expenses by Shareholders Page 15
Section 10. Ownership of Assets of the Trust Page 16
Section 11. Service Contracts Page 16
ARTICLE V Page 17
Shareholders' Voting Powers and Meetings Page 17
Section 1. Voting Powers Page 17
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Section 2. Notice and Meetings Page 17
Section 3. Quorum and Required Vote Page 18
Section 4. Action by Written Consent Page 18
Section 5. Record Dates Page 18
Section 6. Additional Provisions Page 19
ARTICLE VI Page 19
Net Asset Value, Distributions, and Redemptions Page 19
Section 1. Determination of Net Asset Value, Net
Income, and Distributions Page 19
Section 2. Redemptions and Repurchases Page 19
Section 3. Redemptions at the Option of the
Trust Page 20
Section 4. Disclosure of Ownership Page 20
ARTICLE VII Page 20
Compensation and Limitation of Liability of Directors Page 20
Section 1. Compensation Page 20
Section 2. Standard of Care Page 20
Section 3. Indemnification and Limitation of
Liability Page 20
Section 4. Director's Good Faith Action, Expert
Advice, No Bond or Surety Page 21
Section 5. Insurance Page 21
ARTICLE VIII Page 22
Miscellaneous Page 22
Section 1. Liability of Third Persons Dealing
with Directors Page 22
Section 2. Termination of Trust or Series Page 22
Section 3. Reorganization and Master/Feeder Page 22
Section 4. Amendments Page 23
Section 5. Filing of Copies, References,
Headings Page 24
Section 6. Applicable Law Page 24
Section 7. Provisions in Conflict with Law or
Regulations Page 25
Section 8. Business Trust Only Page 25
Section 9. Derivative Actions Page 26
Section 10. Use of the name "The Vantagepoint Funds"
or "Vantagepoint" Page 26
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AGREEMENT AND DECLARATION OF TRUST
OF
THE VANTAGEPOINT FUNDS
WHEREAS, THIS AGREEMENT AND DECLARATION OF TRUST is made and entered
into as of the date set forth below by the Directors named hereunder for the
purpose of forming a Delaware business trust in accordance with the provisions
hereinafter set forth,
NOW, THEREFORE, the Directors hereby direct that a Certificate of
Trust be filed with the Office of the Secretary of State of the State of
Delaware and do hereby declare that the Directors will hold IN TRUST all cash,
securities and other assets which the Trust now possesses or may hereafter
acquire from time to time in any manner and manage and dispose of the same upon
the following terms and conditions for the pro rata benefit of the holders of
Shares in this Trust.
ARTICLE I.
Name and Definitions
Section 1. Name. This trust shall be known as "The Vantagepoint Funds" and the
Directors 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. Whenever used herein, unless otherwise
required by the context or specifically provided:
(a) The "1940 Act" refers to the Investment Company Act of 1940 and
the Rules and Regulations thereunder, all as amended from time to time;
(b) "By-Laws" shall mean the By-Laws of the Trust as amended from
time to time which By-Laws are expressly herein incorporated by reference as
part of the "governing instrument" with the meaning of the Delaware Act;
(c) "Class" means a class of Shares in a Series of the Trust
established in accordance with the provisions of Article III hereof.
(d) The terms "Commission" and "Principal Underwriter" shall have
the respective meanings given them in Section 2(a)(7) and Section (2)(a)(29) of
the 1940 Act;
(e) "Declaration of Trust" shall mean this Agreement and
Declaration of Trust, as amended or restated from time to time;
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(f) "Delaware Act" means the Delaware Business Trust Act, 12 Del.
Code, Sections 3801 et seq., as amended from time to time;
(g) "Directors" refers to the persons who have signed this
Agreement and Declaration of Trust, so long as they continue in office in
accordance with the terms hereof, and all other persons who may from time to
time be duly elected or appointed to serve on the Board of Directors in
accordance with the provisions hereof, and reference herein to a Director or the
Directors shall refer to such person or persons in their capacity as trustees
hereunder;
(h) The term "Interested Person" has the meaning given it in
Section 2(a)(19) of the 1940 Act
(i) "Investment Manager" or "Manager" means a party furnishing
services to the Trust pursuant to any contract described in Article IV, Section
7(a) hereof;
(j) "Person" means and includes individuals, corporations,
partnerships, trusts, associations, joint ventures, estates and other entities,
whether or not legal entities, and governments and agencies and political
subdivisions thereof, whether domestic or foreign;
(k) "Series" refers to each Series of Shares established and
designated under or in accordance with the provisions of Article III and shall
mean an entity such as that described in Section 18(f)(2) of the 1940 Act, and
subject to Rule 18f-2 thereunder;
(l) "Shareholder" means a record owner of outstanding Shares;
(m) "Shares" means the shares of beneficial interest into which the
beneficial interest in the Trust shall be divided from time to time and includes
fractions of Shares as well as whole Shares;
(n) The "Trust" refers to the Delaware business trust established
under the Delaware Act by this Agreement and Declaration of Trust and the filing
of the Certificate of Trust in the Office of the Secretary of State of the State
of Delaware, as it may be amended from time to time;
(o) The "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, including without limitation the rights referenced in Article
VIII, Section 10 hereof.
ARTICLE II.
Purpose of Trust
The purpose of the Trust is to conduct, operate and carry on the
business of a management investment company registered under the 1940 Act
through one or more Series investing primarily in securities.
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ARTICLE III.
Shares
Section 1. Division of Beneficial Interest. The beneficial interest
in the Trust shall be divided into one or more Series. Each Series may be
divided into two or more Classes. Subject to the further provisions of this
Article III and any applicable requirements of the 1940 Act, the Directors shall
have full power and authority, in their sole discretion, and without obtaining
any authorization or vote of the Shareholders of any Series or Class thereof,
(i) to divide the beneficial interest in each Series or Class thereof into
Shares, with or without par value as the Directors shall determine, (ii) to
issue Shares without limitation as to number (including fractional Shares), to
such Persons and for such amount and type of consideration, subject to any
restriction set forth in the By-Laws, including cash or securities, at such time
or times and on such terms as the Directors may deem appropriate, (iii) to
establish and designate and to change in any manner any Series or Class thereof
and to fix such preferences, voting powers, rights, duties and privileges and
business purpose of each Series or Class thereof as the Directors may from time
to time determine, which preferences, voting powers, rights, duties and
privileges may be senior or subordinate to (or in the case of business purpose,
different from) any existing Series or Class thereof and may be limited to
specified property or obligations of the Trust or profits and losses associated
with specified property or obligations of the Trust, (iv) to divide or combine
the Shares of any Series or Class thereof into a greater or lesser number
without thereby materially changing the proportionate beneficial interest of the
Shares of such Series or Class in the assets held with respect to that Series,
(v) to Classify or reclassify any issued Shares of any Series or Class thereof
into shares of one or more Series or Classes thereof and (vi) to take such other
action with respect to the Shares as the Directors may deem desirable.
Subject to the distinctions permitted among Classes of the same
Series as established by the Directors consistent with the requirements of the
1940 Act, each Share of a Series of the Trust shall represent an equal
beneficial interest in the net assets of such Series, and each holder of Shares
of a Series shall be entitled to receive such holder's pro rata share of
distributions of income and capital gains, if any, made with respect to such
Series. Upon redemption of the Shares of any Series, the applicable Shareholder
shall be paid solely out of the funds and property of such Series of the Trust.
All references to Shares in this Declaration of Trust shall be deemed
to be Shares of any or all Series or Classes thereof, as the context may
require. All provisions herein relating to the Trust shall apply equally to each
Series of the Trust and each Class thereof, except as the context otherwise
requires.
All Shares issued hereunder, including, without limitation, Shares
issued in connection with a dividend in Shares or a split or reverse split of
Shares, shall be fully paid and non-assessable. Except as otherwise provided by
the Directors, Shareholders shall have no preemptive or other right to subscribe
to any additional Shares or other securities issued by the Trust.
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Section 2. Ownership of Shares. The ownership of Shares shall be
recorded on the books of the Trust or a transfer or similar agent for the Trust,
which books shall be maintained separately for the Shares of each Series (or
Class). No certificates certifying the ownership of Shares shall be issued
except as the Board of Directors may otherwise determine from time to time. The
Directors may make such rules as they consider appropriate for the issuance of
Share certificates, transfer of Shares of each Series (or Class) and similar
matters. The record books of the Trust as kept by the Trust, or any transfer or
similar agent, as the case may be, shall be conclusive as to the identity of the
Shareholders of each Series (or Class) and as to the number of Shares of each
Series (or Class) held from time to time by each.
Section 3. Transfer of Shares. Except as otherwise provided by the
Directors, 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
Directors 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 of the genuineness of each such execution and authorization and of such
other matters as may be required by the Directors. Upon such delivery, and
subject to any further requirements specified by the Directors or contained in
the By-Laws, the transfer shall be recorded on the books of the 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
Directors 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 4. Investments in the Trust. Investments may be accepted by
the Trust from such Persons, at such times, on such terms, and for such
consideration as the Directors from time to time may authorize. Each investment
shall be credited to the individual Shareholder's account in the form of full
and fractional Shares of the Trust, in such Series (or Class) as the purchaser
shall select, at the net asset value per Share next determined for such Series
(or Class) after receipt of the investment; provided, however, that the
Directors may, in their sole discretion, impose a sales charge or transaction
fee upon investments in the Trust.
Section 5. Status of Shares and Limitation of Personal Liability.
Shares shall be deemed to be personal property giving only the rights provided
in this instrument. Every Shareholder by virtue of having become a Shareholder
shall be held to have expressly assented and agreed to the terms hereof and to
have become a party hereto. 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 deceased
Shareholder to an accounting or to take any action in court or elsewhere against
the Trust or the Directors, 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 Directors, nor any officer, employee or agent of the Trust
shall have any power to bind personally any Shareholders, nor, except as
specifically provided herein, to call upon any Shareholder for the payment of
any sum of money or assessment whatsoever other than such as the Shareholder may
at any time personally agree to pay.
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Section 6. Power of Board of Directors to Change Provisions Relating
to Shares. Notwithstanding any other provisions of this Declaration of Trust and
without limiting the power of the Board of Directors to amend the Declaration of
Trust as provided elsewhere herein, the Board of Directors shall have the power
to amend this Declaration of Trust, at any time and from time to time, in such
manner as the Board of Directors may determine in their sole discretion, without
the need for Shareholder action, so as to add to, delete, replace or otherwise
modify any provisions relating to the Shares contained in this Declaration of
Trust, provided that before adopting any such amendment without Shareholder
approval the Board of Directors shall determine that it is consistent with the
fair and equitable treatment of all Shareholders or that Shareholder approval is
not otherwise required by the 1940 Act or other applicable federal or state law.
Subject to the foregoing Paragraph, the Board of Directors may amend
the Declaration of Trust to amend any of the provisions set forth in paragraphs
(a) through (i) of Section 7 of this Article III.
Section 7. Establishment and Designation of Shares. The establishment
and designation of any Series (or Class) of Shares shall be effective upon the
resolution by a majority of the then Directors, adopting a resolution which sets
forth such establishment and designation and the relative rights and preferences
of such Series (or Class) whether directly in such resolution or by reference to
another document including, without limitation, any registration statement of
the Trust, or as otherwise provided in such resolution. Each such resolution
shall be incorporated herein by reference upon adoption.
Shares of each Series (or Class) established pursuant to this Section
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have the following relative rights and preferences:
(a) Assets Held with Respect to a Particular Series. All
consideration received by the Trust for the issue or sale of Shares of a
particular Series, together with all assets in which such consideration is
invested or reinvested, all income, earnings, profits, and proceeds thereof from
whatever source derived, including, without limitation, any proceeds derived
from the sale, exchange or liquidation of such assets, and any funds or payments
derived from any reinvestment of such proceeds in whatever form the same may be,
shall irrevocably be held with respect to that Series for all purposes, subject
only to the rights of creditors, and shall be so recorded upon the books of
account of the Trust. Such consideration, assets, income, earnings, profits and
proceeds thereof, from whatever source derived, including, without limitation,
any proceeds derived from the sale, exchange or liquidation of such assets, and
any funds or payments derived from any reinvestment of such proceeds, in
whatever form the same may be, are herein referred to as "assets held with
respect to" that Series. In the event that there are any assets, income,
earnings, profits and proceeds thereof, funds or payments which are not readily
identifiable as assets held with respect to any particular Series (collectively
"General Assets"), the Directors shall allocate such General Assets to, between
or among any one or more of the Series in such manner and on such basis as the
Directors, in their sole discretion, deem fair and
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equitable, and any General Asset so allocated to a particular Series shall be
held with respect to that Series. Each such allocation by the Directors shall be
conclusive and binding upon the Shareholders of all Series for all purposes.
Separate and distinct records shall be maintained for each Series and the assets
held with respect to each Series shall be held and accounted for separately from
the assets held with respect to all other Series and the General Assets of the
Trust not allocated to such Series.
(b) Liabilities Held with Respect to a Particular Series. The
assets of the Trust held with respect to each particular Series shall be
charged against the liabilities of the Trust held with respect to that Series
and all expenses, costs, charges and reserves attributable to that Series, and
any general liabilities of the Trust which are not readily identifiable as
being held with respect to any particular Series shall be allocated and charged
by the Directors to and among any one or more of the Series in such manner and
on such basis as the Directors in their sole discretion deem fair and
equitable. The liabilities, expenses, costs, charges, and reserves so charged
to a Series are herein referred to as "liabilities held with respect to" that
Series. Each allocation of liabilities, expenses, costs, charges and reserves
by the Directors shall be conclusive and binding upon the holders of all Series
for all purposes. All Persons who have extended credit which has been allocated
to a particular Series, or who have a claim or contract which has been
allocated to any particular Series, shall look, and shall be required by
contract to look exclusively, to the assets of that particular Series for
payment of such credit, claim, or contract. In the absence of an express
contractual agreement so limiting the claims of such creditors, claimants and
contract providers, each creditor, claimant and contract provider will be
deemed nevertheless to have impliedly agreed to such limitation unless an
express provision to the contrary has been incorporated in the written contract
or other document establishing the claimant relationship.
(c) Dividends, Distributions, Redemptions, and Repurchases.
Notwithstanding any other provisions of this Declaration of Trust, including,
without limitation, Article VI, no dividend or distribution including, without
limitation, any distribution paid upon termination of the Trust or paid on or in
respect of any Series (or Class), 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, except as specifically
provided in Section 8 of this Article III, shall any Shareholder of any
particular Series, otherwise have any right or claim against the assets held
with respect to any other Series except to the extent that such Shareholder has
such a right or claim hereunder as a Shareholder of such other Series. The
Directors shall have full discretion, to the extent not inconsistent with the
1940 Act, to determine which items shall be treated as income and which items as
capital; and each such determination and allocation shall be conclusive and
binding upon the Shareholders.
(d) Voting. All Shares of the Trust entitled to vote on a matter
shall vote separately by Series (and, if applicable, by Class): that is, the
Shareholders of each Series (or Class) shall have the right to approve or
disapprove matters affecting the Trust and each respective Series (or Class) as
if the Series (or Classes) were separate companies. There are, however, two
exceptions to voting by separate Series (or Classes). First, if the 1940 Act
requires all shares of the Trust to be voted in the aggregate without
differentiation between the separate Series (or Classes), then all the Trust's
Shares shall be entitled to vote on a dollar-
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weighted basis, i.e., voting shall be based on the relative net asset value of
each Series (or each Class within a Series). Second, if any matter affects only
the interests of some but not all Series (or Classes), then only the
Shareholders of such affected Series (or Classes) shall be entitled to vote on
the matter on the same dollar-weighted basis.
(e) Equality. All the Shares of each particular Series shall
represent an equal proportionate undivided interest in the assets held with
respect to that Series (subject to the liabilities held with respect to that
Series and such rights and preferences as may have been established and
designated with respect to Classes of Shares within such Series), and each Share
of any particular Series shall be equal to each other Share of that Series.
(f) Fractions. Any fractional Share of a Series shall carry
proportionately all the rights and obligations of a whole share of that Series,
including rights with respect to voting, receipt of dividends and distributions,
redemption of Shares and termination of the Trust.
(g) Exchange Privilege. The Directors shall have the authority to
provide that the holders of Shares of any Series shall have the right to
exchange said Shares for Shares of one or more other Series of Shares in
accordance with such requirements and procedures as may be established by the
Directors.
(h) Combination of Series. The Directors shall have the authority,
without the approval of the Shareholders of any Series unless otherwise required
by applicable law, to combine the assets and liabilities held with respect to
any two or more Series into assets and liabilities held with respect to a single
Series.
(i) Elimination of Series. At any time that there are no Shares
outstanding of any particular Series (or Class) previously established and
designated, the Directors may by resolution of a majority of the then Directors
abolish that Series (or Class) and rescind the establishment and designation
thereof.
Section 8. Indemnification of Shareholders. If any Shareholder or
former Shareholder shall be exposed to liability by reason of a claim or demand
relating to his or her being or having been a Shareholder, and not because of
his or her acts or omissions, the Shareholder or former Shareholder (or his or
her heirs, executors, administrators, or other legal representatives or in the
case of a corporation or other entity, its corporate or other general successor)
shall be entitled to be held harmless from and indemnified out of the assets of
the Trust against all loss and expense arising from such claim or demand, but
only out of the assets held with respect to the particular Series of Shares of
which such Person is or was a Shareholder and from or in relation to which such
liability arose.
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ARTICLE IV.
The Board of Directors
Section 1. Number, Classes and Tenure. The Directors constituting the
organizing Board of Directors shall be Xxxx XxXxxxxx, Xxxx Xxxxxxxxx, and
Xxxxxxx Xxxxxxxx. Thereafter, the number of Directors shall in no event be less
than one nor more than seven unless otherwise specified by resolution approved
at a duly constituted meeting of the Board of Directors or by a written
instrument signed by a majority of the Directors. The members of the organizing
Board of Directors shall, concurrently with their resignation, appoint an
initial Board of Directors to serve for a term ending at a meeting of the Board
of Directors to be held in October, 2001. Thereafter, the Directors shall be
divided into three classes. There shall be three Class 1 Directors and the terms
of Class 1 Directors shall end at a meeting of the Board of Directors to be held
in October 2004. There shall be three Class 2 directors and the terms of the
Class 2 Directors shall end at a meeting of the Board of Directors to be held in
October 2007. Thereafter, terms of Class 1 and Class 2 directors shall end at a
meeting of the Board of Directors to be held on or around the sixth anniversary
of their commencement. There shall be one Class 3 Director. The Class 3 Director
shall be a Director of the ICMA Retirement Corporation and shall stand for
election at each meeting of Directors at which Class 1 or Class 2 Directors
stand for election. Except in cases in which shareholder election is required,
as provided in Article IV, Section 2, immediately below, the Board of Directors
may, by action of a majority of the then Directors at a duly constituted
meeting, elect Directors and fill vacancies in the Board of Directors. Each
Class 1 and Class 2 Director shall serve throughout his or her term or until he
or she dies, resigns, is declared bankrupt or incompetent by a court of
appropriate jurisdiction, or is removed. The Class 3 Director shall serve only
so long as he or she is a Director of the ICMA Retirement Corporation or until
he or she dies, resigns, is declared bankrupt or incompetent by a court of
appropriate jurisdiction, or is removed. No Director shall serve as such for
more than twelve consecutive years nor shall a Director serve a term beginning
after he or she has attained the age of 72.
Section 2. Election of Directors by the Shareholders. Directors shall
be elected by shareholders when such election is required to effect their
appointment under the provisions of the 1940 Act as interpreted or modified by
the Commission exercising its statutory powers. In the case in which any
Director must stand for election under the foregoing provision, all Directors
whose terms would commence concurrently with that of such Director shall
concurrently stand for election or re-election. A meeting of shareholders for
election of one or more Directors shall be held at a place specified by the
Board of Directors immediately in advance of the meeting of the Board of
Directors in which such election would occur were shareholder election not
required.
Section 3. Nomination of Directors. Directors subject to election by
the shareholders shall be nominated by the Board of Directors for election. The
Board of Directors shall consider the recommendations of a Nominating Committee
constituted as provided in the By-laws.
Section 4. Removal and Resignation of Directors. The Board of
Directors may, by action of a majority of the then Directors at a duly
constituted meeting, remove Directors with or without cause. A meeting of
Shareholders for the purpose of electing or removing one or more Directors may
be called (i) by the Directors upon their own vote, or (ii) upon the demand of
Shareholders owning 10% or more of the Shares of the Trust in the aggregate. Any
Director may resign at any time by written instrument signed by him or her and
delivered to any officer of the Trust or to a meeting of the Directors. Such
resignation shall be effective upon receipt
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unless specified to be effective at some other time. Except to the extent
expressly provided in a written agreement with the Trust, no Director resigning
and no Director removed shall have any right to any compensation or expense
reimbursement for any period following his or her resignation or removal, or any
right to damages on account of such removal.
Section 5. Mandatory Interim Shareholder Election. In the event that
less than a majority of the Directors holding office have been elected by the
Shareholders, the Directors then in office shall call a Shareholders' meeting
for the election of Directors. The Shareholders may elect Directors at any
meeting of Shareholders called by the Directors for that purpose. A meeting of
Shareholders for the purpose of electing one or more Directors may be called (i)
by the Directors upon their own vote, or (ii) upon the demand of Shareholders
owning 10% or more of the Shares of the Trust in the aggregate.
Section 6. Effect of Death, Resignation, etc. of a Director. The
death, declination, resignation, retirement, removal, or incapacity of one or
more Directors, 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 of
Trust. Whenever a vacancy in the Board of Directors shall occur, until such
vacancy is filled as provided in Article IV, Section 1 or Section 2, the
Directors in office, regardless of their number, shall have all the powers
granted to the Directors and shall discharge all the duties imposed upon the
Directors by this Declaration of Trust. As conclusive evidence of such vacancy,
a written instrument certifying the existence of such vacancy may be executed by
an officer of the Trust or by a majority of the Board of Directors. In the event
of the death, declination, resignation, retirement, removal, or incapacity of
all the then Directors within a short period of time and without the opportunity
for at least one Director being able to appoint additional Directors to fill
vacancies, the Trust's principal Investment Manager is (or if there is not such
principal Investment Manager, a majority of the Trust's Investment Managers are)
empowered to appoint new Trustees subject to the provisions of Section 16(a) of
the 1940 Act.
Section 7. Powers. Subject to the provisions of this Declaration of
Trust, the business of the Trust shall be managed by the Board of Directors, and
such Board shall have all powers necessary or convenient to carry out that
responsibility including the power to engage in securities transactions of all
kinds on behalf of the Trust. The Directors shall have full power and authority
to do any and all acts and to make and execute any and all contracts and
instruments that they may consider necessary or appropriate in connection with
the administration of the Trust. Without limiting the foregoing, the Directors
may: adopt By-Laws not inconsistent with this Declaration of Trust providing for
the regulation and management of the affairs of the Trust and may amend and
repeal them to the extent that such By-Laws do not reserve that right to the
Shareholders; elect and remove, with or without cause, such officers and appoint
and terminate such agents as they consider appropriate; appoint from their own
number and establish and terminate one or more committees consisting of two or
more Directors which may exercise the powers and authority of the Board of
Directors to the extent that the Directors determine; employ one or more
custodians of the assets of the Trust and may authorize such custodians to
employ subcustodians and to deposit all or any part of such assets in a system
or systems for the central handling of securities or with a Federal Reserve
Bank, retain a transfer agent or a shareholder servicing agent, or both; provide
for the issuance and distribution of Shares by the Trust directly or through one
or more Principal Underwriters or
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otherwise; redeem, repurchase and transfer Shares pursuant to applicable law;
set record dates for the determination of Shareholders with respect to various
matters; declare and pay dividends and distributions to Shareholders of each
Series from the assets of such Series; establish from time to time, in
accordance with the provisions of Article III, Section 6 hereof, any Series (or
Class) of Shares, each such Series (or Class) to operate as a separate and
distinct investment medium and with separately defined investment objectives and
policies and distinct investment purpose; and in general delegate such authority
as they consider desirable to any officer of the Trust, to any committee of the
Directors and to any agent or employee of the Trust or to any such custodian,
transfer or shareholder servicing agent, or Principal Underwriter. Any
determination as to what is in the interests of the Trust made by the Directors
in good faith shall be conclusive. In construing the provisions of this
Declaration of Trust, the presumption shall be in favor of a grant of power to
the Directors. Unless otherwise specified herein or in the By-Laws or required
by law, any action by the Board of Directors shall be deemed effective if
approved or taken by a majority of the Directors present at a meeting of
Directors at which a quorum of Directors is present, within or without the State
of Delaware. Any action required or permitted to be taken at any meeting of the
Board of Directors, or any committee thereof, may be taken without a meeting if
all members of the Board of Directors or committee (as the case may be) consent
thereto in writing, and the writing or writings are filed with the minutes of
the proceedings of the Board of Directors, or committee.
Without limiting the foregoing, the Directors shall have the power
and authority to cause the Trust (or to act on behalf of the Trust):
(a) To invest and reinvest cash, to hold cash uninvested, and to
subscribe for, invest in, reinvest in, purchase or otherwise acquire, own, hold,
pledge, sell, assign, transfer, exchange, distribute, write options on, lend or
otherwise deal in or dispose of contracts for the future acquisition or delivery
of fixed income or other securities, and securities, and securities of every
nature and kind, including, without limitation, all types of bonds, debentures,
stocks, preferred stocks, negotiable or non-negotiable instruments, obligations,
evidences of indebtedness, certificates of deposit or indebtedness, commercial
paper, repurchase agreements, bankers, acceptances, and other securities of any
kind, issued, created, guaranteed, or sponsored by any and all Persons,
including, without limitation, states, territories, and possessions of the
United States and the District of Columbia and any political subdivision,
agency, or instrumentality thereof, any foreign government or any political
subdivision of the U.S. Government or any foreign government, or any
international instrumentality, or by any bank or savings institution, or by any
corporation or organization organized under the laws of the United States or of
any state, territory, or possession thereof, or by any corporation or
organization organized under any foreign law, or in "when issued" contracts for
any such securities, to change the investments of the assets of the Trust; and
to exercise any and all rights, powers, and privileges of ownership or interest
in respect of any and all such investments of every kind and description,
including, without limitation, the right to consent and otherwise act with
respect thereto, with power to designate one or more Persons, to exercise any of
said rights, powers, and privileges in respect of any of said instruments;
(b) To sell, exchange, lend, pledge, mortgage, hypothecate, lease,
or write options with respect to or otherwise deal in any property rights
relating to any or all of the
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assets of the Trust or any Series, subject to any requirements of the 1940 Act;
(c) To vote or give assent, or exercise any rights of ownership,
with respect to stock or other securities or property; and to execute and
deliver proxies or powers of attorney to such person or persons as the Directors
shall deem proper, granting to such person or persons such power and discretion
with relation to securities or property as the Directors shall deem proper;
(d) To exercise powers and right of subscription or otherwise which
in any manner arise out of ownership of securities;
(e) To hold any security or property in a form not indicating that
it is trust property, whether in bearer, unregistered or other negotiable form,
or in its own name or in the name of a custodian or subcustodian or a nominee or
nominees or otherwise or to authorize the custodian or a subcustodian or a
nominee or nominees to deposit the same in a securities depository;
(f) To consent to, or participate in, any plan for the
reorganization, consolidation or merger of any corporation or issuer of any
security which is held in the Trust; to consent to any contract, lease,
mortgage, purchase or sale of property by such corporation or issuer; and to pay
calls or subscriptions with respect to any security held in the Trust;
(g) To join with other security holders in acting through a
committee, depositary, voting Director or otherwise, and in that connection to
deposit any security with, or transfer any security to, any such committee,
depositary or Director, and to delegate to them such power and authority with
relation to any security (whether or not so deposited or transferred) as the
Directors shall deem proper, and to agree to pay, and to pay, such portion of
the expenses and compensation of such committee, depositary or Director as the
Directors shall deem proper;
(h) To compromise, arbitrate or otherwise adjust claims in favor of
or against the Trust or any matter in controversy, including but not limited to
claims for taxes;
(i) To enter into joint ventures, general or limited partnerships
and any other combinations or associations;
(j) To borrow funds or other property in the name of the Trust
exclusively for Trust purposes;
(k) To endorse or guarantee the payment of any notes or other
obligations of any Person; to make contracts of guaranty or suretyship, or
otherwise assume liability for payment thereof;
(l) To purchase and pay for entirely out of Trust Property such
insurance as the Directors 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
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principal on its portfolio investments, and insurance policies insuring the
Shareholders, Directors, 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
Director, 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;
(m) To adopt, establish and carry out pension, profit-sharing,
share bonus, share purchase, savings, thrift and other retirement, incentive and
benefit plans, trusts and provisions, including the purchasing of life insurance
and annuity contracts as a means of providing such retirement and other
benefits, for any or all of the Directors, officers, employees and agents of the
Trust;
(n) To employ one or more banks, trust companies or companies that
are members of a national securities exchange or such other entities as the
Commission may permit as custodians of any assets of the Trust subject to any
conditions set forth in this Declaration or Trust or in the By-Laws;
(o) To interpret the investment policies, practices or limitations
of any Series or Class; and
(p) To invest part or all of the Trust Property (or part or all of
the assets of any Series), or to 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 securities issued by one or more other investment companies
registered under the 1940 Act (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) all without any requirement of approval by
Shareholders unless required by the 1940 Act. Any such other investment company
may (but need not) be a trust (formed under the laws of the State of Delaware or
of any other state) which is classified as a partnership for federal income tax
purposes.
The Trust shall not be limited to investing in obligations maturing
before the possible termination of the Trust or one or more of its Series. The
Trust shall not in any way be bound or limited by any present or future law or
custom in regard to investment by fiduciaries. The Trust shall not be required
to obtain any court order to deal with any assets of the Trust or take any other
action hereunder.
Section 8. Payment of Expenses by the Trust. The Directors are
authorized to pay or cause to be paid out of the principal or income of the
Trust or any Series (or Class), or partly out of the principal and partly out of
income, and to charge or allocate the same to, between or among such one or more
of the Series (or Class) that may be established or designated pursuant to
Article III, Section 6, as they deem fair, all expenses, fees, charges, taxes
and liabilities incurred or arising in connection with the Trust or Series (or
Class), or in connection with the management thereof, including, but not limited
to, the Directors' compensation and such
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expenses and charges for the services of the Trust's officers, employees,
investment adviser or manager, principal underwriter, auditors, counsel,
custodian, transfer agent, Shareholder servicing agent, and such other agents or
independent contractors and such other expenses and charges as the Directors may
deem necessary or proper to incur.
Section 9. Payment of Expenses by Shareholders. The Directors shall
have the power, as frequently as they may determine, to cause each Shareholder,
or each Shareholder of any particular series, to pay directly, in advance or
arrears, for charges of the Trust's custodian or transfer, Shareholder servicing
or similar agent, an amount fixed from time to time by the Directors, 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.
Section 10. Ownership of Assets of the Trust. Title to all of the
assets of the Trust shall at all times be considered as vested in the Trust,
except that the Directors shall have power to cause legal title to any Trust
Property to be held by or in the name of one or more of the Directors, or in the
name of the Trust, or in the name of any other Person as nominee, on such terms
as the Directors may determine. The right, title and interest of the Directors
in the Trust Property shall vest automatically in each Person who may hereafter
become a Director. Upon the resignation, removal or death of a Director he or
she shall automatically cease to have any right, title or interest in any of the
Trust Property, and the right, title and interest of such Director in the Trust
Property shall vest automatically in the remaining Directors. Such vesting and
cessation of title shall be effective whether or not conveyancing documents have
been executed and delivered.
Section 11. Service Contracts.
(a) Subject to such requirements and restrictions as may be set
forth in the By-Laws, the Directors may, at any time and from time to time,
contract for exclusive or nonexclusive advisory, management and/or
administrative services for the Trust or for any Series with any corporation,
trust, association or other organization; and any such contract may contain such
other terms as the Directors may determine, including without limitation,
authority for the Investment Manager, Adviser or administrator to determine from
time to time without prior consultation with the Directors what investments
shall be purchased, held, sold or exchanged and what portion, if any, of the
assets of the Trust shall be held uninvested and to make changes in the Trust's
investments, or such other activities as may specifically be delegated to such
party.
(b) The Directors may also, at any time and from time to time,
contract with any corporation, trust, association or other organization,
appointing it exclusive or nonexclusive distributor or Principal Underwriter for
the Shares of one or more of the Series (or Classes) or other securities to be
issued by the Trust. Every such contract shall comply with such requirements and
restrictions as may be set forth in the By-Laws; and any such contract may
contain such other terms as the Directors may determine.
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(c) The Directors are also empowered, at any time and from time to
time, to contract with any corporations, trusts, associations or other
organizations, appointing it or them the custodian, transfer agent and/or
shareholder servicing agent for the Trust or one or more of its Series. Every
such contract shall comply with such requirements and restrictions as may be set
forth in the By-Laws or stipulated by resolution of the Directors.
(d) The Directors are further empowered, at any time and from time
to time, to contract with any entity to provide such other services to the Trust
or one or more of the Series, as the Directors determine to be in the best
interests of the Trust and the applicable Series.
(e) The fact that:
(i) any of the Shareholders, Directors, or officers of the
Trust is a shareholder, director, officer, partner, Director,
employee, Manager, adviser, Principal Underwriter, distributor, or
affiliate or agent of or for any corporation, trust, association, or
other organization, or for any parent or affiliate of any
organization with which an advisory, management or administration
contract, or principal underwriter's or distributor's contract, or
transfer, shareholder servicing or other type of service contract may
have been or may hereafter be made, or that any such organization, or
any parent or affiliate thereof, is a Shareholder or has an interest
in the Trust, or that
(ii) any corporation, trust, association or other
organization with which an advisory, management or administration
contract or principal underwriter's or distributor's contract, or
transfer, shareholder servicing or other type of service contract may
have been or may hereafter be made also has an advisory, management
or administration contract, or principal underwriter's or
distributor's contract, or transfer, shareholder servicing or other
service contract with one or more other corporations, trust,
associations, or other organizations, or has other business or
interests,
shall not affect the validity of any such contract or disqualify any
Shareholder, Director or officer of the Trust from voting upon or executing the
same, or create any liability or accountability to the Trust or its
Shareholders, provided approval of each such contract is made pursuant to the
requirements of the 1940 Act.
ARTICLE V.
Shareholders' Voting Powers and Meetings
Section 1. Voting Powers. Subject to the provisions of Article III,
Section 7(d), the Shareholders shall have power to vote only (i) for the
election or removal of Directors as provided in Article IV and (ii) with respect
to such additional matters relating to the Trust as may be required by this
Declaration of Trust, the By-Laws or any registration of the Trust with the
Commission (or any
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successor agency) or any state, or as the Directors may consider necessary or
desirable. Each whole Share shall be entitled to one vote as to any matter on
which it is entitled to vote and each fractional Share shall be entitled to a
proportionate fractional vote. There shall be no cumulative voting in the
election of Directors. Shares may be voted in person or by proxy. A proxy with
respect to Shares held in the name of two or more persons shall be valid if
executed by any one of them unless at or prior to exercise of the proxy the
Trust receives a specific written notice to the contrary from any one of them. A
proxy purporting to be executed by or on behalf of a Shareholder shall be deemed
valid unless challenged at or prior to its exercise and the burden of proving
invalidity shall rest on the challenger. The By-Laws may provide that proxies
may also, or may instead, be given by any electronic or telecommunications
device or in any other manner. Notwithstanding anything else contained herein or
in the By-Laws, in the event a proposal by anyone other than the officers or
Directors of the Trust is submitted to a vote of the shareholders of one or more
Series or Classes thereof or of the Trust, or in the event of any proxy contest
or proxy solicitation or proposal in opposition to any proposal by the officers
or Directors of the Trust, Shares may be voted only in person or by written
proxy at a meeting. Until Shares are issued, the Directors may exercise all
rights of Shareholders and may take any action required by law, this Declaration
of Trust or the By-Laws to be taken by the Shareholders.
Section 2. Notice and Meetings. Meetings of the Shareholders may be
called by the Directors for the purpose of electing or removing Directors as
provided in Article IV and for such other purposes as may be prescribed by law,
by this Declaration of Trust or by the By-Laws. Meetings of the Shareholders may
also be called by the Directors from time to time for the purpose of taking
action upon any other matter deemed by the Directors to be necessary or
desirable. A meeting of Shareholders may be held at any place designated by the
Directors. Written notice of any meeting of Shareholders shall be given or
caused to be given by the Directors by mailing such notice at least seven (7)
days before such meeting, postage prepaid, stating the time and place of the
meeting, to each Shareholder at the Shareholder's address as it appears on the
records of the Trust. Whenever notice of a meeting is required to be given to a
Shareholder under this Declaration of Trust or the By-Laws, a written waiver
thereof, executed before or after the meeting by such Shareholder or his or her
attorney thereunto authorized and filed with the records of the meeting, shall
be deemed equivalent to such notice.
Section 3. Quorum and Required Vote. Except when a larger quorum is
required by applicable law, by the By-Laws or by this Declaration of Trust,
forty percent (40%) of the Shares entitled to vote shall constitute a quorum at
a Shareholders meeting. When any one or more Series (or Classes) is to vote as a
single Class separate from any other Shares, fifty percent (50%) of the Shares
of each such Series (or Classes) entitled to vote shall constitute a quorum at a
Shareholder's meeting of that Series (or Class). Any meeting of Shareholders may
be adjourned from time to time by a majority of the votes properly cast upon the
question of adjourning a meeting to another date and time, whether or not a
quorum is present, and the meeting may be held as adjourned within a reasonable
time after the date set for the original meeting without further notice. Subject
to the provisions of Article III, Section 6(d), when a quorum is present at any
meeting, a majority of the Shares voted shall decide any questions and a
plurality shall elect a Director, except when a larger vote is required by any
provision of this Declaration of Trust or the By-Laws or by applicable law.
Where any provision of law or of this Declaration of Trust requires that the
holders of any Series shall vote as a Series (or that holders of a Class shall
vote as a Class), then a majority of the Shares of that Series (or Class) voted
on the
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matter (or a plurality with respect to the election of a Director) shall decide
that matter insofar as that Series (or Class) is concerned.
Section 4. Action by Written Consent. Any action taken by
Shareholders may be taken without a meeting if Shareholders holding a majority
of the Shares entitled to vote on the matter (or such larger proportion thereof
as shall be required by any express provision of this Declaration of Trust or by
the By-Laws) and holding a majority (or such larger proportion as aforesaid) of
the Shares of any Series (or Class) entitled to vote separately on the matter
consent to the action in writing and such written consents are filed with the
records of the meetings of Shareholders. Such consent shall be treated for all
purposes as a vote taken at a meeting of Shareholders.
Section 5. Record Dates. For the purpose of determining the
Shareholders of any Series (or Class) who are entitled to vote or act at any
meeting or any adjournment thereof, the Directors may from time to time fix a
time, which shall be not more than ninety (90) days before the date of any
meeting of Shareholders, as the record date for determining the Shareholders of
such Series (or Class) having the right to notice of and to vote at such meeting
and any adjournment thereof, and in such case only Shareholders of record on
such record date shall have such right, notwithstanding any transfer of shares
on the books of the Trust after the record date. For the purpose of determining
the Shareholders of any Series (or Class) who are entitled to receive payment of
any dividend or of any other distribution, the Directors may from time to time
fix a date, which shall be before the date for the payment of such dividend or
such other payment, as the record date for determining the Shareholders of such
Series (or Class) having the right to receive such dividend or distribution.
Without fixing a record date the Directors may for voting and/or distribution
purposes close the register or transfer books for one or more Series for all or
any part of the period between a record date and a meeting of Shareholders or
the payment of a distribution. Nothing in this Section shall be construed as
precluding the Directors from setting different record dates for different
Series (or Classes).
Section 6. Additional Provisions. The By-Laws may include further
provisions for Shareholders' votes and meetings and related matters.
ARTICLE VI.
Net Asset Value, Distributions, and Redemptions
Section 1. Determination of Net Asset Value, Net Income, and
Distributions. Subject to Article III, Section 7 hereof, the Directors, in their
absolute discretion, may prescribe and shall set forth in the By-laws or in a
duly adopted vote of the Directors such bases and time for determining the per
Share or net asset value of the Shares of any Series or net income attributable
to the Shares of any Series, or the declaration and payment of dividends and
distributions on the Shares of any Series, as they may deem necessary or
desirable.
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Section 2. Redemptions and Repurchases. The Trust shall purchase such
Shares as are offered by any Shareholder for redemption, upon the presentation
of a proper instrument of transfer together with a request directed to the Trust
or a Person designated by the Trust that the Trust purchase such Shares or in
accordance with such other procedures for redemption as the Directors may from
time to time authorize; and the Trust will pay therefor the net asset value
thereof, in accordance with the By-Laws and applicable law. Payment for said
Shares shall be made by the Trust to the Shareholder within seven days after the
date on which the request is made in proper form. The obligation set forth in
this Section 2 is subject to the provision that in the event that any time the
New York Stock Exchange (the "Exchange") is closed for other than weekends or
holidays, or if permitted by the Commission during periods when trading on the
Exchange is restricted or during any emergency which makes it impracticable for
the Trust to dispose of the investments of the applicable Series or to determine
fairly the value of the net assets held with respect to such Series or during
any other period permitted by order of the Commission for the protection of
investors, such obligations may be suspended or postponed by the Directors. In
the case of a suspension of the right of redemption as provided herein, a
Shareholder may either withdraw the request for redemption or receive payment
based on the net asset value per share next determined after the termination of
such suspension.
The redemption price may in any case or cases be paid wholly or
partly in kind if the Directors determine that such payment is advisable in the
interest of the remaining Shareholders of the Series for which the Shares are
being redeemed. Subject to the foregoing, the fair value, selection and quantity
of securities or other property so paid or delivered as all or part of the
redemption price may be determined by or under authority of the Directors. In no
case shall the Trust be liable for any delay of any corporation or other Person
in transferring securities selected for delivery as all or part of any payment
in kind.
Section 3. Redemptions at the Option of the Trust. The Directors may require
Shareholders to redeem Shares for any reason under terms set by the Directors,
including, but not limited to, (i) the determination of the Directors that
direct or indirect ownership of Shares of any Series has or may become
concentrated in such Shareholder to an extent that would disqualify any Series
as a regulated investment company under the Internal Revenue Code of 1986, as
amended (or any successor statute thereto), (ii) the failure of a Shareholder to
supply a tax identification number if required to do so, or to have the minimum
investment required (which may vary by Series), or (iii) the failure of a
Shareholder to pay when due for the purchase of Shares issued to him. Any such
redemption shall be effected at the redemption price and in the manner provided
in this Article VI.
Section 4. Disclosure of Ownership. The holders of Shares shall upon
demand disclose to the Trustees in writing such information with respect to
direct and indirect ownership of Shares as the Trustees deem necessary to comply
with the provisions of the Internal Revenue Code of 1986, as amended (or any
successor statute thereto), or to comply with the requirements of any other
taxing authority or other applicable law.
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ARTICLE VII.
Compensation and Limitation of Liability of Directors
Section 1. Compensation. Directors shall not receive any stated
salaries, retirement benefits, deferred compensation or any other form of
compensation, provided that nothing herein shall be construed to preclude any
Director from serving the Trust in any other capacity and receiving compensation
therefor. The Trust is authorized to pay the necessary expenses of members of
the Board of Directors incurred in connection with the performance of the
official duties of the office. Any proposal to amend this provision to provide
for compensation to the Directors, or to provide for an increase in compensation
to Directors in excess of adjustments required to reflect the rate of inflation,
must be approved by (i) a majority of the Trust's shareholders or (ii) the
Trustees of the ICMA Retirement Trust.
Section 2. Standard of Care. The fiduciary duties of Directors to the
Trust and its Shareholders are the same as those of the directors of a Delaware
corporation to the corporation and its shareholders.
Section 3. Indemnification and Limitation of Liability. A Director,
when acting in such capacity, shall not be personally liable to any Person,
other than the Trust or a Shareholder to the extent provided in this Article
VII, for any act, omission or obligation of the Trust, of such Director, or of
any other Director. A Director shall not be personally liable for monetary
damages for breach of fiduciary duty as a trustee except in cases in which (i)
the Director breaches the duty of loyalty to the Trust or its Shareholders, (ii)
an act or omission not in good faith or that involves intentional misconduct or
a knowing violation of law, (iii) the Director derived an improper personal
benefit. The Directors shall not be responsible or liable in any event for any
neglect or wrong-doing of any officer, agent, employee, Manager or Principal
Underwriter of the Trust, nor shall any Director be responsible for the act or
omission of any other Director. The Trust shall indemnify each Person who is, or
has been, a Trustee, officer, employee or agent of the Trust any Person who is
serving or has served at the Trust's request as a director, officer, trustee,
employee or agent of another organization in which the Trust has any interest as
a shareholder, creditor or otherwise to the extent and in the manner provided in
the By-Laws.
All persons extending credit to, contracting with or having any claim
against the Trust or the Trustees shall look only to the assets of the
appropriate Series, or, if the Trustees have yet to establish Series, of the
Trust for payment under such credit, contract or claim; and neither the Trustees
nor the Shareholders, nor any of the Trust's officers, employees or agents,
whether past, present or future, shall be personally liable therefor.
Every note, bond, contract, instrument, certificate or undertaking and
every other act or thing whatsoever executed or done by or on behalf of the
Trust or the Trustees by any of them in connection with the Trust shall
conclusively be deemed to have been executed or done only in or with respect to
his or their capacity as Trustee or Trustees, and such Trustee or Trustees shall
not be personally liable thereon. At the Trustees' discretion, any note, bond,
contract, instrument, certificate or undertaking made or issued by the Trustees
or by any officer or officers may give notice that the Certificate of Trust is
on file in the Office of the Secretary of State of the State of Delaware
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and that a limitation on liability of Series exists and such note, bond,
contract, instrument, certificate or undertaking may, if the Trustees so
determine, recite that the same was executed or made on behalf of the Trust by a
Trustee or Trustees in such capacity and not individually or by an officer or
officers in such capacity and not individually and that the obligations of such
instrument are not binding upon any of them or the Shareholders individually but
are binding only on the assets and property of the Trust or a Series thereof,
and may contain such further recital as such Person or Persons may deem
appropriate. The omission of any such notice or recital shall in no way operate
to bind any Trustees, officers or Shareholders individually.
Section 4. Director's Good Faith Action, Expert Advice, No Bond or
Surety. The exercise by the Directors of their powers and discretions hereunder
shall be binding upon everyone interested. A Director shall be liable to the
Trust and to any Shareholder solely for his or her own willful misfeasance, bad
faith, gross negligence or reckless disregard of the duties involved in the
conduct of the office of Director, and shall not be liable for errors of
judgment or mistakes of fact or law. The Directors may take advice of counsel or
other experts with respect to the meaning and operation of this Declaration of
Trust, and shall be under no liability for any act or omission in accordance
with such advice nor for failing to follow such advice. The Directors shall not
be required to give any bond as such, nor any surety if a bond is required.
Section 5. Insurance. The Directors shall be entitled and empowered
to the fullest extent permitted by law to purchase with Trust assets insurance
for liability and for all expenses reasonably incurred or paid or expected to be
paid by a Director or officer in connection with any claim, action, suit or
proceeding in which he or she becomes involved by virtue of his or her capacity
or former capacity with the Trust, whether or not the Trust would have the power
to indemnify him or her against such liability under the provisions of this
Article.
ARTICLE VIII.
Miscellaneous
Section 1. Liability of Third Persons Dealing with Directors. No
Person dealing with the Directors shall be bound to make any inquiry concerning
the validity of any transaction made or to be made by the Directors or to see to
the application of any payments made or property transferred to the Trust or
upon its order.
Section 2. Termination of Trust or Series.
(a) Unless terminated as provided herein, the Trust shall continue
without limitation of time. The Trust may be terminated at any time by vote of a
majority of the Shares of each Series entitled to vote, voting separately by
Series, or by the Directors by written notice to the Shareholders. Any Series or
Class may be terminated at any time by vote of a majority of the Shares of that
Series or Class entitled to vote, or by the Directors by written notice to the
Shareholders of that Series or Class.
(b) Upon the requisite Shareholder vote or action by the Directors
to terminate the Trust or any one or more Series of Shares or any Class thereof,
after paying or otherwise providing
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for all charges, taxes, expenses and liabilities, whether due or accrued or
anticipated, of the Trust or of the particular Series or any Class thereof as
may be determined by the Directors, the Trust shall in accordance with such
procedures as the Directors consider appropriate reduce the remaining assets of
the Trust or of the affected Series or Class to distributable form in cash or
Shares (if any Series remain) or other securities, or any combination thereof,
and distribute the proceeds to the Shareholders of the Series or Classes
involved, ratably according to the number of Shares of such Series or Class held
by the several Shareholders of such Series or Class on the date of distribution.
Thereupon, the Trust or any affected Series or Class shall terminate and the
Directors and the Trust shall be discharged of any and all further liabilities
and duties relating thereto or arising therefrom, and the right, title and
interest of all parties with respect to the Trust or such Series or Class shall
be canceled and discharged.
(c) Upon termination of the Trust, following completion of winding
up of its business, the Directors shall cause a certificate of cancellation of
the Trust's Certificate of Trust to be filed in accordance with the Delaware
Act, which certificate of cancellation may be signed by any one Director.
Section 3. Reorganization and Master/Feeder
(a) Notwithstanding anything else herein, the Directors 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 (or series thereof to the extent permitted by law), partnerships,
associations, corporations or other business entities (including trusts,
partnerships, associations, corporations or other business entities created by
the Directors to accomplish such merger or consolidation) so long as the
surviving or resulting entity is an open-end management investment company under
the 1940 Act, or is a series thereof, that will succeed to or assume the Trust's
registration under the 1940 Act and that is formed, organized or existing under
the laws of the United States or of a state, commonwealth, possession or colony
of the United States;
(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
Delaware. Any agreement of merger or consolidation or exchange or certificate of
merger may be signed by a majority of the Directors and facsimile signatures
conveyed by electronic or telecommunication means shall be valid.
(b) Pursuant to and in accordance with the provisions of Section
3815(f) of the Delaware Act, and notwithstanding anything to the contrary
contained in this Declaration of Trust, an agreement of merger or consolidation
approved by the Directors in accordance with this Section 3 may effect any
amendment to the governing instrument of the Trust or effect the adoption of a
new trust instrument of the Trust if the Trust is the surviving or resulting
trust in the merger or consolidation.
(c) The Directors may create one or more business trusts to which
all or any
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part of the assets, liabilities, profits or losses of the Trust or any Series or
Class thereof may be transferred and may provide for the conversion of Shares in
the Trust or any Series or Class thereof into beneficial interests in any such
newly created trust or trusts or any series or classes thereof.
(d) Notwithstanding anything else herein, the Directors may,
without Shareholder approval, 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 registered under the 1940 Act. Any such other
investment company may (but need not) be a trust (formed under the laws of the
State of Delaware or any other state or jurisdiction) (or subtrust thereof)
which is classified as a partnership for federal income tax purposes.
Notwithstanding anything else herein, the Directors 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 4. Amendments. Except as specifically provided in this
Section, the Directors may, without Shareholder vote, restate, amend or
otherwise supplement this Declaration of Trust. Shareholders shall have the
right to vote:
(i) on any amendment that would affect their right to vote granted
in Article V, Section 1 hereof;
(ii) on any amendment to this Section 4 of Article VIII;
(iii) on any amendment as may be required by applicable law or by
the Trust's registration statement filed with the Commission; and
(iv) on any amendment submitted to them by the Directors. Any
amendment required or permitted to be submitted to the Shareholders that, as the
Directors determine, shall affect the Shareholders of one or more Series shall
be authorized by a vote of the Shareholders of each Series affected and no vote
of Shareholders of a Series not affected shall be required. Notwithstanding
anything else herein, no amendment hereof shall limit the rights to insurance
provided by Article VII, Section 5 with respect to any acts or omissions of
Persons covered thereby prior to such amendment nor shall any such amendment
limit the rights to indemnification referenced in Article VII, Section 3 hereof
as provided in the By-Laws with respect to any actions or omissions of Persons
covered thereby prior to such amendment. The Directors may, without Shareholder
vote, restate, amend, or otherwise supplement the Certificate of Trust as they
deem necessary or desirable.
Section 5. Filing of Copies, References, Headings. The original or a
copy of this instrument and of each restatement and/or amendment hereto shall be
kept at the office of the Trust where it may be inspected by any Shareholder.
Anyone dealing with the Trust may rely on a certificate by an officer of the
Trust as to whether or not any such restatements and/or amendments have been
made and as to any matters in connection with the Trust hereunder; and, with the
same effect as if it were the original, may rely on a copy certified by an
officer of
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the Trust to be a copy of this instrument or of any such restatements and/or
amendments. In this instrument and in any such restatements and/or amendment,
references to this instrument, and all expressions like "herein," "hereof" and
"hereunder," shall be deemed to refer to this instrument as amended or affected
by any such restatements and/or! amendments. Headings are placed herein for
convenience of reference only and shall not be taken as a part hereof or control
or affect the meaning, construction or effect of this instrument. Whenever the
singular number is used herein, the same shall include the plural; and the
neuter, masculine and feminine genders shall include each other, as applicable.
This instrument may be executed in any number of counterparts each of which
shall be deemed an original.
Section 6. Applicable Law.
(a) The Trust is created under, and this Declaration of Trust is to
be governed by, and construed and enforced in accordance with, the laws of the
State of Delaware. The Trust shall be of the type commonly called a business
trust, and without limiting the provisions hereof, the Trust specifically
reserves the right to exercise any of the powers or privileges afforded to
business trusts or actions that may be engaged in by business trusts under the
Delaware Act, and the absence of a specific reference herein to any such power,
privilege or action shall not imply that the Trust may not exercise such power
or privilege or take such actions.
(b) Notwithstanding the first sentence of Section 6(a) of this
Article VIII, there shall not be applicable to the Trust, the Trustees or this
Declaration of Trust (x) the provisions of Section 3540 of Title 12 of the
Delaware Code or (y) any provisions of the laws (statutory or common) of the
State of Delaware (other than the Delaware Act) pertaining to trusts that 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 a court or other governmental
approval concerning the acquisition, holding or disposition of real or personal
property;
(iv) fees or other sums applicable to trustees, officers,
agents or employees of a trust;
(v) the allocation of receipts and expenditures to income or
principal;
(vi) restrictions or limitations on the permissible nature,
amount or concentration of trust investments or requirements relating to the
titling, storage or other manner of holding of trust assets; or
(vii) the establishment of fiduciary or other standards or
responsibilities or limitations on the acts or powers of trustees that are
inconsistent with the limitations or liabilities or
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authorities and powers of the Directors set forth or referenced in this
Declaration of Trust.
Section 7. Provisions in Conflict with Law or Regulations.
(a) The provisions of the Declaration of Trust are severable, and
if the Directors shall determine, with the advice of counsel, that any of such
provisions is in conflict with the 1940 Act, the regulated investment company
provisions of the Internal Revenue Code or with other applicable laws and
regulations, the conflicting provision shall be deemed never to have constituted
a part of the Declaration of Trust; provided, however, that such determination
shall not affect any of the remaining provisions of the Declaration of Trust or
render invalid or improper any action taken or omitted prior to such
determination.
(b) If any provision of the Declaration of Trust shall be held
invalid or unenforceable in any jurisdiction, such invalidity or
unenforceability shall attach only to such provision in such jurisdiction and
shall not in any manner affect such provision in any other jurisdiction or any
other provision of the Declaration of Trust in any jurisdiction.
Section 8. Business Trust Only. It is the intention of the Directors
to create a business trust pursuant to the Delaware Business Trust Act, as
amended from time to time (the "Act"), and thereby to create only the
relationship of Director and beneficial owners within the meaning of such Act
between the Directors and each Shareholder. It is not the intention of the
Directors to create a general partnership, limited partnership, joint stock
association, corporation, bailment, or any form of legal relationship other than
a business trust pursuant to such Act. Nothing in this Declaration of Trust
shall be construed to make the Shareholders, either by themselves or with the
Directors, partners or members of a joint stock association.
Section 9. Derivative Actions. In addition to the requirements set
forth in Section 3816 of the Delaware Act, a Shareholder may bring a derivative
action on behalf of the Trust only if the following conditions are met:
(a) The Shareholder or Shareholders must make a pre-suit demand
upon the Directors to bring the subject action unless an effort to cause the
Directors to bring such an action is not likely to succeed. For purposes of this
Section 9(a), a demand on the Directors shall only be deemed not likely to
succeed and therefore excused if a majority of the Board of Directors, or a
majority of any committee established to consider the merits of such action, has
a personal financial interest in the transaction at issue, and a Director shall
not be deemed interested in a transaction or otherwise disqualified from ruling
on the merits of a Shareholder demand by virtue of the fact that such Director
receives remuneration for his service on the Board of Directors of the Trust or
on the boards of one or more Trusts that are under common management with or
otherwise affiliated with the Trust.
(b) Unless a demand is not required under paragraph (a) of this
Section 9, Shareholders eligible to bring such derivative action under the
Delaware Act 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 Directors to commence such action;
and
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(c) Unless a demand is not required under paragraph (a) of this
Section 9, the Directors must be afforded a reasonable amount of time to
consider such shareholder request and to investigate the basis of such claim.
The Directors shall be entitled to retain counsel or other advisors in
considering the merits of the request and shall require an undertaking by the
Shareholders making such request to reimburse the Trust for the expense of any
such advisors in the event that the Directors determine not to bring such
action.
For purposes of this Section 9, the Board of Directors may designate
a committee of one Director to consider a Shareholder demand if necessary to
create a committee with a majority of Directors who do not have a personal
financial interest in the transaction at issue. The Directors shall be entitled
to retain counsel or other advisors in considering the merits of the request and
shall require an undertaking by the Shareholders making such request to
reimburse the Trust for the expense of any such advisors in the event that the
Directors determine not to bring such action.
Section 10. Use of the name "Vantagepoint Funds" or "Vantagepoint".
The name "Vantagepoint Funds" or "Vantagepoint" and all rights to the use of the
name "The Vantagepoint Funds" or "Vantagepoint" belong to The ICMA Retirement
Corporation ("RC"), the sponsor of the Trust. RC has consented to the use by the
Trust of the identifying word "Vantagepoint" and has granted to the Trust a
non-exclusive license to use the name "Vantagepoint" as part of the name of the
Trust and the name of any Series of Shares. In the event RC or an affiliate of
RC is not appointed as Manager and/or Principal Underwriter or ceases to be the
Manager and/or Principal Underwriter of the Trust or of any series using such
names, the non-exclusive license granted herein may be revoked by RC and the
Trust shall cease using the name "Vantagepoint" as part of its name or the name
of any Series of Shares, unless otherwise consented to by or any successor to
its interests in such names.
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IN WITNESS WHEREOF, the Directors named below do hereby make and
enter into this Declaration of Trust as of the day of , 1998.
----------------------------
Xxxx XxXxxxxx
----------------------------
Xxxx Xxxxxxxxx
----------------------------
Xxxxxxx Xxxxxxxx
THE PRINCIPAL PLACE OF BUSINESS OF THE TRUST IS:
000 Xxxxx Xxxxxxx Xx., XX, Xxx. 000
XXXXXXXXXX, X.X. 00000
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