KD MUTUAL FUNDS
AGREEMENT AND DECLARATION OF TRUST
Dated: June 9, 2005
TABLE OF CONTENTS
Page
ARTICLE 1. NAME AND DEFINITIONS.....................................1
Section 1.1 Name.....................................................1
Section 1.2 Definitions..............................................1
ARTICLE 2. BENEFICIAL INTEREST......................................2
Section 2.1 Shares of Beneficial Interest............................2
Section 2.2 Issuance of Shares.......................................2
Section 2.3 Register of Shares and Share Certificates................3
Section 2.4 Transfer of Shares.......................................3
Section 2.5 Treasury Shares..........................................4
Section 2.6 Establishment of Series and Classes......................4
Section 2.7 Investment in the Trust..................................5
Section 2.8 Assets and Liabilities Belonging to Series, etc..........5
Section 2.9 No Preemptive Rights.....................................6
Section 2.10 Conversion Rights........................................7
Section 2.11 Legal Proceedings........................................7
Section 2.12 Status of Shares.........................................7
ARTICLE 3. THE TRUSTEES.............................................8
Section 3.1 Management of the Trust..................................8
Section 3.2 Term of Office of Trustees...............................8
Section 3.3 Vacancies and Appointment of Trustees....................9
Section 3.4 Temporary Absence of Trustee.............................9
Section 3.5 Number of Trustees.......................................9
Section 3.6 Effect of Death, Resignation, Etc. of a Trustee..........9
Section 3.7 Ownership of Assets of the Trust.........................9
Section 3.8 Series Trustees.........................................10
Section 3.9 No Accounting...........................................10
ARTICLE 4. POWERS OF THE TRUSTEES..................................11
Section 4.1 Powers..................................................11
Section 4.2 Issuance and Repurchase of Shares.......................15
Section 4.3 Trustees and Officers as Shareholders...................15
Section 4.4 Action by the Trustees and Committees...................15
Section 4.5 Chairman of the Trustees................................15
Section 4.6 Principal Transactions..................................16
ARTICLE 5. INVESTMENT ADVISOR, INVESTMENT SUB-ADVISOR,
PRINCIPAL UNDERWRITER, ADMINISTRATOR,
TRANSFER AGENT, CUSTODIAN AND OTHER
CONTRACTORS.............................................16
Section 5.1 Certain Contracts.......................................16
ARTICLE 6. SHAREHOLDER VOTING POWERS AND MEETINGS..................18
Section 6.1 Voting..................................................18
Section 6.2 Meetings................................................19
Section 6.3 Quorum and Required Vote................................19
Section 6.4 Action by Written Consent...............................19
TABLE OF CONTENTS
Page
ARTICLE 7. DISTRIBUTIONS AND REDEMPTIONS...........................20
Section 7.1 Distributions...........................................20
Section 7.2 Redemption by Shareholder...............................20
Section 7.3 Redemption by Trust.....................................21
Section 7.4 Net Asset Value.........................................21
ARTICLE 8. LIMITATION OF LIABILITY AND INDEMNIFICATION.............22
Section 8.1 Limitation of Liability.................................22
Section 8.2 Indemnification.........................................22
Section 8.3 Indemnification Determinations..........................23
Section 8.4 Indemnification Not Exclusive...........................23
Section 8.5 Shareholders............................................23
ARTICLE 9. MISCELLANEOUS...........................................24
Section 9.1 Trust Not a Partnership.................................24
Section 9.2 Trustees' Good Faith Action, Expert Advice, No Bond
or Surety...............................................24
Section 9.3 Establishment of Record Dates...........................25
Section 9.4 Dissolution and Termination of Trust or Series..........25
Section 9.5 Merger, Consolidation, Incorporation....................26
Section 9.6 Filing of Copies, References, Headings..................27
Section 9.7 Applicable Law..........................................27
Section 9.8 Amendments..............................................28
Section 9.9 Fiscal Year.............................................28
Section 9.10 Provisions in Conflict with Law.........................28
Section 9.11 Allocation of Certain Expenses..........................28
KD MUTUAL FUNDS
AGREEMENT AND DECLARATION OF TRUST
AGREEMENT AND DECLARATION OF TRUST of KD Mutual Funds (the "Trust"), a
Delaware statutory business trust, made as of June 9, 2005, by the undersigned
Trustee.
WHEREAS, the undersigned Trustee desires to establish the Trust for the
investment and reinvestment of funds contributed thereto;
WHEREAS, the Trustee desires that the beneficial interest in the Trust's
assets be divided into transferable shares of beneficial interest, as
hereinafter provided;
WHEREAS, the Trustee declares that all money and property contributed to
the Trust established hereunder shall be held and managed in trust for the
benefit of the holders of the shares of beneficial interest issued hereunder and
subject to the provisions hereof;
NOW, THEREFORE, in consideration of the foregoing, the undersigned Trustee
hereby declares that all money and property contributed to the Trust hereunder
shall be held and managed in trust under this Declaration of Trust ("Trust
Instrument") as herein set forth below.
ARTICLE 1
NAME AND DEFINITIONS
Section 1.1 Name. The name of the Trust established hereby is "KD Mutual
Funds".
Section 1.2 Definitions. Wherever used herein, unless otherwise required by
the context or specifically provided:
(a) "Act" means the Delaware Business Trust Act, 12 Del. C. xx.xx.
3801 et seq., as from time to time amended;
(b) "By-laws" means the By-laws referred to in Section 4.1(e) hereof,
as from time to time amended;
(c) The terms "Affiliated Person," "Assignment," "Commission,"
"Interested Person" and "Principal Underwriter" shall have the
meanings given them in the 1940 Act (defined below). "Majority
Shareholder Vote" shall have the same meaning as the term "vote of
a majority of the outstanding voting securities" is given in the
1940 Act;
(d) "Class" means any division of Shares within a Series, which Class
is or has been established in accordance with the provisions of
Article II.
(e) "Net Asset Value" means the net asset value of each Series or
Class of the Trust determined in the manner provided in Section
7.4 hereof;
(f) "Outstanding Shares" means those Shares recorded from time to time
in the books of the Trust or its transfer agent as then issued and
outstanding, but shall not include Shares which have been redeemed
or repurchased by the Trust and which are at the time held in the
treasury of the Trust;
(g) "Series" means a series of Shares of the Trust established in
accordance with the provisions of Section 2.6 hereof;
(h) "Shareholder" means a record owner of Outstanding Shares of the
Trust;
(i) "Shares" means the equal proportionate transferable units of
beneficial interest into which the beneficial interest of each
Series of the Trust or Class thereof shall be divided and may
include fractions of Shares as well as whole Shares;
(j) "Trust" refers to KD Investments and reference to the Trust, when
applicable to one or more Series of the Trust, shall refer to any
such Series;
(k) "Trustee" or "Trustees" means the person or persons who has or
have signed this Trust Instrument, so long as such person or
persons 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 the
provisions of Article III hereof, and reference herein to a
Trustee or to the Trustees shall refer to the individual Trustees
in their capacity as Trustees hereunder;
(l) "Trust Property" means any and all property, real or personal,
tangible or intangible, which is owned or held by or for the
account of one or more of the Trust or any Series, or the Trustees
on behalf of the Trust or any Series.
(m) The "1940 Act" refers to the Investment Company Act of 1940 and
the Rules and Regulations thereunder, all as may be amended from
time to time.
ARTICLE 2
BENEFICIAL INTEREST
Section 2.1 Shares of Beneficial Interest. The beneficial interest in the
Trust shall be divided into such transferable Shares of one or
more separate and distinct Series and Classes within a Series as
the Trustees shall from time to time create and establish. The
number of Shares of each Series and Class authorized hereunder is
unlimited. Each Share shall have no par value, unless otherwise
determined by the Trustees in connection with the creation and
establishment of a Series or Class. All Shares issued hereunder,
including without limitation, Class Shares issued in connection
with a dividend in Shares or a split or reverse split of Shares,
shall be fully paid and nonassessable.
Section 2.2 Issuance of Shares. The Trustees in their discretion may, from
time to time, without vote of the Shareholders, issue Shares of
each Series and Class to such party or parties and for such amount
and type of consideration (or for no consideration if pursuant to
a Share dividend or split-up), subject to applicable law,
including cash or securities (including Shares of a different
Series or Class), at such time or times and on such terms as the
Trustees may deem appropriate, and may in such manner acquire
other assets (including the acquisitions of assets subject to, and
in connection with, the assumption of liabilities) and businesses.
In connection with any issuance of Shares, the Trustees may issue
fractional Shares and Shares held in the treasury. The Trustees
may from time to time divide or combine the Shares into a greater
or lesser number without thereby changing the proportionate
beneficial interests in the Trust. The Trustees may classify or
reclassify any unissued Shares or any Shares previously issued and
reacquired of any Series or Class into one or more Series or
Classes that may be established and designated from time to time.
Any Trustee, officer or other agent of the Trust, and any
organization in which any such person is interested, may acquire,
own, hold and dispose of Shares of any Series or Class of the
Trust to the same extent as if such person were not a Trustee,
officer or other agent of the Trust; and the Trust may issue and
sell or cause to be issued and sold and may purchase Shares of any
Series or Class from any such person or any such organization
subject only to the general limitations, restrictions or other
provisions applicable to the sale or purchase of Shares of such
Series or Class generally.
Section 2.3 Register of Shares and Share Certificates. A register shall be
kept at the principal office of the Trust, or an office of the
Trust's transfer agent, which shall contain the names and
addresses of the Shareholders of each Series and Class, the number
of Shares of that Series and Class thereof held by them
respectively and a record of all transfers thereof. As to Shares
for which no certificate has been issued, such register shall be
conclusive as to who are the holders of the Shares and who shall
be entitled to receive dividends or other distributions or
otherwise to exercise or enjoy the rights of Shareholders. No
Shareholder shall be entitled to receive payment of any dividend
or other distribution, nor to have notice given to him as herein
or in the By-laws provided, until he has given his address to the
transfer agent or such other officer or agent of the Trust as
shall keep the said register for entry thereon. The Trustees, in
their discretion, may authorize the issuance of share certificates
and promulgate appropriate rules and regulations as to their use.
In the event that one or more certificates are issued, whether in
the name of a Shareholder or a nominee, such certificate or
certificates shall constitute evidence of ownership of Shares for
all purposes, including transfer, assignment or sale of such
Shares, subject to such limitations as the Trustees may, in their
discretion, prescribe.
Section 2.4 Transfer of Shares. Except as otherwise provided by the Trustees,
Shares shall be transferable on the records of the Trust only by
the record holder thereof or by his agent thereunto duly
authorized in writing, 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 of the genuineness of each such execution and
authorization and of such other matters as may be required by the
Trustees. Upon such delivery the transfer shall be recorded on the
register of the Trust. Until such record is made, the Shareholder
of record 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 nor any officer, employee or agent of
the Trust shall be affected by any notice of the proposed
transfer.
Section 2.5 Treasury Shares. Shares held in the treasury shall, until reissued
pursuant to Section 2.2 hereof, not confer any voting rights on
the Trustees, nor shall such Shares be entitled to any dividends
or other distributions declared with respect to the Shares.
Section 2.6 Establishment of Series and Classes. The Trust shall consist of
one or more Series and Classes, 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 Trust Instrument 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 2.6.
Section 2.7 Investment in the Trust. The Trustees shall accept investments in
any Series of the Trust or Class, if the Series has been divided
into Classes, from such persons and on such terms as they may from
time to time authorize. At the Trustees' discretion, such
investments, subject to applicable law, may be in the form of cash
or securities in which the affected Series is authorized to
invest, valued as provided in Section 7.4 hereof. Unless the
Trustees otherwise determine, investments in a Series shall be
credited to each Shareholder's account in the form of full Shares
at the Net Asset Value per Share next determined after the
investment is received. Without limiting the generality of the
foregoing, the Trustees may, in their sole discretion, (a) fix the
Net Asset Value per Share of the initial capital contribution, (b)
impose sales or other charges upon investments in the Trust or (c)
issue fractional Shares.
Section 2.8 Assets and Liabilities Belonging to Series, etc. 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, 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 other assets of the Trust and of every other
Series and may be referred to herein as "assets belonging to" that
Series. The assets belonging to a particular Series shall belong
to that Series for all purposes, and to no other Series, subject
only to the rights of creditors of that Series. In addition, any
assets, income, earnings, profits or funds, or payments and
proceeds with respect thereto, which are not readily identifiable
as belonging to any particular Series shall be allocated by the
Trustees between and among one or more of the Series in such
manner as the Trustees, in their sole discretion, deem fair and
equitable. If there are classes of Shares within a Series, the
assets belonging to the Series shall be further allocated to each
Class in the proportion that the "assets belonging to" the Class
(calculated in the same manner as with determination of assets
"belonging to" the Series) bears to the assets of all Classes
within the Series. Each such allocation shall be conclusive and
binding upon the Shareholders of all Series and Classes for all
purposes, and such assets, income, earnings, profits or funds, or
payments and proceeds with respect thereto shall be assets
belonging to that Series or Class, as the case may be. The assets
belonging to a particular Series and Class shall be so recorded
upon the books of the Trust, and shall be held by the Trustees in
trust for the benefit of the holders of Shares of that Series or
Class, as the case may be.
The assets belonging to each Series shall be charged with the
liabilities of that Series and all expenses, costs, charges and
reserves attributable to that Series. Any general liabilities,
expenses, costs, charges or reserves of the Trust which are not
readily identifiable as belonging to any particular Series shall
be allocated and charged by the Trustees between or among any one
or more of the Series in such manner as the Trustees in their sole
discretion deem fair and equitable. Each such allocation shall be
conclusive and binding upon the Shareholders of all Series for all
purposes. The liabilities, expenses, costs, charges and reserves
allocated and so charged to a Series are herein referred to as
"liabilities belonging to" that Series. Except as provided in the
next sentence or otherwise required or permitted by applicable law
or any rule or order of the Securities and Exchange Commission
(the "Commission"), the "liabilities belonging to" such Series
shall be allocated to each Class of a Series in the proportion
that the assets belonging to such Class bear to the assets
belonging to all Classes in the Series. To the extent permitted by
rule or order of the Commission, the Trustees may allocate all or
a portion of any liabilities belonging to a Series to a particular
Class or Classes (collectively, "Class Expenses") as the Trustees
may from time to time determine is appropriate. In addition, all
liabilities, expenses, costs, charges and reserves belonging to a
Class shall be allocated to such Class.
Without limitation of the foregoing provisions of this Section
2.8, but subject to the right of the Trustees in their discretion
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 belonging to such Series only, and not against the assets
of the Trust generally or any other Series. Notice of this
limitation on inter-Series liabilities shall be set forth in the
certificate of trust of the Trust (whether originally or by
amendment) as filed or to be filed in the Office of the Secretary
of State of the State of Delaware pursuant to the Act, and upon
the giving of such notice in the certificate of trust, the
statutory provisions of Section 3804 of the Act relating to
limitations on inter-Series liabilities (and the statutory effect
under Section 3804 of setting forth such notice in the certificate
of trust) shall become applicable to the Trust and each Series.
Any person extending credit to, contracting with or having any
claim against any Series may satisfy or enforce any debt,
liability, obligation or expense incurred, contracted for or
otherwise existing with respect to that Series from the assets of
that Series only. 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.
Similarly, the debts, liabilities, obligations and expenses
incurred, contracted for or otherwise existing with respect to a
particular Class shall be enforceable against the assets belonging
to such Class only, and not against the assets of the Series or
the Trust generally or any other Class. Each contract entered into
by the Trust which is or may be an obligation of a Class within a
Series shall contain a provision to the effect that the parties to
the contract will look only to the assets belonging to the Class
for the satisfaction of any liability, and not to any extent to
the assets of any other Class or Series or the Trust generally.
If, notwithstanding the preceding sentence, any liability properly
charged to a Class is paid from the assets of another Class, the
Class from whose assets the liability was paid shall be reimbursed
from the assets of the Class to which such liability belonged.
Section 2.9 No Preemptive Rights. Shareholders shall have no preemptive or
other similar rights to subscribe to any additional Shares or
other securities issued by the Trust or the Trustees, whether of
the same or another Series or Class.
Section 2.10 Conversion Rights. The Trustees shall have the authority to
provide from time to time that the holders of Shares of any Series
or Class shall have the right to convert or exchange said Shares
for or into Shares of one or more other Series or Classes in
accordance with such requirements and procedures as may be
established from time to time by the Trustees.
Section 2.11 Legal Proceedings. Except for Trustees, only Shareholders 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. No Shareholder of a Series or a
Class may maintain a derivative action with respect to such Series
or Class unless holders of a least ten percent (10%) of the
outstanding Shares of such Series or Class join in the bringing of
such action. Except as otherwise provided in Section 3816 of the
Act and the foregoing provisions of this Section 2.11, all matters
relating to the bringing of derivative actions in the right of the
Trust shall be governed by the General Corporation Law of the
State of Delaware relating to derivative actions, and judicial
interpretations thereunder, as if the Trust were a Delaware
corporation and the Shareholders were shareholders of a Delaware
corporation.
In addition to the requirements set forth in Section 3816 of the
Act, a Shareholder may bring a derivative action on behalf of the
Trust with respect to a Series or Class only if the following
conditions are met: (a) the Shareholder or Shareholders must make
a pre-suit demand upon the Trustees to bring the subject action
unless an effort to cause the Trustees to bring such an action is
not likely to succeed; and a demand on the Trustees shall only be
deemed not likely to succeed and therefore excused if a majority
of the Trustees, or a majority of any committee established to
consider the merits of such action, has a personal financial
interest in the transaction at issue, and a Trustee shall not be
deemed interested in a transaction or otherwise disqualified from
ruling on the merits of a Shareholder demand by virtue of the fact
that such Trustee receives remuneration for his service as a
Trustee of the Trust or as a trustee or director of one or more
investment companies that are under common management with or
otherwise affiliated with the Trust; and (b) unless a demand is
not required under clause (a) of this paragraph, the Trustees must
be afforded a reasonable amount of time to consider such
shareholder request and to investigate the basis of such claim;
and the Trustees shall be entitled to retain counsel or other
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. For
purposes of this Section 2.11, the Trustees may designate a
committee of one Trustee to consider a Shareholder demand if
necessary to create a committee with a majority of Trustees who do
not have a personal financial interest in the transaction at
issue.
Section 2.12 Status of Shares. 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. The
death of a Shareholder during the continuance of the Trust shall
not operate to terminate the Trust nor entitle the representative
of any deceased Shareholder to an accounting or to take any action
in court or elsewhere against the Trust or the Trustees, but only
to the rights of said decedent 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 partners.
ARTICLE 3
THE TRUSTEES
Section 3.1 Management of the Trust. The Trustees shall have exclusive and
absolute control over the Trust Property and over the business of
the Trust to the same extent as if the Trustees were the sole
owners of the Trust Property and business in their own right, but
with such powers of delegation as may be permitted by this Trust
Instrument. The Trustees shall have power to conduct the business
of the Trust and carry on its operations in any and all of its
branches and maintain offices both within and without the State of
Delaware, in any and all states of the United States of America,
in the District of Columbia, in any and all commonwealths,
territories, dependencies, colonies, or possessions of the United
States of America, and in any foreign jurisdiction and to do all
such other things and execute all such instruments as they deem
necessary, proper or desirable in order to promote the interests
of the Trust although such things are not herein specifically
mentioned. Any determination as to what is in the interests of the
Trust made by the Trustees in good faith shall be conclusive. In
construing the provisions of this Trust Instrument, the
presumption shall be in favor of a grant of power to the Trustees.
The enumeration of any specific power in this Trust Instrument
shall not be construed as limiting the aforesaid power. The powers
of the Trustees may be exercised without order of or resort to any
court.
Except for the Trustees named herein or appointed pursuant to
Section 3.8, or Trustees appointed to fill vacancies pursuant to
Section 3.3 hereof, the Trustees shall be elected by the
Shareholders owning of record a plurality of the Shares voting at
a meeting of Shareholders. The initial Trustee of the Trust shall
be Xxxxx Xxxxxxx.
Section 3.2 Term of Office of Trustees. Each Trustee shall hold office during
the existence of this Trust, and until its termination as herein
provided; except: (a) that any Trustee may resign his position by
written instrument signed by him and delivered to the Chairman,
President, Secretary, or other Trustee of the Trust, which shall
take effect upon such delivery or upon such later date as is
specified therein; (b) that any Trustee may be removed at any time
by written instrument, signed by a two-thirds (2/3rd) majority of
the Trustees prior to such removal, specifying the date when such
removal shall become effective; (c) that any Trustee who requests
in writing to be retired or who has died, become physically or
mentally incapacitated by reason of disease or otherwise, or is
otherwise unable to serve, may be retired by written instrument
signed by a two-thirds (2/3rd) majority of the other Trustees,
specifying the date of his retirement; and (d) that a Trustee may
be removed at any meeting of the Shareholders of the Trust by a
vote of Shareholders owning a two-thirds (2/3rd) majority of the
outstanding Shares of all Series, in the aggregate.
Section 3.3 Vacancies and Appointment of Trustees. In case of the declination
to serve, death, resignation, retirement, removal, physical or
mental incapacity by reason of disease or otherwise of a Trustee,
or a Trustee is otherwise unable to serve, or an increase in the
number of Trustees, a vacancy shall occur. Whenever a vacancy in
the Board of Trustees shall occur, until such vacancy is filled,
the other Trustees shall have all the powers hereunder and the
certificate of the other Trustees of such vacancy shall be
conclusive. In the case of an existing vacancy, the remaining
Trustee or Trustees shall fill such vacancy by appointing such
other person as such Trustee or Trustees in their discretion shall
see fit consistent with the limitations under the 1940 Act, unless
such Trustee or Trustees determine, in accordance with Section
3.5, to decrease the size of the Board to the number of remaining
Trustees.
An appointment of a Trustee may be made by the Trustees then in
office in anticipation of a vacancy to occur by reason of
retirement, resignation or increase in number of Trustees
effective at a later date, provided that said appointment shall
become effective only at or after the effective date of said
retirement, resignation or increase in number of Trustees.
An appointment of a Trustee shall be effective upon the acceptance
of the person so appointed to serve as trustee, except that any
such appointment in anticipation of a vacancy shall become
effective at or after the date such vacancy occurs.
Section 3.4 Temporary Absence of Trustee. Any Trustee may, by power of
attorney, delegate his power for a period not exceeding six months
at any one time to any other Trustee or Trustees, provided that in
no case shall less than two Trustees personally exercise the other
powers hereunder except as herein otherwise expressly provided or
unless there is only one or two Trustees.
Section 3.5 Number of Trustees. The number of Trustees shall be one, or such
other number as shall be fixed from time to time by the Trustees
at their sole discretion.
Section 3.6 Effect of Death, Resignation, Etc. of a Trustee. The declination
to serve, death, resignation, retirement, removal, incapacity, or
inability of the Trustees, or any one of them, shall not operate
to terminate the Trust or to revoke any existing agency created
pursuant to the terms of this Trust Instrument.
Section 3.7 Ownership of Assets of the Trust. Legal title in and beneficial
ownership of all of the assets of the Trust shall at all times be
considered as 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 interest
in any individual asset of the Trust or of any Series or Class, or
any right of partition or possession thereof, but each Shareholder
shall have, except as otherwise provided for herein, a
proportionate undivided beneficial interest in each Series or
Class the Shares of which are owned by such Shareholders. The
Shares shall be personal property giving only the rights
specifically set forth in this Trust Instrument. 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.
Section 3.8 Series 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 1940 Act,
separate Trustees with respect to such Series or Classes (the
"Series Trustees"). Series Trustees may, but are not required to,
serve as Trustees of the Trust of any other Series or Class of the
Trust. To the extent provided by the Trustees in the appointment
of Series Trustees, the Series Trustees 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, but
may have no power or authority with respect to any other Series or
Class. Any provision of this Trust Instrument 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 this Trust Instrument or the By-laws to provide for the
respective 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.
Section 3.9 No Accounting. Except to the extent required by the 1940 Act or,
if determined to be necessary or appropriate by the other Trustees
under circumstances which would justify his or her 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 4
POWERS OF THE TRUSTEES
Section 4.1 Powers. The Trustees in all instances shall act as principals, and
are and shall be free from the control of the Shareholders. The
Trustees shall have full power and authority to do any and all
acts and to make and execute any and all contracts and instruments
that they may consider necessary or appropriate in connection with
the management of the Trust. The Trustees shall have full
authority and power to make any and all investments which they, in
their sole discretion, shall deem proper to accomplish the purpose
of the Trust. Subject to any applicable limitation in this Trust
Instrument, the Trustees shall have power and authority:
(a) To invest and reinvest cash and other property, and to hold cash
or other property uninvested, and to sell, exchange, lend, pledge,
mortgage, hypothecate, write options on and lease any or all of
the assets of the Trust;
(b) To 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, including the power to invest all or
any part of its assets in the securities of another investment
company;
(c) To borrow money 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;
to endorse, guarantee, or undertake the performance of an
obligation, liability or engagement of any person and to lend
Trust Property;
(d) To provide for the distribution of interests of the Trust either
through a Principal Underwriter in the manner hereinafter provided
for or by the Trust itself, or both, or otherwise pursuant to a
plan of distribution of any kind;
(e) To adopt By-laws not inconsistent with this Trust Instrument
providing for the conduct of the business of the Trust and to
amend and repeal them to the extent that they do not reserve that
right to the Shareholders, which By-laws shall be deemed a part of
this Trust Instrument and are incorporated herein by reference;
(f) To elect and remove such officers and appoint and terminate such
agents and contractors as they consider appropriate, any of whom
may be a Trustee, and may provide for the compensation of all of
the foregoing;
(g) To employ one or more banks, trust companies or companies that are
members of a national securities exchange or such other entities
as custodians of any assets of the Trust, subject to the 1940 Act
and to any conditions set forth in this Trust Instrument;
(h) To retain one or more transfer agents and shareholder servicing
agents, or both;
(i) To set record dates in the manner provided herein or in the
By-laws;
(j) To delegate such authority (which delegation may include the power
to sub delegate) as they consider desirable to any officers of the
Trust and to any investment adviser, manager, administrator,
custodian, underwriter or other agent or independent contractor;
(k) To join with other holders of any securities or debt instruments
in acting through a committee, depository, voting trustee or
otherwise, and in that connection to deposit any security or debt
instrument with, or transfer any security or debt instrument to,
any such committee, depository or trustee, and to delegate to them
such power and authority with relation to any security or debt
instrument (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,
depository or trustee as the Trustees shall deem proper;
(l) To enter into joint ventures, general or limited partnerships and
any other combinations or associations;
(m) To pay pensions for faithful service, as deemed appropriate by the
Trustees, and to adopt, establish and carry out pension,
profit-sharing, share bonus, share purchase, savings, thrift and
other retirement, incentive and benefit plans, trusts and
provisions, including the purchasing of life insurance and annuity
contracts as a means of providing such retirement and other
benefits, for any or all of the Trustees, officers, employees and
agents of the Trust;
(n) To the extent permitted by law, indemnify any person with whom the
Trust or any Series or Class has dealings;
(o) To engage in and to prosecute, defend, compromise, abandon, or
adjust by arbitration, or otherwise, any actions, suits,
proceedings, disputes, claims and demands relating to the Trust,
and out of the assets of the Trust or any Series or Class 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;
(p) To purchase and pay for entirely out of Trust Property such
insurance as they may deem necessary or appropriate for the
conduct of the business of the Trust, including, without
limitation, insurance policies insuring the Trust Property and
payment of distributions and principal on its investments, and
insurance policies insuring the Shareholders, Trustees, officers,
representatives, employees, agents, investment advisers, managers,
administrators, custodians, underwriters, or independent
contractors of the Trust individually against all claims and
liabilities of every nature arising by reason of 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 in
such capacity, 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 such
liability;
(q) To sell, exchange, lend, pledge, mortgage, hypothecate, write
options on and lease any or all of the assets of the Trust,
subject to the provisions of Section 9.4(b) hereof;
(r) To vote or give assent, or exercise any rights of ownership, with
respect to stock or other securities, debt instruments or
property; and to execute and deliver powers of attorney to such
person or persons as the Trustees shall deem proper, granting to
such person or persons such power and discretion with relation to
securities, debt instruments or property as the Trustees shall
deem proper;
(s) To exercise powers and rights of subscription or otherwise which
in any manner arise out of ownership of securities or debt
instruments;
(t) To hold any security or property in a form not indicating any
trust, whether in bearer, book entry, unregistered or other
negotiable form; or either in the name of the Trustees or of the
Trust or in the name of a custodian, sub custodian or other
depository or a nominee or nominees or otherwise;
(u) To establish separate and distinct Series with separately defined
investment objectives and policies and distinct investment
purposes in accordance with the provisions of Article 2 hereof and
to establish Classes thereof having relative rights, powers and
duties as they may provide consistent with applicable law;
(v) To consent to or participate in any plan for the reorganization,
consolidation or merger of any corporation, issuer or concern, any
security or debt instrument of which is held in the Trust; to
consent to any contract, lease, mortgage, purchase or sale of
property by such corporation, issuer or concern, and to pay calls
or subscriptions with respect to any security or debt instrument
held in the Trust;
(w) 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;
(x) To make distributions of income and of capital gains to
Shareholders in the manner herein provided;
(y) To establish, from time to time, a minimum investment for
Shareholders in the Trust or in one or more Series or Classes, and
to require the redemption of the Shares of any Shareholders whose
investment is less than such minimum upon giving notice to such
Shareholder;
(z) To cause each Shareholder, or each Shareholder of any particular
Series of Class, 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 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;
(aa) To establish one or more committees comprised of one or more of
the Trustees, and to delegate any of the powers of the Trustees to
said committees;
(bb) To interpret the investment policies, practices or limitations of
any Series or Class;
(cc) To establish a registered office and have a registered agent in
the State of Delaware;
(dd) To compensate or provide for the compensation of the Trustees,
officers, advisers, administrators, custodians, other agents,
consultants, contractors and employees of the Trust or the
Trustees on such terms as they deem appropriate;
(ee) 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 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; and
(ff) In general, to carry on any other business in connection with or
incidental to any of the foregoing powers, to do everything
necessary, suitable or proper for the accomplishment of any
purpose or the attainment of any object or the furtherance of any
power herein set forth, either alone or in association with
others, and to do every other act or thing incidental or
appurtenant to or growing out of or connected with the aforesaid
business or purposes, objects or powers.
The foregoing clauses shall be construed both as objects and
powers, and the foregoing enumeration of specific powers shall not
be held to limit or restrict in any manner 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 or Class, 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.
Section 4.2 Issuance and Repurchase of Shares. The Trustees shall have the
power to issue, sell, repurchase, redeem, retire, cancel, acquire,
hold, resell, reissue, dispose of, exchange, and otherwise deal in
Shares and, subject to the provisions set forth in Article 2 and
Article 7, to apply to any such repurchase, redemption,
retirement, cancellation or acquisition of Shares any funds or
property of the Trust, or the particular Series or Class of the
Trust, with respect to which such Shares are issued.
Section 4.3 Trustees and Officers as Shareholders. Any Trustee, officer or
other agent of the Trust may acquire, own and dispose of Shares to
the same extent as if such person were not a Trustee, officer or
agent; and the Trustees may issue and sell or cause to be issued
and sold Shares to and buy such Shares from any such person or any
firm or company in which such person invested, subject to the
general limitations herein contained as to the sale and purchase
of such Shares.
Section 4.4 Action by the Trustees and Committees. The Trustees (and any
committee thereof) may act at a meeting held in person or in whole
or in part by conference telecommunications equipment. One-third,
but not less than two, of the Trustees shall constitute a quorum
at any meeting unless there is only one Trustee. Except as the
Trustees may otherwise determine, one-third of the members of any
committee shall constitute a quorum at any meeting. The vote of a
majority of the Trustees (or committee members) present at a
meeting at which a quorum is present shall be the act of the
Trustees (or any committee thereof). The Trustees (and any
committee thereof) may also act by written consent signed by a
majority of the Trustees (or committee members). Regular meetings
of the Trustees may be held at such places and at such times as
the Trustees may from time to time determine. Special meetings of
the Trustees (and meetings of any committee thereof) may be called
orally or in writing by the Chairman of the Board of Trustees (or
the chairman of any committee thereof), the President of the
Trust, or by any two other Trustees. Notice of the time, date and
place of all meetings of the Trustees (or any committee thereof)
shall be given by the party calling the meeting to each Trustee
(or committee member) by telephone, telefax, e-mail or telegram
sent to the person's home or business address at least twenty-four
hours in advance of the meeting or by written notice mailed to the
person's home or business address at least seventy-two hours in
advance of the meeting. Notice of all proposed written consents of
Trustees (or committees thereof) shall be given to each Trustee
(or committee member) by telephone, telefax, e-mail, telegram, or
first class mail sent to the person's home or business address.
Notice need not be given to any person who attends a meeting
without objecting to the lack of notice or who executes a written
consent or a written waiver of notice with respect to a meeting.
Written consents or waivers may be executed in one or more
counterparts. Execution of a written consent or waiver and
delivery thereof may be accomplished by telefax or other
electronic means approved by the Trustees.
Section 4.5 Chairman of the Trustees. The Trustees may appoint one of their
number to be Chairman of the Board of Trustees. The Chairman shall
preside at all meetings of the Trustees at which he is present. If
required under the 1940 Act, the Chairman shall be a
"disinterested person", as such term is defined in the 1940 Act.
Section 4.6 Principal Transactions. Except to the extent prohibited by
applicable law, the Trustees may, on behalf of the Trust, 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 Affiliated Person of the Trust,
investment adviser, investment sub-adviser, distributor or
transfer agent for the Trust or with any Interested Person of such
Affiliated Person or other person; and the Trust may employ any
such Affiliated Person or other person, or firm or company in
which such Affiliated Person or other person is an Interested
Person, as broker, legal counsel, registrar, investment adviser,
investment sub-adviser, distributor, transfer agent, dividend
disbursing agent, custodian or in any other capacity upon
customary terms.
ARTICLE 5
INVESTMENT ADVISOR, INVESTMENT SUB-ADVISOR,
PRINCIPAL UNDERWRITER, ADMINISTRATOR, TRANSFER AGENT,
CUSTODIAN AND OTHER CONTRACTORS
Section 5.1 Certain 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, enter into one or more 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 some or all of
the following services, duties and responsibilities to, for or of
the Trust and/or the Trustees, and to provide for the performance
and assumption of such other services, duties and responsibilities
in addition to those set forth below as the Trustees may determine
to be appropriate:
(a) Investment Adviser and Investment Sub-Adviser. The Trustees may in
their discretion, from time to time, enter into an investment
advisory or management contract or contracts with respect to the
Trust or any Series whereby the other party or parties to such
contract or contracts shall undertake to furnish the Trust with
such management, investment advisory, statistical and research
facilities and services and such other facilities and services, if
any, and all upon such terms and conditions, as the Trustees may
in their discretion determine. Notwithstanding any other provision
of this Trust Instrument, the Trustees may authorize any
investment adviser (subject to such general or specific
instructions as the Trustees may from time to time adopt) to
effect purchases, sales or exchanges of portfolio securities,
other investment instruments of the Trust, or other Trust Property
on behalf of the Trustees, or may authorize any officer, agent, or
Trustee to effect such purchases, sales or exchanges pursuant to
recommendations of the investment adviser (and all without further
action by the Trustees). Any such purchases, sales and exchanges
shall be deemed to have been authorized by the Trustees.
The Trustees may authorize, subject to applicable requirements of
the 1940 Act, the investment adviser to employ, from time to time,
one or more sub-advisers to perform such of the acts and services
of the investment adviser, and upon such terms and conditions, as
may be agreed upon between the investment adviser and sub-adviser.
Any reference in this Trust Instrument to the investment adviser
shall be deemed to include such sub-advisers, unless the context
otherwise requires.
(b) Principal Underwriter. The Trustees may in their discretion from
time to time enter into an exclusive or non-exclusive underwriting
contract or contracts providing for the sale of Shares, whereby
the Trust may either agree to sell Shares to the other party to
the contract or appoint such other party its sales agent for such
Shares. In either case, the contract may also provide for the
repurchase or sale of Shares by such other party as principal or
as agent of the Trust.
(c) Administrator. The Trustees may in their discretion from time to
time enter into one or more contracts whereby the other party or
parties shall undertake to furnish the Trust with administrative
services. The contract or contracts shall be on such terms and
conditions as the Trustees may in their discretion determine.
(d) Transfer Agent. The Trustees may in their discretion from time to
time enter into one or more transfer agency and Shareholder
service contracts whereby the other party or parties shall
undertake to furnish the Trustees with transfer agency and
Shareholder services. The contract or contracts shall be on such
terms and conditions as the Trustees may in their discretion
determine.
(e) Administrative Service and Distribution Plans. The Trustees may,
on such terms and conditions as they may in their discretion
determine, adopt one or more plans pursuant to which compensation
may be paid directly or indirectly by the Trust for Shareholder
servicing, administration and/or distribution services with
respect to one or more Series or Classes including without
limitation, plans subject to Rule 12b-1 under the 1940 Act, and
the Trustees may enter into agreements pursuant to such plans.
(f) Fund Accounting. The Trustees may in their discretion from time to
time enter into one or more contracts whereby the other party or
parties undertakes to handle all or any part of the Trust's
accounting responsibilities, whether with respect to the Trust's
properties, Shareholders or otherwise.
(g) Custodian and Depository. The Trustees may in their discretion
from time to time enter into one or more contracts whereby the
other party or parties undertakes to act as depository for and to
maintain custody of the property of the Trust or any Series or
Class and accounting records in connection therewith.
(h) Parties to Contract. Any contract described in this Article V
hereof may be entered into with any corporation, firm,
partnership, trust or association, although one or more of the
Trustees or officers of the Trust may be an officer, director,
trustee, shareholder, or member of such other party to the
contract, and no such contract shall be invalidated or rendered
void or voidable by reason of the existence of any relationship,
nor shall any person holding such relationship be disqualified
from voting on or executing the same in his capacity as
Shareholder and/or Trustee, nor shall any person holding such
relationship be liable merely by reason of such relationship for
any loss or expense to the Trust under or by reason of said
contract or accountable for any profit realized directly or
indirectly therefrom, provided that the contract when entered into
was not inconsistent with the provisions of this Article 5. The
same person (including a firm, corporation, partnership, trust, or
association) may be the other party to contracts entered into
pursuant to this Article 5, and any individual may be financially
interested or otherwise affiliated with persons who are parties to
any or all of the contracts mentioned in this Section 5.1.
ARTICLE 6
SHAREHOLDER VOTING POWERS AND MEETINGS
Section 6.1 Voting. The Shareholders shall have power to vote only: (a) for
the election of one or more Trustees in order to comply with the
provisions of the 1940 Act (including Section 16(a) thereof); (b)
with respect to any contract entered into pursuant to Article 5 to
the extent required by the 1940 Act; (c) with respect to
termination of the Trust or a Series or Class thereof, but only if
and to the extent required by applicable law; (d) with respect to
any plan adopted pursuant to Rule 12b-1 (or any successor rule)
under the 1940 Act, and related matters, to the extent required
under the 1940 Act; and (e) with respect to such additional
matters relating to the Trust as may be required by this Trust
Instrument, the By-laws or any registration of the Trust or Series
as an investment company under the 1940 Act with the Commission
(or any successor agency) or as the Trustees may consider
necessary or desirable.
On each matter submitted to a vote of Shareholders, unless the
Trustees determine otherwise, all Shares of all Series and Classes
shall vote as a single class; provided, however, that: (a) as to
any matter with respect to which a separate vote of any Series or
Class is required by the 1940 Act or other applicable law or is
required by attributes applicable to any Series or Class, such
requirements as to a separate vote by that Series or Class shall
apply; (b) unless the Trustees determine that this clause (b)
shall not apply in a particular case, to the extent that a matter
referred to in clause (a) above affects more than one Series or
Class and the interests of each such Series or Class in the matter
are identical, then the Shares of all such affected Series or
Classes shall vote as a single class; and (c) as to any matter
which does not affect the interests of a particular Series or
Class, only the holders of Shares of the one or more affected
Series or Classes shall be entitled to vote. 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. A proxy may be
given in writing, by telefax, or in any other manner provided for
in the By-laws. Anything in this Trust Instrument to the contrary
notwithstanding, in the event a proposal by anyone other than the
officers or Trustees of the Trust is submitted to a vote of the
Shareholders of the Trust or one or more Series or Classes
thereof, or in the event of any proxy contest or proxy
solicitation or proposal in opposition to any proposal by the
officers or Trustees of the Trust, Shares may be voted only in
person or by written proxy. Until Shares are issued, the Trustees
may exercise all rights of Shareholders and may take any action
required or permitted by law, this Trust Instrument or any of the
By-laws of the Trust to be taken by Shareholders.
Section 6.2 Meetings. 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 Delaware, 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
Section 6.1. Special meetings of the Shareholders of any Series
may be called by the Trustees and shall be called by the Trustees
upon the written request of Shareholders owning at least
twenty-five percent (25%) of the Outstanding Shares entitled to
vote, except to the extent that a lesser percentage is prescribed
by the 1940 Act. Notice shall be sent, postage prepaid, by mail or
such other means determined by the Trustees, at least 7 days prior
to any such meeting.
Section 6.7 Quorum and Required Vote. Unless a larger percentage is required
by law, by any provision of this Trust Instrument or by the
Trustees, one-third of the Shares entitled to vote in person or by
proxy on a particular matter shall be a quorum for the transaction
of business at a Shareholders' meeting with respect to that
matter. Any lesser number shall be sufficient for adjournments.
Any adjourned session or sessions may be held without the
necessity of further notice. Except when a larger vote is required
by law, by any provision of this Trust Instrument or by the
Trustees, a majority of the Shares voted in person or by proxy on
a particular matter at a meeting at which a quorum is present
shall decide any questions with respect to that matter and a
plurality shall elect a Trustee.
Section 6.8 Action by Written Consent. Subject to the provisions of the 1940
Act and other applicable law, any action taken by Shareholders may
be taken without a meeting if a majority of the Shares entitled to
vote on the matter (or such larger proportion thereof as shall be
required by law, by any provision of this Trust Instrument or by
the Trustees) consent to the action in writing. Such consent shall
be treated for all purposes as a vote taken at a meeting of
Shareholders. The Trustees may adopt additional rules and
procedures regarding the taking of Shareholder action by written
consents.
ARTICLE 7
DISTRIBUTIONS AND REDEMPTIONS
Section 7.1 Distributions.
(a) The Trustees may from time to time declare and pay dividends or
other distributions with respect to any Series or Class. The
amount of such dividends or distributions and the payment of them
and whether they are in cash or any other Trust Property shall be
wholly in the discretion of the Trustees.
(b) Dividends and other distributions may be paid or made to the
Shareholders of record at the time of declaring a dividend or
other distribution or among the Shareholders of record at such
other date or time or dates or times as the Trustees shall
determine, which dividends or distributions, at the election of
the Trustees, may be paid pursuant to a standing resolution or
resolutions adopted only once or with such frequency as the
Trustees may determine. All dividends and other distributions on
Shares of a particular Class shall be distributed pro rata to the
Shareholders of that Series or Class in proportion to the number
of Shares of that Series or Class they held on the record date
established for such payment, except that in connection 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 related plans as
the Trustees shall deem appropriate.
(c) Anything in this Trust Instrument to the contrary notwithstanding,
the Trustees may at any time declare and distribute a stock
dividend pro rata among the Shareholders of a particular Series,
or Class thereof, as of the record date of that Series or Class
fixed as provided in Section (b) hereof. The Trustees shall have
full discretion, to the extent allowed under 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.
Section 7.2 Redemption by Shareholder
(a) Unless the Trustees otherwise determine with respect to a
particular Series or Class at the time of establishing and
designating the same, each holder of Shares of a particular Series
or Class thereof shall have the right at such times as may be
permitted by the Trust, but not less frequently than once each
week, to require the Trust to redeem (out of the assets belonging
to the applicable Series or Class) all or any part of his Shares
at a redemption price equal to the Net Asset Value per Share of
that Series or Class next determined in accordance with Section
7.4 after the Shares are properly tendered for redemption, less
such redemption fee or other charge, if any, as may be fixed by
the Trustees. Except as otherwise provided in this Trust
Instrument, payment of the redemption price shall be in cash;
provided, however, that to the extent permitted by applicable law,
the Trustees may authorize the Trust to make payment wholly or
partly in securities or other assets belonging to the applicable
Series at the value of such securities or assets used in such
determination of Net Asset Value.
(b) Notwithstanding the foregoing, the Trust may postpone payment of
the redemption price and may suspend the right of the holders of
Shares of any Series or Class to require the Trust to redeem
Shares of that Series or Class during any period or at any time
when and to the extent permitted under the 1940 Act.
(c) In the event that a Shareholder shall submit a request for the
redemption of a greater number of Shares than are then allocated
to such Shareholder, such request shall not be honored.
Section 7.3 Redemption by Trust. Unless the Trustees otherwise determine with
respect to a particular Series or Class at the time of
establishing and designating the same, each Share of each Series
or Class thereof that has been established and designated is
subject to redemption (out of the assets belonging to the
applicable Series or Class) by the Trust at the redemption price
which would be applicable if such Share was then being redeemed by
the Shareholder pursuant to Section 7.2 at any time if the
Trustees determine in their sole discretion that failure to so
redeem may have materially adverse consequences to the holders of
the Shares, or any Series or Class of the Trust, and upon such
redemption the holders of the Shares so redeemed shall have no
further right with respect thereto other than to receive payment
of such redemption price. In addition, the Trustees, in their sole
discretion, may cause the Trust to redeem (out of the assets
belonging to the applicable Series or Class) all of the Shares of
one or more Series or Classes held by (a) any Shareholder if the
value of such Shares held by such Shareholder is less than the
minimum amount established from time to time by the Trustees, (b)
all Shareholders of one or more Series or Classes if the value of
such Shares held by all Shareholders is less than the minimum
amount established from time to time by the Trustees or (c) any
Shareholder to reimburse the Trust for any loss or expense it has
sustained or incurred by reason of the failure of such Shareholder
to make full payment for Shares purchased by such Shareholder, or
by reason of any defective redemption request, or by reason of
indebtedness incurred because of such Shareholder as described in
Section 9.11 or to collect any charge relating to a transaction
effected for the benefit of such Shareholder or as provided in the
prospectus relating to such Shares.
Section 7.4 Net Asset Value. The Net Asset Value per Share of any Series or
Class thereof shall be the quotient obtained by dividing the value
of the net assets of that Series or Class (being the value of the
assets belonging to that Series or Class less the liabilities
belonging to that Series or Class) by the total number of Shares
of that Series or Class outstanding, all determined in accordance
with the methods and procedures, including without limitation
those with respect to rounding, established by the Trustees from
time to time.
The Trustees may determine to maintain the Net Asset Value per
Share of any Series at a designated constant dollar amount and in
connection therewith may adopt procedures as set forth under the
1940 Act for the continuing declarations of income attributable to
that Series or Class thereof as dividends payable in additional
Shares of that Series or Class thereof at the designated constant
dollar amount and for the handling of any losses attributable to
that Series or Class thereof. Such procedures may, among other
things, provide that in the event of any loss, each Shareholder of
a Series or Class thereof shall be deemed to have contributed to
the capital of the Trust attributable to that Series or Class
thereof 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 thereof to be maintained, after
reflecting such loss, at the designated constant dollar amount.
Each Shareholder of the Trust shall be deemed to have agreed, by
his investment in the Trust, to make the contribution referred to
in the preceding sentence in the event of any such loss.
ARTICLE 8
LIMITATION OF LIABILITY AND INDEMNIFICATION
Section 8.1 Limitation of Liability. Neither a Trustee nor an officer of the
Trust, when acting in such capacity, shall be personally liable to
any person other than the Trust or a beneficial owner for any act,
omission or obligation of the Trust, any Trustee or any officer of
the Trust. Neither a Trustee nor an officer of the Trust shall be
liable for any act or omission in his capacity as Trustee or as an
officer of the Trust, or for any act or omission of any other
officer or any employee of the Trust or of any other person or
party, provided that nothing contained herein or in the Act shall
protect any Trustee or officer against any liability to the Trust
or to Shareholders to which he would otherwise be subject by
reason of willful misfeasance, bad faith, gross negligence or
reckless disregard of the duties involved in the conduct of the
office of Trustee or the duties of such officer hereunder.
Section 8.2 Indemnification. The Trust shall indemnify each of its Trustees
and officers and persons who serve at the Trust's request as
directors, officers or trustees of another organization in which
the Trust has any interest as a shareholder, creditor, or
otherwise, and may indemnify any trustee, director or officer of a
predecessor organization (each a "Covered Person"), against all
liabilities and expenses (including amounts paid in satisfaction
of judgments, in compromise, as fines and penalties, and expenses
including reasonable accountants' and counsel fees) reasonably
incurred in connection with the defense or disposition of any
action, suit or other proceeding, whether civil or criminal,
before any court or administrative or legislative body, in which
he may be involved or with which he may be threatened, while as a
Covered Person or thereafter, by reason of being or having been
such a Covered Person, except that no Covered Person shall be
indemnified against any liability to the Trust or its Shareholders
to which such Covered Person would otherwise be subject by reason
of bad faith, willful misfeasance, gross negligence or reckless
disregard of his duties involved in the conduct of such Covered
Person's office (such willful misfeasance, bad faith, gross
negligence or reckless disregard being referred to herein as
"Disabling Conduct"). Expenses, including accountants' and counsel
fees so incurred by any such Covered Person (but excluding amounts
paid in satisfaction of judgments, in compromise or as fines or
penalties), may be paid from time to time by the Trust in advance
of the final disposition of any such action, suit or proceeding
upon receipt of (a) an undertaking by or on behalf of such Covered
Person to repay amounts so paid to the Trust if it is ultimately
determined that indemnification of such expenses is not authorized
under this Article VIII and either (b) such Covered Person
provides security for such undertaking, (c) the Trust is insured
against losses arising by reason of such payment, or (d) a
majority of a quorum of disinterested, non-party Trustees, or
independent legal counsel in a written opinion, determines, based
on a review of readily available facts, that there is reason to
believe that such Covered Person ultimately will be found entitled
to indemnification.
Section 8.3 Indemnification Determinations. Indemnification of a Covered
Person pursuant to Section 8.2 shall be made if (a) the court or
body before whom the proceeding is brought determines, in a final
decision on the merits, that such Covered Person was not liable by
reason of Disabling Conduct or (b) in the absence of such a
determination, a majority of a quorum of disinterested, non-party
Trustees or independent legal counsel in a written opinion make a
reasonable determination, based upon a review of the facts, that
such Covered Person was not liable by reason of Disabling Conduct.
Section 8.4 Indemnification Not Exclusive. The right of indemnification
provided by this Article VIII shall not be exclusive of or affect
any other rights to which any such Covered Person may be entitled.
As used in this Article 8, "Covered Person" shall include such
person's heirs, executors and administrators, and a
"disinterested, non-party Trustee" is a Trustee who is neither an
Interested Person of the Trust nor a party to the proceeding in
question.
Section 8.5 Shareholders. Each Shareholder of the Trust and of each Series or
Class shall not be personally liable for the debts, liabilities,
obligations and expenses incurred by, contracted for, or otherwise
existing with respect to, the Trust or by or on behalf of any
Series or Class. The Trustees shall have no power to bind any
Shareholder personally or to call upon any Shareholder for the
payment of any sum of money or assessment whatsoever other than
such as the Shareholder may at any time personally agree to pay
pursuant to terms hereof or by way of subscription for any Shares
or otherwise.
In case any Shareholder or former Shareholder of any Series or
Class shall be held to be personally liable solely by reason of
his being or having been a Shareholder of such Series or Class 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
a corporation or other entity, its corporate or other general
successor) shall be entitled out of the assets belonging to the
applicable Series or Class to be held harmless from and
indemnified against all loss and expense arising from such
liability. The Trust, on behalf of the affected Series, shall,
upon request by the Shareholder, assume the defense of any claim
made against the Shareholder for any act or obligation of the
Series or Class and satisfy any judgment thereon from the assets
of the Series or Class. The indemnification and reimbursement
required by the preceding sentence shall be made only out of
assets of the one or more Series or Classes whose Shares were held
by said Shareholder at the time the act or event occurred which
gave rise to the claim against or liability of said Shareholder.
The rights accruing to a Shareholder under this Section shall not
impair any other right to which such Shareholder may be lawfully
entitled, nor shall anything herein contained restrict the right
of the Trust or any Series or Class thereof to indemnify or
reimburse a Shareholder in any appropriate situation even though
not specifically provided herein.
ARTICLE 9
MISCELLANEOUS
Section 9.1 Trust Not a Partnership. It is hereby expressly declared that a
trust and not a partnership is created hereby. All persons
extending credit to, contracting with or having any claim against
any Series of the Trust or any Class within any Series shall look
only to the assets of such Series or Class for payment under such
credit, contract or claim; and neither the Shareholders nor the
Trustees, nor any of the Trust's officers, employees or agents,
whether past, present or future, shall be personally liable
therefor. Every note, bond, contract or other undertaking issued
by or on behalf of the Trust or the Trustees relating to the Trust
or to a Series or Class shall include a recitation limiting the
obligations represented thereby to the Trust or to one or more
Series or Classes and its or their assets (but the omission of
such a recitation shall not operate to bind any Shareholder,
Trustee, officer, employee or agent of the Trust).
Section 9.2 Trustees' Good Faith Action, Expert Advice, No Bond or Surety. The
exercise by the Trustees of their powers and discretions hereunder
shall be binding upon everyone interested. Subject to the
provisions of Article VIII: (i) the Trustees shall not be
responsible or liable in any event for any neglect or wrongdoing
of any officer, agent, employee, consultant, adviser,
administrator, distributor or principal underwriter, custodian or
transfer, dividend disbursing, Shareholder servicing or accounting
agent of the Trust, nor shall any Trustee be responsible for the
act or omission of any other Trustee; (ii) the Trustees may take
advice of counsel or other experts with respect to the meaning and
operation of this Trust Instrument and their duties as Trustees,
and shall be under no liability for any act or omission in
accordance with such advice or for failing to follow such advice;
and (iii) in discharging their duties, the Trustees, when acting
in good faith, shall be entitled to rely upon the books of account
of the Trust and upon written reports made to the Trustees by any
officer appointed by them, any independent public accountant, and
(with respect to the subject matter of the contract involved) any
officer, partner or responsible employee of a contracting party
appointed by the Trustees. The Trustees as such shall not be
required to give any bond or surety or any other security for the
performance of their duties.
Section 9.3 Establishment of Record Dates. The Trustees may close the Share
transfer books of the Trust 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 preceding the date of any meeting of
Shareholders, or the date for payment of any dividend or other
distribution, 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 any such dividend or other
distribution, or to any such allotment of rights, or to exercise
the rights in respect of any such change, conversion or exchange
of Shares, and in such case such Shareholders and only such
Shareholders as shall be Shareholders of record on the date so
fixed shall be 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 or 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.
Section 9.4 Dissolution and Termination of Trust or Series.
(a) This Trust shall continue without limitation of time but subject
to the provisions of sub-sections (b) and (c) of this Section 9.4.
(b) Notwithstanding anything in Section 9.5 to the contrary, the
Trustees may without Shareholder approval (unless such approval is
required by the 0000 Xxx) in dissolution of the Trust or an
applicable Series or Class,
(i) sell and convey all or substantially all of the assets of
the Trust or any Series or Class to another trust,
partnership, limited liability company, association or
corporation, or to a separate Series or Class of shares
thereof, organized under the laws of any state or
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 Series or Class, and which may include shares of
beneficial interest, stock or other ownership interests of
such trust, partnership, limited liability company,
association or corporation or of a series thereof; or
(ii) at any time sell and convert into money all of the assets
of the Trust or any Series or Class.
Following a sale or conversion in accordance with the foregoing
sub-section 9.4(b)(i) or (ii), and upon making reasonable
provision, in the determination of the Trustees, for the payment
of all liabilities of the Trust or the affected Series or Class as
required by applicable law, 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. In the event a Series is not
divided into Classes, the foregoing provisions shall be applied on
a Series by Series basis.
(c) Upon completion of the distribution of the remaining proceeds or
the remaining assets as provided in sub-section (b), the Trust (in
the case of a sale or conversion with respect to the Trust as a
whole or the last remaining Series) or any affected Series or
Class shall terminate and the Trustees and the Trust or any
affected Series or Class shall be discharged of any and all
further liabilities and duties hereunder and the right, title and
interest of all parties with respect to the Trust or such affected
Series or Class 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 Act, which certificate of cancellation may be
signed by any one Trustee.
Section 9.5 Merger, Consolidation, Incorporation. Anything in this Trust
Instrument to the contrary notwithstanding, the Trustees, in order
to change the form of organization and/or domicile of the Trust,
may, without prior Shareholder approval, (i) cause the Trust to
merge or consolidate with or into one or more trusts,
partnerships, limited liability companies, associations or
corporations which is or are formed, organized or existing under
the laws of a state, commonwealth possession or colony of the
United States, or (ii) cause the Trust to incorporate under the
laws of Delaware. Any agreement of merger or consolidation or
certificate of merger may be signed by a majority of the Trustees.
Pursuant to and in accordance with the provisions of Section
3815(f) of the Act, and notwithstanding anything to the contrary
contained in this Trust Instrument, an agreement of any merger or
consolidation approved in accordance with this Section 9.5 may
effect any amendment to the Trust Instrument or effect the
adoption of a new trust instrument of the Trust if it is the
surviving or resulting trust in the merger or consolidation. Any
merger or consolidation of the Trust other than as described in
the foregoing provisions of this Section 9.5 shall, in addition to
the approval of the Trustees, require a Majority Shareholder Vote.
Nothing in this Section 9.5 shall require, however, Shareholder
approval of any transaction whereby the Trust or any Series
thereof acquires or assumes all or any part of the assets and
liabilities of any other entity.
Section 9.6 Filing of Copies, References, Headings. The original or a copy of
this Trust Instrument and of each amendment hereof or Trust
Instrument supplemental 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 or Trustee
of the Trust as to whether or not any such amendments or
supplements 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 or
Trustee of the Trust to be a copy of this Trust Instrument or of
any such amendment or supplemental Trust Instrument. In this Trust
Instrument or in any such amendment or supplemental Trust
Instrument, references to this Trust Instrument, and all
expressions like "herein," "hereof" and "hereunder," shall be
deemed to refer to this Trust Instrument as amended or affected by
any such supplemental Trust Instrument. All expressions like
"his", "he" and "him", shall be deemed to include the feminine and
neutral, as well as masculine, genders. Headings are placed herein
for convenience of reference only and in case of any conflict, the
text of this Trust Instrument rather than the headings, shall
control. This Trust Instrument may be executed in any number of
counterparts each of which shall be deemed an original.
Section 9.7 Applicable Law. The trust set forth in this instrument is made in
the State of Delaware, and the Trust and this Trust Instrument,
and the rights and obligations of the Trustees and Shareholders
hereunder, are to be governed by and construed and administered
according to the Act and the laws of said State; provided,
however, that there shall not be applicable to the Trust, the
Trustees or this Trust Instrument (a) the provisions of Section
3540 of Title 12 of the Delaware Code or (b) any provisions of the
laws (statutory or common) of the State of Delaware (other than
the Act) pertaining to trusts which relate to or regulate: (i) the
filing with any court or governmental body or agency of trustee
accounts or schedules of trustee fees and charges, (ii)
affirmative requirements to post bonds for trustees, officers,
agents or employees of a trust, (iii) the necessity for obtaining
court or other governmental approval concerning the acquisition,
holding or disposition of real or personal property, (iv) fees or
other sums payable to trustees, officers, agents or employees of a
trust, (v) the allocation of receipts and expenditures to income
or principal, (vi) restrictions or limitations on the permissible
nature, amount or concentration of trust investments or
requirements relating to the titling, storage or other manner of
holding of trust assets, or (vii) the establishment of fiduciary
or other standards or responsibilities or limitations on the 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 Trust Instrument. The Trust shall be of the
type commonly called a "business trust", and without limiting the
provisions hereof, the Trust may exercise all powers which are
ordinarily exercised by such a trust under Delaware 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 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 9.8 Amendments. Except as specifically provided herein, the Trustees
may, without Shareholder vote, amend or otherwise supplement this
Trust Instrument by making an amendment, a Trust Instrument
supplemental hereto or an amended and restated trust instrument.
Shareholders shall have the right to vote: (i) on any amendment
which would affect their right to vote granted in Section 6.1,
(ii) on any amendment to this Section 9.8, (iii) on any amendment
for which such vote is required by law and (iv) on any amendment
submitted to them by the Trustees. Any amendment required or
permitted to be submitted to Shareholders which, as the Trustees
determine, shall 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 of shareholders of a Series
or Class not affected shall be required. Anything in this Trust
Instrument to the contrary notwithstanding, any amendment to
Article VIII hereof shall not limit the rights to indemnification
or insurance provided therein with respect to action or omission
of any persons protected thereby prior to such amendment.
Section 9.9 Fiscal Year. The fiscal year of the Trust shall end on a specified
date as determined from time to time by the Trustees.
Section 9.10 Provisions in Conflict with Law. The provisions of this Trust
Instrument are severable, and if the Trustees shall determine,
with the advice of counsel, that any of such provisions is in
conflict with the 1940 Act, the regulated investment company
provisions of the Internal Revenue Code or with other applicable
laws and regulations, the conflicting provision shall be deemed
never to have constituted a part of this Trust Instrument;
provided, however, that such determination shall not affect any of
the remaining provisions of this Trust Instrument or render
invalid or improper any action taken or omitted prior to such
determination. If any provision of this Trust Instrument 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 provisions in
any other jurisdiction or any other provision of this Trust
Instrument in any jurisdiction.
Section 9.11 Allocation of Certain Expenses. Each Shareholder will, at the
discretion of the Trustees, indemnify the Trust against all
expenses and losses resulting from indebtedness incurred in
connection with facilitating (i) requests pending receipt of the
collected funds from investments sold on the date of such
Shareholder's redemption request; (ii) redemption requests from
such Shareholder who has also notified the Trust of its intention
to deposit funds in its accounts on the date of said redemption
request; or (iii) the purchase of investments pending receipt of
collected funds from such Shareholder who has notified the Trust
of its intention to deposit funds in its accounts on the date of
the purchase of the investments.
IN WITNESS WHEREOF, the undersigned, being the initial Trustee of the
Trust, has executed this Declaration of Trust as of the 9th day of June, 2005.
/s/ Xxxxx Xxxxxxx*
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Xxxxx Xxxxxxx
* By Xxxxx X. Xxxxx, Esq. pursuant to Limited Power of Attorney, dated June 1,
2005.
