SUB-ITEM 77Q1(A)
AGREEMENT AND DECLARATION OF TRUST
of
HUNTINGTON FUNDS
a Delaware Statutory Trust
ARTICLE I. Name and Definitions 1
Section 1. Name
Section 2. Registered Agent and Registered Office; Principal Place
of Business
(a) Registered Agent and Registered Office
(b) Principal Place of Business
Section 3. Definitions
(a) "1940 Act"
(b) "Affiliate"
(c) "Board" or "Board of Trustees"
(d) "By-Laws"
(e) "Certificate of Trust"
(f) "Code"
(g) "Commission"
(h) "DSTA"
(i) "Declaration of Trust"
(j) "General Liabilities"
(k) "Interested Person"
(l) "Investment Adviser" or "Adviser"
(m) "Person"
(n) "Principal Underwriter"
(o) "Series"
(p) "Shares"
(q) "Shareholder"
(r) "Trust"
(s) "Trust Property"
(t) "Trustee" or "Trustees"
ARTICLE II. PURPOSE OF TRUST
ARTICLE III. SHARES
Section 1. Division of Beneficial Interest
Section 2. Ownership of Shares
Section 3. Investments in the Trust
Section 4. Status of Shares and Limitation of Personal Liability
Section 5. Power of Board of Trustees to Change Provisions
Relating to Shares
Section 6. Establishment and Designation of Series
(a) Assets Held with Respect to a Particular Series
(b) Liabilities Held with Respect to a Particular Series or Class
(c) Dividends, Distributions, Redemptions and Repurchases
(d) Voting
(e) Equality
(f) Fractions
(g) Exchange Privilege
(h) Combination of Series or Class
(i) Elimination of Series or Class
ARTICLE IV. THE BOARD OF TRUSTEES
Section 1. Number, Election and Tenure
Section 2. Effect of Death, Resignation, Removal, etc. of a
Trustee
Section 3. Powers
Section 4. Payment of Fees and Expenses by the Trust
Section 5. Payment of Fees and Expenses by Shareholders
Section 6. Ownership of Trust Property
Section 7. Service Contracts
Section 8. Compensation
ARTICLE V. SHAREHOLDERS' VOTING POWERS AND MEETINGS
Section 1. Voting Powers
Section 2. Meetings
Section 3. Quorum and Required Vote
Section 4. Shareholder Action by Written Consent without a Meeting
Section 5. Record Dates
Section 6. Additional Provisions
ARTICLE VI. NET ASSET VALUE, DISTRIBUTIONS AND REDEMPTIONS
Section 1. Determination of Net Asset Value, Net Income and
Distributions
Section 2. Redemptions at the Option of a Shareholder
Section 3. Redemptions at the Option of the Trust
ARTICLE VII. LIMITATION OF LIABILITY; INDEMNIFICATION
Section 1. Trustees, Shareholders, etc. Not Personally Liable
Section 2. Officers and Trustees' Good Faith Action, Expert
Advice, No Bond or Surety
Section 3. Indemnification of Shareholders
Section 4. Indemnification of Trustees, Officers, etc.
Section 5. Compromise Payment
Section 6. Indemnification Not Exclusive, etc.
Section 7. Insurance
Section 8. Liability of Third Persons Dealing with Trustees
Section 9. Derivative Actions
ARTICLE VIII. MISCELLANEOUS
Section 1. Dissolution and Liquidation of Trust, Series, or Class
Section 2. Merger and Consolidation; Conversion
(a) Merger and Consolidation.
(b) Conversion
Section 3. Reorganization
Section 4. Amendments
Section 5. Filing of Copies, References, Headings
Section 6. Applicable Law
Section 7. Provisions in Conflict with Law or Regulations
Section 8. Statutory Trust Only
Section 9. Use of the Name "Huntington Funds"
AGREEMENT AND DECLARATION OF TRUST
OF
HUNTINGTON FUNDS
AGREEMENT AND DECLARATION OF TRUST made as of this 27th day of April 2006,
by the Trustees hereunder, and by the holders of shares of beneficial interest
to be issued hereunder as hereinafter provided. This Agreement and Declaration
of Trust shall be effective upon the filing of the Certificate of Trust in the
office of the Secretary of State of the State of Delaware.
W I T N E S S E T H:
WHEREAS this Trust has been formed to carry on the business of an
investment company; and
WHEREAS this Trust is authorized to issue its shares of beneficial
interest in separate Series, and to issue classes of Shares of any Series or
divide Shares of any Series into two or more classes, all in accordance with the
provisions hereinafter set forth; and
WHEREAS the Trustees have agreed to manage all property coming into their
hands as trustees of a Delaware statutory trust in accordance with the
provisions of the Delaware Statutory Trust Act (12 Del. C. {section}3801, et
seq.), as from time to time amended and including any successor statute of
similar import (the "DSTA"), and the provisions hereinafter set forth.
NOW, THEREFORE, the Trustees hereby declare that they will hold all cash,
securities and other assets which they may from time to time acquire in any
manner as Trustees hereunder in trust to manage and dispose of the same upon the
following terms and conditions for the benefit of the holders from time to time
of shares of beneficial interest in this Trust and the Series created hereunder
as hereinafter set forth.
ARTICLE I.
NAME AND DEFINITIONS
SECTION 1. NAME:
THIS TRUST SHALL BE KNOWN AS "THE HUNTINGTON FUNDS" AND THE TRUSTEES SHALL
CONDUCT THE BUSINESS OF THE TRUST UNDER THAT NAME, OR ANY OTHER NAME AS THEY MAY
FROM TIME TO TIME DETERMINE. SEE AMENDMENT #1, DATED 5/16/06
SECTION 2.
REGISTERED AGENT AND REGISTERED OFFICE; PRINCIPAL PLACE OF BUSINESS.
(a) Registered Agent and Registered Office. The name of the registered
agent of the Trust and the address of the registered office of the Trust are as
set forth on the Certificate of Trust.
(B) PRINCIPAL PLACE OF BUSINESS. THE PRINCIPAL PLACE OF BUSINESS OF THE
TRUST IS 0000 XXXXXXXXX XXXXX, XXXXXXXXXX, XXXXXXXXXXXX, 00000-0000 OR
SUCH OTHER LOCATION WITHIN OR OUTSIDE OF THE STATE OF DELAWARE AS THE
BOARD OF TRUSTEES MAY DETERMINE FROM TIME TO TIME.
SECTION 3.
DEFINITIONS. WHENEVER USED HEREIN, UNLESS OTHERWISE REQUIRED BY THE CONTEXT OR
SPECIFICALLY PROVIDED:
(A) "1940 ACT" SHALL MEAN THE INVESTMENT COMPANY ACT OF 1940 AND THE
RULES AND REGULATIONS THEREUNDER, ALL AS ADOPTED OR AMENDED FROM TIME TO
TIME;
(B) "AFFILIATE" SHALL HAVE THE MEANING GIVEN TO IT IN SECTION 2(A)(3) OF
THE 1940 ACT WHEN USED WITH REFERENCE TO A SPECIFIED PERSON;
(C) "BOARD" OR "BOARD OF TRUSTEES" SHALL MEAN THE GOVERNING BODY OF THE
TRUST, WHICH IS COMPRISED OF THE TRUSTEES OF THE TRUST;
(D) "BY-LAWS" SHALL MEAN THE BY-LAWS OF THE TRUST, AS AMENDED FROM TIME
TO TIME IN ACCORDANCE WITH ARTICLE IX OF THE BY-LAWS, AND INCORPORATED
HEREIN BY REFERENCE;
(E) "CERTIFICATE OF TRUST" SHALL MEAN THE CERTIFICATE OF TRUST FILED
WITH THE OFFICE OF THE SECRETARY OF STATE OF THE STATE OF DELAWARE AS
REQUIRED UNDER THE DSTA TO FORM THE TRUST;
(F) "CODE" SHALL MEAN THE INTERNAL REVENUE CODE OF 1986 (OR ANY
SUCCESSOR STATUTE), AS AMENDED, AND THE RULES AND REGULATIONS THEREUNDER;
(G) "COMMISSION" SHALL HAVE THE MEANING GIVEN IT IN SECTION 2(A)(7) OF
THE 1940 ACT;
(H) "DSTA" SHALL MEAN THE DELAWARE STATUTORY TRUST ACT (12 DEL. C.
{section}3801, ET SEQ.), AS AMENDED FROM TIME TO TIME;
(I) "DECLARATION OF TRUST" SHALL MEAN THIS AGREEMENT AND DECLARATION OF
TRUST, AS AMENDED OR RESTATED FROM TIME TO TIME;
(J) "GENERAL LIABILITIES" SHALL HAVE THE MEANING GIVEN IT IN ARTICLE
III, SECTION 6(B) OF THIS DECLARATION OF TRUST;
(K) "INTERESTED PERSON" SHALL HAVE THE MEANING GIVEN IT IN SECTION
2(A)(19) OF THE 1940 ACT;
(L) "INVESTMENT ADVISER" OR "ADVISER" SHALL HAVE THE MEANING SET FORTH
IN THE 1940 ACT;
(M) "PERSON" SHALL INCLUDE A NATURAL PERSON, PARTNERSHIP, LIMITED
PARTNERSHIP, TRUST, ESTATE, ASSOCIATION, CORPORATION, CUSTODIAN, NOMINEE
OR ANY OTHER INDIVIDUAL OR ENTITY IN ITS OWN OR ANY REPRESENTATIVE
CAPACITY;
(N) "PRINCIPAL UNDERWRITER" SHALL HAVE THE MEANING GIVEN TO IT IN
SECTION 2(A)(29) OF THE 1940 ACT;
(O) "SERIES" SHALL REFER TO EACH SERIES OF SHARES ESTABLISHED AND
DESIGNATED UNDER OR IN ACCORDANCE WITH THE PROVISIONS OF ARTICLE III AND
SHALL MEAN AN ENTITY SUCH AS THAT DESCRIBED IN SECTION 18(F)(2) OF THE
1940 ACT, AND SUBJECT TO RULE 18F-2 THEREUNDER;
(P) "SHARES" SHALL MEAN THE OUTSTANDING SHARES OF BENEFICIAL INTEREST
INTO WHICH THE BENEFICIAL INTEREST IN THE TRUST SHALL BE DIVIDED FROM TIME
TO TIME, AND SHALL INCLUDE FRACTIONAL AND WHOLE SHARES;
(Q) "SHAREHOLDER" SHALL MEAN A RECORD OWNER OF SHARES;
(R) "TRUST" SHALL REFER TO THE DELAWARE STATUTORY TRUST ESTABLISHED BY
THIS DECLARATION OF TRUST, AS AMENDED FROM TIME TO TIME;
(S) "TRUST PROPERTY" SHALL MEAN ANY AND ALL PROPERTY, REAL OR PERSONAL,
TANGIBLE OR INTANGIBLE, WHICH IS OWNED OR HELD BY OR FOR THE ACCOUNT OF
THE TRUST OR ONE OR MORE OF ANY SERIES, INCLUDING, WITHOUT LIMITATION, THE
RIGHTS REFERENCED IN ARTICLE VIII, SECTION 2 HEREOF; AND
(T) "TRUSTEE" OR "TRUSTEES" SHALL REFER TO EACH SIGNATORY TO THIS
DECLARATION OF TRUST AS A TRUSTEE, SO LONG AS SUCH SIGNATORY CONTINUES IN
OFFICE IN ACCORDANCE WITH THE TERMS HEREOF, AND ALL OTHER PERSONS WHO MAY,
FROM TIME TO TIME, BE DULY ELECTED OR APPOINTED, QUALIFIED AND SERVING ON
THE BOARD OF TRUSTEES IN ACCORDANCE WITH THE PROVISIONS HEREOF. REFERENCE
HEREIN TO A TRUSTEE OR THE TRUSTEES SHALL REFER TO SUCH PERSON OR PERSONS
IN THEIR CAPACITY AS TRUSTEES HEREUNDER.
ARTICLE II.
PURPOSE OF TRUST
The purpose of the Trust is to conduct, operate and carry on the business
of a registered management investment company registered under the 1940 Act
through one or more Series investing primarily in securities and to engage in
any lawful act or activity in which a statutory trust organized under the DSTA
may engage subject to the requirements of the 1940 Act, now or hereafter in
force, including, without limitation, the following powers:
(a) To invest and reinvest cash and other property, to hold cash or
other property uninvested, and to subscribe for, invest in, reinvest in,
purchase or otherwise acquire, own, hold, pledge, sell, assign, mortgage,
transfer, exchange, distribute, write options on, lend or otherwise enter into,
deal in or dispose of contracts for the future acquisition or delivery of fixed
income or other securities, swaps contracts, and securities or property of every
nature and kind, including, without limitation, all types of bonds, debentures,
stocks, preferred stocks, negotiable or non-negotiable instruments, obligations,
evidences of indebtedness, certificates of deposit or indebtedness, commercial
paper, currency, commodities, repurchase agreements, bankers' acceptances, and
other securities of any kind, issued, created, guaranteed, or sponsored by any
and all Persons, including, without limitation, states, territories, and
possessions of the United States and the District of Columbia and any political
subdivision, agency, or instrumentality thereof, any foreign government or any
political subdivision of the U.S. Government or any foreign government, or any
international instrumentality, or by any bank or savings institution, or by any
corporation or organization organized under the laws of the United States or of
any state, territory, or possession thereof, or by any corporation or
organization organized under any foreign law, or in "when issued" contracts for
any such securities, and to change the investments of the assets of the Trust;
(b) To exercise any and all rights, powers and privileges with reference
to or incident to ownership or interest, use and enjoyment of any of such
securities and other instruments or property of every kind and description,
including, but without limitation, the right, power and privilege to own, vote,
hold, purchase, sell, negotiate, assign, exchange, lend, transfer, mortgage,
hypothecate, lease, pledge or write options with respect to or otherwise deal
with, dispose of, use, exercise or enjoy any rights, title, interest, powers or
privileges under or with reference to any of such securities and other
instruments or property, the right to consent and otherwise act with respect
thereto, with power to designate one or more Persons, to exercise any of said
rights, powers, and privileges in respect of any of said instruments, and to do
any and all acts and things for the preservation, protection, improvement and
enhancement in value of any of such securities and other instruments or
property;
(c) To sell, exchange, lend, pledge, mortgage, hypothecate, lease or
write options with respect to or otherwise deal in any property rights relating
to any or all of the assets of the Trust or any Series, subject to any
requirements of the 1940 Act;
(d) To vote or give assent, or exercise any rights of ownership, with
respect to stock or other securities or property; and to execute and deliver
proxies or powers of attorney to such person or persons as the Trustees shall
deem proper, granting to such person or persons such power and discretion with
relation to securities or property as the Trustees shall deem proper;
(e) To exercise powers and rights of subscription or otherwise which in
any manner arise out of ownership of securities;
(f) To hold any security or property in any form, whether in bearer,
unregistered or other negotiable form, or in its own name or in the name of a
custodian or subcustodian or a nominee or nominees or otherwise or to authorize
the custodian or a subcustodian or a nominee or nominees to deposit the same in
a securities depository;
(g) To consent to, or participate in, any plan for the reorganization,
consolidation or merger of any corporation or issuer of any security which is
held in the Trust; to consent to any contract, lease, mortgage, purchase or sale
of property by such corporation or issuer; and to pay calls or subscriptions
with respect to any security held in the Trust;
(h) To join with other security holders in acting through a committee,
depositary, voting trustee or otherwise, and in that connection to deposit any
security with, or transfer any security to, any such committee, depositary or
trustee, and to delegate to them such power and authority with relation to any
security (whether or not so deposited or transferred) as the Trustees shall deem
proper, and to agree to pay, and to pay, such portion of the expenses and
compensation of such committee, depositary or trustee as the Trustees shall deem
proper;
(i) To compromise, arbitrate or otherwise adjust claims in favor of or
against the Trust or any matter in controversy, including but not limited to
claims for taxes;
(j) To enter into joint ventures, general or limited partnerships and
any other combinations or associations;
(k) To endorse or guarantee the payment of any notes or other
obligations of any Person, to make contracts of guaranty or suretyship, or
otherwise assume liability for payment thereof;
(l) To purchase and pay for entirely out of Trust Property such
insurance as the Trustees may deem necessary or appropriate for the conduct of
the business, including, without limitation, insurance policies insuring the
assets of the Trust or payment of distributions and principal on its portfolio
investments, and insurance policies insuring the Shareholders, Trustees,
officers, employees, agents, Investment Advisers, Principal 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 as Trustee, officer, employee, agent,
Investment Adviser, Principal Underwriter, or independent contractor, including
any action taken or omitted that may be determined to constitute negligence,
whether or not the Trust would have the power to indemnify such Person against
liability to the fullest extent permitted by this Declaration of Trust, the By-
Laws and by applicable law;
(m) To adopt, establish and carry out pension, profit-sharing, share
bonus, share purchase, savings, thrift and other retirement, incentive and
benefit plans, trusts and provisions, including the purchasing of life insurance
and annuity contracts as a means of providing such retirement and other
benefits, for any or all of the Trustees, officers, employees and agents of the
Trust;
(n) To purchase or otherwise acquire, own, hold, sell, negotiate,
exchange, assign, transfer, mortgage, pledge or otherwise deal with, dispose of,
use, exercise or enjoy, property of all kinds;
(o) To buy, sell, mortgage, encumber, hold, own, exchange, rent or
otherwise acquire and dispose of, and to develop, improve, manage, subdivide,
and generally to deal and trade in real property, improved and unimproved, and
wheresoever situated; and to build, erect, construct, alter and maintain
buildings, structures, and other improvements on real property;
(p) To borrow or raise moneys for any of the purposes of the Trust, and
to mortgage or pledge the whole or any part of the property and franchises of
the Trust, real, personal, and mixed, tangible or intangible, and wheresoever
situated;
(q) To enter into, make and perform contracts of any kind and
description; and
(r) To issue, purchase, sell and transfer, reacquire, hold, trade and
deal in Shares, bonds, debentures and other securities, instruments or other
property of the Trust, from time to time, to such extent as the Board of
Trustees shall, consistent with the provisions of this Declaration of Trust,
determine; and to repurchase, re-acquire and redeem, from time to time, its
Shares or, if any, its bonds, debentures and other securities.
The Trust shall not be limited to investing in obligations maturing before
the possible dissolution of the Trust or one or more of its Series. The Trust
shall not in any way be bound or limited by any present or future law or custom
in regard to investment by fiduciaries. Neither the Trust nor the Trustees
shall be required to obtain any court order to deal with any assets of the Trust
or take any other action hereunder.
The foregoing clauses shall each be construed as purposes, objects and
powers, and it is hereby expressly provided that the foregoing enumeration of
specific purposes, objects and powers shall not be held to limit or restrict in
any manner the powers of the Trust, and that they are in furtherance of, and in
addition to, and not in limitation of, the general powers conferred upon the
Trust by the DSTA and the other laws of the State of Delaware or otherwise; nor
shall the enumeration of one thing be deemed to exclude another, although it be
of like nature, not expressed.
ARTICLE III.
SHARES
SECTION 1.
DIVISION OF BENEFICIAL INTEREST. THE BENEFICIAL INTEREST IN THE TRUST SHALL AT
ALL TIMES BE DIVIDED INTO SHARES, ALL WITHOUT PAR VALUE. THE NUMBER OF SHARES
AUTHORIZED HEREUNDER IS UNLIMITED. THE BOARD OF TRUSTEES MAY AUTHORIZE THE
DIVISION OF SHARES INTO SEPARATE AND DISTINCT SERIES AND THE DIVISION OF ANY
SERIES INTO SEPARATE CLASSES OF SHARES. THE DIFFERENT SERIES AND CLASSES SHALL
BE ESTABLISHED AND DESIGNATED, AND THE VARIATIONS IN THE RELATIVE RIGHTS AND
PREFERENCES AS BETWEEN THE DIFFERENT SERIES AND CLASSES SHALL BE FIXED AND
DETERMINED BY THE BOARD OF TRUSTEES WITHOUT THE REQUIREMENT OF SHAREHOLDER
APPROVAL. IF NO SEPARATE SERIES OR CLASSES SHALL BE ESTABLISHED, THE SHARES
SHALL HAVE THE RIGHTS AND PREFERENCES PROVIDED FOR HEREIN AND IN ARTICLE III,
SECTION 6 HEREOF TO THE EXTENT RELEVANT AND NOT OTHERWISE PROVIDED FOR HEREIN,
AND ALL REFERENCES TO SERIES AND CLASSES SHALL BE CONSTRUED (AS THE CONTEXT MAY
REQUIRE) TO REFER TO THE TRUST. THE FACT THAT A SERIES SHALL HAVE INITIALLY
BEEN ESTABLISHED AND DESIGNATED WITHOUT ANY SPECIFIC ESTABLISHMENT OR
DESIGNATION OF CLASSES (I.E., THAT ALL SHARES OF SUCH SERIES ARE INITIALLY OF A
SINGLE CLASS) SHALL NOT LIMIT THE AUTHORITY OF THE BOARD OF TRUSTEES TO
ESTABLISH AND DESIGNATE SEPARATE CLASSES OF SAID SERIES. THE FACT THAT A SERIES
SHALL HAVE MORE THAN ONE ESTABLISHED AND DESIGNATED CLASS, SHALL NOT LIMIT THE
AUTHORITY OF THE BOARD OF TRUSTEES TO ESTABLISH AND DESIGNATE ADDITIONAL CLASSES
OF SAID SERIES, OR TO ESTABLISH AND DESIGNATE SEPARATE CLASSES OF THE PREVIOUSLY
ESTABLISHED AND DESIGNATED CLASSES.
The Board of Trustees shall have the power to issue Shares of the Trust,
or any Series or class thereof, from time to time for such consideration (but
not less than the net asset value thereof) and in such form as may be fixed from
time to time pursuant to the direction of the Board of Trustees.
The Board of Trustees may hold as treasury shares, reissue for such
consideration and on such terms as they may determine, or cancel, at their
discretion from time to time, any Shares of any Series reacquired by the Trust.
The Board of 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.
Notwithstanding the foregoing, the Trust and any Series thereof may acquire,
hold, sell and otherwise deal in, for purposes of investment or otherwise, the
Shares of any other Series of the Trust or Shares of the Trust, and such Shares
shall not be deemed treasury shares or canceled.
Subject to the provisions of Section 6 of this Article III, each Share
shall have voting rights as provided in Article V hereof, and the Shareholders
of any Series shall be entitled to receive dividends and distributions, when, if
and as declared with respect thereto in the manner provided in Article IV,
Section 3 hereof. No Share shall have any priority or preference over any other
Share of the same Series or class with respect to dividends or distributions
paid in the ordinary course of business or distributions upon dissolution of the
Trust or of such Series or class made pursuant to Article VIII, Section 1
hereof. All dividends and distributions shall be made ratably among all
Shareholders of a particular class or Series from the Trust Property held with
respect to such Series according to the number of Shares of such class of such
Series held of record by such Shareholders on the record date for any dividend
or distribution. Shareholders shall have no preemptive or other right to
subscribe to new or additional Shares or other securities issued by the Trust or
any Series. The Trustees may from time to time divide or combine the Shares of
any particular Series into a greater or lesser number of Shares of that Series.
Such division or combination may not materially change the proportionate
beneficial interests of the Shares of that Series in the Trust Property held
with respect to that Series or materially affect the rights of Shares of any
other Series.
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 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 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 such Shares generally.
SECTION 2.
OWNERSHIP OF SHARES. THE OWNERSHIP OF SHARES SHALL BE RECORDED ON THE BOOKS OF
THE TRUST KEPT BY THE TRUST OR BY A TRANSFER OR SIMILAR AGENT FOR THE TRUST,
WHICH BOOKS SHALL BE MAINTAINED SEPARATELY FOR THE SHARES OF EACH SERIES AND
CLASS THEREOF THAT HAS BEEN ESTABLISHED AND DESIGNATED. NO CERTIFICATES
CERTIFYING THE OWNERSHIP OF SHARES SHALL BE ISSUED EXCEPT AS THE BOARD OF
TRUSTEES MAY OTHERWISE DETERMINE FROM TIME TO TIME. THE BOARD OF TRUSTEES MAY
MAKE SUCH RULES NOT INCONSISTENT WITH THE PROVISIONS OF THE 1940 ACT AS IT
CONSIDERS APPROPRIATE FOR THE ISSUANCE OF SHARE CERTIFICATES, THE TRANSFER OF
SHARES OF EACH SERIES OR CLASS AND SIMILAR MATTERS. THE RECORD BOOKS OF THE
TRUST AS KEPT BY THE TRUST OR ANY TRANSFER OR SIMILAR AGENT, AS THE CASE MAY BE,
SHALL BE CONCLUSIVE AS TO WHO ARE THE SHAREHOLDERS OF EACH SERIES OR CLASS
THEREOF AND AS TO THE NUMBER OF SHARES OF EACH SERIES OR CLASS THEREOF HELD FROM
TIME TO TIME BY EACH SUCH SHAREHOLDER.
SECTION 3.
INVESTMENTS IN THE TRUST. INVESTMENTS MAY BE ACCEPTED BY THE TRUST FROM SUCH
PERSONS, AT SUCH TIMES, ON SUCH TERMS, AND FOR SUCH CONSIDERATION AS THE BOARD
OF TRUSTEES MAY, FROM TIME TO TIME, AUTHORIZE. EACH INVESTMENT SHALL BE
CREDITED TO THE INDIVIDUAL SHAREHOLDER'S ACCOUNT IN THE FORM OF FULL AND
FRACTIONAL SHARES OF THE TRUST, IN SUCH SERIES OR CLASS AS THE PURCHASER MAY
SELECT, AT THE NET ASSET VALUE PER SHARE NEXT DETERMINED FOR SUCH SERIES OR
CLASS AFTER RECEIPT OF THE INVESTMENT; PROVIDED, HOWEVER, THAT THE PRINCIPAL
UNDERWRITER MAY, IN ITS SOLE DISCRETION, IMPOSE A SALES CHARGE UPON INVESTMENTS
IN THE TRUST.
SECTION 4. STATUS
OF SHARES AND LIMITATION OF PERSONAL LIABILITY. SHARES SHALL BE DEEMED TO BE
PERSONAL PROPERTY GIVING TO SHAREHOLDERS ONLY THE RIGHTS PROVIDED IN THIS
DECLARATION OF TRUST AND UNDER APPLICABLE LAW. EVERY SHAREHOLDER BY VIRTUE OF
HAVING BECOME A SHAREHOLDER SHALL BE HELD TO HAVE EXPRESSLY ASSENTED AND AGREED
TO THE TERMS HEREOF AND TO HAVE BECOME A PARTY HERETO. THE DEATH, INCAPACITY,
DISSOLUTION, TERMINATION OR BANKRUPTCY OF A SHAREHOLDER DURING THE EXISTENCE OF
THE TRUST SHALL NOT OPERATE TO DISSOLVE THE TRUST OR ANY SERIES, NOR ENTITLE THE
REPRESENTATIVE OF ANY SHAREHOLDER TO AN ACCOUNTING OR TO TAKE ANY ACTION IN
COURT OR ELSEWHERE AGAINST THE TRUST OR THE TRUSTEES OR ANY SERIES, BUT ENTITLES
SUCH REPRESENTATIVE ONLY TO THE RIGHTS OF SAID DECEASED SHAREHOLDER UNDER THIS
DECLARATION OF TRUST. OWNERSHIP OF SHARES SHALL NOT ENTITLE THE SHAREHOLDER TO
ANY TITLE IN OR TO THE WHOLE OR ANY PART OF THE TRUST PROPERTY OR RIGHT TO CALL
FOR A PARTITION OR DIVISION OF THE SAME OR FOR AN ACCOUNTING, NOR SHALL THE
OWNERSHIP OF SHARES CONSTITUTE THE SHAREHOLDERS AS PARTNERS. NEITHER THE TRUST
NOR THE TRUSTEES, NOR ANY OFFICER, EMPLOYEE OR AGENT OF THE TRUST, SHALL HAVE
ANY POWER TO BIND PERSONALLY ANY SHAREHOLDER, NOR, EXCEPT AS SPECIFICALLY
PROVIDED HEREIN, TO CALL UPON ANY SHAREHOLDER FOR THE PAYMENT OF ANY SUM OF
MONEY OTHER THAN SUCH AS THE SHAREHOLDER MAY AT ANY TIME PERSONALLY AGREE TO
PAY. ALL SHARES WHEN ISSUED ON THE TERMS DETERMINED BY THE BOARD OF TRUSTEES
SHALL BE FULLY PAID AND NONASSESSABLE. AS PROVIDED IN THE DSTA, SHAREHOLDERS OF
THE TRUST SHALL BE ENTITLED TO THE SAME LIMITATION OF PERSONAL LIABILITY
EXTENDED TO STOCKHOLDERS OF A PRIVATE CORPORATION ORGANIZED FOR PROFIT UNDER THE
GENERAL CORPORATION LAW OF THE STATE OF DELAWARE.
SECTION 5. POWER
OF BOARD OF TRUSTEES TO CHANGE PROVISIONS RELATING TO SHARES. NOTWITHSTANDING
ANY OTHER PROVISIONS OF THIS DECLARATION OF TRUST AND WITHOUT LIMITING THE POWER
OF THE BOARD OF TRUSTEES TO AMEND THIS DECLARATION OF TRUST OR THE CERTIFICATE
OF TRUST AS PROVIDED ELSEWHERE HEREIN, THE BOARD OF TRUSTEES SHALL HAVE THE
POWER TO AMEND THIS DECLARATION OF TRUST, OR THE CERTIFICATE OF TRUST, AT ANY
TIME AND FROM TIME TO TIME, IN SUCH MANNER AS THE BOARD OF TRUSTEES MAY
DETERMINE IN ITS SOLE DISCRETION, WITHOUT THE NEED FOR SHAREHOLDER ACTION, SO AS
TO ADD TO, DELETE, REPLACE OR OTHERWISE MODIFY ANY PROVISIONS RELATING TO THE
SHARES CONTAINED IN THIS DECLARATION OF TRUST, PROVIDED THAT SHAREHOLDER
APPROVAL IS NOT OTHERWISE REQUIRED BY THE 1940 ACT OR OTHER APPLICABLE LAW.
The Board of Trustees shall have the power, in its discretion, to make
such elections as to the tax status of the Trust as may be permitted or required
under the Code as presently in effect or as amended, without the vote of any
Shareholder.
SECTION 6.
ESTABLISHMENT AND DESIGNATION OF SERIES. THE ESTABLISHMENT AND DESIGNATION OF
ANY SERIES OR CLASS OF SHARES SHALL BE EFFECTIVE UPON THE RESOLUTION BY A
MAJORITY OF THE THEN BOARD OF TRUSTEES, ADOPTING A RESOLUTION WHICH SETS FORTH
SUCH ESTABLISHMENT AND DESIGNATION AND THE RELATIVE RIGHTS AND PREFERENCES OF
SUCH SERIES OR CLASS, WHETHER DIRECTLY IN SUCH RESOLUTION OR BY REFERENCE TO
ANOTHER DOCUMENT INCLUDING, WITHOUT LIMITATION, ANY REGISTRATION STATEMENT OF
THE TRUST OR AS OTHERWISE PROVIDED IN SUCH RESOLUTION. EACH SUCH RESOLUTION
SHALL BE INCORPORATED HEREIN BY REFERENCE UPON ADOPTION.
Each Series shall be separate and distinct from any other Series and shall
maintain separate and distinct records on the books of the Trust, and the assets
and liabilities belonging to any such Series shall be held and accounted for
separately from the assets and liabilities of the Trust or any other Series.
Shares of each Series or class established pursuant to this Section 6,
unless otherwise provided in the resolution establishing such Series, shall have
the following relative rights and preferences:
(A) ASSETS HELD WITH RESPECT TO A PARTICULAR SERIES. ALL CONSIDERATION
RECEIVED BY THE TRUST FOR THE ISSUE OR SALE OF SHARES OF A PARTICULAR
SERIES, TOGETHER WITH ALL ASSETS IN WHICH SUCH CONSIDERATION IS INVESTED
OR REINVESTED, ALL INCOME, EARNINGS, PROFITS, AND PROCEEDS THEREOF FROM
WHATEVER SOURCE DERIVED, INCLUDING, WITHOUT LIMITATION, ANY PROCEEDS
DERIVED FROM THE SALE, EXCHANGE OR LIQUIDATION OF SUCH ASSETS, AND ANY
FUNDS OR PAYMENTS DERIVED FROM ANY REINVESTMENT OF SUCH PROCEEDS IN
WHATEVER FORM THE SAME MAY BE, SHALL IRREVOCABLY BE HELD WITH RESPECT TO
THAT SERIES FOR ALL PURPOSES, SUBJECT ONLY TO THE RIGHTS OF CREDITORS WITH
RESPECT TO THAT SERIES, AND SHALL BE SO RECORDED UPON THE BOOKS OF ACCOUNT
OF THE TRUST. SUCH CONSIDERATION, ASSETS, INCOME, EARNINGS, PROFITS AND
PROCEEDS THEREOF, FROM WHATEVER SOURCE DERIVED, INCLUDING, WITHOUT
LIMITATION, ANY PROCEEDS DERIVED FROM THE SALE, EXCHANGE OR LIQUIDATION OF
SUCH ASSETS, AND ANY FUNDS OR PAYMENTS DERIVED FROM ANY REINVESTMENT OF
SUCH PROCEEDS, IN WHATEVER FORM THE SAME MAY BE, ARE HEREIN REFERRED TO AS
"ASSETS HELD WITH RESPECT TO" THAT SERIES. IN THE EVENT THAT THERE ARE
ANY ASSETS, INCOME, EARNINGS, PROFITS AND PROCEEDS THEREOF, FUNDS OR
PAYMENTS WHICH ARE NOT READILY IDENTIFIABLE AS ASSETS HELD WITH RESPECT TO
ANY PARTICULAR SERIES (COLLECTIVELY "GENERAL ASSETS"), THE BOARD OF
TRUSTEES SHALL ALLOCATE SUCH GENERAL ASSETS TO, BETWEEN OR AMONG ANY ONE
OR MORE OF THE SERIES IN SUCH MANNER AND ON SUCH BASIS AS THE BOARD OF
TRUSTEES, IN ITS SOLE DISCRETION, DEEMS FAIR AND EQUITABLE, AND ANY
GENERAL ASSET SO ALLOCATED TO A PARTICULAR SERIES SHALL BE HELD WITH
RESPECT TO THAT SERIES. EACH SUCH ALLOCATION BY THE BOARD OF TRUSTEES
SHALL BE CONCLUSIVE AND BINDING UPON THE SHAREHOLDERS OF ALL SERIES FOR
ALL PURPOSES.
(B) LIABILITIES HELD WITH RESPECT TO A PARTICULAR SERIES OR CLASS. THE
ASSETS OF THE TRUST HELD WITH RESPECT TO EACH PARTICULAR SERIES SHALL BE
CHARGED AGAINST THE LIABILITIES OF THE TRUST HELD WITH RESPECT TO THAT
SERIES AND ALL EXPENSES, COSTS, CHARGES AND RESERVES ATTRIBUTABLE TO THAT
SERIES, AND ANY LIABILITIES, EXPENSES, COSTS, CHARGES AND RESERVES OF THE
TRUST WHICH ARE NOT READILY IDENTIFIABLE AS BEING HELD WITH RESPECT TO ANY
PARTICULAR SERIES (COLLECTIVELY "GENERAL LIABILITIES") SHALL BE ALLOCATED
AND CHARGED BY THE BOARD OF TRUSTEES TO AND AMONG ANY ONE OR MORE OF THE
SERIES IN SUCH MANNER AND ON SUCH BASIS AS THE BOARD OF TRUSTEES, IN ITS
SOLE DISCRETION, DEEMS FAIR AND EQUITABLE. THE LIABILITIES, EXPENSES,
COSTS, CHARGES, AND RESERVES SO CHARGED TO A SERIES ARE HEREIN REFERRED TO
AS "LIABILITIES HELD WITH RESPECT TO" THAT SERIES. EACH ALLOCATION OF
LIABILITIES, EXPENSES, COSTS, CHARGES AND RESERVES BY THE BOARD OF
TRUSTEES SHALL BE CONCLUSIVE AND BINDING UPON THE SHAREHOLDERS OF ALL
SERIES FOR ALL PURPOSES. ALL PERSONS WHO HAVE EXTENDED CREDIT WHICH HAS
BEEN ALLOCATED TO A PARTICULAR SERIES, OR WHO HAVE A CLAIM OR CONTRACT
WHICH HAS BEEN ALLOCATED TO ANY PARTICULAR SERIES, SHALL LOOK, AND SHALL
BE REQUIRED BY CONTRACT TO LOOK EXCLUSIVELY, TO THE ASSETS OF THAT
PARTICULAR SERIES FOR PAYMENT OF SUCH CREDIT, CLAIM, OR CONTRACT. IN THE
ABSENCE OF AN EXPRESS CONTRACTUAL AGREEMENT SO LIMITING THE CLAIMS OF SUCH
CREDITORS, CLAIMANTS AND CONTRACT PROVIDERS, EACH CREDITOR, CLAIMANT AND
CONTRACT PROVIDER WILL BE DEEMED NEVERTHELESS TO HAVE IMPLIEDLY AGREED TO
SUCH LIMITATION.
Subject to the right of the Board of Trustees in its discretion to
allocate General Liabilities as provided herein, the debts, liabilities,
obligations and expenses incurred, contracted for or otherwise existing with
respect to a particular Series, whether such Series is now authorized and
existing pursuant to this Declaration of Trust or is hereafter authorized and
existing pursuant to this Declaration of Trust, shall be enforceable against the
assets held with respect to that Series only, and not against the assets of any
other Series or the Trust generally and none of the debts, liabilities,
obligations and expenses incurred, contracted for or otherwise existing with
respect to the Trust generally or any other Series thereof shall be enforceable
against the assets held with respect to such Series. Notice of this limitation
on liabilities between and among Series 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
DSTA, and upon the giving of such notice in the Certificate of Trust, the
statutory provisions of Section 3804 of the DSTA relating to limitations on
liabilities between and among Series (and the statutory effect under Section
3804 of setting forth such notice in the Certificate of Trust) shall become
applicable to the Trust and each Series.
Liabilities, debts, obligations, costs, charges, reserves and expenses
related to the distribution of, and other identified expenses that should
properly be allocated to, the Shares of a particular class may be charged to and
borne solely by such class. The bearing of expenses solely by a particular
class of Shares may be appropriately reflected (in a manner determined by the
Board of Trustees) and may affect the net asset value attributable to, and the
dividend, redemption and liquidation rights of, such class. Each allocation of
liabilities, debts, obligations, costs, charges, reserves and expenses by or
under the direction of the Board of Trustees shall be conclusive and binding
upon the Shareholders of all classes for all purposes. All Persons who have
extended credit that has been allocated to a particular class, or who have a
claim or contract that has been allocated to any particular class, shall look,
and may be required by contract to look exclusively, to that particular class
for payment of such credit, claim, or contract.
(C) DIVIDENDS, DISTRIBUTIONS, REDEMPTIONS AND REPURCHASES.
NOTWITHSTANDING ANY OTHER PROVISIONS OF THIS DECLARATION OF TRUST,
INCLUDING, WITHOUT LIMITATION, ARTICLE VI, NO DIVIDEND OR DISTRIBUTION
INCLUDING, WITHOUT LIMITATION, ANY DISTRIBUTION PAID UPON DISSOLUTION OF
THE TRUST OR OF ANY SERIES OR CLASS WITH RESPECT TO, NOR ANY REDEMPTION OR
REPURCHASE OF, THE SHARES OF ANY SERIES OR CLASS SHALL BE EFFECTED BY THE
TRUST OTHER THAN FROM THE ASSETS HELD WITH RESPECT TO SUCH SERIES OR
CLASS, NOR, EXCEPT AS SPECIFICALLY PROVIDED IN SECTION 4 OF ARTICLE VII OR
SECTION 5 OF ARTICLE IV, SHALL ANY SHAREHOLDER OF ANY PARTICULAR SERIES OR
CLASS OTHERWISE HAVE ANY RIGHT OR CLAIM AGAINST THE ASSETS HELD WITH
RESPECT TO ANY OTHER SERIES OR CLASS OR THE TRUST GENERALLY EXCEPT TO THE
EXTENT THAT SUCH SHAREHOLDER HAS SUCH A RIGHT OR CLAIM HEREUNDER AS A
SHAREHOLDER OF SUCH OTHER SERIES OR CLASS. THE BOARD OF TRUSTEES SHALL
HAVE FULL DISCRETION, TO THE EXTENT NOT INCONSISTENT WITH THE 1940 ACT, TO
DETERMINE WHICH ITEMS SHALL BE TREATED AS INCOME AND WHICH ITEMS AS
CAPITAL; AND EACH SUCH DETERMINATION AND ALLOCATION SHALL BE CONCLUSIVE
AND BINDING UPON THE SHAREHOLDERS.
(D) VOTING. ALL SHARES OF THE TRUST ENTITLED TO VOTE ON A MATTER SHALL
VOTE ON THE MATTER IN THE AGGREGATE WITHOUT DIFFERENTIATION BETWEEN THE
SEPARATE SERIES OR CLASSES. NOTWITHSTANDING THE FOREGOING, (I) WHERE
REQUIRED BY THE 1940 ACT, SHARES SHALL BE VOTED BY INDIVIDUAL SERIES OR
CLASSES; (II) IF ANY MATTER AFFECTS ONLY THE INTERESTS OF SOME BUT NOT ALL
SERIES OR CLASSES, THEN ONLY THE SHAREHOLDERS OF SUCH AFFECTED SERIES OR
CLASSES SHALL BE ENTITLED TO VOTE ON THE MATTER; AND (III) WITH RESPECT TO
MATTERS WHICH WOULD OTHERWISE BE VOTED ON BY TWO OR MORE SERIES OR CLASSES
AS A SINGLE CLASS, THE TRUSTEES MAY, IN THEIR SOLE DISCRETION, SUBMIT SUCH
MATTERS TO THE SHAREHOLDERS OF ANY OR ALL SUCH SERIES OR CLASSES,
SEPARATELY.
(E) EQUALITY. ALL SHARES OF EACH PARTICULAR SERIES SHALL REPRESENT AN
EQUAL PROPORTIONATE UNDIVIDED BENEFICIAL INTEREST IN THE ASSETS HELD WITH
RESPECT TO THAT SERIES (SUBJECT TO THE LIABILITIES HELD WITH RESPECT TO
THAT SERIES AND SUCH RIGHTS AND PREFERENCES AS MAY HAVE BEEN ESTABLISHED
AND DESIGNATED WITH RESPECT TO CLASSES OF SHARES WITHIN SUCH SERIES), AND
EACH SHARE OF ANY PARTICULAR SERIES SHALL BE EQUAL TO EACH OTHER SHARE OF
THAT SERIES (SUBJECT TO THE RIGHTS AND PREFERENCES WITH RESPECT TO
SEPARATE CLASSES OF SUCH SERIES).
(F) FRACTIONS. ANY FRACTIONAL SHARE OF A SERIES SHALL CARRY
PROPORTIONATELY ALL THE RIGHTS AND OBLIGATIONS OF A WHOLE SHARE OF THAT
SERIES, INCLUDING RIGHTS WITH RESPECT TO VOTING, RECEIPT OF DIVIDENDS AND
DISTRIBUTIONS, REDEMPTION OF SHARES AND DISSOLUTION OF THE TRUST OR THAT
SERIES.
(G) EXCHANGE PRIVILEGE. THE BOARD OF TRUSTEES SHALL HAVE THE AUTHORITY
TO PROVIDE THAT THE HOLDERS OF SHARES OF ANY SERIES OR CLASS SHALL HAVE
THE RIGHT TO EXCHANGE SAID SHARES FOR SHARES OF ONE OR MORE OTHER SERIES
OR CLASSES IN ACCORDANCE WITH SUCH REQUIREMENTS AND PROCEDURES AS MAY BE
ESTABLISHED BY THE BOARD OF TRUSTEES, AND IN ACCORDANCE WITH THE 1940 ACT
AND THE RULES AND REGULATIONS THEREUNDER.
(H) COMBINATION OF SERIES OR CLASS. THE BOARD OF TRUSTEES SHALL HAVE
THE AUTHORITY, WITHOUT THE APPROVAL OF THE SHAREHOLDERS OF ANY SERIES OR
CLASS, UNLESS OTHERWISE REQUIRED BY APPLICABLE LAW, TO COMBINE THE ASSETS
AND LIABILITIES HELD WITH RESPECT TO ANY TWO OR MORE SERIES OR TWO OR MORE
CLASSES INTO ASSETS AND LIABILITIES HELD WITH RESPECT TO A SINGLE SERIES
OR CLASS, RESPECTIVELY; PROVIDED, HOWEVER, THAT THE BOARD OF TRUSTEES MAY
NOT CHANGE OUTSTANDING SHARES IN A MANNER MATERIALLY ADVERSE TO
SHAREHOLDERS OF SUCH SERIES OR CLASS.
(I) ELIMINATION OF SERIES OR CLASS. AT ANY TIME THAT THERE ARE NO
SHARES OUTSTANDING OF ANY PARTICULAR SERIES OR CLASS PREVIOUSLY
ESTABLISHED AND DESIGNATED, THE BOARD OF TRUSTEES MAY BY RESOLUTION OF A
MAJORITY OF THE THEN BOARD OF TRUSTEES ABOLISH THAT SERIES OR CLASS AND
RESCIND THE ESTABLISHMENT AND DESIGNATION THEREOF.
ARTICLE IV.
THE BOARD OF TRUSTEES
SECTION 1.
NUMBER, ELECTION AND TENURE. THE NUMBER OF TRUSTEES CONSTITUTING THE BOARD OF
TRUSTEES MAY BE FIXED FROM TIME TO TIME BY A WRITTEN INSTRUMENT SIGNED, OR BY
RESOLUTION APPROVED AT A DULY CONSTITUTED MEETING, BY A MAJORITY OF THE BOARD OF
TRUSTEES, PROVIDED, HOWEVER, THAT THE NUMBER OF TRUSTEES SHALL IN NO EVENT BE
LESS THAN ONE (1) NOR MORE THAN TWENTY (20). THE BOARD OF TRUSTEES, BY ACTION
OF A MAJORITY OF THE THEN TRUSTEES AT A DULY CONSTITUTED MEETING, MAY FILL
VACANCIES IN THE BOARD OF TRUSTEES. THE BOARD OF TRUSTEES, BY ACTION OF A TWO-
THIRDS OF THE THEN TRUSTEES AT A DULY CONSTITUTED MEETING, MAY REMOVE ANY
TRUSTEE WITH OR WITHOUT CAUSE. THE SHAREHOLDERS MAY ELECT TRUSTEES, INCLUDING
FILLING ANY VACANCIES IN THE BOARD OF TRUSTEES, AT ANY MEETING OF SHAREHOLDERS
CALLED BY THE BOARD OF TRUSTEES FOR THAT PURPOSE. A MEETING OF SHAREHOLDERS FOR
THE PURPOSE OF ELECTING ONE OR MORE TRUSTEES MAY BE CALLED BY THE BOARD OF
TRUSTEES OR, TO THE EXTENT PROVIDED BY THE 1940 ACT AND THE RULES AND
REGULATIONS THEREUNDER, BY THE SHAREHOLDERS. SHAREHOLDERS SHALL HAVE THE POWER
TO REMOVE A TRUSTEE ONLY TO THE EXTENT PROVIDED BY THE 1940 ACT AND THE RULES
AND REGULATIONS THEREUNDER.
Each Trustee shall serve during the continued lifetime of the Trust until
he or she dies, resigns, is declared bankrupt or incompetent by a court of
appropriate jurisdiction, or is removed, or, if sooner than any of such events,
until the next meeting of Shareholders called for the purpose of electing a
successor Trustee and until the election and qualification of his or her
successor. Any Trustee may resign at any time by written instrument signed by
him or her and delivered to any officer of the Trust or to a meeting of the
Board of Trustees. Such resignation shall be effective upon receipt unless
specified to be effective at some later time. Except to the extent expressly
provided in a written agreement with the Trust, no Trustee resigning and no
Trustee removed shall have any right to any compensation for any period
following any such event or any right to damages on account of such events or
any actions taken in connection therewith following his or her resignation or
removal.
SECTION 2. EFFECT
OF DEATH, RESIGNATION, REMOVAL, ETC. OF A TRUSTEE. THE DEATH, DECLINATION,
RESIGNATION, RETIREMENT, REMOVAL, DECLARATION AS BANKRUPT OR INCAPACITY OF ONE
OR MORE TRUSTEES, OR ALL OF THEM, SHALL NOT OPERATE TO DISSOLVE THE TRUST OR ANY
SERIES OR TO REVOKE ANY EXISTING AGENCY CREATED PURSUANT TO THE TERMS OF THIS
DECLARATION OF TRUST. WHENEVER A VACANCY IN THE BOARD OF TRUSTEES SHALL OCCUR,
UNTIL SUCH VACANCY IS FILLED AS PROVIDED IN THE BY-LAWS, THE TRUSTEE(S) IN
OFFICE, REGARDLESS OF THE NUMBER, SHALL HAVE ALL THE POWERS GRANTED TO THE BOARD
OF TRUSTEES AND SHALL DISCHARGE ALL THE DUTIES IMPOSED UPON THE BOARD OF
TRUSTEES BY THIS DECLARATION OF TRUST.
SECTION 3.
POWERS. SUBJECT TO THE PROVISIONS OF THIS DECLARATION OF TRUST, THE BUSINESS OF
THE TRUST SHALL BE MANAGED BY THE BOARD OF TRUSTEES, AND SUCH BOARD OF TRUSTEES
SHALL HAVE ALL POWERS NECESSARY OR CONVENIENT TO CARRY OUT THAT RESPONSIBILITY,
INCLUDING, WITHOUT LIMITATION, THE POWER TO ENGAGE IN SECURITIES OR OTHER
TRANSACTIONS OF ALL KINDS ON BEHALF OF THE TRUST. THE BOARD OF TRUSTEES SHALL
HAVE FULL POWER AND AUTHORITY TO DO ANY AND ALL ACTS AND TO MAKE AND EXECUTE ANY
AND ALL CONTRACTS AND INSTRUMENTS THAT IT MAY CONSIDER NECESSARY OR APPROPRIATE
IN CONNECTION WITH THE ADMINISTRATION OF THE TRUST. THE TRUSTEES SHALL NOT BE
BOUND OR LIMITED BY PRESENT OR FUTURE LAWS OR CUSTOMS WITH REGARD TO INVESTMENT
BY TRUSTEES OR FIDUCIARIES, BUT, SUBJECT TO THE OTHER PROVISIONS OF THE
DECLARATION OF TRUST AND BY-LAWS, SHALL HAVE FULL AUTHORITY AND ABSOLUTE POWER
AND CONTROL OVER THE ASSETS OF THE TRUST AND THE BUSINESS OF THE TRUST TO THE
SAME EXTENT AS IF THE TRUSTEES WERE THE SOLE OWNERS OF THE ASSETS OF THE TRUST
AND THE BUSINESS IN THEIR OWN RIGHT, INCLUDING SUCH AUTHORITY, POWER AND CONTROL
TO DO ALL ACTS AND THINGS AS THEY, IN THEIR SOLE DISCRETION, SHALL DEEM PROPER
TO ACCOMPLISH THE PURPOSES OF THIS TRUST. WITHOUT LIMITING THE FOREGOING, THE
TRUSTEES MAY: (1) ADOPT, AMEND AND REPEAL BY-LAWS NOT INCONSISTENT WITH THIS
DECLARATION OF TRUST PROVIDING FOR THE REGULATION AND MANAGEMENT OF THE AFFAIRS
OF THE TRUST; (2) FILL VACANCIES IN OR REMOVE FROM THEIR NUMBER IN ACCORDANCE
WITH THIS DECLARATION OF TRUST OR THE BY-LAWS, AND MAY ELECT AND REMOVE SUCH
OFFICERS AND APPOINT AND TERMINATE SUCH AGENTS AS THEY CONSIDER APPROPRIATE; (3)
TO DELEGATE SUCH AUTHORITY AS THEY CONSIDER DESIRABLE TO A COMMITTEE OR
COMMITTEES COMPRISED OF TRUSTEES OR ANY OFFICERS OR AGENTS OF THE TRUST
INCLUDING, WITHOUT LIMITATION, AN EXECUTIVE COMMITTEE; (4) EMPLOY ONE OR MORE
CUSTODIANS OF THE TRUST PROPERTY AND MAY AUTHORIZE SUCH CUSTODIANS TO EMPLOY
SUBCUSTODIANS AND TO DEPOSIT ALL OR ANY PART OF SUCH TRUST PROPERTY IN A SYSTEM
OR SYSTEMS FOR THE CENTRAL HANDLING OF SECURITIES OR WITH A FEDERAL RESERVE
BANK; (5) RETAIN A TRANSFER AGENT, DIVIDEND DISBURSING AGENT, A SHAREHOLDER
SERVICING AGENT OR ADMINISTRATOR, FUND ACCOUNTANT, LEGAL COUNSEL, INDEPENDENT
AUDITOR, OR ALL OF THEM; (6) PROVIDE FOR THE ISSUANCE AND DISTRIBUTION OF SHARES
BY THE TRUST DIRECTLY OR THROUGH ONE OR MORE PRINCIPAL UNDERWRITERS OR
OTHERWISE; (7) RETAIN ONE OR MORE INVESTMENT ADVISER(S); (8) REDEEM, REPURCHASE
AND TRANSFER SHARES PURSUANT TO APPLICABLE LAW; (9) SET RECORD DATES FOR THE
DETERMINATION OF SHAREHOLDERS WITH RESPECT TO VARIOUS MATTERS, IN THE MANNER
PROVIDED IN ARTICLE V, SECTION 5 OF THIS DECLARATION OF TRUST; (10) DECLARE AND
PAY DIVIDENDS AND DISTRIBUTIONS TO SHAREHOLDERS FROM THE TRUST PROPERTY; (11)
ESTABLISH FROM TIME TO TIME, IN ACCORDANCE WITH THE PROVISIONS OF ARTICLE III,
SECTION 6 HEREOF, ANY SERIES OR CLASS OF SHARES, EACH SUCH SERIES TO OPERATE AS
A SEPARATE AND DISTINCT INVESTMENT MEDIUM AND WITH SEPARATELY DEFINED INVESTMENT
OBJECTIVES AND POLICIES AND DISTINCT INVESTMENT PURPOSES; AND (12) IN GENERAL
DELEGATE SUCH AUTHORITY AS THEY CONSIDER DESIRABLE TO ANY OFFICER OF THE TRUST,
TO ANY COMMITTEE OF THE BOARD OF TRUSTEES AND TO ANY AGENT OR EMPLOYEE OF THE
TRUST OR TO ANY SUCH CUSTODIAN, TRANSFER, DIVIDEND DISBURSING OR SHAREHOLDER
SERVICING AGENT, FUND ACCOUNTANT, ADMINISTRATOR, LEGAL COUNSEL, INDEPENDENT
AUDITORS FOR THE TRUST, PRINCIPAL UNDERWRITER OR INVESTMENT ADVISER. THE POWERS
OF THE BOARD OF TRUSTEES SET FORTH IN THIS SECTION 3 ARE WITHOUT PREJUDICE TO
ANY OTHER POWERS OF THE BOARD OF TRUSTEES SET FORTH IN THIS DECLARATION OF TRUST
AND BY-LAWS. ANY DETERMINATION AS TO WHAT IS IN THE BEST INTERESTS OF THE TRUST
MADE BY THE BOARD OF TRUSTEES IN GOOD FAITH SHALL BE CONCLUSIVE.
In construing the provisions of this Declaration of Trust, the presumption
shall be in favor of a grant of power to the Trustees. Unless otherwise
specified herein or required by law, any action by the Board of Trustees shall
be deemed effective if approved or taken by a majority of the Trustees then in
office.
Without limiting the foregoing, the Trustees shall have the power and
authority to cause the Trust (or act on behalf of the Trust) to take any and all
actions set forth in Article II hereof.
The Trustees shall devote to the affairs of the Trust such time as may be
necessary for the proper performance of their duties hereunder, but neither the
Trustees nor the officers, directors, shareholders or partners of the Trustees,
shall be expected to devote their full time to the performance of such duties.
The Trustees, or any Affiliate shareholder, officer, director, partner or
employee thereof, or any Person owning a legal or beneficial interest therein,
may engage in or possess an interest in any other business or venture of any
nature and description, independently or with or for the account of others.
SECTION 4.
PAYMENT OF FEES AND EXPENSES BY THE TRUST. THE BOARD OF TRUSTEES IS AUTHORIZED
TO PAY OR CAUSE TO BE PAID OUT OF THE PRINCIPAL OR INCOME OF THE TRUST OR ANY
PARTICULAR SERIES OR CLASS, OR PARTLY OUT OF THE PRINCIPAL AND PARTLY OUT OF THE
INCOME OF THE TRUST OR ANY PARTICULAR SERIES OR CLASS, AND TO CHARGE OR ALLOCATE
THE SAME TO, BETWEEN OR AMONG SUCH ONE OR MORE OF THE SERIES OR CLASSES THAT MAY
BE ESTABLISHED OR DESIGNATED PURSUANT TO ARTICLE III, SECTION 6, AS IT DEEMS
FAIR, ALL EXPENSES, FEES, CHARGES, TAXES AND LIABILITIES INCURRED BY OR ARISING
IN CONNECTION WITH THE MAINTENANCE OR OPERATION OF THE TRUST OR A PARTICULAR
SERIES OR CLASS, OR IN CONNECTION WITH THE MANAGEMENT THEREOF, INCLUDING, BUT
NOT LIMITED TO, THE TRUSTEES' COMPENSATION AND SUCH EXPENSES, FEES, CHARGES,
TAXES AND LIABILITIES FOR THE SERVICES OF THE TRUST'S OFFICERS, EMPLOYEES,
INVESTMENT ADVISER, PRINCIPAL UNDERWRITER, FUND ACCOUNTANT, ADMINISTRATOR,
AUDITORS, COUNSEL, CUSTODIAN, TRANSFER AGENT, DIVIDEND DISBURSING AGENT,
SHAREHOLDER SERVICING AGENT, AND SUCH OTHER AGENTS OR INDEPENDENT CONTRACTORS
AND SUCH OTHER EXPENSES, FEES, CHARGES, TAXES AND LIABILITIES AS THE BOARD OF
TRUSTEES MAY DEEM NECESSARY OR PROPER TO INCUR.
SECTION 5.
PAYMENT OF FEES AND EXPENSES BY SHAREHOLDERS. THE BOARD OF TRUSTEES SHALL HAVE
THE POWER, AS FREQUENTLY AS IT MAY DETERMINE, TO CAUSE EACH SHAREHOLDER OF THE
TRUST, OR EACH SHAREHOLDER OF ANY PARTICULAR SERIES, TO PAY DIRECTLY, IN ADVANCE
OR ARREARS, FOR CHARGES OF THE TRUST'S CUSTODIAN OR TRANSFER, DIVIDEND
DISBURSING, FUND ACCOUNTING, ADMINISTRATOR, SHAREHOLDER SERVICING OR SIMILAR
AGENT OR SERVICE PROVIDER, AN AMOUNT FIXED FROM TIME TO TIME BY THE BOARD OF
TRUSTEES, BY SETTING OFF SUCH CHARGES DUE FROM SUCH SHAREHOLDER FROM DECLARED
BUT UNPAID DIVIDENDS OR DISTRIBUTIONS OWED SUCH SHAREHOLDER AND/OR BY REDUCING
THE NUMBER OF SHARES IN THE ACCOUNT OF SUCH SHAREHOLDER BY THAT NUMBER OF FULL
AND/OR FRACTIONAL SHARES WHICH REPRESENTS THE OUTSTANDING AMOUNT OF SUCH CHARGES
DUE FROM SUCH SHAREHOLDER.
SECTION 6.
OWNERSHIP OF TRUST PROPERTY. LEGAL TITLE TO ALL OF THE TRUST PROPERTY SHALL AT
ALL TIMES BE CONSIDERED TO BE VESTED IN THE TRUST, EXCEPT THAT THE BOARD OF
TRUSTEES SHALL HAVE THE POWER TO CAUSE LEGAL TITLE TO ANY TRUST PROPERTY TO BE
HELD BY OR IN THE NAME OF ANY PERSON AS NOMINEE, ON SUCH TERMS AS THE BOARD OF
TRUSTEES MAY DETERMINE, IN ACCORDANCE WITH APPLICABLE LAW.
SECTION 7.
SERVICE CONTRACTS
(a) Subject to such requirements and restrictions as may be set forth in
the By-Laws and/or the 1940 Act, the Board of Trustees may, at any time and from
time to time, contract for exclusive or nonexclusive advisory, management and/or
administrative services for the Trust or for any Series (or class) with any
corporation, trust, association or other organization, including any Affiliate;
and any such contract may contain such other terms as the Board of Trustees may
determine, including without limitation, authority for the Investment Adviser or
administrator to determine from time to time without prior consultation with the
Board of Trustees what securities and other instruments or property shall be
purchased or otherwise acquired, owned, held, invested or reinvested in, sold,
exchanged, transferred, mortgaged, pledged, assigned, negotiated, or otherwise
dealt with or disposed of, and what portion, if any, of the Trust Property shall
be held uninvested and to make changes in the Trust's or a particular Series'
investments, or such other activities as may specifically be delegated to such
party.
(b) The Board of Trustees may also, at any time and from time to time,
contract with any corporation, trust, association or other organization,
including any Affiliate, appointing it or them as the exclusive or nonexclusive
distributor or Principal Underwriter for the Shares of the Trust or one or more
of the Series or classes thereof or for other securities to be issued by the
Trust, or appointing it or them to act as the administrator, custodian, transfer
agent, dividend disbursing agent, fund accountant, and/or shareholder servicing
agent for the Trust or one or more of the Series or classes thereof.
(c) The Board of Trustees is further empowered, at any time and from
time to time, to contract with any Persons to provide such other services to the
Trust or one or more of its Series, as the Board of Trustees determines to be in
the best interests of the Trust or one or more of its Series.
(d) The fact that:
(i) any of the Shareholders, Trustees, employees or officers of the
Trust is a shareholder, director, officer, partner, trustee,
employee, manager, Adviser, Principal Underwriter, administrator,
distributor, or Affiliate or agent of or for any corporation, trust,
association, or other organization, or for any parent or Affiliate
of any organization with which an Adviser's, management or
administration contract, or Principal Underwriter's or distributor's
contract, or custodian, transfer, dividend disbursing, fund
accounting, shareholder servicing or other type of service contract
may have been or may hereafter be made, or that any such
organization, or any parent or Affiliate thereof, is a Shareholder
or has an interest in the Trust, or that
(ii) any corporation, trust, association or other organization with
which an Adviser's, management or administration contract or
Principal Underwriter's or distributor's contract, or custodian,
transfer, dividend disbursing, fund accounting, shareholder
servicing or other type of service contract may have been or may
hereafter be made also has an Adviser's, management or
administration contract, or Principal Underwriter's or distributor's
contract, or custodian, transfer, dividend disbursing, fund
accounting, shareholder servicing or other service contract with one
or more other corporations, trusts, associations, or other
organizations, or has other business or interests,
shall not affect the validity of any such contract or disqualify any
Shareholder, Trustee, employee or officer of the Trust from voting upon or
executing the same, or create any liability or accountability to the Trust or
its Shareholders, provided that the establishment of and performance under each
such contract is permissible under the provisions of the 1940 Act.
SECTION 8.
COMPENSATION. EXCEPT AS SET FORTH IN THE LAST SENTENCE OF THIS SECTION 8, THE
BOARD OF TRUSTEES MAY, FROM TIME TO TIME, FIX A REASONABLE AMOUNT OF
COMPENSATION TO BE PAID BY THE TRUST TO THE TRUSTEES AND OFFICERS OF THE TRUST.
NOTHING HEREIN SHALL IN ANY WAY PREVENT THE EMPLOYMENT OF ANY TRUSTEE FOR
ADVISORY, MANAGEMENT, LEGAL, ACCOUNTING, INVESTMENT BANKING OR OTHER SERVICES
AND PAYMENT FOR THE SAME BY THE TRUST.
ARTICLE V.
SHAREHOLDERS' VOTING POWERS AND MEETINGS
SECTION 1. VOTING
POWERS. SUBJECT TO THE PROVISIONS OF ARTICLE III, SECTION 6(D), THE
SHAREHOLDERS SHALL HAVE POWER TO VOTE ONLY (I) FOR THE ELECTION OF TRUSTEES,
INCLUDING THE FILLING OF ANY VACANCIES IN THE BOARD OF TRUSTEES, AS PROVIDED IN
ARTICLE IV, SECTION 1; (II) WITH RESPECT TO SUCH ADDITIONAL MATTERS RELATING TO
THE TRUST AS MAY BE REQUIRED BY THIS DECLARATION OF TRUST, THE BY-LAWS, THE 1940
ACT OR ANY REGISTRATION STATEMENT OF THE TRUST FILED WITH THE COMMISSION; AND
(III) ON SUCH OTHER MATTERS AS THE BOARD OF TRUSTEES MAY CONSIDER NECESSARY OR
DESIRABLE. THE SHAREHOLDER OF RECORD (AS OF THE RECORD DATE ESTABLISHED
PURSUANT TO SECTION 5 OF THIS ARTICLE V) OF EACH SHARE SHALL BE ENTITLED TO ONE
VOTE FOR EACH FULL SHARE, AND A FRACTIONAL VOTE FOR EACH FRACTIONAL SHARE.
SHAREHOLDERS SHALL NOT BE ENTITLED TO CUMULATIVE VOTING IN THE ELECTION OF
TRUSTEES OR ON ANY OTHER MATTER. SHARES MAY BE VOTED IN PERSON OR BY PROXY. A
PROXY MAY BE GIVEN IN WRITING. THE BY-LAWS MAY PROVIDE THAT PROXIES MAY ALSO,
OR MAY INSTEAD, BE GIVEN BY AN ELECTRONIC OR TELECOMMUNICATIONS DEVICE OR IN ANY
OTHER MANNER.
SECTION 2.
MEETINGS. MEETINGS OF THE SHAREHOLDERS MAY BE CALLED BY THE BOARD OF TRUSTEES
FOR THE PURPOSE OF ELECTING TRUSTEES AS PROVIDED IN ARTICLE IV, SECTION 1 AND
FOR SUCH OTHER PURPOSES AS MAY BE PRESCRIBED BY LAW, BY THIS DECLARATION OF
TRUST OR BY THE BY-LAWS. MEETINGS OF THE SHAREHOLDERS MAY ALSO BE CALLED BY THE
BOARD OF TRUSTEES FROM TIME TO TIME FOR THE PURPOSE OF TAKING ACTION UPON ANY
OTHER MATTER DEEMED BY THE BOARD OF TRUSTEES TO BE NECESSARY OR DESIRABLE.
SECTION 3. QUORUM
AND REQUIRED VOTE. EXCEPT WHEN A LARGER QUORUM IS REQUIRED BY APPLICABLE LAW,
BY THE BY-LAWS OR BY THIS DECLARATION OF TRUST, THIRTY-THREE AND ONE-THIRD
PERCENT (33-1/3%) OF THE OUTSTANDING SHARES PRESENT IN PERSON OR REPRESENTED BY
PROXY AND ENTITLED TO VOTE AT A SHAREHOLDERS' MEETING SHALL CONSTITUTE A QUORUM
AT SUCH MEETING. WHEN A SEPARATE VOTE BY ONE OR MORE SERIES OR CLASSES IS
REQUIRED, THIRTY-THREE AND ONE-THIRD PERCENT (33-1/3%) OF THE SHARES OF EACH
SUCH SERIES OR CLASS PRESENT IN PERSON OR REPRESENTED BY PROXY AND ENTITLED TO
VOTE SHALL CONSTITUTE A QUORUM AT A SHAREHOLDERS' MEETING OF SUCH SERIES OR
CLASS, EXCEPT WHEN A LARGER QUORUM IS REQUIRED BY APPLICABLE LAW, BY THE BY-LAWS
OR BY THIS DECLARATION OF TRUST. SUBJECT TO THE PROVISIONS OF ARTICLE III,
SECTION 6(D), ARTICLE VIII, SECTION 3 AND ANY OTHER PROVISION OF THIS
DECLARATION OF TRUST, THE BY-LAWS OR APPLICABLE LAW WHICH REQUIRES A DIFFERENT
VOTE: (1) IN ALL MATTERS OTHER THAN THE ELECTION OF TRUSTEES, THE AFFIRMATIVE
VOTE OF THE MAJORITY OF VOTES CAST AT A SHAREHOLDERS' MEETING AT WHICH A QUORUM
IS PRESENT SHALL BE THE ACT OF THE SHAREHOLDERS; (2) TRUSTEES SHALL BE ELECTED
BY A PLURALITY OF THE VOTES CAST AT A SHAREHOLDERS' MEETING AT WHICH A QUORUM IS
PRESENT, PROVIDED THAT WHERE ANY PROVISION OF LAW OR OF THIS DECLARATION OF
TRUST REQUIRES THAT THE HOLDERS OF ANY SERIES SHALL VOTE AS A SERIES (OR THAT
HOLDERS OF A CLASS VOTE AS A CLASS), THEN A MAJORITY OF THE SHARES OF THAT
SERIES (OR CLASS) VOTING ON THE MATTER (OR A PLURALITY WITH RESPECT TO THE
ELECTION OF TRUSTEES) SHALL DECIDE THAT MATTER INSOFAR AS THAT SERIES (OR CLASS)
IS CONCERNED.
SECTION 4.
SHAREHOLDER ACTION BY WRITTEN CONSENT WITHOUT A MEETING. ANY ACTION WHICH MAY
BE TAKEN AT ANY MEETING OF SHAREHOLDERS MAY BE TAKEN WITHOUT A MEETING AND
WITHOUT PRIOR NOTICE IF A CONSENT IN WRITING SETTING FORTH THE ACTION SO TAKEN
IS SIGNED BY THE HOLDERS OF SHARES HAVING NOT LESS THAN THE MINIMUM NUMBER OF
VOTES THAT WOULD BE NECESSARY TO AUTHORIZE OR TAKE THAT ACTION AT A MEETING AT
WHICH ALL SHARES ENTITLED TO VOTE ON THAT ACTION WERE PRESENT AND VOTED. ALL
SUCH CONSENTS SHALL BE FILED WITH THE SECRETARY OF THE TRUST AND SHALL BE
MAINTAINED IN THE TRUST'S RECORDS. ANY SHAREHOLDER GIVING A WRITTEN CONSENT OR
THE SHAREHOLDER'S PROXY HOLDERS OR A TRANSFEREE OF THE SHARES OR A PERSONAL
REPRESENTATIVE OF THE SHAREHOLDER OR ITS RESPECTIVE PROXY-HOLDER MAY REVOKE THE
CONSENT BY A WRITING RECEIVED BY THE SECRETARY OF THE TRUST BEFORE WRITTEN
CONSENTS OF THE NUMBER OF SHARES REQUIRED TO AUTHORIZE THE PROPOSED ACTION HAVE
BEEN FILED WITH THE SECRETARY.
If the consents of all Shareholders entitled to vote have not been
solicited in writing and if the unanimous written consent of all such
Shareholders shall not have been received, the secretary shall give prompt
notice of the action taken without a meeting to such Shareholders. This notice
shall be given in the manner specified in the By-Laws.
SECTION 5. RECORD
DATES. FOR PURPOSES OF DETERMINING THE SHAREHOLDERS ENTITLED TO NOTICE OF ANY
MEETING OR TO VOTE OR ENTITLED TO GIVE CONSENT TO ACTION WITHOUT A MEETING, THE
BOARD OF TRUSTEES MAY FIX IN ADVANCE A RECORD DATE WHICH SHALL NOT BE MORE THAN
ONE HUNDRED EIGHTY (180) DAYS NOR LESS THAN SEVEN (7) DAYS BEFORE THE DATE OF
ANY SUCH MEETING.
If the Board of Trustees does not so fix a record date:
(a) The record date for determining Shareholders entitled to notice of
or to vote at a meeting of Shareholders shall be at the close of business on the
business day before the notice is given or, if notice is waived, at the close of
business on the business day which is five (5) business days before the day on
which the meeting is held.
(b) The record date for determining Shareholders entitled to give
consent to action in writing without a meeting, (i) when no prior action by the
Board of Trustees has been taken, shall be the day on which the first written
consent is given, or (ii) when prior action of the Board of Trustees has been
taken, shall be at the close of business on the day on which the Board of
Trustees adopts the resolution taking such prior action.
For the purpose of determining the Shareholders of any Series or class who
are entitled to receive payment of any dividend or of any other distribution,
the Board of Trustees may from time to time fix a date, which shall be before
the date for the payment of such dividend or such other distribution, as the
record date for determining the Shareholders of such Series or class having the
right to receive such dividend or distribution. Nothing in this Section shall
be construed as precluding the Board of Trustees from setting different record
dates for different Series or classes.
SECTION 6.
ADDITIONAL PROVISIONS. THE BY-LAWS MAY INCLUDE FURTHER PROVISIONS FOR
SHAREHOLDERS' VOTES, MEETINGS AND RELATED MATTERS.
ARTICLE VI.
NET ASSET VALUE, DISTRIBUTIONS AND REDEMPTIONS
SECTION 1. DETERMINATION OF NET ASSET VALUE, NET INCOME AND
DISTRIBUTIONS. SUBJECT TO ARTICLE III, SECTION 6 HEREOF, THE BOARD OF TRUSTEES
SHALL HAVE THE POWER TO FIX AN INITIAL OFFERING PRICE FOR THE SHARES OF ANY
SERIES OR CLASS THEREOF WHICH SHALL RESULT IN SUCH SERIES OR CLASS BEING VALUED
AT NOT LESS THAN THE NET ASSET VALUE THEREOF, AT WHICH PRICE THE SHARES OF SUCH
SERIES OR CLASS SHALL BE OFFERED INITIALLY FOR SALE, AND TO DETERMINE FROM TIME
TO TIME THEREAFTER THE OFFERING PRICE WHICH SHALL RESULT IN SUCH SERIES OR CLASS
BEING VALUED AT NOT LESS THAN THE NET ASSET VALUE THEREOF FROM SALES OF THE
SHARES OF SUCH SERIES OR CLASS; PROVIDED, HOWEVER, THAT NO SHARES OF A SERIES OR
CLASS THEREOF SHALL BE ISSUED OR SOLD FOR CONSIDERATION WHICH SHALL RESULT IN
SUCH SERIES OR CLASS BEING VALUED AT LESS THAN THE NET ASSET VALUE OF THE SHARES
OF SUCH SERIES OR CLASS NEXT DETERMINED AFTER THE RECEIPT OF THE ORDER (OR AT
SUCH OTHER TIMES SET BY THE BOARD OF TRUSTEES), EXCEPT IN THE CASE OF SHARES OF
SUCH SERIES OR CLASS ISSUED IN PAYMENT OF A DIVIDEND PROPERLY DECLARED AND
PAYABLE.
Subject to Article III, Section 6 hereof, the Board of Trustees, in its
absolute discretion, may prescribe and shall set forth in the By-Laws or in a
duly adopted vote of the Board of Trustees such bases and time for determining
the per Share or net asset value of the Shares of any Series or net income
attributable to the Shares of any Series, or the declaration and payment of
dividends and distributions on the Shares of any Series, as they may deem
necessary or desirable.
SECTION 2.
REDEMPTIONS AT THE OPTION OF A SHAREHOLDER. UNLESS OTHERWISE PROVIDED IN THE
PROSPECTUS OF THE TRUST RELATING TO THE SHARES, AS SUCH PROSPECTUS MAY BE
AMENDED FROM TIME TO TIME ("PROSPECTUS"):
(a) The Trust shall purchase such Shares as are offered by any
Shareholder for redemption, upon the presentation of a proper instrument of
transfer together with a request directed to the Trust or a Person designated by
the Trust that the Trust purchase such Shares or in accordance with such other
procedures for redemption as the Board of Trustees may from time to time
authorize; and the Trust will pay therefore the net asset value thereof, in
accordance with the By-Laws and applicable law. The payment of redemption
proceeds may be reduced by any applicable sales charges or fees described in the
Prospectus. Payment for said Shares shall be made by the Trust to the
Shareholder within seven days after the date on which the request is received in
proper form. The obligation set forth in this Section 2 may be suspended or
postponed in accordance with Section 22(e) of the 1940 Act and the rules and
regulations thereunder or as otherwise permitted by the Commission. If
certificates have been issued to a Shareholder, any such request by such
Shareholder must be accompanied by surrender of any outstanding certificate or
certificates for such Shares in form for transfer, together with such proof of
the authenticity of signatures as may reasonably be required on such Shares and
accompanied by proper stock transfer stamps, if applicable.
(b) Payments for Shares so redeemed by the Trust shall be made in cash,
except payment for such Shares may, at the option of the Board of Trustees, or
such officer or officers as it may duly authorize in its complete discretion, be
made in kind or partially in cash and partially in kind. In case of any payment
in kind, the Board of Trustees, or its delegate, shall have absolute discretion
as to what security or securities of the Trust shall be distributed in kind and
the amount of the same; and the securities shall be valued for purposes of
distribution at the value at which they were appraised in computing the then
current net asset value of the Shares, provided that any Shareholder who cannot
legally acquire securities so distributed in kind by reason of the prohibitions
of the 1940 Act or the provisions of the Employee Retirement Income Security Act
("ERISA") shall receive cash. Shareholders shall bear the expenses of in-kind
transactions, including, but not limited to, transfer agency fees, custodian
fees and costs of disposition of such securities.
(c) If payment for Shares shall be made other than exclusively in cash,
any securities to be delivered as part of such payment shall be delivered as
promptly as any necessary transfers of such securities on the books of the
several corporations whose securities are to be delivered practicably can be
made, which may not necessarily occur within such seven day period. In no case
shall the Trust be liable for any delay of any corporation or other Person in
transferring securities selected for delivery as all or part of any payment in
kind.
(d) The right of Shareholders to receive dividends or other
distributions on Shares may be set forth in a Plan adopted by the Board of
Trustees and amended from time to time pursuant to Rule 18f-3 of the 1940 Act.
The right of any Shareholder of the Trust to receive dividends or other
distributions on Shares redeemed and all other rights of such Shareholder with
respect to the Shares so redeemed by the Trust, except the right of such
Shareholder to receive payment for such Shares, shall cease at the time as of
which the purchase price of such Shares shall have been fixed, as provided
above.
SECTION 3.
REDEMPTIONS AT THE OPTION OF THE TRUST. THE BOARD OF TRUSTEES MAY, FROM TIME TO
TIME, WITHOUT THE VOTE OR CONSENT OF THE SHAREHOLDERS, AND SUBJECT TO THE 1940
ACT, REDEEM SHARES OR AUTHORIZE THE CLOSING OF ANY SHAREHOLDER ACCOUNT, SUBJECT
TO SUCH CONDITIONS AS MAY BE ESTABLISHED BY THE BOARD OF TRUSTEES.
ARTICLE VII.
LIMITATION OF LIABILITY; INDEMNIFICATION
SECTION 1. TRUSTEES, SHAREHOLDERS, ETC. NOT PERSONALLY LIABLE. THE
TRUSTEES, OFFICERS, EMPLOYEES AND AGENTS OF THE TRUST, IN INCURRING ANY DEBTS,
LIABILITIES OR OBLIGATIONS, OR IN LIMITING OR OMITTING ANY OTHER ACTIONS FOR OR
IN CONNECTION WITH THE TRUST, ARE OR SHALL BE DEEMED TO BE ACTING AS TRUSTEES,
OFFICERS, EMPLOYEES OR AGENTS OF THE TRUST AND NOT IN THEIR OWN CAPACITIES. NO
SHAREHOLDER SHALL BE SUBJECT TO ANY PERSONAL LIABILITY WHATSOEVER IN TORT,
CONTRACT OR OTHERWISE TO ANY OTHER PERSON OR PERSONS IN CONNECTION WITH THE
ASSETS OR THE AFFAIRS OF THE TRUST OR OF ANY SERIES OR CLASS, AND SUBJECT TO
SECTIONS 3 AND 5 OF THIS ARTICLE VII, NO TRUSTEE, OFFICER, EMPLOYEE OR AGENT OF
THE TRUST SHALL BE SUBJECT TO ANY PERSONAL LIABILITY WHATSOEVER IN TORT,
CONTRACT, OR OTHERWISE, TO ANY OTHER PERSON OR PERSONS IN CONNECTION WITH THE
ASSETS OR AFFAIRS OF THE TRUST OR OF ANY SERIES OR CLASS, SAVE ONLY THAT ARISING
FROM HIS OR HER OWN WILLFUL MISFEASANCE, BAD FAITH, GROSS NEGLIGENCE OR RECKLESS
DISREGARD OF THE DUTIES INVOLVED IN THE CONDUCT OF HIS OR HER OFFICE OR THE
DISCHARGE OF HIS OR HER DUTIES. THE TRUST (OR IF THE MATTER RELATES ONLY TO A
PARTICULAR SERIES OR CLASS, THAT SERIES OR CLASS) SHALL BE SOLELY LIABLE FOR ANY
AND ALL DEBTS, CLAIMS, DEMANDS, JUDGMENTS, DECREES, LIABILITIES OR OBLIGATIONS
OF ANY AND EVERY KIND, AGAINST OR WITH RESPECT TO THE TRUST OR SUCH SERIES OR
CLASS IN TORT, CONTRACT OR OTHERWISE IN CONNECTION WITH THE ASSETS OR THE
AFFAIRS OF THE TRUST OR SUCH SERIES OR CLASS, AND ALL PERSONS DEALING WITH THE
TRUST OR ANY SERIES OR CLASS SHALL BE DEEMED TO HAVE AGREED THAT RESORT SHALL BE
HAD SOLELY TO THE TRUST PROPERTY OF THE TRUST (OR IF THE MATTER RELATES ONLY TO
A PARTICULAR SERIES OR CLASS, THAT OF SUCH SERIES OR CLASS), FOR THE PAYMENT OR
PERFORMANCE THEREOF. NO TRUSTEE WHO HAS BEEN DESIGNATED A FINANCIAL EXPERT (FOR
PURPOSES OF SECTION 407 OF THE XXXXXXXX-XXXXX ACT OF 2002 OR ANY SUCCESSOR
PROVISION THERETO) IN THE TRUST'S REGISTRATION STATEMENT SHALL BE SUBJECT TO ANY
GREATER DUTY OF CARE IN DISCHARGING SUCH TRUSTEE'S DUTIES AND RESPONSIBILITIES
BY VIRTUE OF SUCH DESIGNATION THAN IS ANY TRUSTEE WHO HAS NOT BEEN SO
DESIGNATED.
The Trustees may provide that every note, bond, contract, instrument,
certificate or undertaking made or issued by the Trustees or by any officer or
officers shall give notice that a Certificate of Trust in respect of the Trust
is on file with the Secretary of State of the State of Delaware and may recite
to the effect that the same was executed or made by or on behalf of the Trust or
by them as Trustee or Trustees or as officer or officers, and not individually,
and that the obligations of any instrument made or issued by the Trustees or by
any officer or officers of the Trust are not binding upon any of them or the
Shareholders individually but are binding only upon the assets and property of
the Trust, or the particular Series in question, as the case may be. The
omission of any statement to such effect from such instrument shall not operate
to bind any Trustee or Trustees or officer or officers or Shareholder or
Shareholders individually, or to subject the assets of any Series or class to
the obligations of any other Series or class.
SECTION 2.
OFFICERS AND TRUSTEES' GOOD FAITH ACTION, EXPERT ADVICE, NO BOND OR SURETY. THE
EXERCISE BY THE TRUSTEES OF THEIR POWERS AND DISCRETION HEREUNDER SHALL BE
BINDING UPON EVERYONE INTERESTED. AN OFFICER OR TRUSTEE SHALL BE LIABLE TO THE
TRUST AND TO ANY SHAREHOLDER SOLELY FOR SUCH OFFICER'S OR TRUSTEE'S OWN WILLFUL
MISFEASANCE, BAD FAITH, GROSS NEGLIGENCE OR RECKLESS DISREGARD OF THE DUTIES
INVOLVED IN THE CONDUCT OF THE OFFICE OF SUCH OFFICER OR TRUSTEE, AND FOR
NOTHING ELSE, AND SHALL NOT BE LIABLE FOR ERRORS OF JUDGMENT OR MISTAKES OF FACT
OR LAW. SUBJECT TO THE FOREGOING, THE TRUSTEES SHALL NOT BE RESPONSIBLE OR
LIABLE IN ANY EVENT FOR ANY NEGLECT OR WRONGDOING OF ANY OFFICER, AGENT,
EMPLOYEE, CONSULTANT, INVESTMENT ADVISER, ADMINISTRATOR, DISTRIBUTOR,
UNDERWRITER, CUSTODIAN OR TRANSFER AGENT, DIVIDEND DISBURSING AGENT, SHAREHOLDER
SERVICING AGENT OR ACCOUNTING AGENT OF THE TRUST, NOR SHALL ANY TRUSTEE BE
RESPONSIBLE FOR THE ACT OR OMISSION OF ANY OTHER TRUSTEE. 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 AN OFFICER APPOINTED BY THEM, ANY INDEPENDENT PUBLIC ACCOUNTANT OR AUDITOR,
AND (WITH RESPECT TO THE SUBJECT MATTER OF THE RELEVANT CONTRACT INVOLVED) ANY
OFFICER, PARTNER OR RESPONSIBLE EMPLOYEE OF A CONTRACTING PARTY EMPLOYED BY THE
TRUST. THE OFFICERS AND TRUSTEES MAY OBTAIN THE ADVICE OF COUNSEL OR OTHER
EXPERTS WITH RESPECT TO THE MEANING AND OPERATION OF THIS DECLARATION OF TRUST
AND THEIR DUTIES AS OFFICERS OR TRUSTEES. NO SUCH OFFICER OR TRUSTEE SHALL BE
LIABLE FOR ANY ACT OR OMISSION IN ACCORDANCE WITH SUCH ADVICE AND NO INFERENCE
CONCERNING LIABILITY SHALL ARISE FROM A FAILURE TO FOLLOW SUCH ADVICE. THE
OFFICERS AND TRUSTEES SHALL NOT BE REQUIRED TO GIVE ANY BOND AS SUCH, NOR ANY
SURETY IF A BOND IS REQUIRED.
SECTION 3. INDEMNIFICATION OF SHAREHOLDERS. IF ANY SHAREHOLDER (OR
FORMER SHAREHOLDER) OF THE TRUST SHALL BE CHARGED OR HELD TO BE PERSONALLY
LIABLE FOR ANY OBLIGATION OR LIABILITY OF THE TRUST SOLELY BY REASON OF BEING OR
HAVING BEEN A SHAREHOLDER AND NOT BECAUSE OF SUCH SHAREHOLDER'S ACTS OR
OMISSIONS OR FOR SOME OTHER REASON, THE TRUST (UPON PROPER AND TIMELY REQUEST BY
THE SHAREHOLDER) MAY ASSUME THE DEFENSE AGAINST SUCH CHARGE AND SATISFY ANY
JUDGMENT THEREON OR MAY REIMBURSE THE SHAREHOLDER OR FORMER SHAREHOLDER FOR
EXPENSES, AND THE SHAREHOLDER OR FORMER SHAREHOLDER (OR THE HEIRS, EXECUTORS,
ADMINISTRATORS OR OTHER LEGAL REPRESENTATIVES THEREOF, OR IN THE CASE OF A
CORPORATION OR OTHER ENTITY, ITS CORPORATE OR OTHER GENERAL SUCCESSOR) SHALL BE
ENTITLED (BUT SOLELY OUT OF THE ASSETS OF THE SERIES OF WHICH SUCH SHAREHOLDER
OR FORMER SHAREHOLDER IS OR WAS THE HOLDER OF SHARES) TO BE HELD HARMLESS FROM
AND INDEMNIFIED AGAINST ALL LOSS AND EXPENSE ARISING FROM SUCH LIABILITY.
SECTION 4. INDEMNIFICATION OF TRUSTEES, OFFICERS, ETC. SUBJECT TO THE
LIMITATIONS, IF APPLICABLE, HEREINAFTER SET FORTH IN THIS SECTION 4, THE TRUST
SHALL INDEMNIFY (FROM THE ASSETS OF ONE OR MORE SERIES TO WHICH THE CONDUCT IN
QUESTION RELATES) EACH PERSON WHO IS, HAS BEEN OR BECOMES A TRUSTEE, OFFICER,
EMPLOYEE OR AGENT (INCLUDING 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 (HEREINAFTER, TOGETHER WITH
SUCH PERSON'S HEIRS, EXECUTORS, ADMINISTRATORS OR PERSONAL REPRESENTATIVES,
REFERRED TO AS A "COVERED PERSON")) AGAINST ALL LIABILITIES, INCLUDING BUT NOT
LIMITED TO AMOUNTS PAID IN SATISFACTION OF JUDGMENTS, IN COMPROMISE OR AS FINES
AND PENALTIES, AND EXPENSES, INCLUDING REASONABLE ACCOUNTANTS' AND COUNSEL FEES,
INCURRED BY ANY COVERED PERSON 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 SUCH COVERED PERSON MAY BE
OR MAY HAVE BEEN INVOLVED AS A PARTY OR OTHERWISE OR WITH WHICH SUCH COVERED
PERSON MAY BE OR MAY HAVE BEEN THREATENED, WHILE IN OFFICE OR THEREAFTER, BY
REASON OF BEING OR HAVING BEEN SUCH A TRUSTEE OR OFFICER, DIRECTOR OR TRUSTEE,
EXCEPT WITH RESPECT TO ANY MATTER AS TO WHICH IT HAS BEEN DETERMINED THAT SUCH
COVERED PERSON (I) DID NOT ACT IN GOOD FAITH IN THE REASONABLE BELIEF THAT SUCH
COVERED PERSON'S ACTION WAS IN OR NOT OPPOSED TO THE BEST INTERESTS OF THE
TRUST; OR (II) HAD ACTED WITH WILLFUL MISFEASANCE, BAD FAITH, GROSS NEGLIGENCE
OR RECKLESS DISREGARD OF THE DUTIES INVOLVED IN THE CONDUCT OF SUCH COVERED
PERSON'S OFFICE; AND (III) FOR A CRIMINAL PROCEEDING, HAD REASONABLE CAUSE TO
BELIEVE THAT HIS OR HER CONDUCT WAS UNLAWFUL (THE CONDUCT DESCRIBED IN (I), (II)
AND (III) BEING REFERRED TO HEREAFTER AS "DISABLING CONDUCT"). A DETERMINATION
THAT THE COVERED PERSON IS ENTITLED TO INDEMNIFICATION MAY BE MADE BY (I) A
FINAL DECISION ON THE MERITS BY A COURT OR OTHER BODY BEFORE WHOM THE PROCEEDING
WAS BROUGHT THAT THE COVERED PERSON TO BE INDEMNIFIED WAS NOT LIABLE BY REASON
OF DISABLING CONDUCT, (II) DISMISSAL OF A COURT ACTION OR AN ADMINISTRATIVE
PROCEEDING AGAINST A COVERED PERSON FOR INSUFFICIENCY OF EVIDENCE OF DISABLING
CONDUCT, OR (III) A REASONABLE DETERMINATION, BASED UPON A REVIEW OF THE FACTS,
THAT THE INDEMNITEE WAS NOT LIABLE BY REASON OF DISABLING CONDUCT BY (A) A VOTE
OF A MAJORITY OF A QUORUM OF THE TRUSTEES WHO ARE NEITHER INTERESTED PERSONS OF
THE TRUST NOR PARTIES TO THE PROCEEDING (THE "DISINTERESTED TRUSTEES"), OR
(B) AN INDEPENDENT LEGAL COUNSEL IN A WRITTEN OPINION. 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 ONE OR MORE SERIES TO WHICH THE
CONDUCT IN QUESTION RELATED IN ADVANCE OF THE FINAL DISPOSITION OF ANY SUCH
ACTION, SUIT OR PROCEEDING; PROVIDED THAT THE COVERED PERSON SHALL HAVE
UNDERTAKEN TO REPAY THE AMOUNTS SO PAID TO SUCH SERIES IF IT IS ULTIMATELY
DETERMINED THAT INDEMNIFICATION OF SUCH EXPENSES IS NOT AUTHORIZED UNDER THIS
ARTICLE VII AND (I) THE COVERED PERSON SHALL HAVE PROVIDED SECURITY FOR SUCH
UNDERTAKING, (II) THE TRUST SHALL BE INSURED AGAINST LOSSES ARISING BY REASON OF
ANY LAWFUL ADVANCES, OR (III) A MAJORITY OF A QUORUM OF THE DISINTERESTED
TRUSTEES, OR AN INDEPENDENT LEGAL COUNSEL IN A WRITTEN OPINION, SHALL HAVE
DETERMINED, BASED ON A REVIEW OF READILY AVAILABLE FACTS (AS OPPOSED TO A FULL
TRIAL TYPE INQUIRY), THAT THERE IS REASON TO BELIEVE THAT THE COVERED PERSON
ULTIMATELY WILL BE FOUND ENTITLED TO INDEMNIFICATION.
SECTION 5. COMPROMISE PAYMENT. AS TO ANY MATTER DISPOSED OF BY A
COMPROMISE PAYMENT BY ANY SUCH COVERED PERSON REFERRED TO IN SECTION 4 OF THIS
ARTICLE VII, PURSUANT TO A CONSENT DECREE OR OTHERWISE, NO SUCH INDEMNIFICATION
EITHER FOR SAID PAYMENT OR FOR ANY OTHER EXPENSES SHALL BE PROVIDED UNLESS SUCH
INDEMNIFICATION SHALL BE APPROVED (I) BY A MAJORITY OF A QUORUM OF THE
DISINTERESTED TRUSTEES OR (II) BY AN INDEPENDENT LEGAL COUNSEL IN A WRITTEN
OPINION. APPROVAL BY THE TRUSTEES PURSUANT TO CLAUSE (I) OR BY INDEPENDENT
LEGAL COUNSEL PURSUANT TO CLAUSE (II) SHALL NOT PREVENT THE RECOVERY FROM ANY
COVERED PERSON OF ANY AMOUNT PAID TO SUCH COVERED PERSON IN ACCORDANCE WITH
EITHER OF SUCH CLAUSES AS INDEMNIFICATION IF SUCH COVERED PERSON IS SUBSEQUENTLY
ADJUDICATED BY A COURT OF COMPETENT JURISDICTION NOT TO HAVE ACTED IN GOOD FAITH
IN THE REASONABLE BELIEF THAT SUCH COVERED PERSON'S ACTION WAS IN OR NOT OPPOSED
TO THE BEST INTERESTS OF THE TRUST OR TO HAVE BEEN LIABLE TO THE TRUST OR ITS
SHAREHOLDERS BY REASON OF WILLFUL MISFEASANCE, BAD FAITH, GROSS NEGLIGENCE OR
RECKLESS DISREGARD OF THE DUTIES INVOLVED IN THE CONDUCT OF THE COVERED PERSON'S
OFFICE.
SECTION 6. INDEMNIFICATION NOT EXCLUSIVE, ETC. THE RIGHT OF
INDEMNIFICATION PROVIDED BY THIS ARTICLE VII SHALL NOT BE EXCLUSIVE OF OR AFFECT
ANY OTHER RIGHTS TO WHICH ANY SUCH COVERED PERSON OR SHAREHOLDER MAY BE
ENTITLED. AS USED IN THIS ARTICLE VII, A "DISINTERESTED" PERSON IS ONE AGAINST
WHOM NONE OF THE ACTIONS, SUITS OR OTHER PROCEEDINGS IN QUESTION, AND NO OTHER
ACTION, SUIT OR OTHER PROCEEDING ON THE SAME OR SIMILAR GROUNDS IS THEN OR HAS
BEEN PENDING OR THREATENED. NOTHING CONTAINED IN THIS ARTICLE VII SHALL AFFECT
ANY RIGHTS TO INDEMNIFICATION TO WHICH PERSONNEL OF THE TRUST, OTHER THAN
TRUSTEES AND OFFICERS, AND OTHER PERSONS MAY BE ENTITLED BY CONTRACT OR
OTHERWISE UNDER LAW, NOR THE POWER OF THE TRUST TO PURCHASE AND MAINTAIN
LIABILITY INSURANCE ON BEHALF OF ANY SUCH PERSON.
SECTION 7.
INSURANCE. TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, THE OFFICERS AND
TRUSTEES SHALL BE ENTITLED AND HAVE THE AUTHORITY TO PURCHASE WITH TRUST
PROPERTY, INSURANCE FOR LIABILITY AND FOR ALL EXPENSES REASONABLY INCURRED OR
PAID OR EXPECTED TO BE PAID BY A TRUSTEE OR OFFICER IN CONNECTION WITH ANY
CLAIM, ACTION, SUIT OR PROCEEDING IN WHICH SUCH PERSON BECOMES INVOLVED BY
VIRTUE OF SUCH PERSON'S CAPACITY OR FORMER CAPACITY WITH THE TRUST, WHETHER OR
NOT THE TRUST WOULD HAVE THE POWER TO INDEMNIFY SUCH PERSON AGAINST SUCH
LIABILITY UNDER THE PROVISIONS OF THIS ARTICLE.
SECTION 8.
LIABILITY OF THIRD PERSONS DEALING WITH TRUSTEES. NO PERSON DEALING WITH THE
TRUSTEES SHALL BE BOUND TO MAKE ANY INQUIRY CONCERNING THE VALIDITY OF ANY
ACTIONS MADE OR TO BE MADE BY THE TRUSTEES.
Section 9. Derivative Actions. Subject to the requirements set forth in
Section 3816 of the DSTA, a Shareholder or Shareholders may bring a derivative
action on behalf of the Trust only if the Shareholder or Shareholders first make
a pre-suit demand upon the Board of Trustees to bring the subject action unless
an effort to cause the Board of Trustees to bring such action is excused. A
demand on the Board of Trustees shall only be excused if a majority of the Board
of Trustees, or a majority of any committee established to consider the merits
of such action, has a material personal financial interest in the action at
issue. A Trustee shall not be deemed to have a material personal financial
interest in an action or otherwise be disqualified from ruling on a Shareholder
demand by virtue of the fact that such Trustee receives remuneration from his
service on the Board of Trustees of the Trust or on the boards of one or more
investment companies with the same or an affiliated investment advisor or
underwriter.
ARTICLE VIII.
MISCELLANEOUS
SECTION 1.
DISSOLUTION AND LIQUIDATION OF TRUST, SERIES, OR CLASS. UNLESS DISSOLVED AS
PROVIDED HEREIN, THE TRUST SHALL HAVE PERPETUAL EXISTENCE. THE TRUST MAY BE
DISSOLVED AT ANY TIME BY VOTE OF A MAJORITY OF THE SHARES OF THE TRUST ENTITLED
TO VOTE OR BY THE BOARD OF TRUSTEES BY WRITTEN NOTICE TO THE SHAREHOLDERS. ANY
SERIES OR CLASS MAY BE DISSOLVED OR LIQUIDATED AT ANY TIME BY VOTE OF A MAJORITY
OF THE SHARES OF THAT SERIES OR CLASS OR BY THE BOARD OF TRUSTEES BY WRITTEN
NOTICE TO THE SHAREHOLDERS OF THAT SERIES OR CLASS.
Upon dissolution of the Trust (or a particular Series or class, as the
case may be), the Trustees shall (in accordance with Section 3808 of the DSTA)
pay or make reasonable provision to pay all claims and obligations of each
Series or class (or the particular Series or class, as the case may be),
including all contingent, conditional or unmatured claims and obligations known
to the Trust, and all claims and obligations which are known to the Trust but
for which the identity of the claimant is unknown. If there are sufficient
assets held with respect to each Series or class of the Trust (or the particular
Series or class, as the case may be), such claims and obligations shall be paid
in full and any such provisions for payment shall be made in full. If there are
insufficient assets held with respect to each Series or class of the Trust (or
the particular Series or class, as the case may be), such claims and obligations
shall be paid or provided for according to their priority and, among claims and
obligations of equal priority, ratably to the extent of assets available
therefore. Any remaining assets (including without limitation, cash, securities
or any combination thereof) held with respect to each Series or class of the
Trust (or the particular Series or class, as the case may be) shall be
distributed to the Shareholders of such Series or class, ratably according to
the number of Shares of such Series or class held by the several Shareholders on
the record date for such dissolution distribution. Upon the winding up of the
Trust in accordance with Section 3808 of the DSTA and its termination, any one
(1) Trustee shall execute, and cause to be filed, a certificate of cancellation,
with the office of the Secretary of State of the State of Delaware in accordance
with the provisions of Section 3810 of the DSTA.
SECTION 2. MERGER
AND CONSOLIDATION; CONVERSION.
(A) MERGER AND CONSOLIDATION. PURSUANT TO AN AGREEMENT OF MERGER OR
CONSOLIDATION, THE TRUST, OR ANY ONE OR MORE SERIES OR CLASSES, MAY, BY
ACT OF A MAJORITY OF THE BOARD OF TRUSTEES, MERGE OR CONSOLIDATE WITH OR
INTO ONE OR MORE STATUTORY TRUSTS OR OTHER BUSINESS ENTITIES FORMED OR
ORGANIZED OR EXISTING UNDER THE LAWS OF THE STATE OF DELAWARE OR ANY OTHER
STATE OR THE UNITED STATES OR ANY FOREIGN COUNTRY OR OTHER FOREIGN
JURISDICTION. ANY SUCH MERGER OR CONSOLIDATION SHALL NOT REQUIRE THE VOTE
OF THE SHAREHOLDERS AFFECTED THEREBY, UNLESS SUCH VOTE IS REQUIRED BY
APPLICABLE LAW, OR UNLESS SUCH MERGER OR CONSOLIDATION WOULD RESULT IN AN
AMENDMENT OF THIS DECLARATION OF TRUST WHICH WOULD OTHERWISE REQUIRE THE
APPROVAL OF SUCH SHAREHOLDERS. IN ACCORDANCE WITH SECTION 3815(F) OF THE
DSTA, AN AGREEMENT OF MERGER OR CONSOLIDATION MAY EFFECT ANY AMENDMENT TO
THIS DECLARATION OF TRUST OR THE BY-LAWS OR EFFECT THE ADOPTION OF A NEW
DECLARATION OF TRUST OR BY-LAWS OF THE TRUST IF THE TRUST IS THE SURVIVING
OR RESULTING STATUTORY TRUST. UPON COMPLETION OF THE MERGER OR
CONSOLIDATION, ANY ONE (1) TRUSTEE SHALL EXECUTE AND CAUSE TO BE FILED A
CERTIFICATE OF MERGER OR CONSOLIDATION IN ACCORDANCE WITH SECTION 3815 OF
THE DSTA.
(B) CONVERSION. A MAJORITY OF THE BOARD OF TRUSTEES MAY, WITHOUT THE
VOTE OR CONSENT OF THE SHAREHOLDERS, CAUSE (I) THE TRUST TO CONVERT TO AN
"OTHER BUSINESS ENTITY" AS DEFINED IN SECTION 3801 OF THE DSTA ORGANIZED,
FORMED OR CREATED UNDER THE LAWS OF THE STATE OF DELAWARE AS PERMITTED
PURSUANT TO SECTION 3821 OF THE DSTA; (II) THE SHARES OF THE TRUST OR ANY
SERIES OR CLASS TO BE CONVERTED INTO BENEFICIAL INTERESTS IN ANOTHER
STATUTORY TRUST (OR SERIES OR CLASS THEREOF) CREATED PURSUANT TO THIS
SECTION 2 OF THIS ARTICLE VIII, OR (III) THE SHARES TO BE EXCHANGED UNDER
OR PURSUANT TO ANY STATE OR FEDERAL STATUTE TO THE EXTENT PERMITTED BY
LAW; PROVIDED, HOWEVER, THAT IF REQUIRED BY THE 1940 ACT, NO SUCH
STATUTORY CONVERSION, SHARE CONVERSION OR SHARE EXCHANGE SHALL BE
EFFECTIVE UNLESS THE TERMS OF SUCH TRANSACTION SHALL FIRST HAVE BEEN
APPROVED AT A MEETING CALLED FOR THAT PURPOSE BY THE "VOTE OF A MAJORITY
OF THE OUTSTANDING VOTING SECURITIES," AS SUCH PHRASE IS DEFINED IN THE
1940 ACT, OF THE TRUST OR SERIES OR CLASS, AS APPLICABLE; PROVIDED,
FURTHER, THAT IN ALL RESPECTS NOT GOVERNED BY STATUTE OR APPLICABLE LAW,
THE BOARD OF TRUSTEES SHALL HAVE THE POWER TO PRESCRIBE THE PROCEDURE
NECESSARY OR APPROPRIATE TO ACCOMPLISH A SALE OF ASSETS, MERGER OR
CONSOLIDATION INCLUDING THE POWER TO CREATE ONE OR MORE SEPARATE STATUTORY
TRUSTS TO WHICH ALL OR ANY PART OF THE ASSETS, LIABILITIES, PROFITS OR
LOSSES OF THE TRUST MAY BE TRANSFERRED AND TO PROVIDE FOR THE CONVERSION
OF SHARES OF THE TRUST OR ANY SERIES OR CLASS INTO BENEFICIAL INTERESTS IN
SUCH SEPARATE STATUTORY TRUST OR TRUSTS (OR SERIES OR CLASS THEREOF).
SECTION 3.
REORGANIZATION.
A majority of the Board of Trustees may cause the Trust to sell, convey
and transfer all or substantially all of the assets of the Trust, or all or
substantially all of the assets associated with any one or more Series or class,
to another trust, statutory trust, partnership, limited partnership, limited
liability company, association or corporation organized under the laws of any
state, or to one or more separate series or classes thereof, or to the Trust to
be held as assets associated with one or more other Series or class of the
Trust, in exchange for cash, shares or other securities (including, without
limitation, in the case of a transfer to another Series or class of the Trust,
Shares of such other Series or class) with such transfer either (a) being made
subject to, or with the assumption by the transferee of, the liabilities
associated with each Series or class the assets of which are so transferred, or
(b) not being made subject to, or not with the assumption of, such liabilities;
provided, however, that, if required by the 1940 Act, no assets associated with
any particular Series or class shall be so sold, conveyed or transferred unless
the terms of such transaction shall first have been approved at a meeting called
for that purpose by the "vote of a majority of the outstanding voting
securities," as such phrase is defined in the 1940 Act, of that Series or class.
Following such sale, conveyance and transfer, the Board of Trustees shall
distribute such cash, shares or other securities (giving due effect to the
assets and liabilities associated with and any other differences among the
various Series or classes the assets associated with which have so been sold,
conveyed and transferred) ratably among the Shareholders of the Series or class
the assets associated with which have been so sold, conveyed and transferred
(giving due effect to the differences among the various classes within each such
Series or class); and if all of the assets of the Trust have been so sold,
conveyed and transferred, the Trust shall be dissolved.
SECTION 4.
AMENDMENTS. SUBJECT TO THE PROVISIONS OF THE SECOND PARAGRAPH OF THIS SECTION 4
OF THIS ARTICLE VIII, THIS DECLARATION OF TRUST MAY BE RESTATED AND/OR AMENDED
AT ANY TIME BY AN INSTRUMENT IN WRITING SIGNED BY A MAJORITY OF THE THEN BOARD
OF TRUSTEES AND, IF REQUIRED, BY APPROVAL OF SUCH AMENDMENT BY SHAREHOLDERS IN
ACCORDANCE WITH ARTICLE V, SECTION 3 HEREOF. ANY SUCH RESTATEMENT AND/OR
AMENDMENT HERETO SHALL BE EFFECTIVE IMMEDIATELY UPON EXECUTION AND APPROVAL OR
UPON SUCH FUTURE DATE AND TIME AS MAY BE STATED THEREIN. THE CERTIFICATE OF
TRUST OF THE TRUST MAY BE RESTATED AND/OR AMENDED AT ANY TIME BY THE BOARD OF
TRUSTEES, WITHOUT SHAREHOLDER APPROVAL, TO CORRECT ANY INACCURACY CONTAINED
THEREIN. ANY SUCH RESTATEMENT AND/OR AMENDMENT OF THE CERTIFICATE OF TRUST
SHALL BE EXECUTED BY AT LEAST ONE (1) TRUSTEE AND SHALL BE EFFECTIVE IMMEDIATELY
UPON ITS FILING WITH THE OFFICE OF THE SECRETARY OF STATE OF THE STATE OF
DELAWARE OR UPON SUCH FUTURE DATE AS MAY BE STATED THEREIN.
Notwithstanding the above, the Board of Trustees expressly reserves the
right to amend or repeal any provisions contained in this Declaration of Trust
or the Certificate of Trust, in accordance with the provisions of Section 5 of
Article III hereof, and all rights, contractual and otherwise, conferred upon
Shareholders are granted subject to such reservation. The Board of Trustees
further expressly reserves the right to amend or repeal any provision of the By-
Laws pursuant to Article IX of the By-Laws.
SECTION 5. FILING
OF COPIES, REFERENCES, HEADINGS. THE ORIGINAL OR A COPY OF THIS DECLARATION OF
TRUST AND OF EACH RESTATEMENT AND/OR AMENDMENT HERETO SHALL BE KEPT AT THE
PRINCIPAL EXECUTIVE OFFICE OF THE TRUST OR AT THE PRINCIPAL OFFICES OF ANY
ADMINISTRATOR WHERE THE TRUST'S RECORDS ARE MAINTAINED SO THAT IT MAY BE
INSPECTED BY ANY SHAREHOLDER. ANYONE DEALING WITH THE TRUST MAY RELY ON A
CERTIFICATE BY AN OFFICER OF THE TRUST AS TO WHETHER OR NOT ANY SUCH
RESTATEMENTS AND/OR AMENDMENTS HAVE BEEN MADE AND AS TO ANY MATTERS IN
CONNECTION WITH THE TRUST HEREUNDER; AND, WITH THE SAME EFFECT AS IF IT WERE THE
ORIGINAL, MAY RELY ON A COPY CERTIFIED BY AN OFFICER OF THE TRUST TO BE A COPY
OF THIS INSTRUMENT OR OF ANY SUCH RESTATEMENTS AND/OR AMENDMENTS. IN THIS
DECLARATION OF TRUST AND IN ANY SUCH RESTATEMENTS AND/OR AMENDMENTS, REFERENCES
TO THIS INSTRUMENT, AND ALL EXPRESSIONS OF SIMILAR EFFECT TO "HEREIN," "HEREOF"
AND "HEREUNDER," SHALL BE DEEMED TO REFER TO THIS INSTRUMENT AS AMENDED OR
AFFECTED BY ANY SUCH RESTATEMENTS AND/OR AMENDMENTS. HEADINGS ARE PLACED HEREIN
FOR CONVENIENCE OF REFERENCE ONLY AND SHALL NOT BE TAKEN AS A PART HEREOF OR
CONTROL OR AFFECT THE MEANING, CONSTRUCTION OR EFFECT OF THIS INSTRUMENT.
WHENEVER THE SINGULAR NUMBER IS USED HEREIN, THE SAME SHALL INCLUDE THE PLURAL;
AND THE NEUTER, MASCULINE AND FEMININE GENDERS SHALL INCLUDE EACH OTHER, AS
APPLICABLE. THIS INSTRUMENT MAY BE EXECUTED IN ANY NUMBER OF COUNTERPARTS, EACH
OF WHICH SHALL BE DEEMED AN ORIGINAL.
SECTION 6.
APPLICABLE LAW. THIS DECLARATION OF TRUST IS CREATED UNDER AND IS TO BE
GOVERNED BY AND CONSTRUED AND ADMINISTERED ACCORDING TO THE LAWS OF THE STATE OF
DELAWARE AND THE APPLICABLE PROVISIONS OF THE 1940 ACT AND THE CODE. THE TRUST
SHALL BE A DELAWARE STATUTORY TRUST PURSUANT TO THE DSTA, AND WITHOUT LIMITING
THE PROVISIONS HEREOF, THE TRUST MAY EXERCISE ALL POWERS WHICH ARE ORDINARILY
EXERCISED BY SUCH A STATUTORY TRUST.
SECTION 7.
PROVISIONS IN CONFLICT WITH LAW OR REGULATIONS.
(a) The provisions of this Declaration of Trust are severable, and if
the Board of Trustees shall determine, with the advice of counsel, that any of
such provisions is in conflict with the 1940 Act, the Code, the DSTA, or with
other applicable laws and regulations, the conflicting provision shall be deemed
not to have constituted a part of this Declaration of Trust from the time when
such provisions became inconsistent with such laws or regulations; provided,
however, that such determination shall not affect any of the remaining
provisions of this Declaration of Trust or render invalid or improper any action
taken or omitted prior to such determination.
(b) If any provision of this Declaration of Trust shall be held invalid
or unenforceable in any jurisdiction, such invalidity or unenforceability shall
attach only to such provision in such jurisdiction and shall not in any manner
affect such provision in any other jurisdiction or any other provision of this
Declaration of Trust in any jurisdiction.
SECTION 8.
STATUTORY TRUST ONLY. IT IS THE INTENTION OF THE TRUSTEES TO CREATE A STATUTORY
TRUST PURSUANT TO THE DSTA, AND THEREBY TO CREATE THE RELATIONSHIP OF TRUSTEE
AND BENEFICIAL OWNERS WITHIN THE MEANING OF THE DSTA BETWEEN THE TRUSTEES AND
EACH SHAREHOLDER. IT IS NOT THE INTENTION OF THE TRUSTEES TO CREATE A GENERAL
OR LIMITED PARTNERSHIP, LIMITED LIABILITY COMPANY, JOINT STOCK ASSOCIATION,
CORPORATION, BAILMENT, OR ANY FORM OF LEGAL RELATIONSHIP OTHER THAN A STATUTORY
TRUST PURSUANT TO THE DSTA. NOTHING IN THIS DECLARATION OF TRUST SHALL BE
CONSTRUED TO MAKE THE SHAREHOLDERS, EITHER BY THEMSELVES OR WITH THE TRUSTEES,
PARTNERS OR MEMBERS OF A JOINT STOCK ASSOCIATION.
Section 9. Use of the Name "The Huntington Funds". The Trust expressly
agrees and acknowledges that the name "The Huntington Funds" and The Huntington
National Bank ("Bank") logo is the sole property of the Bank. Bank has consented
to the use by the Trust of the identifying words "The Huntington Funds" and the
Bank logo, and has granted to the Trust a non-exclusive license to use such name
and logo as part of the name of the Trust and the name of any Series of its
Shares. The Trust further expressly agrees and acknowledges that the non-
exclusive license granted herein may be terminated by Bank if the Trust ceases
to use Bank or one of its Affiliates as Investment Adviser or to use other
Affiliates or successors of Bank for such purposes. In such event, the non-
exclusive license granted herein may be revoked by Bank and the Trust shall
cease using the name "The Huntington Funds" as part of its name or the name of
any Series of Shares and cease using the Bank logo, unless otherwise consented
to by Bank or any successor to its interests in such name. See Amendment #1,
dated 5/17/06
THE TRUST FURTHER
UNDERSTANDS AND AGREES THAT SO LONG AS BANK AND/OR ANY FUTURE ADVISORY AFFILIATE
OF BANK SHALL CONTINUE TO SERVE AS THE TRUST'S INVESTMENT ADVISER, OTHER MUTUAL
FUNDS AS MAY BE SPONSORED OR ADVISED BY BANK OR ITS AFFILIATES SHALL HAVE THE
RIGHT PERMANENTLY TO ADOPT AND TO USE THE WORD "THE HUNTINGTON FUNDS" IN THEIR
NAMES AND IN THE NAMES OF ANY SERIES OR CLASS OF SHARES OF SUCH FUNDS AND TO USE
THE BANK LOGO. SEE AMENDMENT #1, DATED 4/5/17/06
IN WITNESS WHEREOF, the Trustees named below do hereby make and enter into
this Declaration of Trust as of the 27th day of April, 2006.
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The following pages contain the actual amendment referenced in the preceding
document.
HUNTINGTON FUNDS
Amendment No. 1
to the
AGREEMENT AND DECLARATION OF TRUST
Dated April 27, 2006
THIS Declaration of Trust is amended as follows:
A. Strike Section 1, Name, from Article I. Name and Definitions, from the
Agreement and Declaration of Trust and substitute in its place the
following:
Section 1. Name: This Trust shall be known as "The Huntington Funds" and
the Trustees shall conduct the business of the Trust under that name, or
any other name as they may from time to time determine.
B. Strike Section 9, Use of the Name "Huntington Funds", from Article VIII,
Miscellaneous, and substitute in its place the following:
Section 9. Use of the Name "The Huntington Funds". The Trust expressly
agrees and acknowledges that the name "The Huntington Funds" and The
Huntington National Bank ("Bank") logo is the sole property of the Bank.
Bank has consented to the use by the Trust of the identifying words "The
Huntington Funds" and the Bank logo, and has granted to the Trust a non-
exclusive license to use such name and logo as part of the name of the
Trust and the name of any Series of its Shares. The Trust further
expressly agrees and acknowledges that the non-exclusive license granted
herein may be terminated by Bank if the Trust ceases to use Bank or one of
its Affiliates as Investment Adviser or to use other Affiliates or
successors of Bank for such purposes. In such event, the non-exclusive
license granted herein may be revoked by Bank and the Trust shall cease
using the name "The Huntington Funds" as part of its name or the name of
any Series of Shares and cease using the Bank logo, unless otherwise
consented to by Bank or any successor to its interests in such name.
The Trust further understands and agrees that so long as Bank and/or any
future advisory Affiliate of Bank shall continue to serve as the Trust's
Investment Adviser, other mutual funds as may be sponsored or advised by
Bank or its Affiliates shall have the right permanently to adopt and to
use the word "The Huntington Funds" in their names and in the names of any
Series or class of Shares of such funds and to use the Bank logo.
C. All other references to "Huntington Funds" in the Agreement and
Declaration of Trust shall, from and after the date of this Amendment No.
1, be deemed references to "The Huntington Funds".
IN WITNESS WHEREOF, the Trustees named below do amend this Agreement and
Declaration of Trust as of the 15th day of May, 2006.
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