AGREEMENT AND DECLARATION OF TRUST
of
CHESWOLD LANE FUNDS
a Delaware Statutory Trust
TABLE OF CONTENTS
Page
ARTICLE I. NAME; OFFICES; REGISTERED AGENT; DEFINITIONS..................4
SECTION 1. NAME..........................................................4
SECTION 2. OFFICES OF THE TRUST..........................................4
SECTION 3. REGISTERED AGENT AND REGISTERED OFFICE........................4
SECTION 4. DEFINITIONS...................................................4
ARTICLE II. PURPOSE OF TRUST..............................................7
ARTICLE III. SHARES.......................................................10
SECTION 1. DIVISION OF BENEFICIAL INTEREST..............................10
SECTION 2. OWNERSHIP OF SHARES..........................................12
SECTION 3. SALE OF SHARES...............................................12
SECTION 4. STATUS OF SHARES AND LIMITATION OF PERSONAL LIABILITY........12
SECTION 5. POWER OF BOARD OF TRUSTEES TO MAKE TAX STATUS ELECTION.......13
SECTION 6. ESTABLISHMENT AND DESIGNATION OF SERIES AND CLASSES..........13
(a) Assets Held with Respect to a Particular Series.....13
(b) Liabilities Held with Respect to a
Particular Series or Class.........................14
(c) Dividends, Distributions and Redemptions............15
(d) Voting..............................................15
(e) Equality............................................15
(f) Fractions...........................................15
(g) Exchange Privilege..................................16
(h) Combination of Series...............................16
(i) Dissolution or Termination..........................16
SECTION 7. INDEMNIFICATION OF SHAREHOLDERS..............................16
ARTICLE IV. THE BOARD OF TRUSTEES........................................16
SECTION 1. NUMBER, ELECTION, TERM, REMOVAL AND RESIGNATION..............16
SECTION 2. TRUSTEE ACTION BY WRITTEN CONSENT WITHOUT A MEETING..........17
SECTION 3. POWERS; OTHER BUSINESS INTERESTS; QUORUM AND REQUIRED VOTE...17
(a) Powers..............................................18
The powers of the Board of Trustees set
forth in this Section 3(a) are without prejudice
to any other powers of the Board of Trustees set
forth in this Declaration of Trust and
the By-Laws.........................................19
(b) Other Business Interests............................19
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(c) Quorum and Required Vote............................19
SECTION 4. PAYMENT OF EXPENSES BY THE TRUST.............................19
SECTION 5. PAYMENT OF EXPENSES BY SHAREHOLDERS..........................20
SECTION 6. OWNERSHIP OF TRUST PROPERTY..................................20
SECTION 7. SERVICE CONTRACTS............................................20
ARTICLE V. SHAREHOLDERS' VOTING POWERS AND MEETINGS.....................21
SECTION 1. VOTING POWERS................................................21
SECTION 2. QUORUM AND REQUIRED VOTE.....................................22
SECTION 3. SHAREHOLDER ACTION BY WRITTEN CONSENT WITHOUT A MEETING......22
SECTION 4. RECORD DATES.................................................23
SECTION 5. ADDITIONAL PROVISIONS........................................24
ARTICLE VI. NET ASSET VALUE; DISTRIBUTIONS; REDEMPTIONS; TRANSFERS.......24
SECTION 1. DETERMINATION OF NET ASSET VALUE, NET INCOME AND
DISTRIBUTIONS................................................24
SECTION 2. REDEMPTIONS AT THE OPTION OF A SHAREHOLDER...................26
SECTION 3. REDEMPTIONS AT THE OPTION OF THE TRUST.......................27
SECTION 4. TRANSFER OF SHARES...........................................27
ARTICLE VII. LIMITATION OF LIABILITY AND INDEMNIFICATION OF AGENT.........27
SECTION 1. LIMITATION OF LIABILITY......................................27
SECTION 2. INDEMNIFICATION..............................................29
(a) Indemnification by Trust............................29
(b) Exclusion of Indemnification........................29
(c) Required Approval...................................29
(d) Advancement of Expenses.............................29
(e) Other Contractual Rights............................29
(f) Fiduciaries of Employee Benefit Plan................30
SECTION 3. INSURANCE....................................................30
SECTION 4. DERIVATIVE ACTIONS...........................................30
ARTICLE VIII. CERTAIN TRANSACTIONS.........................................30
SECTION 1. DISSOLUTION OF TRUST OR SERIES...............................30
SECTION 2. MERGER OR CONSOLIDATION; CONVERSION; REORGANIZATION..........31
(a) Merger or Consolidation.............................31
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(b) Conversion..........................................32
(c) Reorganization......................................32
SECTION 3. MASTER FEEDER STRUCTURE......................................33
SECTION 4. ABSENCE OF APPRAISAL OR DISSENTERS' RIGHTS...................33
ARTICLE IX. AMENDMENTS...................................................33
SECTION 1. AMENDMENTS GENERALLY.........................................33
ARTICLE X. MISCELLANEOUS................................................34
SECTION 1. REFERENCES; HEADINGS; COUNTERPARTS...........................34
SECTION 2. APPLICABLE LAW...............................................34
SECTION 3. PROVISIONS IN CONFLICT WITH LAW OR REGULATIONS...............34
SECTION 4. STATUTORY TRUST ONLY.........................................35
SECTION 5. USE OF NAME..................................................35
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AGREEMENT AND DECLARATION OF TRUST
OF
CHESWOLD LANE FUNDS
AGREEMENT AND DECLARATION OF TRUST made as of this 12th day of April, 2006,
by the Trustees hereunder, and by the holders of Shares to be issued by Cheswold
Lane Funds (the "Trust") hereunder as hereinafter provided.
WITNESSETH:
WHEREAS this Trust is being formed to carry on the business of an open-end
management investment company as defined in the 1940 Act; and
WHEREAS this Trust is authorized to divide its Shares into two or more
Classes, to issue its Shares in separate Series, to divide Shares of any Series
into two or more Classes and to issue Classes of the Trust or the Series, if
any, all in accordance with the provisions hereinafter set forth; and
WHEREAS the Trustees have agreed to manage all property coming into their
hands as trustees of a Delaware statutory trust in accordance with the
provisions of the Delaware Statutory Trust Act, as amended from time to time,
and the provisions hereinafter set forth;
NOW, THEREFORE, the Trustees hereby declare that they will hold all cash,
securities and other assets that they may from time to time acquire in any
manner as Trustees hereunder IN TRUST and will manage and dispose of the same
upon the following terms and conditions for the benefit of the holders from time
to time of Shares created hereunder as hereinafter set forth.
ARTICLE I.
NAME; OFFICES; REGISTERED AGENT; DEFINITIONS
Section 1. Name. This Trust shall be known as "Cheswold Lane Funds" and the
Board of Trustees shall conduct the business of the Trust under that name, or
any other name as it may from time to time designate.
Section 2. Offices of the Trust. The Board may at any time establish
offices of the Trust at any place or places where the Trust intends to do
business.
Section 3. Registered Agent and Registered Office. The name of the
registered agent of the Trust and the address of the registered office of the
Trust are as set forth in the Trust's Certificate of Trust.
Section 4. Definitions. Whenever used herein, unless otherwise required by
the context or specifically provided:
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(a) "1940 Act" shall mean the Investment Company Act of 1940 and the
rules and regulations thereunder, all as adopted or amended from time to time;
(b) "Affiliate" shall have the same meaning as "affiliated person" as
such term is defined in the 1940 Act when used with reference to a specified
Person, as defined below.
(c) "Board of Trustees" shall mean the governing body of the Trust,
that is comprised of the number of Trustees of the Trust fixed from time to time
pursuant to Article IV hereof, having the powers and duties set forth herein;
(d) "By-Laws" shall mean By-Laws of the Trust, as amended or restated
from time to time in accordance with Article VIII therein. Such By-Laws may
contain any provision not inconsistent with applicable law or this Declaration
of Trust, relating to the governance of the Trust;
(e) "Certificate of Trust" shall mean the certificate of trust of the
Trust to be filed with the office of the Secretary of State of the State of
Delaware as required under the Delaware Statutory Trust Act, as amended from
time to time, to form the Trust, as such certificate shall be amended or
restated from time to time and filed with such office;
(f) "Class" shall mean each class of Shares of the Trust or of a
Series of the Trust established and designated under and in accordance with the
provisions of Article III hereof;
(g) "Code" shall mean the Internal Revenue Code of 1986 and the rules
and regulations thereunder, all as adopted or amended from time to time;
(h) "Commission" shall have the meaning given that term in the 1940
Act;
(i) "DSTA" shall mean the Delaware Statutory Trust Act (12 Del.
C.ss.3801, et seq.), as amended from time to time;
(j) "Declaration of Trust" shall mean this Agreement and Declaration
of Trust, as amended or restated from time to time;
(k) "General Liabilities" shall have the meaning given it in Article
III, Section 6(b) of this Declaration Trust;
(l) "Interested Person" shall have the meaning given that term in the
1940 Act;
(m) "Investment Adviser" or "Adviser" shall mean a Person, as defined
below, furnishing services to the Trust pursuant to any investment advisory or
investment management contract described in Article IV, Section 7(a) hereof;
(n) "National Financial Emergency" shall mean the whole or any part of
any period during (i) which an emergency exists as a result of which disposal by
the Trust of securities or other assets owned by the Trust is not reasonably
practicable; (ii) which it is not
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reasonably practicable for the Trust fairly to determine the net asset value of
its assets; or (iii) such other period as the Commission may by order permit for
the protection of investors;
(o) "Person" shall mean a natural person, partnership, limited
partnership, limited liability company, trust, estate, association, corporation,
organization, custodian, nominee or any other individual or entity in its own or
any representative capacity, in each case, whether domestic or foreign, and a
statutory trust or a foreign statutory or business trust;
(p) "Principal Underwriter" shall have the meaning given that term in
the 1940 Act;
(q) "Series" shall mean each Series of Shares established and
designated under and in accordance with the provisions of Article III hereof;
(r) "Shares" shall mean the transferable 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;
(s) "Shareholder" shall mean a record owner of Shares pursuant to the
By-Laws;
(t) "Trust" shall mean Cheswold Lane Funds, the Delaware statutory
trust formed hereby and by filing of the Certificate of Trust with the office of
the Secretary of State of the State of Delaware;
(u) "Trust Property" shall mean any and all property, real or
personal, tangible or intangible, which is owned or held by or for the account
of the Trust, or one or more of any Series thereof, including, without
limitation, the rights referenced in Article X, Section 5 hereof;
(v) "Trustee" or "Trustees" shall mean each Person who signs this
Declaration of Trust as a trustee 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 and the By-Laws, so long as
such signatory or other Person continues in office in accordance with the terms
hereof and the By-Laws. Reference herein to a Trustee or the Trustees shall
refer to such Person or Persons in such Person's or Persons' capacity as a
trustee or trustees hereunder and under the By-Laws; and
(w) "vote of a majority of the outstanding voting securities" shall
have the meaning provided under Subsection 2(a)(42) of the 1940 Act or any
successor provision thereof, which Subsection, as of the date hereof, provides
as follows: the vote, at a meeting of the Shareholders, (i) of sixty-seven
percent (67%) or more of the voting securities present in person or represented
by proxy at such meeting, if the holders of more than fifty percent (50%) of the
outstanding voting securities of the Trust are present or represented by proxy;
or (ii) of more than fifty percent (50%) of the outstanding voting securities of
the Trust, whichever is the less; provided that if any matter affects only the
interests of some but not all Series or Classes and only the Shareholders of
such affected Series or Classes shall be entitled to vote on the matter, as
provided in Article III, Section 6(d) hereof, then for purposes of the
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foregoing vote, the foregoing respective percentages shall be percentages of the
voting securities of such Series or Classes rather than the voting securities of
the Trust.
ARTICLE II.
PURPOSE OF TRUST
The purpose of the Trust is to conduct, operate and carry on the business
of a registered management investment company registered under the 1940 Act,
directly, or if one or more Series is established hereunder, through one or more
Series, investing primarily in securities, and to exercise all of the powers,
rights and privileges granted to, or conferred upon, a statutory trust formed
under the DSTA, including, without limitation, the following powers:
(a) To hold, invest and reinvest its funds, and in connection
therewith, to make any changes in the investment of the assets of the Trust, to
hold part or all of its funds in cash, to hold cash uninvested, to subscribe
for, invest in, reinvest in, purchase or otherwise acquire, own, hold, pledge,
sell, assign, mortgage, transfer, exchange, distribute, write options on, lend
or otherwise deal in or dispose of contracts for the future acquisition or
delivery of fixed income or other securities, and securities or property of
every nature and kind, including, without limitation, all types of bonds,
debentures, stocks, shares, units of beneficial interest, preferred stocks,
negotiable or non-negotiable instruments, obligations, evidences of
indebtedness, money market instruments, certificates of deposit or indebtedness,
bills, notes, mortgages, commercial paper, repurchase or reverse repurchase
agreements, bankers' acceptances, finance paper, and any options, certificates,
receipts, warrants, futures contracts or other instruments representing rights
to receive, purchase or subscribe for the same, or evidencing or representing
any other rights or interests therein or in any property or assets, and other
securities of any kind, as the foregoing are issued, created, guaranteed, or
sponsored by any and all Persons, including, without limitation, states,
territories, and possessions of the United States and the District of Columbia
and any political subdivision, agency, or instrumentality thereof, any foreign
government or any political subdivision of the U.S. Government or any foreign
government, or any international instrumentality, or by any bank or savings
institution, or by any corporation or organization organized under the laws of
the United States or of any state, territory, or possession thereof, or by any
corporation or organization organized under any foreign law, or in "when issued"
contracts for any such securities;
(b) To exercise any and all rights, powers and privileges with
reference to or incident to ownership or interest, use and enjoyment of any of
such securities and other instruments or property of every kind and description,
including, but without limitation, the right, power and privilege to own, vote,
hold, purchase, sell, negotiate, assign, exchange, lend, transfer, mortgage,
hypothecate, lease, pledge or write options with respect to or otherwise deal
with, dispose of, use, exercise or enjoy any rights, title, interest, powers or
privileges under or with reference to any of such securities and other
instruments or property, the right to consent and otherwise act with respect
thereto, with power to designate one or more Persons, to exercise any of said
rights, powers, and privileges in respect of any of said instruments, and to do
any and all acts and things for the preservation, protection, improvement and
enhancement in value of any of such securities and other instruments or
property;
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(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 right of subscription or otherwise which in
any manner arise out of ownership of securities and/or other property;
(f) To hold any security or property in a form not indicating that it
is trust property, whether in bearer, unregistered or other negotiable form, or
in its own name or in the name of a custodian or subcustodian or a nominee or
nominees or otherwise or to authorize the custodian or a subcustodian or a
nominee or nominees to deposit the same in a securities depository, subject in
each case to proper safeguards according to the usual practice of investment
companies or any rules or regulations applicable thereto;
(g) To consent to, or participate in, any plan for the reorganization,
consolidation or merger of any corporation or issuer of any security which is
held in the Trust; to consent to any contract, lease, mortgage, purchase or sale
of property by such corporation or issuer; and to pay calls or subscriptions
with respect to any security held in the Trust;
(h) To join with other security holders in acting through a committee,
depositary, voting trustee or otherwise, and in that connection to deposit any
security with, or transfer any security to, any such committee, depositary or
trustee, and to delegate to them such power and authority with relation to any
security (whether or not so deposited or transferred) as the 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 Board of 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
8
contractors of the Trust, individually against all claims and liabilities of
every nature arising by reason of holding Shares, holding, being or having held
any such office or position, or by reason of any action alleged to have been
taken or omitted by any such Person as Trustee, officer, employee, agent,
Investment Adviser, Principal Underwriter, or independent contractor, to the
fullest extent permitted by this Declaration of Trust, the 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 and undertakings of
every kind for any lawful purpose, without limit as to amount;
(r) To issue, purchase, sell and transfer, reacquire, hold, trade and
deal in stocks, Shares, bonds, debentures and other securities, instruments or
other property of the Trust, from time to time, to such extent as the Board of
Trustees shall, consistent with the provisions of this Declaration of Trust,
determine; and to re-acquire and redeem, from time to time, its Shares or, if
any, its bonds, debentures and other securities;
(s) To engage in and to prosecute, defend, compromise, abandon, or
adjust, by arbitration, or otherwise, any actions, suits, proceedings, disputes,
claims, and demands relating to the Trust, and out of the assets of the Trust to
pay or to satisfy any debts, claims or expenses incurred in connection
therewith, including those of litigation, and such power shall include without
limitation the power of the Trustees or any appropriate committee thereof, in
the exercise of their or its good faith business judgment, to dismiss any
action, suit, proceeding, dispute, claim, or demand, derivative or otherwise,
brought by any Person, including a Shareholder in the Shareholder's own name or
the name of the Trust, whether or not the Trust or any of the Trustees may be
named individually therein or the subject matter arises by reason of business
for or on behalf of the Trust;
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(t) To exercise and enjoy, in Delaware and in any other states,
territories, districts and United States dependencies and in foreign countries,
all of the foregoing powers, rights and privileges, and the enumeration of the
foregoing powers shall not be deemed to exclude any powers, rights or privileges
so granted or conferred; and
(u) In general, to carry on any other business in connection with or
incidental to its trust purposes, to do everything necessary, suitable or proper
for the accomplishment of such purposes or for the attainment of any object or
the furtherance of any power hereinbefore set forth, either alone or in
association with others, and to do every other act or thing incidental or
appurtenant to, or growing out of, or connected with, its business or purposes,
objects or powers.
The Trust shall not be limited to investing in obligations maturing before
the possible dissolution of the Trust or one or more of its Series. Neither the
Trust nor the Board of Trustees shall be required to obtain any court order to
deal with any assets of the Trust or take any other action hereunder.
The foregoing clauses 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.
(a) The beneficial interest in the Trust shall be divided into Shares,
each Share without a par value. The number of Shares in the Trust authorized
hereunder, and of each Series and Class as may be established from time to time,
is unlimited. The Board of Trustees may authorize the division of Shares into
separate Classes of Shares and into separate and distinct Series of Shares and
the division of any Series into separate Classes of Shares in accordance with
the 1940 Act. The different Series and Classes shall be established and
designated pursuant to Article III, Section 6 hereof. If no separate Series or
Classes of Series shall be established, the Shares shall have the rights, powers
and duties 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.
(i) The fact that the Trust shall have one or more established
and designated Classes of the Trust, shall not limit the
authority of the Board of Trustees to establish and
designate additional Classes of the Trust. The fact that one
or more Classes of the Trust shall have initially been
established and designated without any specific
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establishment or designation of a Series (i.e., that all
Shares of the Trust are initially Shares of one or more
Classes) shall not limit the authority of the Board of
Trustees to later establish and designate a Series and
establish and designate the Class or Classes of the Trust as
Class or Classes, respectively, of such Series.
(ii) The fact that a Series shall have initially been established
and designated without any specific establishment or
designation of Classes (i.e., that all Shares of such Series
are initially of a single Class) shall not limit the
authority of the Board of Trustees to establish and
designate separate Classes of said Series. The fact that a
Series shall have more than one established and designated
Class, shall not limit the authority of the Board of
Trustees to establish and designate additional Classes of
said Series.
(b) The Board of Trustees shall have the power to issue authorized,
but unissued Shares of beneficial interest of the Trust, or any Series and Class
thereof, from time to time for such consideration paid wholly or partly in cash,
securities or other property, as may be determined from time to time by the
Board of Trustees, subject to any requirements or limitations of the 1940 Act.
The Board of Trustees, on behalf of the Trust, may acquire and hold as treasury
shares, reissue for such consideration and on such terms as it may determine, or
cancel, at its discretion from time to time, any Shares reacquired by the Trust.
The Board of Trustees may classify or reclassify any unissued shares of
beneficial interest or any shares of beneficial interest of the Trust or any
Series or Class thereof, that were previously issued and are reacquired, into
one or more Series or Classes that may be established and designated from time
to time. Notwithstanding the foregoing, the Trust and any Series thereof may
acquire, hold, sell and otherwise deal in, for purposes of investment or
otherwise, the Shares of any other Series of the Trust or Shares of the Trust,
and such Shares shall not be deemed treasury shares or cancelled.
(c) Subject to the provisions of Section 6 of this Article III, each
Share shall entitle the holder to voting rights as provided in Article V hereof.
Shareholders shall have no preemptive or other right to subscribe for new or
additional authorized, but unissued Shares or other securities issued by the
Trust or any Series thereof. The Board of Trustees may from time to time divide
or combine the Shares of the Trust or any particular Series thereof into a
greater or lesser number of Shares of the Trust or that Series, respectively.
Such division or combination shall not materially change the proportionate
beneficial interests of the holders of Shares of the Trust or that Series, as
the case may be, in the Trust Property at the time of such division or
combination that is held with respect to the Trust or that Series, as the case
may be.
(d) Any Trustee, officer or other agent of the Trust, and any
organization in which any such Person has an economic or other interest, may
acquire, own, hold and dispose of Shares of beneficial interest in the Trust or
any Series and Class thereof, whether such Shares are authorized but unissued,
or already outstanding, to the same extent as if such Person were not a Trustee,
officer or other agent of the Trust; and the Trust or any Series may issue and
sell and may purchase such Shares from any such Person or any such organization,
subject to the
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limitations, restrictions or other provisions applicable to the sale or purchase
of such Shares herein and the 1940 Act.
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 the
Trust and each Series and each 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 the Trust and each Series and Class thereof, if any,
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 the Trust and each Series and Class thereof and as to the
number of Shares of the Trust and each Series and Class thereof held from time
to time by each such Shareholder.
Section 3. Sale of Shares. Subject to the 1940 Act and applicable law, the
Trust may sell its authorized but unissued Shares of beneficial interest to such
Persons, at such times, on such terms, and for such consideration as the Board
of Trustees may from time to time authorize. Each sale shall be credited to the
individual purchaser's account in the form of full or fractional Shares of the
Trust or such Series thereof (and Class thereof, if any), as the purchaser may
select, at the net asset value per Share, subject to Section 22 of the 1940 Act,
and the rules and regulations adopted thereunder; provided, however, that the
Board of Trustees may, in its sole discretion, permit the Principal Underwriter
to impose a sales charge upon any such sale. Every Shareholder by virtue of
having become a Shareholder shall be deemed to have expressly assented and
agreed to the terms of this Declaration of Trust and to have become bound as a
party hereto.
Section 4. Status of Shares and Limitation of Personal Liability. Shares
shall be deemed to be personal property giving to Shareholders only the rights
provided in this Declaration of Trust, the By-Laws, and under applicable law.
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. Subject to Article VIII, Section 1
hereof, the death, incapacity, dissolution, termination, or bankruptcy of a
Shareholder during the existence of the Trust and any Series thereof shall not
operate to dissolve the Trust or any such Series, nor entitle the representative
of any deceased, incapacitated, dissolved, terminated or bankrupt Shareholder to
an accounting or to take any action in court or elsewhere against the Trust, the
Trustees or any such Series, but entitles such representative only to the rights
of said deceased, incapacitated, dissolved, terminated or bankrupt Shareholder
under this Declaration of Trust. 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. Each Share, when issued on
the terms determined by the Board of Trustees, shall be fully paid and
nonassessable. As provided in the DSTA, Shareholders shall be
12
entitled to the same limitation of personal liability as that 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 Make Tax Status Election. The
Board of Trustees shall have the power, in its discretion, to make such
elections as to the tax status of the Trust and any Series as may be permitted
or required under the Code, without the vote of any Shareholder.
Section 6. Establishment and Designation of Series and Classes. The
establishment and designation of any Series or Class shall be effective, without
the requirement of Shareholder approval, upon the adoption of a resolution by
not less than a majority of the then Board of Trustees, which resolution shall
set forth such establishment and designation and may provide, to the extent
permitted by the DSTA, for rights, powers and duties of such Series or Class
(including variations in the relative rights and preferences as between the
different Series and Classes) otherwise than as provided herein. Each such
resolution shall be incorporated herein by reference upon adoption. Any such
resolution may be amended by a further resolution of a majority of the Board of
Trustees, and if Shareholder approval would be required to make such an
amendment to the language set forth in this Declaration of Trust, such further
resolution shall require the same Shareholder approval that would be necessary
to make such amendment to the language set forth in this Declaration of Trust.
Each such further resolution shall be incorporated herein by reference upon
adoption.
Each Series shall be separate and distinct from any other Series, separate
and distinct records on the books of the Trust shall be maintained for each
Series, and the assets and liabilities belonging to any such Series shall be
held and accounted for separately from the assets and liabilities of the Trust
or any other Series. Each Class of the Trust shall be separate and distinct from
any other Class of the Trust. Each Class of a Series shall be separate and
distinct from any other Class of the Series. As appropriate, in a manner
determined by the Board of Trustees, the liabilities belonging to any such Class
shall be held and accounted for separately from the liabilities of the Trust,
the Series or any other Class and separate and distinct records on the books of
the Trust for the Class shall be maintained for this purpose. Subject to Article
II hereof, each such Series shall operate as a separate and distinct investment
medium, with separately defined investment objectives and policies.
Shares of each Series (and Class where applicable) established and
designated pursuant to this Section 6, unless otherwise provided to the extent
permitted by the DSTA, in the resolution establishing and designating such
Series or Class, shall have the following rights, powers and duties:
(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
13
Series for all purposes, subject only to the rights of creditors with respect to
that Series, and shall be so recorded upon the books of account of the Trust.
Such consideration, assets, income, earnings, profits and proceeds thereof, from
whatever source derived, including, without limitation, any proceeds derived
from the sale, exchange or liquidation of such assets, and any funds or payments
derived from any reinvestment of such proceeds, in whatever form the same may
be, are herein referred to as "assets held with respect to" that Series. In the
event that there are any assets, income, earnings, profits and proceeds thereof,
funds or payments which are not readily identifiable as assets held with respect
to any particular Series (collectively "General Assets"), the Board of Trustees,
or an appropriate officer as determined by the Board of Trustees, shall allocate
such General Assets to, between or among any one or more of the Series in such
manner and on such basis as the Board of Trustees, in its sole discretion, deems
fair and equitable, and any General Asset so allocated to a particular Series
shall be held with respect to that Series. Each such allocation by or under the
direction of the Board of Trustees shall be conclusive and binding upon the
Shareholders of all Series for all purposes.
(b) Liabilities Held with Respect to a Particular Series or Class. The
assets of the Trust held with respect to a particular Series shall be charged
with the liabilities, debts, obligations, costs, charges, reserves and expenses
of the Trust incurred, contracted for or otherwise existing with respect to such
Series. Such liabilities, debts, obligations, costs, charges, reserves and
expenses incurred, contracted for or otherwise existing with respect to a
particular Series are herein referred to as "liabilities held with respect to"
that Series. Any liabilities, debts, obligations, costs, charges, reserves and
expenses of the Trust which are not readily identifiable as being liabilities
held with respect to any particular Series (collectively "General Liabilities")
shall be allocated by the Board of Trustees, or an appropriate officer as
determined by the Board of Trustees, to and among any one or more of the Series
in such manner and on such basis as the Board of Trustees in its sole discretion
deems fair and equitable. Each allocation of liabilities, debts, obligations,
costs, charges, reserves and expenses by or under the direction of the Board of
Trustees shall be conclusive and binding upon the Shareholders of all Series for
all purposes. All Persons who have extended credit that has been allocated to a
particular Series, or who have a claim or contract that has been allocated to
any particular Series, shall look exclusively to the assets of that particular
Series for payment of such credit, claim, or contract. In the absence of an
express contractual agreement so limiting the claims of such creditors,
claimants and contract providers, each creditor, claimant and contract provider
shall be deemed nevertheless to have 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 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
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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 or may
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 and Redemptions. Notwithstanding any
other provisions of this Declaration of Trust, including, without limitation,
Article VI hereof, no dividend or distribution including, without limitation,
any distribution paid upon dissolution of the Trust or of any Series with
respect to, nor any redemption of, the Shares of any Series or Class of such
Series shall be effected by the Trust other than from the assets held with
respect to such Series, nor, except as specifically provided in Section 7 of
this Article III, shall any Shareholder of any particular Series otherwise have
any right or claim against the assets held with respect to any other Series or
the Trust generally except, in the case of a right or claim against the assets
held with respect to any other Series, to the extent that such Shareholder has
such a right or claim hereunder as a Shareholder of such other Series. The Board
of Trustees shall have full discretion, to the extent not inconsistent with the
1940 Act, to determine which items shall be treated as income and which items as
capital; and each such determination and allocation shall be conclusive and
binding upon the Shareholders.
(d) Voting. All Shares of the Trust entitled to vote on a matter shall
vote on the matter separately by Series and, if applicable, by Class; provided
that, (i) where the 1940 Act requires, or (ii) to the extent permitted and not
required by the 1940 Act, where any provision of this Declaration of Trust
requires, or (iii) to the extent permitted and not required by the 1940 Act and
this Declaration of Trust, where the Board of Trustees determines, (A) that all
Shares of the Trust are to be voted in the aggregate without differentiation
between the separate Series or Classes, then all of the Trust's Shares shall
vote in the aggregate; and (B) that with respect to any matter that 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.
(e) Equality. Each Share of any particular Series shall be equal to
each other Share of such Series (subject to the rights and preferences with
respect to separate Classes of such Series).
(f) Fractions. A fractional Share of a Series shall carry
proportionately all the rights and obligations of a whole Share of such Series,
including rights with respect to voting,
15
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 shall have the right to
exchange said Shares for Shares of one or more other Series in accordance with
such requirements and procedures as may be established by the Board of Trustees,
and in accordance with the 1940 Act.
(h) Combination of Series. The Board of Trustees shall have the
authority, without the approval of the Shareholders of any Series unless
otherwise required by applicable law, to combine the assets and liabilities held
with respect to any two or more Series into assets and liabilities held with
respect to a single Series; provided that upon completion of such combination of
Series, the interest of each Shareholder, in the combined assets and liabilities
held with respect to the combined Series shall equal the interest of each such
Shareholder in the aggregate of the assets and liabilities held with respect to
the Series that were combined.
(i) Dissolution or Termination. Any particular Series or Class shall
be dissolved upon the occurrence of the applicable dissolution events set forth
in Article VIII, Section 1 hereof. Upon dissolution of a particular Series or
Class, the Trustees shall wind up the affairs of such Series or Class in
accordance with Article VIII Section 1 hereof and thereafter, rescind the
establishment and designation thereof. Upon the rescission of the establishment
and designation of any particular Series, every Class of such Series shall
thereby be terminated and its establishment and designation rescinded. Each
resolution of the Board of Trustees pursuant to this Section 6(i) shall be
incorporated herein by reference upon adoption.
Section 7. Indemnification of Shareholders. No shareholder as such shall be
subject to any personal liability whatsoever to any Person in connection with
Trust Property or the acts, obligations or affairs of the Trust. If any
Shareholder or former Shareholder shall be exposed to liability, charged with
liability, or held personally liable, for any obligations or liability of the
Trust, by reason of a claim or demand relating exclusively to his or her being
or having been a Shareholder of the Trust or a Shareholder of a particular
Series thereof, and not because of such Shareholder's actions or omissions, such
Shareholder or former Shareholder (or, in the case of a natural person, his or
her heirs, executors, administrators, or other legal representatives or, in the
case of a corporation or other entity, its corporate or other general successor)
shall be entitled to be held harmless from and indemnified out of the assets of
the Trust or out of the assets of such Series thereof, as the case may be,
against all loss and expense, including without limitation, attorneys' fees,
arising from such claim or demand; provided, however, such indemnity shall not
cover (i) any taxes due or paid by reason of such Shareholder's ownership of any
Shares and (ii) expenses charged to a Shareholder pursuant to Article IV,
Section 5 hereof.
ARTICLE IV.
THE BOARD OF TRUSTEES
Section 1. Number, Election, Term, Removal and Resignation.
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(a) The initial Board of Trustees shall be comprised of the Trustees
entering into this Declaration of Trust on the date first written above, who
shall hold office until the initial holder of a Share executes a consent in
writing to elect a Board of Trustees that holds office in accordance with
paragraph (c) of this Section 1. The initial Trustees shall (i) execute and file
or cause to be filed the Certificate of Trust with the office of the Secretary
of State of the State of Delaware and (ii) adopt the By-Laws. In accordance with
Section 3801 of the DSTA, each Trustee shall become a Trustee and be bound by
this Declaration of Trust and the By-Laws when such Person signs this
Declaration of Trust as a trustee and/or is duly elected or appointed, qualified
and serving on the Board of Trustees in accordance with the provisions hereof
and the By-Laws, so long as such signatory or other Person continues in office
in accordance with the terms hereof.
(b) The number of Trustees constituting the entire Board of Trustees
may be fixed from time to time by the vote of a majority of the then Board of
Trustees; provided, however, that the number of Trustees shall in no event be
less than one (1) nor more than fifteen (15). The number of Trustees shall not
be reduced so as to shorten the term of any Trustee then in office.
(c) Each Trustee shall hold office for the lifetime of the Trust or
until such Trustee's earlier death, resignation, removal, retirement or
inability otherwise to serve, or, if sooner than any of such events, until the
next meeting of Shareholders called for the purpose of electing Trustees or
consent of Shareholders in lieu thereof for the election of Trustees, and until
the election and qualification of his or her successor.
(d) Any Trustee may be removed, with or without cause, by the Board of
Trustees, by action of a majority of the Trustees then in office, or by vote of
the Shareholders at any meeting called for that purpose.
(e) Any Trustee may resign at any time by giving written notice to the
secretary of the Trust or to a meeting of the Board of Trustees. Such
resignation shall be effective upon receipt, unless specified to be effective at
some later time.
Section 2. Trustee Action by Written Consent Without a Meeting. To the
extent not inconsistent with the provisions of the 1940 Act, any action that may
be taken at any meeting of the Board of Trustees or any committee thereof may be
taken without a meeting and without prior written notice if a consent or
consents in writing setting forth the action so taken is signed by the Trustees
having not less than the minimum number of votes that would be necessary to
authorize or take that action at a meeting at which all Trustees on the Board of
Trustees or any committee thereof, as the case may be, were present and voted.
Written consents of the Trustees may be executed in one or more counterparts. A
consent transmitted by electronic transmission (as defined in Section 3806(f) of
the DSTA) by a Trustee shall be deemed to be written and signed for purposes of
this Section. All such consents shall be filed with the secretary of the Trust
and shall be maintained in the Trust's records.
Section 3. Powers; Other Business Interests; Quorum and Required Vote.
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(a) Powers. Subject to the provisions of this Declaration of Trust,
the business of the Trust (including every Series thereof) shall be managed by
or under the direction of the Board of Trustees, and such Board of Trustees
shall have all powers necessary or convenient to carry out that responsibility.
The Board of Trustees shall have full power and authority to do any and all acts
and to make and execute any and all contracts and instruments that it may
consider necessary or appropriate in connection with the operation and
administration of the Trust (including every Series thereof). The Board of
Trustees shall not be bound or limited by present or future laws or customs with
regard to investments by trustees or fiduciaries, but, subject to the other
provisions of this Declaration of Trust and the By-Laws, shall have full
authority and absolute power and control over the assets and the business of the
Trust (including every Series thereof) to the same extent as if the Board of
Trustees was the sole owner of such assets and business in its own right,
including such authority, power and control to do all acts and things as it, in
its sole discretion, shall deem proper to accomplish the purposes of this Trust.
Without limiting the foregoing, the Board of Trustees may, subject to the
requisite vote for such actions as set forth in this Declaration of Trust and
the By-Laws: (1) adopt By-Laws not inconsistent with applicable law or this
Declaration of Trust; (2) amend, restate and repeal such By-Laws, subject to and
in accordance with the provisions of such By-Laws; (3) fill vacancies on the
Board of Trustees in accordance with this Declaration of Trust and the By-Laws;
(4) elect and remove such officers and appoint and terminate such agents as it
considers appropriate, in accordance with this Declaration of Trust and the
By-Laws; (5) establish and terminate one or more committees of the Board of
Trustees pursuant to the By-Laws; (6) place Trust Property in custody as
required by the 1940 Act, employ one or more custodians of the Trust Property
and authorize such custodians to employ sub-custodians and to place all or any
part of such Trust Property with a custodian or a custodial system meeting the
requirements of the 1940 Act; (7) retain a transfer agent, dividend disbursing
agent, a shareholder servicing agent or administrative services agent, or any
number thereof or any other service provider as deemed appropriate; (8) provide
for the issuance and distribution of shares of beneficial interest in the Trust
or other securities or financial instruments directly or through one or more
Principal Underwriters or otherwise; (9) retain one or more Investment
Adviser(s); (10) re-acquire and redeem Shares on behalf of the Trust and
transfer Shares pursuant to applicable law; (11) set record dates for the
determination of Shareholders with respect to various matters, in the manner
provided in Article V, Section 4 of this Declaration of Trust; (12) declare and
pay dividends and distributions to Shareholders from the Trust Property, in
accordance with this Declaration of Trust and the By-Laws; (13) establish,
designate and redesignate from time to time, in accordance with the provisions
of Article III, Section 6 hereof, any Series or Class of the Trust or of a
Series; (14) hire personnel as staff for the Board of Trustees or, for those
Trustees who are not Interested Persons of the Trust, the Investment Adviser, or
the Principal Underwriter, set the compensation to be paid by the Trust to such
personnel, exercise exclusive supervision of such personnel, and remove one or
more of such personnel, at the discretion of the Board of Trustees; (15) retain
special counsel, other experts and/or consultants for the Board of Trustees, for
those Trustees who are not Interested Persons of the Trust, the Investment
Adviser, or the Principal Underwriter, and/or for one or more of the committees
of the Board of Trustees, set the compensation to be paid by the Trust to such
special counsel, other experts and/or consultants, and remove one or more of
such special counsel, other experts and/or consultants, at the discretion of the
Board of Trustees; (16) engage in and prosecute, defend, compromise, abandon,
18
or adjust, by arbitration, or otherwise, any actions, suits, proceedings,
disputes, claims, and demands relating to the Trust, and out of the assets of
the Trust to pay or to satisfy any debts, claims or expenses incurred in
connection therewith, including those of litigation, and such power shall
include, without limitation, the power of the Trustees, or any appropriate
committee thereof, in the exercise of their or its good faith business judgment,
to dismiss any action, suit, proceeding, dispute, claim or demand, derivative or
otherwise, brought by any person, including a shareholder in its own name or in
the name of the Trust, whether or not the Trust or any of the Trustees may be
named individually therein or the subject matter arises by reason of business
for or on behalf of the Trust; and (17) in general delegate such authority as it
considers desirable to any officer of the Trust, to any committee of the Trust
and to any agent or employee of the Trust or to any such custodian, transfer,
dividend disbursing, shareholder servicing agent, Principal Underwriter,
Investment Adviser, or other service provider, to the extent authorized and in
accordance with this Declaration of Trust, the By-Laws and applicable law.
The powers of the Board of Trustees set forth in this Section 3(a) are
without prejudice to any other powers of the Board of Trustees set forth in this
Declaration of Trust and the By-Laws. Any determination as to what is in the
best interests of the Trust or any Series or Class thereof and its Shareholders
made by the Board of Trustees in good faith shall be conclusive. In construing
the provisions of this Declaration of Trust, the presumption shall be in favor
of a grant of power to the Board of Trustees.
(b) Other Business Interests. The Trustees shall devote to the affairs
of the Trust (including every Series thereof) such time as may be necessary for
the proper performance of their duties hereunder, but neither the Trustees nor
the officers, directors, shareholders, partners or employees of the Trustees, if
any, shall be expected to devote their full time to the performance of such
duties. The Trustees, or any Affiliate, shareholder, officer, director, partner
or employee thereof, or any Person owning a legal or beneficial interest
therein, may engage in, or possess an interest in, any business or venture other
than the Trust or any Series thereof, of any nature and description,
independently or with or for the account of others. None of the Trust, any
Series thereof or any Shareholder shall have the right to participate or share
in such other business or venture or any profit or compensation derived
therefrom.
(c) Quorum and Required Vote. At all meetings of the Board of
Trustees, a majority of the Board of Trustees then in office shall be present in
person in order to constitute a quorum for the transaction of business. A
meeting at which a quorum is initially present may continue to transact business
notwithstanding the departure of Trustees from the meeting, if any action taken
is approved by at least a majority of the required quorum for that meeting.
Subject to Article III, Sections 1 and 6 of the By-Laws and except as otherwise
provided herein or required by applicable law, the vote of not less than a
majority of the Trustees present at a meeting at which a quorum is present shall
be the act of the Board of Trustees.
Section 4. Payment of Expenses by the Trust. Subject to the provisions of
Article III, Section 6 hereof, an authorized officer of the Trust shall pay or
cause to be paid out of the principal or income of the Trust or any particular
Series or Class thereof, or partly out of the principal and partly out of the
income of the Trust or any particular Series or Class thereof, and charge or
allocate the same to, between or among such one or more of the Series or Classes
that
19
may be established or designated pursuant to Article III, Section 6 hereof, as
such officer deems fair, all expenses, fees, charges, taxes and liabilities
incurred by or arising in connection with the maintenance or operation of the
Trust or a particular Series or Class thereof, or in connection with the
management thereof, including, but not limited to, the Trustees' compensation
and such expenses, fees, charges, taxes and liabilities associated with the
services of the Trust's officers, employees, Investment Adviser(s), Principal
Underwriter, auditors, counsel, custodian, sub-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 Expenses by Shareholders. The Board of Trustees shall
have the power, as frequently as it may determine, to cause any Shareholder to
pay directly, in advance or arrears, for charges of the Trust's custodian or
transfer, dividend disbursing, shareholder servicing or similar agent for
services provided to such Shareholder, an amount fixed from time to time by the
Board of Trustees, by setting off such amount due from such Shareholder from the
amount of (i) declared but unpaid dividends or distributions owed such
Shareholder, or (ii) proceeds from the redemption by the Trust of Shares from
such Shareholder pursuant to Article VI hereof.
Section 6. Ownership of Trust Property. Legal title to all of the Trust
Property shall at all times be vested in the Trust, except that the Board of
Trustees shall have the power to cause legal title to any Trust Property to be
held by or in the name of any Person as nominee, on such terms as the Board of
Trustees may determine, in accordance with applicable law.
Section 7. Service Contracts.
(a) Subject to this Declaration of Trust, the By-Laws and the 1940
Act, the Board of Trustees may, at any time and from time to time, contract for
exclusive or nonexclusive investment advisory or investment management services
for the Trust or for any Series thereof with any corporation, trust, association
or other organization, including any Affiliate; and any such contract may
contain such other terms as the Board of Trustees may determine, including
without limitation, delegation of authority to the Investment Adviser to
determine from time to time without prior consultation with the Board of
Trustees what securities and other instruments or property shall be purchased or
otherwise acquired, owned, held, invested or reinvested in, sold, exchanged,
transferred, mortgaged, pledged, assigned, negotiated, or otherwise dealt with
or disposed of, and what portion, if any, of the Trust Property shall be held
uninvested and to make changes in the Trust's or a particular Series'
investments, or to engage in such other activities, including administrative
services, as may specifically be delegated to such party.
(b) The Board of Trustees may also, at any time and from time to time,
contract with any Person, including any Affiliate, appointing it or them as the
exclusive or nonexclusive placement agent, distributor or Principal Underwriter
for the Shares of beneficial interest of the Trust or one or more of the Series
or Classes thereof, or for other securities or financial instruments to be
issued by the Trust, or appointing it or them to act as the administrator, fund
accountant or accounting agent, custodian, transfer agent, dividend disbursing
agent and/or shareholder servicing agent for the Trust or one or more of the
Series or Classes thereof.
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(c) The Board of Trustees is further empowered, at any time and from
time to time, to contract with any Persons, including any Affiliates, to provide
such other services to the Trust or one or more of its Series, as the Board of
Trustees determines to be in the best interests of the Trust, such Series and
its Shareholders.
(d) None of the following facts or circumstances shall affect the
validity of any of the contracts provided for in this Article IV, Section 7, or
disqualify any Shareholder, Trustee, employee or officer of the Trust from
voting upon or executing the same, or create any liability or accountability to
the Trust, any Series thereof or the Shareholders, provided that the
establishment of and performance of each such contract is permissible under the
1940 Act, and provided further that such Person is authorized to vote upon such
contract under the 1940 Act:
(i) the fact that any of the Shareholders, Trustees, employees
or officers of the Trust is a shareholder, director,
officer, partner, trustee, employee, manager, Adviser,
placement agent, Principal Underwriter, distributor, or
Affiliate or agent of or for any Person, or for any parent
or Affiliate of any Person, with which any type of service
contract provided for in this Article IV, Section 7 may have
been or may hereafter be made, or that any such Person, or
any parent or Affiliate thereof, is a Shareholder or has an
interest in the Trust, or
(ii) the fact that any Person with which any type of service
contract provided for in this Article IV, Section 7 may have
been or may hereafter be made also has such a service
contract with one or more other Persons, or has other
business or interests.
(e) Every contract referred to in this Section 7 is required to comply
with this Declaration of Trust, the By-Laws, the 1940 Act, other applicable law
and any stipulation by resolution of the Board of Trustees.
ARTICLE V.
SHAREHOLDERS' VOTING POWERS AND MEETINGS
Section 1. Voting Powers. Subject to the provisions of Article III, Section
6 hereof, the Shareholders shall have the power to vote only (i) on such matters
required by this Declaration of Trust, the By-Laws, the 1940 Act, other
applicable law and any registration statement of the Trust filed with the
Commission, the registration of which is effective; and (ii) on such other
matters as the Board of Trustees may consider necessary or desirable. Subject to
Article III hereof, the Shareholder of record (as of the record date established
pursuant to Section 4 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.
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Section 2. Quorum and Required Vote.
(a) Forty percent (40%) of the outstanding Shares entitled to vote at
a Shareholders' meeting, which are present in person or represented by proxy,
shall constitute a quorum at the Shareholders' meeting, except when a larger
quorum is required by this Declaration of Trust, the By-Laws, applicable law or
the requirements of any securities exchange on which Shares are listed for
trading, in which case such quorum shall comply with such requirements. When a
separate vote by one or more Series or Classes is required, a majority of the
outstanding Shares of each such Series or Class entitled to vote at a
Shareholders' meeting of such Series or Class, which are present in person or
represented by proxy, shall constitute a quorum at the Shareholders' meeting of
such Series or Class, except when a larger quorum is required by this
Declaration of Trust, the By-Laws, applicable law or the requirements of any
securities exchange on which Shares of such Series or Class are listed for
trading, in which case such quorum shall comply with such requirements.
(b) Subject to any provision of this Declaration of Trust, the
By-Laws, the 1940 Act or other applicable law that requires a different vote:
(1) in all matters other than the election of Trustees, the affirmative "vote of
a majority of the outstanding voting securities" (as defined herein) of the
Trust entitled to vote at a Shareholders' meeting at which a quorum is present,
shall be the act of the Shareholders; and (2) Trustees shall be elected by not
less than a plurality of the votes cast of the holders of Shares entitled to
vote present in person or represented by proxy at a Shareholders' meeting at
which a quorum is present. Pursuant to Article III, Section 6(d) hereof, where a
separate vote by Series and, if applicable, by Class is required, the preceding
sentence shall apply to such separate votes by Series and Classes.
(c) Abstentions and broker non-votes will be treated as votes present
at a Shareholders' meeting; abstentions will be treated as votes cast at such
meeting, but broker non-votes will not be treated as votes cast at such meeting.
Abstentions and broker non-votes, therefore (i) will be included for purposes of
determining whether a quorum is present; (ii) will have no effect on proposals
that require a plurality for approval; but (iii) will have the same effect as a
vote "against" on proposals requiring any percentage of (A) the Shares of the
Trust, Series or Class, as applicable, present, for approval, or (B) the
outstanding voting securities of the Trust, Series or Class, as applicable, for
approval.
Section 3. Shareholder Action by Written Consent Without a Meeting. Any
action which may be taken at any meeting of Shareholders may be taken without a
meeting if a consent or consents in writing setting forth the action so taken is
or are signed by the holders of a majority of the Shares entitled to vote on
such action (or such different proportion thereof as shall be required by law,
the Declaration of Trust or the By-Laws for approval of such action) and is or
are received by the secretary of the Trust either: (i) by the date set by
resolution of the Board of Trustees for the shareholder vote on such action; or
(ii) if no date is set by resolution of the Board, within 30 days after the
record date for such action as determined by reference to Article V, Section
4(b) hereof. The written consent for any such action may be executed in one or
more counterparts, each of which shall be deemed an original, and all of which
when taken together shall constitute one and the same instrument. A consent
transmitted by electronic transmission (as defined in the DSTA) by a Shareholder
or by a Person or Persons authorized to
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act for a Shareholder shall be deemed to be written and signed for purposes of
this Section. All such consents shall be filed with the secretary of the Trust
and shall be maintained in the Trust's records. Any Shareholder that has given a
written consent or the Shareholder's proxyholder or a personal representative of
the Shareholder or its respective proxyholder may revoke the consent by a
writing received by the secretary of the Trust either: (i) before the date set
by resolution of the Board of Trustees for the shareholder vote on such action;
or (ii) if no date is set by resolution of the Board, within 30 days after the
record date for such action as determined by reference to Article V, Section
4(b) hereof.
Section 4. Record Dates.
(a) For purposes of determining the Shareholders entitled to notice
of, and to vote at, any meeting of Shareholders, the Board of Trustees may fix a
record date, which record date shall not precede the date upon which the
resolution fixing the record date is adopted by the Board of Trustees, and which
record date shall not be more than one hundred and twenty (120) days nor less
than ten (10) days before the date of any such meeting. For purposes of
determining the Shareholders entitled to vote on any action without a meeting,
the Board of Trustees may fix a record date, which record date shall not precede
the date upon which the resolution fixing the record date is adopted by the
Board of Trustees, and which record date shall not be more than thirty (30) days
after the date upon which the resolution fixing the record date is adopted by
the Board of Trustees.
(b) If the Board of Trustees does not so fix a record date:
(i) the record date for determining Shareholders entitled to
notice of, and to vote at, a meeting of Shareholders shall
be at the close of business on the day next preceding the
day on which notice is given or, if notice is waived, at the
close of business on the day next preceding the day on which
the meeting is held.
(ii) the record date for determining Shareholders entitled to
vote on any action by consent in writing without a meeting
of Shareholders, (1) when no prior action by the Board of
Trustees has been taken, shall be the day on which the first
signed written consent setting forth the action taken is
delivered to the Trust, or (2) when prior action of the
Board of Trustees has been taken, shall be at the close of
business on the day on which the Board of Trustees adopts
the resolution taking such prior action.
(c) For the purpose of determining the Shareholders of the Trust or
any Series or Class thereof who are entitled to receive payment of any dividend
or of any other distribution of assets of the Trust or any Series or Class
thereof (other than in connection with a merger, consolidation, conversion, or
reorganization, which is governed by Article VIII of the Declaration of Trust),
the Board of Trustees may:
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(i) from time to time fix a record date, which record date shall
not precede the date upon which the resolution fixing the
record date is adopted, and which record date shall not be
more than sixty (60) days before the date for the payment of
such dividend and/or such other distribution;
(ii) adopt standing resolutions fixing record dates and related
payment dates at periodic intervals of any duration for the
payment of such dividend and/or such other distribution;
and/or
(iii) delegate to an appropriate officer or officers of the Trust
the determination of such periodic record and/or payments
dates with respect to such dividend and/or such other
distribution.
Nothing in this Section shall be construed as precluding the Board of Trustees
from setting different record dates for different Series or Classes.
Section 5. Additional Provisions. The By-Laws may include further
provisions for Shareholders' votes, meetings and related matters.
ARTICLE VI.
NET ASSET VALUE; DISTRIBUTIONS;
REDEMPTIONS; TRANSFERS
Section 1. Determination of Net Asset Value, Net Income and Distributions.
(a) Subject to Article III, Section 6 hereof, the Board of Trustees
shall have the power to determine from time to time the offering price for
authorized, but unissued, Shares of beneficial interest of the Trust or any
Series or Class thereof, respectively, that shall yield to the Trust or such
Series or Class not less than the net asset value thereof, in addition to any
amount of applicable sales charge to be paid to the Principal Underwriter or the
selling broker or dealer in connection with the sale of such Shares, at which
price the Shares of the Trust or such Series or Class, respectively, shall be
offered for sale, subject to any other requirements or limitations of the 1940
Act.
(b) Subject to Article III, Section 6 hereof, the Board of Trustees
may, subject to the 1940 Act, prescribe and shall set forth in the By-Laws, this
Declaration of Trust or in a resolution of the Board of Trustees such bases and
time for determining the net asset value per Share of the Trust or any Series or
Class thereof, or net income attributable to the Shares of the Trust or any
Series or Class thereof or the declaration and payment of dividends and
distributions on the Shares of the Trust or any Series or Class thereof, as it
may deem necessary or desirable, and such dividends and distributions may vary
between the Classes to reflect differing allocations of the expenses of the
Trust between such Classes to such extent and for such purposes as the Trustees
may deem appropriate.
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(c) The Shareholders of the Trust or any Series or Class, if any,
shall be entitled to receive dividends and distributions, when, if and as
declared by the Board of Trustees with respect thereto, provided that with
respect to Classes, such dividends and distributions shall comply with the 1940
Act. The right of Shareholders to receive dividends or other distributions on
Shares of any Class may be set forth in a plan adopted by the Board of Trustees
and amended from time to time pursuant to the 1940 Act. No Share shall have any
priority or preference over any other Share of the Trust with respect to
dividends or distributions paid in the ordinary course of business or
distributions upon dissolution of the Trust made pursuant to Article VIII,
Section 1 hereof; provided however, that
(i) if the Shares of the Trust are divided into Series thereof,
no Share of a particular Series shall have any priority or
preference over any other Share of the same Series with
respect to dividends or distributions paid in the ordinary
course of business or distributions upon dissolution of the
Trust or of such Series made pursuant to Article VIII,
Section 1 hereof;
(ii) if the Shares of the Trust are divided into Classes thereof,
no Share of a particular Class shall have any priority or
preference over any other Share of the same Class with
respect to dividends or distributions paid in the ordinary
course of business or distributions upon dissolution of the
Trust made pursuant to Article VIII, Section 1 hereof; and
(iii) if the Shares of a Series are divided into Classes thereof,
no Share of a particular Class of such Series shall have any
priority or preference over any other Share of the same
Class of such Series with respect to dividends or
distributions paid in the ordinary course of business or
distributions upon dissolution of such Series made pursuant
to Article VIII, Section 1 hereof.
All dividends and distributions shall be made ratably among all Shareholders of
the Trust, a particular Class of the Trust, a particular Series, or a particular
Class of a Series from the Trust Property held with respect to the Trust, such
Series or such Class, respectively, according to the number of Shares of the
Trust, such Series or such Class held of record by such Shareholders on the
record date for any dividend or distribution; provided however, that
(iv) if the Shares of the Trust are divided into Series thereof,
all dividends and distributions from the Trust Property and,
if applicable, held with respect to such Series, shall be
distributed to each Series thereof according to the net
asset value computed for such Series and within such
particular Series, shall be distributed ratably to the
Shareholders of such Series according to the number of
Shares of such Series held of record by such Shareholders on
the record date for any dividend or distribution; and
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(v) if the Shares of the Trust or of a Series are divided into
Classes thereof, all dividends and distributions from the
Trust Property and, if applicable, held with respect to the
Trust or such Series, shall be distributed to each Class
thereof according to the net asset value computed for such
Class and within such particular Class, shall be distributed
ratably to the Shareholders of such Class according to the
number of Shares of such Class held of record by such
Shareholders on the record date for any dividend or
distribution.
Dividends and distributions may be paid in cash, in kind or in Shares.
(d) Before payment of any dividend there may be set aside out of any
funds of the Trust, or the applicable Series thereof, available for dividends
such sum or sums as the Board of Trustees may from time to time, in its absolute
discretion, think proper as a reserve fund to meet contingencies, or for
equalizing dividends, or for repairing or maintaining any property of the Trust,
or any Series thereof, or for such other lawful purpose as the Board of Trustees
shall deem to be in the best interests of the Trust, or the applicable Series,
as the case may be, and the Board of Trustees may abolish any such reserve in
the manner in which the reserve was created.
Section 2. Redemptions at the Option of a Shareholder. Unless otherwise
provided in the prospectus of the Trust relating to the Shares, as such
prospectus may be amended from time to time:
(a) The Trust shall purchase such Shares as are offered by any
Shareholder for redemption upon the presentation of a proper instrument of
transfer together with a request directed to the Trust or a Person designated by
the Trust that the Trust purchase such Shares and/or in accordance with such
other procedures for redemption as the Board of Trustees may from time to time
authorize. If certificates have been issued to a Shareholder, any request for
redemption by such Shareholder must be accompanied by surrender of any
outstanding certificate or certificates for such Shares in form for transfer,
together with such proof of the authenticity of signatures as may reasonably be
required on such Shares and accompanied by proper stock transfer stamps, if
applicable.
(b) The Trust shall pay for such Shares the net asset value thereof
(excluding any applicable redemption fee or sales load), in accordance with this
Declaration of Trust, the By-Laws, the 1940 Act and other applicable law.
Payments for Shares so redeemed by the Trust shall be made in cash, except
payment for such Shares 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 authorized officers, shall have absolute
discretion as to what security or securities of the Trust or the applicable
Series shall be distributed in kind and the amount of the same; and the
securities shall be valued for purposes of distribution at the value at which
they were appraised in computing the then current net asset value of the Shares,
provided that any Shareholder who cannot legally acquire securities so
distributed in kind shall receive cash to the extent permitted by the 1940 Act.
Shareholders shall bear the expenses of in-kind transactions,
26
including, but not limited to, transfer agency fees, custodian fees and costs of
disposition of such securities.
(c) Payment by the Trust for such redemption of Shares shall be made
by the Trust to the Shareholder within seven days after the date on which the
redemption request is received in proper form and/or such other procedures
authorized by the Board of Trustees are complied with; provided, however, that
if payment shall be made other than exclusively in cash, any securities to be
delivered as part of such payment shall be delivered as promptly as any
necessary transfers of such securities on the books of the several corporations
whose securities are to be delivered practicably can be made, which may not
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 obligations of the Trust set forth in this Section 2 are
subject to the provision that such obligations may be suspended or postponed by
the Board of Trustees (1) during any time the New York Stock Exchange (the
"Exchange") is closed for other than weekends or holidays; (2) if permitted by
the rules of the Commission, during periods when trading on the Exchange is
restricted; or (3) during any National Financial Emergency. The Board of
Trustees may, in its discretion, declare that the suspension relating to a
National Financial Emergency shall terminate, as the case may be, on the first
business day on which the Exchange shall have reopened or the period specified
above shall have expired (as to which, in the absence of an official ruling by
the Commission, the determination of the Board of Trustees shall be conclusive).
(e) The right of any Shareholder of the Trust or any Series or Class
thereof to receive dividends or other distributions on Shares redeemed and all
other rights of such Shareholder with respect to the Shares so redeemed, except
the right of such Shareholder to receive payment for such Shares, shall cease at
the time the purchase price of such Shares shall have been fixed, as provided
above.
Section 3. Redemptions at the Option of the Trust. At the option of the
Board of Trustees the Trust may, from time to time, without the vote of the
Shareholders, but subject to the 1940 Act, redeem Shares or authorize the
closing of any Shareholder account, subject to such conditions as may be
established from time to time by the Board of Trustees.
Section 4. Transfer of Shares. Shares shall be transferable in accordance
with the provisions of the By-Laws.
ARTICLE VII.
LIMITATION OF LIABILITY
AND INDEMNIFICATION OF AGENT
Section 1. Limitation of Liability.
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(a) For the purpose of this Article, "Agent" means any Person who is
or was a Trustee, officer, employee or other agent of the Trust or is or was
serving at the request of the Trust as a trustee, director, officer, employee or
other agent of another foreign or domestic corporation, partnership, joint
venture, trust or other enterprise; "Proceeding" means any threatened, pending
or completed action or proceeding, whether civil, criminal, administrative or
investigative; and "Expenses" include without limitation attorneys' fees and any
expenses of establishing a right to indemnification under this Article.
(b) An Agent shall be liable to the Trust and to any Shareholder
solely for such Agent's own willful misfeasance, bad faith, gross negligence or
reckless disregard of the duties involved in the conduct of such Agent (such
conduct referred to herein as "Disqualifying Conduct"), and for nothing else.
(c) Subject to subsection (b) of this Section 1 and to the fullest
extent that limitations on the liability of Agents are permitted by the DSTA,
the Agents shall not be responsible or liable in any event for any act or
omission of any other Agent of the Trust or any Investment Adviser or Principal
Underwriter of the Trust.
(d) No Agent, when acting in its respective capacity as such, shall be
personally liable to any Person, other than the Trust or a Shareholder to the
extent provided in subsections (b) and (c) of this Section 1, for any act,
omission or obligation of the Trust or any Trustee thereof.
(e) Each Trustee, officer and employee of the Trust shall, in the
performance of his or her duties, be fully and completely justified and
protected with regard to any act or any failure to act resulting from reliance
in good faith upon the books of account or other records of the Trust, upon an
opinion of counsel, or upon reports made to the Trust by any of its officers or
employees or by the Investment Adviser, the Principal Underwriter, any other
Agent, selected dealers, accountants, appraisers or other experts or consultants
selected with reasonable care by the Trustees, officers or employees of the
Trust, regardless of whether such counsel or expert may also be a Trustee. The
officers and Trustees may obtain the advice of counsel or other experts with
respect to the meaning and operation of this Declaration of Trust, the By-Laws,
applicable law and their respective duties as officers or Trustees. No such
officer or Trustee shall be liable for any act or omission in accordance with
such advice, records and/or reports and no inference concerning liability shall
arise from a failure to follow such advice, records and/or reports. The officers
and Trustees shall not be required to give any bond hereunder, nor any surety if
a bond is required by applicable law.
(f) The failure to make timely collection of dividends or interest, or
to take timely action with respect to entitlements, on the Trust's securities
issued in emerging countries, shall not be deemed to be negligence or other
fault on the part of any Agent, and no Agent shall have any liability for such
failure or for any loss or damage resulting from the imposition by any
government of exchange control restrictions which might affect the liquidity of
the Trust's assets or from any war or political act of any foreign government to
which such assets might be exposed, except, in the case of a Trustee or officer,
for liability resulting from such Trustee's or officer's Disqualifying Conduct.
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(g) The limitation on liability contained in this Article applies to
events occurring at the time a Person serves as an Agent whether or not such
Person is an Agent at the time of any Proceeding in which liability is asserted.
(h) No amendment or repeal of this Article shall adversely affect any
right or protection of an Agent that exists at the time of such amendment or
repeal.
Section 2. Indemnification.
(a) Indemnification by Trust. The Trust shall indemnify, out of Trust
Property, to the fullest extent permitted under applicable law, any Person who
was or is a party or is threatened to be made a party to any Proceeding by
reason of the fact that such Person is or was an Agent of the Trust, against
Expenses, judgments, fines, settlements and other amounts actually and
reasonably incurred in connection with such Proceeding if such Person acted in
good faith or in the case of a criminal proceeding, had no reasonable cause to
believe the conduct of such Person was unlawful. The termination of any
Proceeding by judgment, order, settlement, conviction or plea of nolo contendere
or its equivalent shall not of itself create a presumption that the Person did
not act in good faith or that the Person had reasonable cause to believe that
the Person's conduct was unlawful.
(b) Exclusion of Indemnification. Notwithstanding any provision to the
contrary contained herein, there shall be no right to indemnification for any
liability arising by reason of the Agent's Disqualifying Conduct. In respect of
any claim, issue or matter as to which that Person shall have been adjudged to
be liable in the performance of that Person's duty to the Trust or the
Shareholders, indemnification shall be made only to the extent that the court in
which that action was brought shall determine, upon application or otherwise,
that in view of all the circumstances of the case, that Person was not liable by
reason of that Person's Disqualifying Conduct.
(c) Required Approval. Any indemnification under this Article shall be
made by the Trust if authorized in the specific case on a determination that
indemnification of the Agent is proper in the circumstances by a majority vote
of Trustees, even though such number of Trustees shall be less than a quorum,
who are not parties to the Proceeding and have no economic or other interest in
connection with such specific case; a committee of such Trustees designated by
majority vote of such Trustees even though such number of Trustees shall be less
than a quorum; or by independent legal counsel in a written opinion.
(d) Advancement of Expenses. Expenses incurred by an Agent in
defending any Proceeding may be advanced by the Trust before the final
disposition of the Proceeding on receipt of an undertaking by or on behalf of
the Agent to repay the amount of the advance if it shall be determined
ultimately that the Agent is not entitled to be indemnified as authorized in
this Article.
(e) Other Contractual Rights. Nothing contained in this Article shall
affect any right to indemnification to which Persons other than Trustees and
officers of the Trust or any subsidiary thereof may be entitled by contract or
otherwise.
29
(f) Fiduciaries of Employee Benefit Plan. This Article does not apply
to any Proceeding against any trustee, investment manager or other fiduciary of
an employee benefit plan in that Person's capacity as such, even though that
Person may also be an Agent of the Trust as defined in Section 1 of this
Article. Nothing contained in this Article shall limit any right to
indemnification to which such a trustee, investment manager, or other fiduciary
may be entitled by contract or otherwise which shall be enforceable to the
extent permitted by applicable law other than this Article.
Section 3. Insurance. To the fullest extent permitted by applicable law,
the Board of Trustees shall have the authority to purchase with Trust Property,
insurance for liability and for all Expenses reasonably incurred or paid or
expected to be paid by an Agent in connection with any Proceeding in which such
Agent becomes involved by virtue of such Agent's actions, or omissions to act,
in its capacity or former capacity with the Trust, whether or not the Trust
would have the power to indemnify such Agent against such liability.
Section 4. Derivative Actions. 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 or
her 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 adviser or
underwriter.
ARTICLE VIII.
CERTAIN TRANSACTIONS
Section 1. Dissolution of Trust or Series. The Trust and each Series shall
have perpetual existence, except that the Trust (or a particular Series) shall
be dissolved:
(a) With respect to the Trust, (i) upon the vote of the holders of not
less than a majority of the Shares of the Trust entitled to vote, or (ii) at the
discretion of the Board of Trustees either (A) at any time there are no Shares
outstanding of the Trust, or (B) upon at least thirty (30) days' prior written
notice to the Shareholders of the Trust; or
(b) With respect to a particular Series, (i) upon the vote of the
holders of not less than a majority of the Shares of such Series entitled to
vote, or (ii) at the discretion of the Board of Trustees either (A) at any time
there are no Shares outstanding of such Series, or (B) upon at least thirty (30)
days' prior written notice to the Shareholders of such Series; or
30
(c) With respect to the Trust (or a particular Series), upon the
occurrence of a dissolution or termination event pursuant to any other provision
of this Declaration of Trust (including Article VIII, Section 2) or the DSTA; or
(d) With respect to any Series, upon any event that causes the
dissolution of the Trust.
Upon dissolution of the Trust (or a particular Series, as the case may be),
the Board of Trustees shall (in accordance with Section 3808 of the DSTA) pay or
make reasonable provision to pay all claims and obligations of the Trust and/or
each Series (or the particular Series, as the case may be), including all
contingent, conditional or unmatured claims and obligations known to the Trust,
and all claims and obligations 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 the Trust and/or each Series of the Trust (or the particular Series,
as the case may be), such claims and obligations shall be paid in full and any
such provisions for payment shall be made in full. If there are insufficient
assets held with respect to the Trust and/or each Series of the Trust (or the
particular Series, as the case may be), such claims and obligations shall be
paid or provided for according to their priority and, among claims and
obligations of equal priority, ratably to the extent of assets available
therefor. Any remaining assets (including, without limitation, cash, securities
or any combination thereof) held with respect to the Trust and/or each Series of
the Trust (or the particular Series, as the case may be) shall be distributed to
the Shareholders of the Trust and/or each Series of the Trust (or the particular
Series, as the case may be) ratably according to the number of Shares of the
Trust and/or such Series thereof (or the particular Series, as the case may be)
held of record by the several Shareholders on the date for such dissolution
distribution; provided, however, that if the Shares of the Trust or a Series are
divided into Classes thereof, any remaining assets (including, without
limitation, cash, securities or any combination thereof) held with respect to
the Trust or such Series, as applicable, shall be distributed to each Class of
the Trust or such Series according to the net asset value computed for such
Class and within such particular Class, shall be distributed ratably to the
Shareholders of such Class according to the number of Shares of such Class held
of record by the several Shareholders on the date for such dissolution
distribution. Upon the 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 or Consolidation; Conversion; Reorganization.
(a) Merger or Consolidation. Pursuant to an agreement of merger or
consolidation, the Board of Trustees, by vote of a majority of the Trustees, may
cause the Trust to merge or consolidate with or into one or more statutory
trusts or "other business entities" (as defined in Section 3801 of the DSTA)
formed or organized or existing under the laws of the State of Delaware or any
other state of the United States or any foreign country or other foreign
jurisdiction. Any such merger or consolidation shall not require the vote of the
Shareholders unless such vote is required by the 1940 Act; provided however,
that the Board of Trustees shall provide at least thirty (30) days' prior
written notice to the Shareholders of such merger or consolidation. By reference
to Section 3815(f) of the DSTA, any agreement of merger or
31
consolidation approved in accordance with this Section 2(a) may, without a
Shareholder vote, unless required by the 1940 Act, the requirements of any
securities exchange on which Shares are listed for trading or any other
provision of this Declaration of Trust or the By-Laws, effect any amendment to
this Declaration of Trust or the By-Laws or effect the adoption of a new
governing instrument if the Trust is the surviving or resulting statutory trust
in the merger or consolidation, which amendment or new governing instrument
shall be effective at the effective time or date of the merger or consolidation.
In all respects not governed by the DSTA, the 1940 Act, other applicable law or
the requirements of any securities exchange on which Shares are listed for
trading, the Board of Trustees shall have the power to prescribe additional
procedures necessary or appropriate to accomplish a merger or consolidation,
including the power to create one or more separate statutory trusts to which all
or any part of the assets, liabilities, profits or losses of the Trust may be
transferred and to provide for the conversion of Shares into beneficial
interests in such separate statutory trust or trusts. Upon completion of the
merger or consolidation, if the Trust is the surviving or resulting statutory
trust, 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. The Board of Trustees, by vote of a majority of the
Trustees, may cause (i) the Trust to convert to an "other business entity" (as
defined in Section 3801 of the DSTA) formed or organized under the laws of the
State of Delaware as permitted pursuant to Section 3821 of the DSTA; (ii) the
Shares of the Trust or any Series to be converted into beneficial interests in
another statutory trust (or series thereof) created pursuant to this Section 2
of this Article VIII, or (iii) the Shares to be exchanged under or pursuant to
any state or federal statute to the extent permitted by law. Any such statutory
conversion, Share conversion or Share exchange shall not require the vote of the
Shareholders unless such vote is required by the 1940 Act; provided however,
that the Board of Trustees shall provide at least thirty (30) days' prior
written notice to the Shareholders of the Trust of any conversion of Shares of
the Trust pursuant to Subsections (b)(i) or (b)(ii) of this Section 2 or
exchange of Shares of the Trust pursuant to Subsection (b)(iii) of this Section
2, and at least thirty (30) days' prior written notice to the Shareholders of a
particular Series of any conversion of Shares of such Series pursuant to
Subsection (b)(ii) of this Section 2 or exchange of Shares of such Series
pursuant to Subsection (b)(iii) of this Section 2. In all respects not governed
by the DSTA, the 1940 Act, other applicable law or the requirements of any
securities exchange on which Shares are listed for trading, the Board of
Trustees shall have the power to prescribe additional procedures necessary or
appropriate to accomplish a statutory conversion, Share conversion or Share
exchange, including the power to create one or more separate statutory trusts to
which all or any part of the assets, liabilities, profits or losses of the Trust
may be transferred and to provide for the conversion of Shares of the Trust or
any Series thereof into beneficial interests in such separate statutory trust or
trusts (or series thereof).
(c) Reorganization. The Board of Trustees, by vote of a majority of
the Trustees, may cause the Trust to sell, convey and transfer all or
substantially all of the assets of the Trust ("sale of Trust assets") or all or
substantially all of the assets associated with any one or more Series ("sale of
such Series' assets"), to another trust, statutory trust, partnership, limited
partnership, limited liability company, corporation or other association
organized under the laws of any state, or to one or more separate series
thereof, or to the Trust to be held as assets
32
associated with one or more other Series of the Trust, in exchange for cash,
shares or other securities (including, without limitation, in the case of a
transfer to another Series of the Trust, Shares of such other Series) with such
sale, conveyance and transfer either (a) being made subject to, or with the
assumption by the transferee of, the liabilities associated with the Trust or
the liabilities associated with the Series the assets of which are so
transferred, as applicable, or (b) not being made subject to, or not with the
assumption of, such liabilities. Any such sale, conveyance and transfer shall
not require the vote of the Shareholders unless such vote is required by the
1940 Act; provided however, that the Board of Trustees shall provide at least
thirty (30) days' prior written notice to the Shareholders of the Trust of any
such sale of Trust assets, and at least thirty (30) days prior written notice to
the Shareholders of a particular Series of any sale of such Series' assets.
Following such sale of Trust assets, the Board of Trustees shall distribute such
cash, shares or other securities ratably among the Shareholders of the Trust
(giving due effect to the assets and liabilities associated with and any other
differences among the various Series the assets associated with which have been
so sold, conveyed and transferred, and due effect to the differences among the
various Classes within each such Series). Following a sale of such Series'
assets, the Board of Trustees shall distribute such cash, shares or other
securities ratably among the Shareholders of such Series (giving due effect to
the differences among the various Classes within each such Series). If all of
the assets of the Trust have been so sold, conveyed and transferred, the Trust
shall be dissolved; and if all of the assets of a Series have been so sold,
conveyed and transferred, such Series and the Classes thereof shall be
dissolved. In all respects not governed by the DSTA, the 1940 Act or other
applicable law, the Board of Trustees shall have the power to prescribe
additional procedures necessary or appropriate to accomplish such sale,
conveyance and transfer, including the power to create one or more separate
statutory trusts to which all or any part of the assets, liabilities, profits or
losses of the Trust may be transferred and to provide for the conversion of
Shares into beneficial interests in such separate statutory trust or trusts.
Section 3. Master Feeder Structure. If permitted by the 1940 Act, the Board
of Trustees, by vote of a majority of the Trustees, and without a Shareholder
vote, may cause the Trust or any one or more Series to convert to a master
feeder structure (a structure in which a feeder fund invests all of its assets
in a master fund, rather than making investments in securities directly) and
thereby cause existing Series of the Trust to either become feeders in a master
fund, or to become master funds in which other funds are feeders.
Section 4. Absence of Appraisal or Dissenters' Rights. No Shareholder shall
be entitled, as a matter of right, to relief as a dissenting Shareholder in
respect of any proposal or action involving the Trust or any Series or any Class
thereof.
ARTICLE IX.
AMENDMENTS
Section 1. Amendments Generally. This Declaration of Trust may be restated
and/or amended at any time by an instrument in writing signed by not less than a
majority of the Board of Trustees and, to the extent required by this
Declaration of Trust, the 1940 Act or the requirements of any securities
exchange on which Shares are listed for trading, by approval of
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such amendment by the Shareholders in accordance with Article III, Section 6
hereof and Article V 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 shall be restated
and/or amended at any time by the Board of Trustees, without Shareholder
approval, to correct any inaccuracy contained therein. Any such restatement
and/or amendment of the Certificate of Trust shall be executed by at least one
(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.
ARTICLE X.
MISCELLANEOUS
Section 1. References; Headings; Counterparts. In this Declaration of Trust
and in any restatement hereof and/or amendment hereto, references to this
instrument, and all expressions of similar effect to "herein," "hereof' and
"hereunder," shall be deemed to refer to this instrument as so restated and/or
amended. Headings are placed herein for convenience of reference only and shall
not be taken as a part hereof or control or affect the meaning, construction or
effect of this instrument. Whenever the singular number is used herein, the same
shall include the plural; and the neuter, masculine and feminine genders shall
include each other, as applicable. Any references herein to specific sections of
the DSTA, the Code or the 1940 Act shall refer to such sections as amended from
time to time or any successor sections thereof. This instrument may be executed
in any number of counterparts, each of which shall be deemed an original.
Section 2. Applicable Law. This Declaration of Trust is created under and
is to be governed by and construed and administered according to the laws of the
State of Delaware and the applicable provisions of the 1940 Act and the Code.
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 3. Provisions in Conflict with Law or Regulations.
(a) The provisions of this Declaration of Trust are severable, and if
the Board of Trustees shall determine, with the advice of counsel, that any of
such provisions is in conflict with the 1940 Act, the Code, the DSTA, or with
other applicable laws and regulations, the conflicting provision shall be deemed
not to have constituted a part of this Declaration of Trust from the time when
such provisions became inconsistent with such laws or regulations; provided,
however, that such determination shall not affect any of the remaining
provisions of this Declaration of Trust or render invalid or improper any action
taken or omitted prior to such determination.
(b) If any provision of this Declaration of Trust shall be held
invalid or unenforceable in any jurisdiction, such invalidity or
unenforceability shall attach only to such provision in such jurisdiction and
shall not in any manner affect such provision in any other jurisdiction or any
other provision of this Declaration of Trust in any jurisdiction.
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Section 4. Statutory Trust Only. It is the intention of the Trustees to
create hereby a statutory trust pursuant to the DSTA, and thereby to create the
relationship of trustee and beneficial owners within the meaning of the DSTA
between, respectively, 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 5. Use of Name. The Board of Trustees expressly agrees and
acknowledges that the name "Cheswold Lane" is the sole property of Cheswold Lane
Asset Management, LLC ("C-XXX"), and, with respect to such name, that similar
names may from time to time be used by other funds in the investment business
that are affiliated with C-XXX. C-XXX has consented to the use by the Trust of
the identifying words "Cheswold Lane" and has granted to the Trust a
nonexclusive license to use the name "Cheswold Lane" as part of the name of the
Trust and the name of any Series of Shares. The Trust further expressly agrees
and acknowledges that the non-exclusive license granted herein may be terminated
by C-XXX if the Trust ceases to use C-XXX, an affiliate of C-XXX or their
successors as investment adviser. In such event, the non-exclusive license
granted herein may be revoked by C-XXX and the Trust shall cease using the name
"Cheswold Lane" as part of its name or the name of any Series of Shares, unless
otherwise consented to by C-XXX or any successor to its interests in such name.
The Trust further understands and agrees that so long as C-XXX and/or its
affiliates shall continue to serve as the Trust's investment adviser, other
mutual funds or other investment products that may be sponsored or advised by
C-XXX and/or its affiliates shall have the right permanently to adopt and to use
the words "Cheswold Lane" in their names and in the names of any series or class
of shares of such funds or other investment products.
IN WITNESS WHEREOF, the Trustees named below do hereby make and enter into
this Agreement and Declaration of Trust as of the date first written above.
/s/ Xxxx X. Xxxxxxx /s/ Xxxxxx X. Xxxxxxxx
Xxxx X. Xxxxxxx Xxxxxx X. Xxxxxxxx
Trustee Trustee
