AGREEMENT AND DECLARATION OF TRUST
OF
XXX XXXXXX AMERICAN CAPITAL EQUITY TRUST
May 10, 1995
XXX XXXXXX AMERICAN CAPITAL EQUITY TRUST
AGREEMENT AND DECLARATION OF TRUST
Index
RECITALS ..........................................................1
ARTICLE 1 THE TRUST.................................................2
SECTION 1.1 Name......................................................2
SECTION 1.2. Location..................................................2
SECTION 1.3. Nature of Trust ..........................................2
SECTION 1.4. Definitions ..............................................2
SECTION 1.5. Real Property to be Converted into Personal Property......5
ARTICLE 2 PURPOSE OF THE TRUST......................................5
ARTICLE 3 POWERS OF THE TRUSTEES ...................................6
SECTION 3.1. Powers in General ........................................6
(a) Investments ....................................................6
(b) Disposition of Assets...........................................7
(c) Ownership Powers ...............................................7
(d) Form of Holding.................................................7
(e) Reorganization, etc.............................................7
(f) Voting Trusts, etc..............................................7
(g) Contracts, etc..................................................7
(h) Guarantees, etc. ...............................................7
(i) Partnerships, etc...............................................8
(j) Insurance .....................................................8
(k) Pensions, etc...................................................8
(l) Power of Collection and Litigation .............................8
(m) Issuance and Repurchase of Shares ..............................8
(n) Offices .....................................................8
(o) Expenses .....................................................8
(p) Agents, etc.....................................................9
(q) Accounts .....................................................9
(r) Valuation .....................................................9
(s) Indemnification ................................................9
(t) General .....................................................9
SECTION 3.2. Borrowings; Financings; Issuance of Securities ...........9
i
SECTION 3.3. Deposits..................................................9
SECTION 3.4. Allocations .............................................10
SECTION 3.5. Further Powers; Limitations..............................10
ARTICLE 4 TRUSTEES AND OFFICERS ...................................10
SECTION 4.1. Number, Designation, Election, Term, etc.................10
(a) Initial Trustee................................................10
(b) Number ....................................................10
(c) Election and Term .............................................11
(d) Resignation and Retirement ....................................11
(e) Removal ....................................................11
(f) Vacancies ....................................................11
(g) Acceptance of Trusts ..........................................11
(h) Effect of Death, Resignation, etc..............................12
(i) Conveyance ....................................................12
(j) No Accounting .................................................12
SECTION 4.2. Trustees' Meetings; Participation by Telephone, etc......12
SECTION 4.3. Committees; Delegation ..................................12
SECTION 4.4. Officers ................................................13
SECTION 4.5. Compensation of Trustees and Officers....................13
SECTION 4.6. Ownership of Shares and Securities of the Trust .........13
SECTION 4.7. Right of Trustees and Officers to Own Property or to Engage
in Business; Authority of Trustees to Permit Others to Do
Likewise ................................................13
SECTION 4.8. Reliance on Experts .....................................13
SECTION 4.9. Surety Bonds ............................................14
SECTION 4.10. Apparent Authority of Trustees and Officers..............14
SECTION 4.11. Other Relationships Not Prohibited ......................14
SECTION 4.12. Payment of Trust Expenses................................14
SECTION 4.13. 0wnership of the Trust Property..........................15
ii
SECTION 4.14. By-Laws..................................................15
ARTICLE 5 DELEGATION OF MANAGERIAL RESPONSIBILITIES................15
SECTION 5.1. Appointment; Action by Less than All Trustees............15
SECTION 5.2. Certain Contracts........................................15
(a) Advisory ....................................................16
(b) Administration ................................................16
(c) Underwriting ..................................................16
(d) Custodian ....................................................16
(e) Transfer and Dividend Disbursing Agent ........................17
(f) Shareholder Servicing .........................................17
(g) Accounting ....................................................17
Section 5.3. Distribution Arrangements ...............................17
Section 5.4. Service Arrangements.....................................17
ARTICLE 6 SERIES AND SHARES .......................................17
SECTION 6.1. Description of Series and Shares.........................17
(a) General ....................................................17
(b) Establishment, etc. of Series; Authorization of Shares.........18
(c) Character of Separate Series and Shares Thereof ...............18
(d) Consideration for Shares ......................................18
(e) Assets Belonging to Series ....................................19
(f) Liabilities of Series .........................................19
(g) Dividends ....................................................19
(h) Liquidation....................................................20
(i) Voting ....................................................20
(j) Redemption by Shareholder......................................20
(k) Redemption at the Option of the Trust..........................21
(l) Net Asset Value................................................21
(m) Transfer ....................................................21
(n) Equality ....................................................21
(o) Rights of Fractional Shares ...................................22
(p) Conversion Rights..............................................22
SECTION 6.2. Ownership of Shares .....................................22
SECTION 6.3. Investments in the Trust.................................23
SECTION 6.4. No Pre-emptive Rights....................................23
iii
SECTION 6.5. Status of Shares .......................................23
ARTICLE 7 SHAREHOLDERS' VOTING POWERS AND MEETINGS................23
SECTION 7.1. Voting Powers...........................................23
SECTION 7.2. Number of Votes and Manner of Voting; Proxies...........24
SECTION 7.3. Meetings................................................24
SECTION 7.4. Record Dates ...........................................24
SECTION 7.5. Quorum and Required Vote ...............................25
SECTION 7.6. Action by Written Consent ..............................25
SECTION 7.7. Inspection of Records...................................25
SECTION 7.8. Additional Provisions...................................25
ARTICLE 8 LIMITATION OF LIABILITY; INDEMNIFICATION................25
SECTION 8.1. Trustees, Shareholders, etc. Not Personally Liable;
Notice................................................. 25
SECTION 8.2. Trustees' Good Faith Action; Expert Advice; No Bond or
Surety..................................................26
SECTION 8.3. Indemnification of Shareholders ........................26
SECTION 8.4. Indemnification of Trustees, Officers, etc. ............27
SECTION 8.5. Compromise Payment .....................................27
SECTION 8.6. Indemnification Not Exclusive, etc......................28
SECTION 8.7. Liability of Third Persons Dealing with Trustees........28
ARTICLE 9 DURATION; REORGANIZATION; INCORPORATION;
AMENDMENTS..............................................28
SECTION 9.1. Duration of Trust ......................................28
SECTION 9.2. Termination of Trust ...................................28
SECTION 9.3. Reorganization..........................................29
SECTION 9.4. Incorporation...........................................29
iv
SECTION 9.5. Amendments; etc.........................................29
SECTION 9.6. Filing of Copies of Declaration and Amendments..........30
ARTICLE 10 MISCELLANEOUS ..........................................30
SECTION 10.1. Notices ................................................30
SECTION 10.2. Governing Law ..........................................30
SECTION 10.3. Counterparts............................................30
SECTION 10.4. Reliance by Third Parties...............................30
SECTION 10.5. References; Headings ...................................31
SECTION 10.6. Provisions in Conflict With Law or Regulation...........31
SECTION 10.7. Use of the Name "Xxx Xxxxxx American Capital" ..........31
Signature .....................................................32
Acknowledgments .....................................................33
v
AGREEMENT AND DECLARATION OF TRUST
OF
XXX XXXXXX AMERICAN CAPITAL EQUITY TRUST
This AGREEMENT AND DECLARATION OF TRUST, made at this 10th day of
May, 1995, by and between Xxxxxx X. Xxxxxx, an individual residing in
Naperville, Illinois (the "Settlor"), and the Trustee whose signature is set
forth below (the "Initial Trustee").
W I T N E S S E T H T H A T:
WHEREAS, the Settlor proposes to deliver to the Initial Trustee the sum
of one hundred dollars ($100.00) lawful money of the United States of America
in trust hereunder and to authorize the Initial Trustee and all other
individuals acting as Trustees hereunder to employ such funds, and any other
funds coming into their hands or the hands of their successor or successors as
such Trustees, to carry on the business of an investment company and as such
of buying, selling, investing or otherwise dealing in and with stocks, bonds,
debentures, warrants and other securities and interests therein, financial
futures contracts, or options with respect to securities or financial futures
contracts, and such other and further investment media and other property as
the Trustees may deem advisable, which are not prohibited by law or the terms
of this Declaration; and
WHEREAS, the Initial Trustee is willing to accept such sum, together
with any and all additions thereto and the income or increments thereof, upon
the terms, conditions and trusts hereinafter set forth; and
WHEREAS, the beneficial interest in the assets held by the Trustees
shall be divided into transferable Shares, all in accordance with the
provisions hereinafter set forth; and
WHEREAS, it is desired that the trust established hereby be managed and
operated as a trust with transferable shares under the laws of Delaware with
respect to Delaware business trusts in accordance with the provisions
hereinafter set forth;
NOW, THEREFORE, the Initial Trustee, for himself and his successors as
Trustees, hereby declares and agrees with the Settlor, for himself and for all
Persons who shall hereafter become holders of Shares that the Trustees will
hold the sum delivered to them upon the execution hereof, and all other and
further cash, securities and other property of every type and description
which they may in any way acquire in their capacity as such Trustees, together
with the income therefrom and the proceeds thereof, IN TRUST NEVERTHELESS, to
manage and dispose of the same for the benefit of the holders from time to
time of the Shares being issued and to be issued hereunder and in the manner
and subject to the provisions hereof, to wit:
1
ARTICLE 1
THE TRUST
SECTION 1.1 Name. The name of the Trust shall be
"XXX XXXXXX AMERICAN CAPITAL EQUITY TRUST"
and so far as may be practicable, the Trustees shall conduct the Trust's
activities, execute all documents and xxx or be sued under that name, which
name (and the word "Trust" wherever used in this Agreement and Declaration of
Trust, except where the context otherwise requires) shall refer to the
Trustees in their capacity as Trustees, and not individually or personally,
and shall not refer to the officers, agents or employees of the Trust or of
such Trustees, or to the holders of the Shares of Beneficial Interest of the
Trust or any Series. If the Trustees determine that the use of such name is
not practicable, legal or convenient at any time or in any jurisdiction, or if
the Trust is required to discontinue the use of such name pursuant to Section
10.7 hereof, then subject to that Section, the Trustees may use such other
designation, or they may adopt such other name for the Trust as they deem
proper, and the Trust may hold property and conduct its activities under such
designation or name.
SECTION 1.2. Location. The Trust shall maintain a registered office in
the State of Delaware and may have such other offices or places of business as
the Trustees may from time to time determine to be necessary or expedient.
SECTION 1.3. Nature of Trust. The Trust shall be a trust with
transferable shares under the laws of The State of Delaware, of the type
defined in Title 12, Chapter 38, Section 3801 of the Delaware Code as a
business trust. The Trust is not intended to be, shall not be deemed to be,
and shall not be treated as, a general partnership, limited partnership, joint
venture, corporation or joint stock company. The Shareholders shall be
beneficiaries and their relationship to the Trustees shall be solely in that
capacity in accordance with the rights conferred upon them hereunder.
SECTION 1.4. Definitions. As used in this Agreement and Declaration of
Trust, the following terms shall have the meanings set forth below unless the
context thereof otherwise requires:
"Accounting Agent" shall have the meaning designated in Section 5.2(g)
hereof.
"Administrator" shall have the meaning designated in Section 5.2(b)
hereof.
"Affiliated Person" shall have the meaning assigned to it in the 1940
Act.
"By-Laws" shall mean the By-Laws of the Trust, as amended from time to
time.
"Certificate of Designation" shall have the meaning designated in
Section 6.1 hereof.
"Certificate of Termination" shall have the meaning designated in
Section 6.1 hereof.
"Class" or "Classes" shall mean, with respect to any Series, any
unissued Shares of such Series in respect of which the Trustees shall from
time to time fix and determine any special provisions relating to sales
charges, any rights of redemption and the price, terms and manner of
redemption, special and relative rights as to dividends and other
distributions and on liquidation, sinking or purchase fund
2
provisions, conversion rights, and conditions under which the Shareholders of
such Class shall have separate voting rights or no voting rights.
"Commission" shall have the same meaning as in the 1940 Act.
"Contracting Party" shall have the meaning designated in the preamble to
Section 5.2 hereof.
"Conversion Date" shall mean with respect to Shares of any Class that
are convertible automatically into Shares of any other Class of a Series the
date fixed by the Trustees for such conversion.
"Covered Person" shall have the meaning designated in Section 8.4
hereof.
"Custodian" shall have the meaning designated in Section 5.2(d) hereof.
"Declaration" and "Declaration of Trust" shall mean this Agreement and
Declaration of Trust and all amendments or modifications thereof as from time
to time in effect. This Agreement and Declaration of Trust is the "governing
instrument" of the Trust within the meaning of the laws of the State of
Delaware with respect to Delaware business trusts. References in this
Agreement and Declaration of Trust to "hereof", "herein" and "hereunder" shall
be deemed to refer to the Declaration of Trust generally, and shall not be
limited to the particular text, Article or Section in which such words
appear.
"Disabling Conduct" shall have the meaning designated in Section 8.4
hereof.
"Distributor" shall have the meaning designated in Section 5.2(c) hereof.
"Dividend Disbursing Agent" shall have the meaning designated in Section
5.2(e) hereof.
"General Items" shall have the meaning defined in Section 6.2(a) hereof.
"Initial Trustee" shall have the meaning defined in the preamble hereto.
"Investment Advisor" shall have the meaning defined in Section 5.2(a)
hereof.
"Majority of the Trustees" shall mean a majority of the Trustees in office
at the time in question. At any time at which there shall be only one (1)
Trustee in office, such term shall mean such Trustee.
"Majority Shareholder Vote," as used with respect to (a) the election of
any Trustee at a meeting of Shareholders, shall mean the vote for the election
of such Trustee of a plurality of all outstanding Shares of the Trust, without
regard to Series, represented in person or by proxy and entitled to vote
thereon, provided that a quorum (as determined in accordance with the By-Laws)
is present, (b) any other action required or permitted to be taken by
Shareholders, shall mean the vote for such action of the holders of that
majority of all outstanding Shares (or, where a separate vote of Shares of
any particular Series is to be taken, the affirmative vote of that majority
of the outstanding Shares of that Series) of the Trust which consists of:
(i) a majority of all Shares (or of Shares of the particular Series)
represented in person or by proxy and entitled to vote on such action at the
meeting of Shareholders at which such action is to be taken, provided that a
quorum (as determined in accordance with the By-Laws) is present; or (ii) if
such action is to be taken by written consent of Shareholders, a majority of
all Shares (or of Shares of the particular Series) issued and outstanding and
entitled to vote on such action; provided that (iii) as used with respect to
any action requiring the affirmative vote of "a majority of the outstanding
voting
3
securities," as the quoted phrase is defined in the 1940 Act, of the Trust or of
any Series, "Majority Shareholder Vote" means the vote for such action at a
meeting of Shareholders of the smallest majority of all outstanding Shares of
the Trust (or of Shares of the particular Series) entitled to vote on such
action which satisfies such 1940 Act voting requirement.
"1940 Act" shall mean the provisions of the Investment Company Act of 1940
and the rules and regulations thereunder, both as amended from time to time,
and any order or orders thereunder which may from time to time be applicable
to the Trust.
"Person" shall mean and include individuals, as well as corporations,
limited partnerships, general partnerships, joint stock companies, joint
ventures, associations, banks, trust companies, land trusts, business trusts
or other organizations established under the laws of any jurisdiction, whether
or not considered to be legal entities, and governments and agencies and
political subdivisions thereof.
"Principal Underwriter" shall have the meaning designated in Section 5.2(c)
hereof.
"Prospectus," as used with respect to the Trust (or the Shares of a
particular Series), shall mean the prospectus relating to the Trust (or such
Series) which constitutes part of the currently effective Registration
Statement of the Trust under the Securities Act of 1933, as such prospectus
may be amended or supplemented from time to time.
"Securities" shall have the same meaning ascribed to that term in the
Securities Act of 1993.
"Series" shall mean one or more of the series of Shares authorized by the
Trustees to represent the beneficial interest in one or more separate components
of the assets of the Trust which are now or hereafter established and designated
under or in accordance with the provisions of Article 6 hereof.
"Settlor" shall have the meaning defined in the preamble hereto.
"Shareholder" shall mean as of any particular time any Person shown of record
at such time on the books of the Trust as a holder of outstanding Shares of any
Series, and shall include a pledgee into whose name any such Shares are
transferred in pledge.
"Shareholder Servicing Agent" shall have the meaning designated in Section
5.2(f) hereof.
"Shares" shall mean the transferable units into which the beneficial
interest in the Trust and each Series of the Trust (as the context may require)
shall be divided from time to time, and includes fractions of Shares as well
as whole Shares. All references herein to "Shares" which are not accompanied
by a reference to any particular Series or Class shall be deemed to apply to
outstanding Shares without regard to Series or Class.
"Single Class Voting," as used with respect to any matter to be acted upon
at a meeting or by written consent of Shareholders, shall mean a style of
voting in which each holder of one or more Shares shall be entitled to one
vote on the matter in question for each Share standing in his name on the
records of the Trust, irrespective of Series or Class of a Series, and all
outstanding Shares of all Series vote as a single class.
"Statement of Additional Information," as used with respect to the Trust
(or any Series), shall mean the statement of additional information relating
to the Trust (or such Series) which constitutes part of the
4
currently effective Registration Statement of the Trust under the Securities
Act of 1933, as such statement of additional information may be amended or
supplemented from time to time.
"Transfer Agent" shall have the meaning defined in Section 5.2(e) hereof.
"Trust" shall mean the trust named in Section 1.1 hereof.
"Trust Property" shall mean, as of any particular time, any and all property
which shall have been transferred, conveyed or paid to the Trust or the
Trustees, and all interest, dividends, income, earnings, profits and gains
therefrom, and proceeds thereof, including any proceeds derived from the sale,
exchange or liquidation thereof, and any funds or payments derived from any
reinvestment of such proceeds in whatever form the same may be, and which at
such time is owned or held by, or for the account of, the Trust or the
Trustees, without regard to the Series to which such property is allocated.
"Trustees" shall mean, collectively, the Initial Trustee, so long as he
shall continue in office, and all other individuals who at the time in question
have been duly elected or appointed as Trustees of the Trust in accordance with
the provisions hereof and who have qualified and are then in office. At any
time at which there shall be only one (I) Trustee in office, such term shall
mean such single Trustee.
SECTION 1.5. Real Property to be Converted into Personal Property.
Notwithstanding any other provision hereof, any real property at any time
forming part of the Trust Property shall be held in trust for sale and
conversion into personal property at such time or times and in such manner and
upon such terms as the Trustees shall approve, but the Trustees shall have
power until the termination of this Trust to postpone such conversion as long
as they in their uncontrolled discretion shall think fit, and for the purpose
of determining the nature of the interest of the Shareholders therein, all
such real property shall at all times be considered as personal
property.
ARTICLE 2
PURPOSE OF THE TRUST
The purpose of the Trust shall be to (a) manage, conduct, operate and
carry on the business of an investment company; (b) subscribe for, invest in,
reinvest in, purchase or otherwise acquire, hold, pledge, sell, assign,
transfer, exchange, distribute or otherwise deal in or dispose of any and all
sorts of property, tangible or intangible, including but not limited to
Securities of any type whatsoever, whether equity or nonequity, of any issuer,
evidences of indebtedness of any person and any other rights, interest,
instruments or property of any sort to exercise any and all rights, powers and
privileges of ownership or interest in respect of any and all such investment
of every kind and description, including without limitation, the right to
consent and otherwise act with respect thereto, with power to designate one or
more Persons to exercise any of said rights, powers and privileges in respect
of any of said investments. The Trustees shall not be limited by any law
limiting the investments which may be made by fiduciaries.
5
ARTICLE 3
POWERS OF THE TRUSTEES
SECTION 3.1. Powers in General. The Trustees shall have, without other
or further authorization, full, entire, exclusive and absolute power, control
and authority over, and management of, the business of the Trust and over the
Trust Property, to the same extent as if the Trustees were the sole owners of
the business and property of the Trust in their own right, and with such
powers of delegation as may be permitted by this Declaration, subject only to
such limitations as may be expressly imposed by this Declaration of Trust or
by applicable law. The enumeration of any specific power or authority herein
shall not be construed as limiting the aforesaid power or authority or any
specific power or authority. Without limiting the foregoing; they may select,
and from time to time change, the fiscal year of the Trust; they may adopt and
use a seal for the Trust, provided that unless otherwise required by the
Trustees, it shall not be necessary to place the seal upon, and its absence
shall not impair the validity of, any document, instrument or other paper
executed and delivered by or on behalf of the Trust; they may from time to
time in accordance with the provisions of Section 6.1 hereof establish one or
more Series to which they may allocate such of the Trust Property, subject to
such liabilities, as they shall deem appropriate, each such Series to be
operated by the Trustees as a separate and distinct investment medium and with
separately defined investment objectives and policies and distinct investment
purposes, all as established by the Trustees, or from time to time changed by
them; they may as they consider appropriate elect and remove officers and
appoint and terminate agents and consultants and hire and terminate employees,
any one or more of the foregoing of whom may be a Trustee; they may appoint
from their own number, and terminate, any one or more committees consisting of
one or more Trustees, including without implied limitation an Executive
Committee, which may, when the Trustees are not in session and subject to the
1940 Act, exercise some or all of the power and authority of the Trustees as
the Trustees may determine; in accordance with Section 5.2 they may employ one
or more Investment Advisers, Administrators and Custodians and may authorize
any such service provider to employ one or more other service providers and
to deposit all or any part of such assets in a system or systems for the
central handling of Securities, retain Transfer, Dividend Disbursing,
Accounting or Shareholder Servicing Agents or any of the foregoing, provide
for the distribution of Shares by the Trust through one or more Distributors,
Principal Underwriters or otherwise, set record dates or times for the
determination of Shareholders entitled to participate in, benefit from or act
with respect to various matters; and in general they may delegate to any
officer of the Trust, to any Committee of the Trustees and to any employee,
Investment Adviser, Administrator, Distributor, Custodian, Transfer Agent,
Dividend Disbursing Agent, or any other agent or consultant of the Trust, such
authority, powers, functions and duties as they consider desirable or
appropriate for the conduct of the business and affairs of the Trust,
including without implied limitation the power and authority to act in the
name of the Trust and of the Trustees, to sign documents and to act as
attorney-in-fact for the Trustees. Without limiting the foregoing and to the
extent not inconsistent with the 1940 Act or other applicable law, the
Trustees shall have power and authority:
(a) Investments. To subscribe for, invest in, reinvest in, purchase or
otherwise acquire, hold, pledge, sell, assign, transfer, exchange, distribute
or otherwise deal in or dispose of any and all sorts of property, tangible or
intangible, including but not limited to Securities of any type whatsoever,
whether equity or nonequity, of any issuer, evidences of indebtedness of any
person and any other rights, interest, instruments or property of any sort, to
exercise any and all rights, powers and privileges of ownership or interest in
respect of any and all such investments of every kind and description,
including without limitation the right to consent and otherwise act with
respect thereto, with power to designate one or more
6
Persons to exercise any of said rights, powers and privileges in respect of
any of said investments, in every case without being limited by any law
limiting the investments which may be made by fiduciaries;
(b) Disposition of Assets. Upon such terms and conditions as they deem
best, to lend, sell, exchange, mortgage, pledge, hypothecate, grant security
interests in, encumber, negotiate, convey, transfer or otherwise dispose of,
and to trade in, any and all of the Trust Property, free and clear of all
trusts, for cash or on terms, with or without advertisement, and on such terms
as to payment, security or otherwise, all as they shall deem necessary or
expedient;
(c) Ownership Powers. To vote or give assent, or exercise any and all
other rights, powers and privileges of ownership with respect to, and to
perform any and all duties and obligations as owners of, any Securities or
other property forming part of the Trust Property, the same as any individual
might do; to exercise powers and rights of subscription or otherwise which in
any manner arise out of ownership of Securities, and to receive powers of
attorney from, and to execute and deliver proxies or powers of attorney to,
such Person or Persons as the Trustees shall deem proper, receiving from or
granting to such Person or Persons such power and discretion with relation to
Securities or other property of the Trust, all as the Trustees shall deem
proper;
(d) Form of Holding. To hold any Security or other property in a form
not indicating any trust, whether in bearer, unregistered or other negotiable
form, or in the name of the Trustees or of the Trust, or of the Series to
which such Securities or property belong, or in the name of a Custodian,
subcustodian or other nominee or nominees, or otherwise, upon such terms, in
such manner or with such powers, as the Trustees may determine, and with or
without indicating any trust or the interest of the Trustees therein;
(e) Reorganizations etc. To consent to or participate in any plan for
the reorganization, consolidation or merger of any corporation or issuer, any
Security of which is or was held in the Trust or any Series; 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 forming
part of the Trust Property;
(f) Voting Trusts, etc. To join with other holders of any Securities in
acting through a committee, depository, voting trustee or otherwise, and in
that connection to deposit any Security with, or transfer any Security to, any
such committee, depository 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,
depository or trustee as the Trustees shall deem proper;
(g) Contracts. etc. To enter into, make and perform all such
obligations, contracts, agreements and undertakings of every kind and
description, with any Person or Persons, as the Trustees shall in their
discretion deem expedient in the conduct of the business of the Trust, for
such terms as they shall see fit, whether or not extending beyond the term of
office of the Trustees, or beyond the possible expiration of the Trust; to
amend, extend, release or cancel any such obligations, contracts, agreements
or understandings; and to execute, acknowledge, deliver and record all written
instruments which they may deem necessary or expedient in the exercise of
their powers;
(h) Guarantees. etc. 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; and to mortgage and pledge
the Trust Property or any part thereof to secure any of or all such
obligations;
7
(i) Partnerships, etc. To enter into joint ventures, general or limited
partnerships and any other combinations or association;
(j) Insurance. To purchase and pay for entirely out of Trust Property
such insurance as they may deem necessary or appropriate for the conduct of
the business, including, without limitation, insurance policies insuring the
assets of the Trust and payment of distributions and principal on its
portfolio investments, and insurance policies insuring the Shareholders,
Trustees, officers, employees, agents, consultants, Investment Advisers,
managers, Administrators, Distributors, Principal Underwriters, or other
independent contractors, or any thereof (or any Person connected therewith),
of the Trust, individually, against all claims and liabilities of every nature
arising by reason of holding, being or having held any such office or
position, or by reason of any action alleged to have been taken or omitted by
any such Person in any such capacity, whether or not the Trust would have the
power to indemnify such Person against such liability;
(k) Pensions, etc. To pay pensions for faithful service, as deemed
appropriate by the Trustees, and to adopt, establish and carry out pension,
profit sharing, share bonus, share purchase, savings, thrift, deferred
compensation 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;
(l) Power of Collection and Litigation. To collect, xxx for and receive
all sums of money coming due to the Trust, to employ counsel, and to commence,
engage in, prosecute, intervene in, join, defend, compound, compromise, adjust
or abandon, in the name of the Trust, any and all actions, suits, proceedings,
disputes, claims, controversies, demands or other litigation or legal
proceedings relating to the Trust, the business of the Trust, the Trust
Property, or the Trustees, officers, employees, agents and other independent
contractors of the Trust, in their capacity as such, at law or in equity, or
before any other bodies or tribunals, and to compromise, arbitrate or
otherwise adjust any dispute to which the Trust may be a party, whether or not
any suit is commenced or any claim shall have been made or asserted. Except to
the extent required for a Delaware business trust, the Shareholders shall have
no power to vote as to whether or not a court action, legal proceeding or
claim should or should not be brought or maintained derivatively or as a class
action on behalf of the Trust or the Shareholders.
(m) Issuance and Repurchase of Shares. To authorize, issue, sell,
repurchase, redeem, retire, cancel, acquire, hold, resell, reissue, dispose
of, transfer, and otherwise deal in Shares of any Series, and, subject to
Article 6 hereof, to apply to any such repurchase, redemption, retirement,
cancellation or acquisition of Shares of any Series, any of the assets
belonging to the Series to which such Shares relate, whether constituting
capital or surplus or otherwise, to the full extent now or hereafter permitted
by applicable law; provided that any Shares belonging to the Trust shall not
be voted, directly or indirectly;
(n) Offices. To have one or more offices, and to carry on all or any of
the operations and business of the Trust, in any of the States, Districts or
Territories of the United States, and in any and all foreign countries,
subject to the laws of such State, District, Territory or country;
(o) Expenses. To incur and pay any and all such expenses and charges as
they may deem advisable (including without limitation appropriate fees to
themselves as Trustees), and to pay all such sums of money for which they may
be held liable by way of damages, penalty, fine or otherwise;
8
(p) Agents, etc. To retain and employ any and all such servants, agents,
employees, attorneys, brokers, Investment Advisers, accountants, architects,
engineers, builders, escrow agents, depositories, consultants, ancillary
trustees, custodians, agents for collection, insurers, banks and officers, as
they think best for the business of the Trust or any Series, to supervise and
direct the acts of any of the same, and to fix and pay their compensation and
define their duties;
(q) Accounts. To determine, and from time to time change, the method or
form in which the accounts of the Trust or any Series shall be kept;
(r) Valuation. Subject to the requirements of the 1940 Act, to determine
from time to time the value of all or any part of the Trust Property and of
any services, Securities, property or other consideration to be furnished to
or acquired by the Trust, and from time to time to revalue all or any part of
the Trust Property in accordance with such appraisals or other information as
is, in the Trustees' sole judgment, necessary and satisfactory;
(s) Indemnification. In addition to the mandatory indemnification
provided for in Article 8 hereof and to the extent permitted by law, to
indemnify or enter into agreements with respect to indemnification with any
Person with whom this Trust has dealings, including, without limitation, any
independent contractor, to such extent as the Trustees shall determine;
and
(t) General. Subject to the fundamental policies in effect from time to
time with respect to the Trust, to do all such other acts and things and to
conduct, operate, carry on and engage in such other lawful businesses or
business activities as they shall in their sole and absolute discretion
consider to be incidental to the business of the Trust or any Series as an
investment company, and to exercise all powers which they shall in their
discretion consider necessary, useful or appropriate to carry on the business
of the Trust or any Series, to promote any of the purposes for which the Trust
is formed, whether or not such things are specifically mentioned herein, in
order to protect or promote the interests of the Trust or any Series, or
otherwise to carry out the provisions of this Declaration.
SECTION 3.2. Borrowings; Financings: Issuance of Securities. The
Trustees have power, subject to the fundamental policies in effect from time
to time with respect to the Trust, to borrow or in any other manner raise such
sum or sums of money, and to incur such other indebtedness for goods or
services, or for or in connection with the purchase or other acquisition of
property, as they shall deem advisable for the purposes of the Trust, in any
manner and on any terms, and to evidence the same by negotiable or
nonnegotiable Securities which may mature at any time or times, even beyond
the possible date of termination of the Trust; to issue Securities of any type
for such cash, property, services or other considerations, and at such time or
times and upon such terms, as they may deem advisable; and to reacquire any
such Securities. Any such Securities of the Trust may, at the discretion of
the Trustees, be made convertible into Shares of any Series, or may evidence
the right to purchase, subscribe for or otherwise acquire Shares of any
Series, at such times and on such terms as the Trustees may
prescribe.
SECTION 3.3. Deposits. Subject to the requirements of the 1940 Act, the
Trustees shall have power to deposit any moneys or Securities included in the
Trust Property with any one or more banks, trust companies or other banking
institutions, whether or not such deposits will draw interest. Such deposits
are to be subject to withdrawal in such manner as the Trustees may determine,
and the Trustees shall have no responsibility for any loss which may occur by
reason of the failure of the bank, trust company or other banking institution
with which any such moneys or Securities have been deposited, except as
provided in Section 8.2 hereof.
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SECTION 3.4. Allocations. The Trustees shall have power to determine
whether moneys or other assets received by the Trust shall be charged or
credited to income or capital, or allocated between income and capital,
including the power to amortize or fail to amortize any part or all of any
premium or discount, to treat any part or all of the profit resulting from the
maturity or sale of any asset, whether purchased at a premium or at a
discount, as income or capital, or to apportion the same between income and
capital, to apportion the sale price of any asset between income and capital,
and to determine in what manner any expenses or disbursements are to be borne
as between income and capital, whether or not in the absence of the power and
authority conferred by this Section 3.4 such assets would be regarded as
income or as capital or such expense or disbursement would be charged to
income or to capital; to treat any dividend or other distribution on any
investment as income or capital, or to apportion the same between income and
capital; to provide or fail to provide reserves, including reserves for
depreciation, amortization or obsolescence in respect of any Trust Property in
such amounts and by such methods as they shall determine; to allocate less
than all of the consideration paid for Shares of any Series to surplus with
respect to the Series to which such Shares relate and to allocate the balance
thereof to paid-in capital of that Series, and to reallocate such amounts from
time to time; all as the Trustees may reasonably deem
proper.
SECTION 3.5. Further Powers: Limitations. The Trustees shall have power
to do all such other matters and things, and to execute all such instruments,
as they deem necessary, proper or desirable in order to carry out, promote or
advance the interests of the Trust, although such matters or things are not
herein specifically mentioned. Any determination as to what is in the
interests of the Trust made by the Trustees in good faith shall be conclusive.
In construing the provisions of this Declaration of Trust, the presumption
shall be in favor of a grant of power to the Trustees. The Trustees shall not
be required to obtain any court order to deal with the Trust Property. The
Trustees may limit their right to exercise any of their powers through express
restrictive provisions in the instruments evidencing or providing the terms
for any Securities of the Trust or in other contractual instruments adopted on
behalf of the Trust.
ARTICLE 4
TRUSTEES AND OFFICERS
SECTION 4.1. Number. Designation, Election. Term, etc.
(a) Initial Trustee. Upon his execution of this Declaration of Trust or
a counterpart hereof or some other writing in which he accepts such
Trusteeship and agrees to the provisions hereof, the individual whose
signature is affixed hereto as Initial Trustee shall become the Initial
Trustee hereof.
(b) Number. The Trustees serving as such, whether named above or
hereafter becoming Trustees, may increase (to not more than twenty (20)) or
decrease the number of Trustees to a number other than the number theretofore
determined by a written instrument signed by a Majority of the Trustees (or by
an officer of the Trust pursuant to the vote of a Majority of the Trustees).
No decrease in the number of Trustees shall have the effect of removing any
Trustee from office prior to the expiration of his term, but the number of
Trustees may be decreased in conjunction with the removal of a Trustee
pursuant to subsection (e) of this Section 4.1.
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(c) Election and Term. The Trustees shall be elected by the Shareholders
of the Trust at the first meeting of Shareholders immediately prior to the
initial public offering of Shares of the Trust, and the term of office of any
Trustees in office before such election shall terminate at the time of such
election. Subject to Section 16(a) of the 1940 Act and to the preceding
sentence of this subsection (c), the Trustees shall have the power to set and
alter the terms of office of the Trustees, and at any time to lengthen or
shorten their own terms or make their terms of unlimited duration, to elect
their own successors and, pursuant to subsection (f) of this Section 4.1, to
appoint Trustees to fill vacancies; provided that Trustees shall be elected by
a Majority Shareholder Vote at any such time or times as the Trustees shall
determine that such action is required under Section 16(a) of the 1940 Act or,
if not so required, that such action is advisable; and further provided that,
after the initial election of Trustees by the Shareholders, the term of office
of any incumbent Trustee shall continue until the termination of this Trust or
his earlier death, resignation, retirement, bankruptcy, adjudicated
incompetency or other incapacity or removal, or if not so terminated, until
the election of such Trustee's successor in office has become effective in
accordance with this subsection (c).
(d) Resignation and Retirement. Any Trustee may resign his trust or
retire as a Trustee, by a written instrument signed by him and delivered to
the other Trustees or to any officer of the Trust, and such resignation or
retirement shall take effect upon such delivery or upon such later date as is
specified in such instrument.
(e) Removal. Any Trustee may be removed with or without cause at any
time: (i) by written instrument, signed by at least two thirds (2/3) of the
number of Trustees prior to such removal, specifying the date upon which such
removal shall become effective; or (ii) by vote of Shareholders holding not
less than two thirds (2/3) of the Shares of each Series then outstanding, cast
in person or by proxy at any meeting called for the purpose; or (iii) by a
written declaration signed by Shareholders holding not less than two thirds
(2/3) of the Shares of each Series then outstanding. Upon incapacity or death
of any Trustee, his legal representative shall execute and deliver on his
behalf such documents as the remaining Trustees shall require in order to
effect the purpose of this Paragraph.
(f) Vacancies. Any vacancy or anticipated vacancy resulting
from any reason, including an increase in the number of Trustees, may (but
need not unless required by the 0000 Xxx) be filled by a Majority of the
Trustees, subject to the provisions of Section 16(a) of the 1940 Act, through
the appointment in writing of such other individual as such remaining Trustees
in their discretion shall determine; provided that if there shall be no
Trustees in office, such vacancy or vacancies shall be filled by Majority
Shareholders Vote. Any such appointment or election shall be effective upon
such individual's written acceptance of his appointment as a Trustee and his
agreement to be bound by the provisions of this Declaration of Trust, except
that any such appointment in anticipation of a vacancy to occur by reason of
retirement, resignation or increase in the number of Trustees to be effective
at a later date shall become effective only at or after the effective date of
said retirement, resignation or increase in the number of
Trustees.
(g) Acceptance of Trusts. Whenever any conditions to the appointment or
election of any individual as a Trustee hereunder who was not, immediately
prior to such appointment or election, acting as a Trustee shall have been
satisfied, such individual shall become a Trustee and the Trust estate shall
vest in the new Trustee, together with the continuing Trustees, without any
further act or conveyance. Such new Trustee shall accept such appointment or
election in writing and agree in such writing to be bound
11
by the provisions hereof, but the execution of such writing shall not be
requisite to the effectiveness of the appointment or election of a new Trustee.
(h) Effect of Death. Resignation, etc. No vacancy, whether resulting
from the death, resignation, retirement, bankruptcy, adjudicated incompetency,
incapacity, or removal of any Trustee, an increase in the number of Trustees
or otherwise, shall operate to annul or terminate the Trust hereunder or to
revoke or terminate any existing agency or contract created or entered into
pursuant to the terms of this Declaration of Trust. Until such vacancy is
filled as provided in this Section 4.1, the Trustees in office (if any),
regardless of their number, shall have all the powers granted to the Trustees
and shall discharge all the duties imposed upon the Trustees by this
Declaration.
(i) Convevance. In the event of the resignation or removal of a
Trustee or his otherwise ceasing to be a Trustee, such former Trustee or his
legal representative shall, upon request of the continuing Trustees, execute
and deliver such documents as may be required for the purpose of consummating
or evidencing the conveyance to the Trust or the remaining Trustees of any
Trust Property held in such former Trustee's name, but the execution and
delivery of such documents shall not be requisite to the vesting of title to
the Trust Property in the remaining Trustees, as provided in subsection (g) of
this Section 4.1 and in Section 4.13 hereof.
(j) No Accounting. Except to the extent required by the 1940 Act or
under circumstances which would justify his removal for cause, no Person
ceasing to be a Trustee (nor the estate of any such Person) shall be required
to make an accounting to the Shareholders or remaining Trustees upon such
cessation.
SECTION 4.2. Trustees' Meetings: Participation by Telephone. etc. Annual
and special meetings may be held from time to time, in each case, upon the
call of such officers as may be thereunto authorized by the By-Laws or vote of
the Trustees, or by any three (3) Trustees, or pursuant to a vote of the
Trustees adopted at a duly constituted meeting of the Trustees, and upon such
notice as shall be provided in the By-Laws. Any such meeting may be held
within or without the state of Delaware. The Trustees may act with or without
a meeting, and a written consent to any matter, signed by a Majority of the
Trustees, shall be equivalent to action duly taken at a meeting of the
Trustees, duly called and held. Except as otherwise provided by the 1940 Act
or other applicable law, or by this Declaration of Trust or the By-Laws, any
action to be taken by the Trustees may be taken by a majority of the Trustees
present at a meeting of Trustees (a quorum, consisting of at least a Majority
of the Trustees, being present), within or without Delaware. If authorized by
the By-Laws, all or any one or more Trustees may participate in a meeting of
the Trustees or any Committee thereof by means of conference telephone or
similar means of communication by means of which all Persons participating in
the meeting can hear each other, and participation in a meeting pursuant to
such means of communication shall constitute presence in person at such
meeting. The minutes of any meeting thus held shall be prepared in the same
manner as a meeting at which all participants were present in
person.
SECTION 4.3. Committees; Delegation. The Trustees shall have power,
consistent with their ultimate responsibility to supervise the affairs of the
Trust, to delegate from time to time to one or more other Committees, or to
any single Trustee, the doing of such things and the execution of such deeds
or other instruments, either in the name of the Trust or the names of the
Trustees or as their attorney or attorneys in fact, or otherwise as the
Trustees may from time to time deem expedient, and any agreement, deed,
mortgage, lease or other instrument or writing executed by the Trustee or
Trustees or other Person to whom such delegation was made shall be valid and
binding upon the Trustees and upon the Trust.
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SECTION 4.4. Officers. The Trustees shall annually elect such officers
or agents, who shall have such powers, duties and responsibilities as the
Trustees may deem to be advisable, and as they shall specify by resolution or
in the By-Laws. Except as may be provided in the By-Laws, any officer elected
by the Trustees may be removed at any time with or without cause. Any two (2)
or more offices may be held by the same individual.
SECTION 4.5. Compensation of Trustees and Officers. The Trustees shall
fix the compensation of all officers and Trustees. Without limiting the
generality of any of the provisions hereof, the Trustees shall be entitled to
receive reasonable compensation for their general services as such, and to fix
the amount of such compensation, and to pay themselves or any one or more of
themselves such compensation for special services, including legal,
accounting, or other professional services, as they in good faith may deem
reasonable. No Trustee or officer resigning (except where a right to receive
compensation for a definite future period shall be expressly provided in a
written agreement with the Trust, duly approved by the Trustees) and no
Trustee or officer removed shall have any right to any compensation as such
Trustee or officer for any period following his resignation or removal, or any
right to damages on account of his removal, whether his compensation be by the
month, or the year or otherwise.
SECTION 4.6. Ownership of Shares and Securities of the Trust. Any
Trustee, and any officer, employee or agent of the Trust, and any organization
in which any such Person is interested, may acquire, own, hold and dispose of
Shares of any Series and other Securities of the Trust for his or its
individual account, and may exercise all rights of a holder of such Shares or
Securities to the same extent and in the same manner as if such Person were
not such a Trustee, officer, employee or agent of the Trust; subject, in the
case of Trustees and officers, to the same limitations as directors or
officers (as the case may be) of a Delaware business corporation; and the
Trust may issue and sell or cause to be issued and sold and may purchase any
such Shares or other Securities from any such Person or any such organization,
subject only to the general limitations, restrictions or other provisions
applicable to the sale or purchase of Shares of such Series or other
Securities of the Trust generally.
SECTION 4.7. Right of Trustees and Officers to Own Property or to
Engage in Business; Authority of Trustees to Permit Others to Do Likewise. The
Trustees, in their capacity as Trustees, and (unless otherwise specifically
directed by vote of the Trustees) the officers of the Trust in their capacity
as such, shall not be required to devote their entire time to the business and
affairs of the Trust. Except as otherwise specifically provided by vote of the
Trustees, or by agreement in any particular case, any Trustee or officer of
the Trust may acquire, own, hold and dispose of, for his own individual
account, any property, and acquire, own, hold, carry on and dispose of, for
his own individual account, any business entity or business activity, whether
similar or dissimilar to any property or business entity or business activity
invested in or carried on by the Trust, and without first offering the same as
an investment opportunity to the Trust, and may exercise all rights in respect
thereof as if he were not a Trustee or officer of the Trust. The Trustees
shall also have power, generally or in specific cases, to permit employees or
agents of the Trust to have the same rights (or lesser rights) to acquire,
hold, own and dispose of property and businesses, to carry on businesses, and
to accept investment opportunities without offering them to the Trust, as the
Trustees have by virtue of this Section 4.7.
SECTION 4.8. Reliance on Experts. The Trustees and officers may consult
with counsel, engineers, brokers, appraisers, auctioneers, accountants,
investment bankers, securities analysts or other Persons (any of which may be
a firm in which one or more of the Trustees or officers is or are members or
otherwise interested) whose profession gives authority to a statement made by
them on the subject in
13
question, and who are reasonably deemed by the Trustees or officers in question
to be competent, and the advice or opinion of such Persons shall be full and
complete personal protection to all of the Trustees and officers in respect
of any action taken or suffered by them in good faith and in reliance on or
in accordance with such advice or opinion. In discharging their duties,
Trustees and officers, when acting in good faith, may rely upon financial
statements of the Trust represented to them to be correct by any officer of
the Trust having charge of its books of account, or stated in a written report
by an independent certified public accountant fairly to present the financial
position of the Trust. The Trustees and officers may rely, and shall be
personally protected in acting, upon any instrument or other document believed
by them to be genuine.
SECTION 4.9. Surety Bonds. No Trustee, officer, employee or agent of the
Trust shall, as such, be obligated to give any bond or surety or other
security for the performance of any of his duties, unless required by
applicable law or regulation, or unless the Trustees shall otherwise determine
in any particular case.
SECTION 4.10. Apparent Authority of Trustees and Officers. No purchaser,
lender, transfer agent or other Person dealing with the Trustees or any
officer of the Trust shall be bound to make any inquiry concerning the
validity of any transaction purporting to be made by the Trustees or by such
officer, or to make inquiry concerning or be liable for the application of
money or property paid, loaned or delivered to or on the order of the Trustees
or of such officer.
SECTION 4.11. Other Relationships Not Prohibited. The fact that:
(i) any of the Shareholders, Trustees or officers of the Trust is a
shareholder, director, officer, partner, trustee, employee, manager,
adviser, principal underwriter or distributor or agent of or for any
Contracting Party (as defined in Section 5.2 hereof), or of or for any
parent or affiliate of any Contracting Party, or that the Contracting Party
or any parent or affiliate thereof is a Shareholder or has an interest in
the Trust or any Series, or that
(ii) any Contracting Party may have a contract providing for the
rendering of any similar services to one or more other corporations,
trusts, associations, partnerships, limited partnerships or other
organizations, or have other business or interests, shall not affect the
validity of any contract for the performance and assumption of services,
duties and responsibilities to, for or of the Trust and/or the Trustees or
disqualify any Shareholder, Trustee or officer of the Trust from voting
upon or executing the same or create any liability or accountability to the
Trust or to the holders of Shares of any Series; provided that, in the case
of any relationship or interest referred to in the preceding clause (i) on
the part of any Trustee or officer of the Trust, either (x) the material
facts as to such relationship or interest have been disclosed to or are
known by the Trustees not having any such relationship or interest and the
contract involved is approved in good faith by a majority of such Trustees
not having any such relationship or interest (even though such unrelated or
disinterested Trustees are less than a quorum of all of the Trustees), (y)
the material facts as to such relationship or interest and as to the
contract have been disclosed to or are known by the Shareholders entitled
to vote thereon and the contract involved is specifically approved in good
faith by vote of the Shareholders, or (z) the specific contract involved is
fair to the Trust as of the time it is authorized, approved or ratified by
the Trustees or by the Shareholders.
SECTION 4.12. Payment of Trust Expenses. The Trustees are authorized to
pay or to cause to be paid out of the principal or income of the Trust, or
partly out of principal and partly out of income, and
14
according to any allocation to a particular Series and Class made by them
pursuant to Section 6.1(f) hereof, all expenses, fees, charges, taxes and
liabilities incurred or arising in connection with the business and affairs
of the Trust or in connection with the management thereof, including, but not
limited to, the Trustees' compensation and such expenses and charges for the
services of the Trust's officers, employees, Investment Adviser, Administrator,
Distributor, Principal Underwriter, auditor, counsel, Custodian, Transfer Agent,
Dividend Disbursing Agent, Accounting Agent, Shareholder Servicing Agent, and
such other agents, consultants, and independent contractors and such other
expenses and charges as the Trustees may deem necessary or proper to incur.
SECTION 4.13. Ownership of the Trust Property. Legal title to all the
Trust Property shall be vested in the Trustees as joint tenants, except that
the Trustees shall have power to cause legal title to any Trust Property to be
held by or in the name of one or more of the Trustees, or in the name of the
Trust, or of any particular Series, or in the name of any other Person as
nominee, on such terms as the Trustees may determine; provided that the
interest of the Trust and of the respective Series therein is appropriately
protected. The right, title and interest of the Trustees in the Trust Property
shall vest automatically in each Person who may hereafter become a Trustee.
Upon the termination of the term of office of a Trustee as provided in Section
4.1(c), (d) or (e) hereof, such Trustee shall automatically cease to have any
right, title or interest in any of the Trust Property, and the right, title
and interest of such Trustee in the Trust Property shall vest automatically in
the remaining Trustees. Such vesting and cessation of title shall be effective
whether or not conveyancing documents have been executed and delivered
pursuant to Section 4.1(i) hereof.
SECTION 4.14. By-Laws. The Trustees may adopt and from time to time
amend or repeal By-Laws for the conduct of the business of the Trust.
ARTICLE 5
DELEGATION OF MANAGERIAL RESPONSIBILITIES
SECTION 5.1. Appointment; Action by Less than All Trustees. The Trustees
shall be responsible for the general operating policy of the Trust and for the
general supervision of the business of the Trust conducted by officers,
agents, employees or advisers of the Trust or by independent contractors, but
the Trustees shall not be required personally to conduct all the business of
the Trust and, consistent with their ultimate responsibility as stated herein,
the Trustees may appoint, employ or contract with one or more officers,
employees and agents to conduct, manage and/or supervise the operations of the
Trust, and may grant or delegate such authority to such officers, employees
and/or agents as the Trustees may, in their sole discretion, deem to be
necessary or desirable, without regard to whether such authority is normally
granted or delegated by trustees. With respect to those matters of the
operation and business of the Trust which they shall elect to conduct
themselves, except as otherwise provided by this Declaration or the By-Laws,
if any, the Trustees may authorize any single Trustee or defined group of
Trustees, or any committee consisting of a number of Trustees less than the
whole number of Trustees then in office without specification of the
particular Trustees required to be included therein, to act for and to bind
the Trust, to the same extent as the whole number of Trustees could do, either
with respect to one or more particular matters or classes of matters, or
generally.
SECTION 5.2. Certain Contracts. Subject to compliance with the
provisions of the 1940 Act, but notwithstanding any limitations of present and
future law or custom in regard to delegation of powers
15
by trustees generally, the Trustees may, at any time and from time to time
in their discretion and without limiting the generality of their powers and
authority otherwise set forth herein, enter into one or more contracts with any
one or more corporations, trusts, associations, partnerships, limited
partnerships or other types of organizations, or individuals ("Contracting
Party"), to provide for the performance and assumption of some or all of the
following services, duties and responsibilities to, for or on behalf of the
Trust and/or any Series, and/or the Trustees, and to provide for the performance
and assumption of such other services, duties and responsibilities in addition
to those set forth below, as the Trustees may deem appropriate:
(a) Advisory. An investment advisory or management agreement whereby
the agent shall undertake to furnish each Series of the Trust such
management, investment advisory or supervisory, statistical and research
facilities and services, and such other facilities and services, if any, as
the Trustees shall from time to time consider desirable, all upon such terms
and conditions as the Trustees may in their discretion determine to be not
inconsistent with this Declaration, the applicable provisions of the 1940
Act or any applicable provisions of the By-Laws (any such agent being herein
referred to as an "Investment Adviser"). To the extent required by the 1940
Act, any such advisory or management agreement and any amendment thereto
shall be subject to approval by a Majority Shareholder Vote at a meeting of
the Shareholders of the applicable Series of the Trust. Notwithstanding any
provisions of this Declaration, the Trustees may authorize the Investment
Adviser (subject to such general or specific instructions as the Trustees
may from time to time adopt) to effect purchases, sales, loans or exchanges
of securities of the Trust on behalf of the Trustees or may authorize any
officer or employee of the Trust or any Trustee to effect such purchases,
sales, loans or exchanges pursuant to recommendations of the Investment
Adviser (and all without further action by the Trustees). Any such
purchases, sales, loans and exchanges shall be deemed to have been
authorized by all of the Trustees. The Trustees may, in their sole
discretion, call a meeting of Shareholders in order to submit to a vote of
Shareholders of the applicable Series of Trust at such meeting the approval
of continuance of any such investment advisory or management
agreement.
(b) Administration. An agreement whereby the agent, subject to the
general supervision of the Trustees and in conformity with any policies of
the Trustees with respect to the operations of the Trust and each Series,
will supervise all or any part of the operations of the Trust and each
Series, and will provide all or any part of the administrative and clerical
personnel, office space and office equipment and services appropriate for
the efficient administration and operations of the Trust and each Series
(any such agent being herein referred to as an "Administrator").
(c) Underwriting. An agreement providing for the sale of Shares of any
one or more Series to net the Trust not less than the net asset value per
Share (as described in Section 6.2(l) hereof) and pursuant to which the
Trust may appoint the other party to such agreement as its principal
underwriter or sales agent for the distribution of such Shares. The
agreement shall contain such terms and conditions as the Trustees may in
their discretion determine to be not inconsistent with this Declaration, the
applicable provisions of the 1940 Act and any applicable provisions of the
By-Laws (any such agent being herein referred to as a "Distributor" or a
"Principal Underwriter," as the case may be).
(d) Custodian. The appointment of an agent meeting the requirements
for a custodian for the assets of Investment Companies contained in the 1940
Act as custodian of the Securities and cash of the Trust and of each Series
and of the accounting records in connection therewith (any such agent being
herein referred to as a "Custodian").
16
(e) Transfer and Dividend Disbursing Agent. An agreement with an agent
to maintain records of the ownership of outstanding Shares, the issuance and
redemption and the transfer thereof (any such agent being herein referred to
as a "Transfer Agent"), and to disburse any dividends declared by the
Trustees and in accordance with the policies of the Trustees and/or the
instructions of any particular Shareholder to reinvest any such dividends
(any such agent being herein referred to as a "Dividend Disbursing
Agent").
(f) Shareholder Servicing. An agreement with an agent to provide
service with respect to the relationship of the Trust and its Shareholders,
records with respect to Shareholders and their Shares, and similar matters
(any such agent being herein referred to as a "Shareholder Servicing
Agent").
(g) Accounting. An agreement with an agent to handle all or any part
of the accounting responsibilities, whether with respect to the Trust's
properties, Shareholders or otherwise (any such agent being herein referred
to as an "Accounting Agent").
In addition, the Trustees may from time to time cause the Trust or any Series
thereof to enter into agreements with respect to such other services and upon
such other terms and conditions as they may deem necessary, appropriate or
desirable. The same Person may be the Contracting Party for some or all of
the services, duties and responsibilities to, for and of the Trust and/or the
Trustees, and the contracts with respect thereto may contain such terms
interpretive of or in addition to the delineation of the services, duties and
responsibilities provided for, including provisions that are not inconsistent
with the 1940 Act relating to the standard of duty of and the rights to
indemnification of the Contracting Party and others, as the Trustees may
determine. Nothing herein shall preclude, prevent or limit the Trust or a
Contracting Party from entering into subcontractual arrangements relative to
any of the matters referred to in subsections (a) through (g) of this Section
5.2.
Section 5.3. Distribution Arrangements. Subject to compliance with
the 1940 Act, the Trustees may adopt and amend or repeal from time to time and
implement one or more plans of distribution pursuant to Rule 12b-1 of the 1940
Act which plan(s) will provide for the payment of specified marketing,
distribution and shareholder relations expenses of the Trust and any or all
Series and their agents and the agents of such agents.
Section 5.4. Service Arrangements. Subject to compliance with the
1940 Act, the Trustees may adopt and amend or repeal from time to time and
implement one or more service plans which plans will provide for the payment
of ongoing services to holders of the shares of such Trust or any Series
thereof and in connection with the maintenance of such shareholders'
accounts.
ARTICLE 6
SERIES AND SHARES
SECTION 6.1. Description of Series and Shares.
(a) General. The beneficial interest in the Trust shall be divided
into Shares (either full or fractional) having $ 0.01 par value per Share,
of which an unlimited number may be issued. The Trustees shall have the
authority from time to time to establish and designate one or more separate,
distinct and independent Series of Shares (each of which Series, including
without limitation each
17
Series authorized in Section 6.1(b) hereof, shall represent interests only
in the asset attributed by the Trustees to such Series), and to authorize
separate Classes of Shares of any such Series, as they deem necessary or
desirable. All Shares shall be of one class, provided that the Trustees
shall have the power to classify or reclassify any unissued Shares of any
Series into any number of additional Classes of such Series as set forth in
Section 6.1(b).
(b) Establishment. etc. of Series; Authorization of Shares. The
establishment and designation of any Series or Class and the authorization
of the Shares thereof shall be effective upon the execution by a Majority of
the Trustees (or by an officer of the Trust pursuant to the vote of a
Majority of the Trustees) of an instrument setting forth such establishment
and designation and the relative rights and preferences of the Shares of
such Series or Class and the manner in which the same may be amended (a
"Certificate of Designation"), and may provide that the number of Shares of
such Series or Class which may be issued is unlimited, or may limit the
number issuable. At any time that there are no Shares outstanding of any
particular Series or Class previously established and designated, the
Trustees may by an instrument executed by a Majority of the Trustees (or by
an officer of the Trust pursuant to the vote of a Majority of the Trustees)
terminate such Series or Class and the establishment and designation thereof
and the authorization of its Shares (a "Certificate of Termination"). Each
Certificate of Designation, Certificate of Termination and any instrument
amending a Certificate of Designation shall have the status of an amendment
to this Declaration of Trust.
(c) Character of Separate Series and Shares Thereof. Each Series
established hereunder shall represent beneficial interests in a separate
component of the assets of the Trust. Holders of Shares of a Series shall
be considered Shareholders of such Series, but such Shareholders shall also
be considered Shareholders of the Trust for purposes of receiving reports
and notices and, except as otherwise provided herein or in the Certificate
of Designation of a particular Series, or as required by the 1940 Act or
other applicable law, the right to vote, all without distinction by Series.
The Trustees shall have exclusive power without the requirement of
Shareholder approval to establish and designate such separate and distinct
Series, and to fix and determine the relative rights and preferences as
between the shares of the respective Series, and as between the Classes of
any Series, as to rights of redemption and the price, terms and manner of
redemption, special and relative rights as to dividends and other
distributions and on liquidation, sinking or purchase fund provisions,
conversion rights, and conditions under which the Shareholders of the
several Series or the several Classes of any Series of Shares shall have
separate voting rights or no voting rights. Except as otherwise provided as
to a particular Series herein, or in the Certificate of Designation
therefor, the Trustees shall have all the rights and powers, and be subject
to all the duties and obligations, with respect to each such Series and the
assets and affairs thereof as they have under this Declaration with respect
to the Trust and the Trust Property in general. Separate and distinct
records shall be maintained for each Series of Shares and the assets and
liabilities attributable thereto.
(d) Consideration for Shares. The Trustees may issue Shares of any
Series for such consideration (which may include property subject to, or
acquired in connection with the assumption of, liabilities) and on such
terms as they may determine (or for no consideration if pursuant to a Share
dividend or split-up), all without action or approval of the Shareholders.
All Shares when so issued on the terms determined by the Trustees shall be
fully paid and nonassessable (but may be subject to mandatory contribution
back to the Trust as provided in Section 6.1(l) hereof. The Trustees may
classify or reclassify any unissued Shares, or any Shares of any Series
previously issued and reacquired by the
18
Trust, into Shares of one or more other Series that may be established and
designated from time to time.
(e) Assets Belonging to Series. Any portion of the Trust Property
allocated to a particular Series, and all consideration received by the
Trust for the issue or sale of Shares of such Series, together with all
assets in which such consideration is invested or reinvested, all interest,
dividends, income, earnings, profits and gains therefrom, and proceeds
thereof, including any proceeds derived from the sale, exchange or
liquidation of such assets, and any funds or payments derived from any
reinvestment of such proceeds in whatever form the same may be, shall be
held by the Trustees in trust for the benefit of the holders of Shares of
that Series and shall irrevocably belong to that Series for all purposes,
and shall be so recorded upon the books of account of the Trust, and the
Shareholders of such Series shall not have, and shall be conclusively deemed
to have waived, any claims to the assets of any Series of which they are not
Shareholders. Such consideration, assets, interest, dividends, income,
earnings, profits, gains and proceeds, together with any General Items
allocated to that Series as provided in the following sentence, are herein
referred to collectively as assets "belonging 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 belonging to any
particular Series (collectively, "General Items"), the Trustees shall
allocate such General Items to and among any one or more of the Series
established and designated from time to time in such manner and on such
basis as they, in their sole discretion, deem fair and equitable; and any
General Items so allocated to a particular Series shall belong to and be
part of the assets belonging to that Series. Each such allocation by the
Trustees shall be conclusive and binding upon the Shareholders of all Series
for all purposes.
(f) Liabilities of Series. The assets belonging to each particular
Series shall be charged with the liabilities in respect of that Series and
all expenses, costs, charges and reserves attributable to that Series, and
any general liabilities, expenses, costs, charges or reserves of the Trust
which are not readily identifiable as pertaining to any particular Series
shall be allocated and charged by the Trustees to and among any one or more
of the Series established and designated from time to time in such manner
and on such basis as the Trustees in their sole discretion deem fair and
equitable. The indebtedness, expenses, costs, charges and reserves allocated
and so charged to a particular Series are herein referred to as "liabilities
of" that Series. Each allocation of liabilities, expenses, costs, charges
and reserves by the Trustees shall be conclusive and binding upon the
Shareholders of all Series for all purposes. Any creditor of any Series may
look only to the assets belonging to that Series to satisfy such creditor's
debt.
(g) Dividends. Dividends and distributions on Shares of a particular
Series may be paid with such frequency as the Trustees may determine, which
may be daily or otherwise pursuant to a standing resolution or resolutions
adopted only once or with such frequency as the Trustees may determine, to
the Shareholders of that Series, from such of the income, accrued or
realized, and capital gains, realized or unrealized, and out of the assets
belonging to that Series, as the Trustees may determine, after providing for
actual and accrued liabilities of that Series. All dividends and
distributions on Shares of a particular Series shall be distributed pro rata
to the Shareholders of that Series in proportion to the number of such
Shares held by such holders at the date and time of record established for
the payment of such dividends or distributions, except that the dividends
and distributions of investment income and capital gains with respect to
each Class of Shares of a particular Series shall be in such amount as may
be declared from time to time by the Trustees, and
19
such dividends and distributions may vary as between such Classes to reflect
differing allocations of the expenses of the Series between the Shareholders
of such several Classes and any resultant differences between the net asset
value of such several Classes to such extent and for such purposes as the
Trustees may deem appropriate and further except that, in connection with
any dividend or distribution program or procedure, the Trustees may
determine that no dividend or distribution shall be payable on Shares as to
which the Shareholder's purchase order and/or payment have not been received
by the time or times established by the Trustees under such program or
procedure, or that dividends or distributions shall be payable on Shares which
have been tendered by the holder thereof for redemption or repurchase, but the
redemption or repurchase proceeds of which have not yet been paid to such
Shareholder. Such dividends and distributions may be made in cash, property
or Shares of any Class of that Series or a combination thereof as determined
by the Trustees, or pursuant to any program that the Trustees may have in
effect at the time for the election by each Shareholder of the mode of the
making of such dividend or distribution to that Shareholder. Any such
dividend or distribution paid in Shares will be paid at the net asset value
thereof as determined in accordance with subsection (l) of this Section
6.1.
(h) Liquidation. In the event of the liquidation or dissolution of the
Trust, the Shareholders of each Series of which Shares are outstanding shall
be entitled to receive, when and as declared by the Trustees, the excess of
the assets belonging to that Series over the liabilities of such Series. The
assets so distributable to the Shareholders of any particular Series shall
be distributed among such Shareholders in proportion to the number of Shares
of that Series held by them and recorded on the books of the Trust. The
liquidation of any particular Series may be authorized by vote of a Majority
of the Trustees, subject to the affirmative vote of "a majority of the
outstanding voting securities" of that Series, as the quoted phrase is
defined in the 1940 Act, determined in accordance with clause (iii) of the
definition of "Majority Shareholder Vote" in Section 1.4 hereof.
(i) Voting. The Shareholders shall have the voting rights set forth
in or determined under Article 7 hereof.
(j) Redemption by Shareholder. Each holder of Shares of a particular
Series shall have the right at such times as may be permitted by the Trust,
but no less frequently than required by the 1940 Act, to require the Series
to redeem all or any part of his Shares of that Series at a redemption price
equal to the net asset value per Share of that Series next determined in
accordance with subsection (l) of this Section 6.1 after the Shares are
properly tendered for redemption; provided, that the Trustees may from time
to time, in their discretion, determine and impose a fee for such redemption
and that the proceeds of the redemption of Shares (including a fractional
Share) of any Class of a particular Series shall be reduced by the amount of
any applicable contingent deferred sales charge or other sales charge, if
any, payable on such redemption to the distributor of Shares of such Class
pursuant to the terms of the initial issuance of the Shares of such Class
(to the extent consistent with the 1940 Act or regulations or exemptions
thereunder) and the Trust shall promptly pay to such distributor the amount
of such deferred sales charge. Payment of the redemption price shall be in
cash; provided, however, that if the Trustees determine, which determination
shall be conclusive, that conditions exist which make payment wholly in cash
unwise or undesirable, the Trust may make payment wholly or partly in
Securities or other assets belonging to such Series at the value of such
Securities or assets used in such determination of net asset value.
Notwithstanding the foregoing, the Trust may postpone payment of the
redemption price and may suspend the right of the holders of Shares of any
Series to
20
require the Trust to redeem Shares of that Series during any period or at
any time when and to the extent permissible under the 1940 Act.
(k) Redemption at the Option of the Trust. The Trustees shall have the
power to redeem Shares of any Series at a redemption price determined in
accordance with Section 6.1(j), if at any time (i) the total investment in
such account does not have a value of at least such minimum amount as may be
specified in the Prospectus for such Series from time to time (ii) the
number of Shares held in such account is equal to or in excess of a
specified percentage of Shares of the Trust or any Series as set forth from
time to time in the applicable Prospectus. In the event the Trustees
determine to exercise their power to redeem Shares provided in this Section
6.1(k), the Shareholder shall be notified that the value of his account is
less than the applicable minimum amount and shall be allowed 30 days to make
an appropriate investment before redemption is processed.
(l) Net Asset Value. The net asset value per Share of any Series at
any time shall be the quotient obtained by dividing the value of the net
assets of such Series at such time (being the current value of the assets
belonging to such Series, less its then existing liabilities) by the total
number of Shares of that Series then outstanding, all determined in
accordance with the methods and procedures, including without limitation
those with respect to rounding, established by the Trustees from time to
time in accordance with the requirements of the 1940 Act. The net asset
value of the several Classes of a particular Series shall be separately
computed, and may vary from one another. The Trustees shall establish
procedures for the allocation of investment income or capital gains and
expenses and liabilities of a particular Series between the several Classes
of such Series . The Trustees may determine to maintain the net asset value
per Share of any Series at a designated constant dollar amount and in
connection therewith may adopt procedures not inconsistent with the 1940 Act
for the continuing declaration of income attributable to that Series as
dividends payable in additional Shares of that Series at the designated
constant dollar amount and for the handling of any losses attributable to
that Series. Such procedures may provide that in the event of any loss each
Shareholder shall be deemed to have contributed to the shares of beneficial
interest account of that Series his pro rata portion of the total number of
Shares required to be canceled in order to permit the net asset value per
Share of that Series to be maintained, after reflecting such loss, at the
designated constant dollar amount. Each Shareholder of the Trust shall be
deemed to have expressly agreed, by his investment in any Series with
respect to which the Trustees shall have adopted any such procedure, to make
the contribution referred to in the preceding sentence in the event of any
such loss.
(m) Transfer. All Shares of each particular Series shall be
transferable, but transfers of Shares of a particular Series will be
recorded on the Share transfer records of the Trust applicable to that
Series only at such times as Shareholders shall have the right to require
the Trust to redeem Shares of that Series and at such other times as may be
permitted by the Trustees.
(n) Equality. All Shares of each particular Series shall represent an
equal proportionate interest in the assets belonging to that Series (subject
to the liabilities of that Series), and each Share of any particular Series
shall be equal to each other Share thereof; but the provisions of this
sentence shall not restrict any distinctions between the several Classes of
a Series permissible under this Section 6.1 or under Section 7. 1 hereof nor
any distinctions permissible under subsection (g) of this Section 6.1 that
may exist with respect to dividends and distributions on Shares of the same
Series. The Trustees may from time to time divide or combine the Shares of
any class of particular Series into a greater or lesser number of Shares of
that class of a Series without thereby changing the proportionate beneficial
21
interest in the assets belonging to that Series or in any way affecting the
rights of the holders of Shares of any other Series.
(o) Rights of Fractional Shares. Any fractional Share of any Series
shall carry proportionately all the rights and obligations of a whole Share
of that Series, including rights and obligations with respect to voting,
receipt of dividends and distributions, redemption of Shares, and
liquidation of the Trust or of the Series to which they pertain.
(p) Conversion Rights. (i) Subject to compliance with the requirements
of the 1940 Act, the Trustees shall have the authority to provide that
holders of Shares of any Series shall have the right to convert said Shares
into Shares of one or more other Series, that holders of any Class of a
Series of Shares shall have the right to convert said Shares of such Class
into Shares of one or more other Classes of such Series, and that Shares of
any Class of a Series shall be automatically converted into Shares of
another Class of such Series, in each case in accordance with such
requirements and procedures as the Trustees may establish.
(ii) The number of Shares of into which a convertible Share
shall convert shall equal the number (including for this purpose fractions
of a Share) obtained by dividing the net asset value per Share for purposes
of sales and redemptions of the converting Share on the Conversion Date by
the net asset value per Share for purposes of sales and redemptions of the
Class of Shares into which it is converting on the Conversion Date.
(iii) On the Conversion Date, the Share converting into
another share will cease to accrue dividends and will no longer be deemed
outstanding and the rights of the holders thereof (except the right to
receive the number of target Shares into which the converting Shares have
been converted and declared but unpaid dividends to the Conversion Date)
will cease. Certificates representing Shares resulting from the conversion
need not be issued until certificates representing Shares converted, if
issued, have been received by the Trust or its agent duly endorsed for
transfer.
(vi) The Trust will appropriately reflect the conversion of
Shares of one Class of a Series into Shares of another Class of such Series
on the first periodic statements of account sent to Shareholders of record
affected which provide account information with respect to a reporting
period which includes the date such conversion occurred.
SECTION 6.2. Ownership of Shares. The ownership of Shares shall be
recorded on the books of the Trust or of a Transfer Agent or similar agent for
the Trust, which books shall be maintained separately for the Shares of each
Series that has been authorized. Certificates evidencing the ownership of
Shares need not be issued except as the Trustees may otherwise determine from
time to time, and the Trustees shall have power to call outstanding Share
certificates and to replace them with book entries. The Trustees may make such
rules as they consider appropriate for the issuance of Share certificates, the
use of facsimile signatures, the transfer of Shares and similar matters. The
record books of the Trust as kept by the Trust or any Transfer Agent or
similar agent, as the case may be, shall be conclusive as to who are the
Shareholders and as to the number of Shares of each Series held from time to
time by each such Shareholder.
The holders of Shares of each Series shall upon demand disclose to the
Trustees in writing such information with respect to their direct and indirect
ownership of Shares of such Series as the Trustees
22
deem necessary to comply with the provisions of the Internal Revenue Code,
or to comply with the requirements of any other authority.
SECTION 6.3. Investments in the Trust. The Trustees may accept
investments in any Series of the Trust from such Persons and on such terms and
for such consideration, not inconsistent with the provisions of the 1940 Act,
as they from time to time authorize. The Trustees may authorize any
Distributor, Principal Underwriter, Custodian, Transfer Agent or other Person
to accept orders for the purchase of Shares that conform to such authorized
terms and to reject any purchase orders for Shares, whether or not conforming
to such authorized terms.
SECTION 6.4. No Preemptive Rights. No Shareholder, by virtue of holding
Shares of any Series, shall have any preemptive or other right to subscribe to
any additional Shares of that Series, or to any shares of any other Series, or
any other Securities issued by the Trust.
SECTION 6.5. Status of Shares. Every Shareholder, by virtue of having
become a Shareholder, shall be held to have expressly assented and agreed to
the terms hereof and to have become a party hereto. Shares shall be deemed to
be personal property, giving only the rights provided herein. Ownership of
Shares shall not entitle the Shareholder to any title in or to the whole or
any part of the Trust Property or right to call for a partition or division of
the same or for an accounting, nor shall the ownership of Shares constitute
the Shareholders partners. The death of a Shareholder during the continuance
of the Trust shall not operate to terminate the Trust or any Series, nor
entitle the representative of any deceased Shareholder to an accounting or to
take any action in court or elsewhere against the Trust or the Trustees, but
only to the rights of said decedent under this Declaration of
Trust.
ARTICLE 7
SHAREHOLDERS' VOTING POWERS AND MEETINGS
SECTION 7.1. Voting Powers. The Shareholders shall have power to vote
only (i) for the election or removal of Trustees as provided in Sections
4.1(c) and (e) hereof, (ii) with respect to the approval or termination in
accordance with the 1940 Act of any contract with a Contracting Party as
provided in Section 5.2 hereof as to which Shareholder approval is required by
the 1940 Act, (iii) with respect to any termination or reorganization of the
Trust or any Series to the extent and as provided in Sections 9.2, 9.3 and 9.4
hereof, (iv) with respect to any amendment of this Declaration of Trust to the
extent and as provided in Section 9.5 hereof, (v) to the same extent as the
stockholders of a Delaware business corporation as to whether or not a court
action, proceeding or claim should or should not be brought or maintained
derivatively or as a class action on behalf of the Trust or any Series, or the
Shareholders of any of them (provided. however, that a Shareholder of a
particular Series shall not in any event be entitled to maintain a derivative
or class action on behalf of any other Series or the Shareholders thereof),
and (vi) with respect to such additional matters relating to the Trust as may
be required by the 1940 Act, this Declaration of Trust, the By-Laws or any
registration of the Trust with the Commission (or any successor agency) or any
State, or as the Trustees may consider necessary or desirable. If and to the
extent that the Trustees shall determine that such action is required by law
or by this Declaration, they shall cause each matter required or permitted to
be voted upon at a meeting or by written consent of Shareholders to be
submitted to a separate vote of the outstanding Shares of each Series entitled
to vote thereon; provided, that (i) when expressly required by the 1940 Act or
by other law, actions of Shareholders shall be taken by Single Class Voting of
all outstanding Shares whose holders are entitled
23
to vote thereon; and (ii) when the Trustees determine that any matter to be
submitted to a vote of Shareholders affects only the rights or interests of
Shareholders of one or more but not all Series or of one or more but not all
Classes of a single Series (including without limitation any distribution
plan pursuant to Rule 12b-1 of the 1940 Act applicable to such Class), then
only the Shareholders of the Series or Classes so affected shall be entitled
to vote thereon. Any matter required to be submitted to shareholders and
affecting one or more Series shall require separate approval by the required
vote of Shareholders of each affected Series; provided, however, that to the
extent required by the 1940 Act, there shall be no separate Series votes on
the election or removal of Trustees, the selection of auditors for the Trust
and its Series or approval of any agreement or contract entered into by the
Trust or any Series. Shareholders of a particular Series shall not be
entitled to vote on any matter that affects only one or more other Series.
SECTION 7.2. Number of Votes and Manner of Voting: Proxies. On each
matter submitted to a vote of the Shareholders, each holder of Shares of any
Series shall be entitled to a number of votes equal to the number of Shares of
such Series standing in his name on the books of the Trust. There shall be no
cumulative voting in the election or removal of Trustees. Shares may be voted
in person or by proxy. A proxy with respect to Shares held in the name of two
(2) or more Persons shall be valid if executed by any one of them unless at or
prior to exercise of the proxy the Trust receives a specific written notice to
the contrary from any one of them. A proxy purporting to be executed by or on
behalf of a Shareholder shall be deemed valid unless challenged at or prior to
its exercise and the burden of proving invalidity shall rest on the
challenger. Until Shares are issued, the Trustees may exercise all rights of
Shareholders and may take any action required by law, this Declaration of
Trust or the By-Laws to be taken by Shareholders.
SECTION 7.3. Meetings. Meetings of Shareholders may be called by the
Trustees from time to time for the purpose of taking action upon any matter
requiring the vote or authority of the Shareholders as herein provided, or
upon any other matter deemed by the Trustees to be necessary or desirable.
Written notice of any meeting of Shareholders shall be given or caused to be
given by the Trustees by mailing such notice at least seven (7) days before
such meeting, postage prepaid, stating the time, place and purpose of the
meeting, to each Shareholder at the Shareholder's address as it appears on the
records of the Trust. The Trustees shall promptly call and give notice of a
meeting of Shareholders for the purpose of voting upon removal of any Trustee
of the Trust when requested to do so in writing by Shareholders holding not
less than ten percent (10%) of the Shares then outstanding. If the Trustees
shall fail to call or give notice of any meeting of Shareholders for a period
of thirty (30) days after written application by Shareholders holding at least
ten percent (10%) of the Shares then outstanding requesting that a meeting be
called for any other purpose requiring action by the Shareholders as provided
herein or in the By-Laws, then Shareholders holding at least ten percent (10%)
of the Shares then outstanding may call and give notice of such meeting, and
thereupon the meeting shall be held in the manner provided for herein in case
of call thereof by the Trustees. Any meetings may be held within or without
The State of Delaware. Shareholders may only act with respect to matters set
forth in the notice to Shareholders.
SECTION 7.4. Record Dates. For the purpose of determining the
Shareholders who are entitled to vote or act at any meeting or any adjournment
thereof, or who are entitled to participate in any dividend or distribution,
or for the purpose of any other action, the Trustees may from time to time
close the transfer books for such period, not exceeding thirty (30) days
(except at or in connection with the termination of the Trust), as the
Trustees may determine; or without closing the transfer books the Trustees may
fix a date and time not more than ninety (90) days prior to the date of any
meeting of
24
Shareholders or other action as the date and time of record for the
determination of Shareholders entitled to vote at such meeting or any
adjournment thereof or to be treated as Shareholders of record for purposes of
such other action, and any Shareholder who was a Shareholder at the date and
time so fixed shall be entitled to vote at such meeting or any adjournment
thereof or to be treated as a Shareholder of record for purposes of such other
action, even though he has since that date and time disposed of his Shares,
and no Shareholder becoming such after that date and time shall be so entitled
to vote at such meeting or any adjournment thereof or to be treated as a
Shareholder of record for purposes of such other action.
SECTION 7.5. Quorum and Required Vote. A majority of the Shares entitled
to vote shall be a quorum for the transaction of business at a Shareholders'
meeting, but any lesser number shall be sufficient for adjournments. Any
adjourned session or sessions may be held within a reasonable time after the
date set for the original meeting without the necessity of further notice. A
Majority Shareholder Vote at a meeting of which a quorum is present shall
decide any question, except when a different vote is required or permitted by
any provision of the 1940 Act or other applicable law or by this Declaration
of Trust or the By-Laws, or when the Trustees shall in their discretion
require a larger vote or the vote of a majority or larger fraction of the
Shares of one or more particular Series.
SECTION 7.6. Action By Written Consent. Subject to the provisions of the
1940 Act and other applicable law, any action taken by Shareholders may be
taken without a meeting if a majority of Shareholders entitled to vote on the
matter (or such larger proportion thereof or of the Shares of any particular
Series as shall be required by the 1940 Act or by any express provision of
this Declaration of Trust or the By-Laws or as shall be permitted by the
Trustees) consent to the action in writing and if the writings in which such
consent is given are filed with the records of the meetings of Shareholders,
to the same extent and for the same period as proxies given in connection with
a Shareholders' meeting. Such consent shall be treated for all purposes as a
vote taken at a meeting of Shareholders.
SECTION 7.7. Inspection of Records. The records of the Trust shall be
open to inspection by Shareholders to the same extent as is permitted
stockholders of a Delaware business corporation under the Delaware business
corporation law.
SECTION 7.8. Additional Provisions. The By-Laws may include further
provisions for Shareholders' votes and meetings and related matters not
inconsistent with the provisions hereof.
ARTICLE 8
LIMITATION OF LIABILITY: INDEMNIFICATION
SECTION 8.1. Trustees. Shareholders. etc. Not Personally Liable; Notice.
The Trustees, officers, employees and agents of the Trust, in incurring any
debts, liabilities or obligations, or in limiting or omitting any other
actions for or in connection with the Trust, are or shall be deemed to be
acting as Trustees, officers, employees or agents of the Trust and not in
their own capacities. No Shareholder shall be subject to any personal
liability whatsoever in tort, contract or otherwise to any other Person or
Persons in connection with the assets or the affairs of the Trust or of any
Series, and subject to Section 8.4 hereof, no Trustee, officer, employee or
agent of the Trust shall be subject to any personal liability whatsoever in
tort, contract, or otherwise, to any other Person or Persons in connection
with the assets or affairs of the Trust or of any Series, save only that
arising from his own willful misfeasance, bad faith,
25
gross negligence or reckless disregard of the duties involved in the conduct
of his office or the discharge of his functions. The Trust (or if the matter
relates only to a particular Series, that Series) shall be solely liable for
any and all debts, claims, demands, judgments, decrees, liabilities or
obligations of any and every kind, against or with respect to the Trust
or such Series in tort, contract or otherwise in connection with the assets
or the affairs of the Trust or such Series, and all Persons dealing with the
Trust or any Series shall be deemed to have agreed that resort shall be had
solely to the Trust Property of the Trust or the Series Assets of such
Series, as the case may be, for the payment or performance thereof.
The Trustees shall use their best efforts to ensure that every note,
bond, contract, instrument, certificate or undertaking made or issued by the
Trustees or by any officers or officer shall give notice that a Certificate of
Trust, referring to the Declaration of Trust, is on file with the Secretary of
the state of Delaware and shall recite to the effect that the same was
executed or made by or on behalf of the Trust or by them as Trustees or
Trustee or as officers or officer, and not individually, and that the
obligations of such instrument are not binding upon any of them or the
Shareholders individually but are binding only upon the assets and property of
the Trust, or the particular Series in question, as the case may be, but the
omission thereof shall not operate to bind any Trustees or Trustee or officers
or officer or Shareholders or Shareholder individually, or to subject the
Series Assets of any Series to the obligations of any other
Series.
SECTION 8.2. Trustees' Good Faith Action; Expert Advice: No Bond or
Surety. The exercise by the Trustees of their powers and discretions hereunder
shall be binding upon everyone interested. Subject to Section 8.4 hereof, a
Trustee shall be liable for his own willful misfeasance, bad faith, gross
negligence or reckless disregard of the duties involved in the conduct of the
office of Trustee, and for nothing else, and shall not be liable for errors of
judgment or mistakes of fact or law. Subject to the foregoing, (i) the
Trustees shall not be responsible or liable in any event for any neglect or
wrongdoing of any officer, agent, employee, consultant, Investment Adviser,
Administrator, Distributor or Principal Underwriter, Custodian or Transfer
Agent, Dividend Disbursing Agent, Shareholder Servicing Agent or Accounting
Agent of the Trust, nor shall any Trustee be responsible for the act or
omission of any other Trustee; (ii) the Trustees may take advice of counsel or
other experts with respect to the meaning and operation of this Declaration of
Trust and their duties as Trustees, and shall be under no liability for any
act or omission in accordance with such advice or for failing to follow such
advice; and (iii) in discharging their duties, the Trustees, when acting in
good faith, shall be entitled to rely upon the books of account of the Trust
and upon written reports made to the Trustees by any officer appointed by
them, any independent public accountant, and (with respect to the subject
matter of the contract involved) any officer, partner or responsible employee
of a Contracting Party appointed by the Trustees pursuant to Section 5.2
hereof. The Trustees as such shall not be required to give any bond or surety
or any other security for the performance of their
duties.
SECTION 8.3. Indemnification of Shareholders. If any Shareholder (or
former Shareholder) of the Trust shall be charged or held to be personally
liable for any obligation or liability of the Trust solely by reason of being
or having been a Shareholder and not because of such Shareholder's acts or
omissions or for some other reason, the Trust (upon proper and timely request
by the Shareholder) may assume the defense against such charge and satisfy any
judgment thereon or may reimburse the Shareholders for expenses, and the
Shareholder or former Shareholder (or the heirs, executors, administrators or
other legal representatives thereof, or in the case of a corporation or other
entity, its corporate or other general successor) shall be entitled (but
solely out of the assets of the Series of which such Shareholder or
26
former Shareholder is or was the holder of Shares) to be held harmless from
and indemnified against all loss and expense arising from such liability.
SECTION 8.4. Indemnification of Trustees. Officers, etc. Subject to the
limitations, if applicable, hereinafter set forth in this Section 8.4, the
Trust shall indemnify (from the assets of the Series or Series to which the
conduct in question relates) each of its Trustees, officers, employees and
agents (including Persons who serve at the Trust's request as directors,
officers or trustees of another organization in which the Trust has any
interest as a shareholder, creditor or otherwise (hereinafter, together with
such Person's heirs, executors, administrators or personal representative,
referred to as a "Covered Person")) against all liabilities, including but not
limited to amounts paid in satisfaction of judgments, in compromise or as
fines and penalties, and expenses, including reasonable accountants' and
counsel fees, incurred by any Covered Person in connection with the defense or
disposition of any action, suit or other proceeding, whether civil or
criminal, before any court or administrative or legislative body, in which
such Covered Person may be or may have been involved as a party or otherwise
or with which such Covered Person may be or may have been threatened, while in
office or thereafter, by reason of being or having been such a Trustee or
officer, director or trustee, except with respect to any matter as to which it
has been determined that such Covered Person (i) did not act in good faith in
the reasonable belief that such Covered Person's action was in or not opposed
to the best interests of the Trust; (ii) had acted with willful misfeasance,
bad faith, gross negligence or reckless disregard of the duties involved in
the conduct of such Covered Person's office (iii) for a criminal proceeding,
had reasonable cause to believe that his conduct was unlawful (the conduct
described in (i), (ii) and (iii) being referred to hereafter as "Disabling
Conduct"). A determination that the Covered Person is entitled to
indemnification may be made by (i) a final decision on the merits by a court
or other body before whom the proceeding was brought that the Covered Person
to be indemnified was not liable by reason of Disabling Conduct, (ii)
dismissal of a court action or an administrative proceeding against a Covered
Person for insufficiency of evidence of Disabling Conduct, or (iii) a
reasonable determination, based upon a review of the facts, that the
indemnitee was not liable by reason of Disabling Conduct by (a) a vote of a
majority of a quorum of Trustees who are neither "interested persons" of the
Trust as defined in Section 2(a)(19) of the 1940 Act nor parties to the
proceeding (the "Disinterested Trustees"), or (b) an independent legal counsel
in a written opinion. Expenses, including accountants' and counsel fees so
incurred by any such Covered Person (but excluding amounts paid in
satisfaction of judgments, in compromise or as fines or penalties), may be
paid from time to time by one or more Series to which the conduct in question
related in advance of the final disposition of any such action, suit or
proceeding; provided that the Covered Person shall have undertaken to repay
the amounts so paid to such Series if it is ultimately determined that
indemnification of such expenses is not authorized under this Article 8 and
(i) the Covered Person shall have provided security for such undertaking, (ii)
the Trust shall be insured against losses arising by reason of any lawful
advances, or (iii) a majority of a quorum of the disinterested Trustees, or an
independent legal counsel in a written opinion, shall have determined, based
on a review of readily available facts (as opposed to a full trial type
inquiry), that there is reason to believe that the Covered Person ultimately
will be found entitled to
indemnification.
SECTION 8.5. Compromise Payment. As to any matter disposed of by a
compromise payment by any such Covered Person referred to in Section 8.4
hereof, pursuant to a consent decree or otherwise, no such indemnification
either for said payment or for any other expenses shall be provided unless
such indemnification shall be approved (i) by a majority of a quorum of the
disinterested Trustees or (ii) by an independent legal counsel in a written
opinion. Approval by the Trustees pursuant to clause (i) or by independent
legal counsel pursuant to clause (ii) shall not prevent the recovery from any
Covered
27
Person of any amount paid to such Covered Person in accordance with
either of such clauses as indemnification if such Covered Person is
subsequently adjudicated by a court of competent jurisdiction not to have
acted in good faith in the reasonable belief that such Covered Person's action
was in or not opposed to the best interests of the Trust or to have been
liable to the Trust or its Shareholders by reason of willful misfeasance, bad
faith, gross negligence or reckless disregard of the duties involved in the
conduct of the Covered Person's office.
SECTION 8.6. Indemnification Not Exclusive, etc. The right of
indemnification provided by this Article 8 shall not be exclusive of or affect
any other rights to which any such Covered Person or shareholder may be
entitled. As used in this Article 8, a "disinterested" Person is one against
whom none of the actions, suits or other proceedings in question, and no other
action, suit or other proceeding on the same or similar grounds is then or has
been pending or threatened. Nothing contained in this Article 8 shall affect
any rights to indemnification to which personnel of the Trust, other than
Trustees and officers, and other Persons may be entitled by contract or
otherwise under law, nor the power of the Trust to purchase and maintain
liability insurance on behalf of any such Person.
SECTION 8.7. Liability of Third Persons Dealing with Trustees. No person
dealing with the Trustees shall be bound to make any inquiry concerning the
validity of any transaction made or to be made by the Trustees or to see to
the application of any payments made or property transferred to the Trust or
upon its order.
ARTICLE 9
DURATION: REORGANIZATION: INCORPORATION; AMENDMENTS
SECTION 9.1. Duration of Trust. Unless terminated as provided herein,
the Trust shall have perpetual existence.
SECTION 9.2. Termination of Trust. The Trust may be terminated at any
time by a Majority of the Trustees, subject to the favorable vote of the
holders of not less than a majority of the Shares outstanding and entitled to
vote of each Series of the Trust, or by an instrument or instruments in
writing without a meeting, consented to by the holders of not less than a
majority of such Shares, or by such greater or different vote of Shareholders
of any Series as may be established by the Certificate of Designation by which
such Series was authorized. Upon termination, after paying or otherwise
providing for all charges, taxes, expenses and liabilities, whether due or
accrued or anticipated as may be determined by the Trustees, the Trust shall
in accordance with such procedures as the Trustees consider appropriate reduce
the remaining assets to distributable form in cash, Securities or other
property, or any combination thereof, and distribute the proceeds to the
Shareholders, in conformity with the provisions of Section 6.1(h) hereof.
After termination of the Trust or any Series and distribution to the
Shareholders as herein provided, a majority of the Trustees shall execute and
lodge among the records of the Trust an instrument in writing setting forth
the fact of such termination. Upon termination of the Trust, the Trustees
shall thereupon, be discharged from all further liabilities and duties
hereunder, and the rights and interests of all Shareholders shall thereupon
cease. Upon termination of any Series, the Trustees shall thereupon be
discharged from all further liabilities and duties with respect to such
Series, and the rights and interests of all Shareholders of such Series shall
thereupon cease.
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SECTION 9.3. Reorganization. The Trustees may sell, convey and
transfer all or substantially all of the assets of the Trust, or the assets
belonging to any one or more Series, to another trust, partnership,
association, corporation or other entity organized under the laws of any state
of the United States, or may transfer such assets to another Series of the
Trust, in exchange for cash, Shares or other Securities (including, in the
case of a transfer to another Series of the Trust, Shares of such other
Series), or to the extent permitted by law then in effect may merge or
consolidate the Trust or any Series with any other Trust or any corporation,
partnership, or association organized under the laws of any state of the
United States, all upon such terms and conditions and for such consideration
when and as authorized by vote or written consent of a Majority of the
Trustees and approved by the affirmative vote of the holders of not less than
a majority of the Shares outstanding and entitled to vote of each Series whose
assets are affected by such transaction, or by an instrument or instruments in
writing without a meeting, consented to by the holders of not less than a
majority of such Shares, and/or by such other vote of any Series as may be
established by the Certificate of Designation with respect to such Series.
Following such transfer, the Trustees shall distribute the cash, Shares or
other Securities or other consideration received in such transaction (giving
due effect to the assets belonging to and indebtedness of, and any other
differences among, the various Series of which the assets have so been
transferred) among the Shareholders of the Series of which the assets have
been so transferred; and if all of the assets of the Trust have been so
transferred, the Trust shall be terminated. Nothing in this Section 9.3 shall
be construed as requiring approval of Shareholders for the Trustees to
organize or assist in organizing one or more corporations, trusts,
partnerships, associations or other organizations, and to sell, convey or
transfer less than substantially all of the Trust Property or the assets
belonging to any Series to such organizations or
entities.
SECTION 9.4. Incorporation. Upon approval by Majority Shareholder Vote,
the Trustees may cause to be organized or assist in organizing a corporation
or corporations under the laws of any jurisdiction or any other trust,
partnership, association or other organization to take over all of the Trust
Property or to carry on any business in which the Trust shall directly or
indirectly have any interest, and to sell, convey and transfer the Trust
Property to any such corporation, trust, association or organization, in
exchange for the shares or securities thereof, or otherwise, and to lend money
to, subscribe for the shares of securities of, and enter into any contracts
with any such corporation, trust, partnership, association or organization in
which the Trust holds or is about to acquire shares or any other interests.
The Trustees may also cause a merger or consolidation between the Trust or any
successor thereto and any such corporation, trust, partnership, association or
other organization if and to the extent permitted by law, as provided under
the law then in effect. Nothing contained herein shall be construed as
requiring approval of Shareholders for the Trustees to organize or assist in
organizing one or more corporation, trusts, partnerships, associations or
other organizations and selling, conveying or transferring a portion of the
Trust Property to such organizations or entities.
SECTION 9.5. Amendments; etc. All rights granted to the Shareholders
under this Declaration of Trust are granted subject to the reservation of the
right to amend this Declaration of Trust as herein provided, except that no
amendment shall repeal the limitations on personal liability of any
Shareholder or Trustee or the prohibition of assessment upon the Shareholders
(otherwise than as permitted under Section 6.1(l)) without the express consent
of each Shareholder or Trustee involved. Subject to the foregoing, the
provisions of this Declaration of Trust (whether or not related to the rights
of Shareholders) may be amended at any time, so long as such amendment does
not adversely affect the rights of any Shareholder with respect to which such
amendment is or purports to be applicable and so long as such amendment is not
in contravention of applicable law, including the 1940 Act, by an instrument
in writing signed by a Majority of the Trustees (or by an officer of the Trust
pursuant to the vote of a Majority of the Trustees). Any amendment to this
Declaration of Trust that adversely affects the rights of all Shareholders may
be adopted at any time by an instrument in writing
29
signed by a Majority of the Trustees (or by an officer of the Trust pursuant
to a vote of a Majority of the Trustees) when authorized to do so by the vote
in accordance with Section 7.1 hereof of Shareholders holding a majority of all
the Shares outstanding and entitled to vote, without regard to Series, or if
said amendment adversely affects the rights of the Shareholders of less than
all of the Series, by the vote of the holders of a majority of all the Shares
entitled to vote of each Series so affected.
SECTION 9.6. Filing of Copies of Declaration and Amendments. The
original or a copy of this Declaration and of each amendment hereto (including
each Certificate of Designation and Certificate of Termination) shall be kept
at the office of the Trust where it may be inspected by any Shareholder. A
restated Declaration, integrating into a single instrument all of the
provisions of this Declaration which are then in effect and operative, may be
executed from time to time by a Majority of the Trustees and shall, upon
execution, be conclusive evidence of all amendments contained therein and may
thereafter be referred to in lieu of the original Declaration and the various
amendments thereto. A Certificate of Trust shall be filed in the office of
the Secretary of State of the State of Delaware.
ARTICLE 10
MISCELLANEOUS
SECTION 10.1. Notices. Any and all notices to which any Shareholder
hereunder may be entitled and any and all communications shall be deemed duly
served or given if mailed, postage prepaid, addressed to any Shareholder of
record at his last known address as recorded on the applicable register of the
Trust.
SECTION 10.2. Governing Law. This Declaration of Trust is, with
reference to the laws thereof, and the rights of all parties and the
construction and effect of every provision hereof shall be, subject to and
construed according to the laws of said The State of Delaware.
SECTION 10.3. Counterparts. This Declaration of Trust and any amendment
thereto may be simultaneously executed in several counterparts, each of which
so executed shall be deemed to be an original, and such counterparts,
together, shall constitute but one and the same instrument, which shall be
sufficiently evidenced by any such original counterpart.
SECTION 10.4. Reliance by Third Parties. Any certificate executed by an
individual who, according to the records of the Trust is a Trustee hereunder,
certifying to: (a) the number or identity of Trustees or Shareholders, (b) the
due authorization of the execution of any instrument or writing, (c) the form
of any vote passed at a meeting of Trustees or Shareholders, (d) the fact that
the number of Trustees or Shareholders present at any meeting or executing any
written instrument satisfies the requirements of this Declaration of Trust,
(e) the form of any By-Law adopted, or the identity of any officers elected,
by the Trustees, (f) the existence or nonexistence of any fact or facts which
in any manner relate to the affairs of the Trust, or (g) the name of the Trust
or the establishment of a Series shall be conclusive evidence as to the
matters so certified in favor of any Person dealing with the Trustees, or any
of them, and the successors of such Person.
30
SECTION 10.5. References; Headings. The masculine gender shall include
the feminine and neuter genders. Headings are placed herein for convenience of
reference only and shall not be taken as a part of this Declaration or control
or affect the meaning, construction or effect hereof.
SECTION 10.6. Provisions in Conflict With Law or Regulation. (a) The
provisions of this Declaration are severable, and if the Trustees shall
determine, with the advice of counsel, that any of such provisions is in
conflict with the 1940 Act, the regulated investment company provisions of the
Internal Revenue Code of 1986 or with other applicable laws and regulations,
the conflicting provision shall be deemed never to have constituted a part of
this Declaration; provided, however, that such determination shall not affect
any of the remaining provisions of this Declaration or render invalid or
improper any action taken or omitted prior to such determination.
(b) If any provision of this Declaration 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 in any jurisdiction.
SECTION 10.7. Use of the Name "Xxx Xxxxxx American Capital". Xxx Xxxxxx
American Capital, Inc. ("Xxx Xxxxxx American Capital") has consented to the
use by the Trust and by each Series and each Series thereof to the identifying
words "Xxx Xxxxxx" or "Van Xxxxxx Xxxxxxx" or any combination thereof in the
name of the Trust and of each Series and Series thereof. Such consent is
conditioned upon the Trust's employment of Xxx Xxxxxx American Capital, its
successors or a subsidiary or affiliate thereof as investment adviser to the
Trust and to each Series and each Series thereof. As between Xxx Xxxxxx
American Capital and the Trust, Xxx Xxxxxx American Capital shall control the
use of such name insofar as such name contains the identifying words "Xxx
Xxxxxx" or "Van Xxxxxx Xxxxxxx". Xxx Xxxxxx American Capital may from time to
time use the identifying words "American Capital," "Xxx Xxxxxx" or "Van Xxxxxx
Xxxxxxx" in other connections and for other purposes, including without
limitation in the names of other investment companies, corporations or
businesses that it may manage, advise, sponsor or own or in which it may have
a financial interest. Xxx Xxxxxx American Capital may require the Trust or any
Series or Series thereof to cease using the identifying words "Xxx Xxxxxx" or
"Van Xxxxxx Xxxxxxx" in the name of the Trust or any Series or any Series
thereof if the Trust or any Series or Series thereof ceases to employ Xxx
Xxxxxx American Capital, its successors or a subsidiary or affiliate thereof
as investment adviser.
31
IN WITNESS WHEREOF, the undersigned, being the initial Trustee, has set
his hand and seal, for himself and his assigns, unto this Declaration of Trust
of Xxx Xxxxxx American Capital Equity Trust, all as of the day and year first
above written.
__________________________________
Initial Trustee
32
A C K N O W L E D G M E N T
STATE OF ILLINOIS )
) ss
COUNTY OF DUPAGE )
May 10, 1995
Then personally appeared the above named Xxxxxx X. Xxxxxx and acknowledged
the foregoing instrument to be his free act and deed.
Before me,
_______________________________
(Notary Public)
My commission expires:___________
33
