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Exhibit 23(a)
Agreement and Declaration of Trust
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C-5
AGREEMENT AND DECLARATION OF TRUST
of
THE XXXXXXXXXX FUNDS III
a Delaware Business Trust
Principal Place of Business:
000 Xxxxxxxxxx Xxxxxx
Xxx Xxxxxxxxx, Xxxxxxxxxx 00000
TABLE OF CONTENTS
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ARTICLE I Name and Definitions .................................... 1
1. Name .......................................................... 1
2. Definitions ................................................... 1
(a) Trust ................................................... 1
(b) Trust Property .......................................... 1
(c) Trustees ................................................ 1
(d) Shares .................................................. 2
(e) Shareholder ............................................. 2
(f) Person .................................................. 2
(g) Investment Company Act .................................. 2
(h) Commission and Principal Underwriter .................... 2
(i) Declaration of Trust .................................... 2
(j) By-Laws ................................................. 2
(k) Interested Person ....................................... 2
(l) Investment Adviser ...................................... 2
(m) Series .................................................. 2
(n) Certificate of Trust .................................... 2
(o) Class ................................................... 2
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(p) Delaware Act ............................................ 3
ARTICLE II Purpose of Trust ........................................ 3
ARTICLE III Shares .................................................. 3
1. Division of Beneficial Interest ............................... 3
2. Ownership of Shares ........................................... 4
3. Transfer of Shares ............................................ 4
4. Investments in the Trust ...................................... 5
5. Status of Shares and Limitation of Personal Liability ......... 5
6. Power of Board of Trustees to Change Provisions
Relating to Shares ............................................ 5
7. Establishment and Designation of Series ....................... 6
(a) Assets Held with Respect to a Particular Series ......... 6
(b) Liabilities Held With Respect to a Particular Series .... 7
(c) Dividends, Distributions, Redemptions and Repurchases ... 7
(d) Voting .................................................. 7
(e) Equality ................................................ 8
(f) Fractions ............................................... 8
(g) Exchange Privilege ...................................... 8
(h) Combination of Series ................................... 8
(i) Elimination of Series ................................... 8
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8. Indemnification of Shareholders ............................... 8
ARTICLE IV The Board of Trustees ................................... 8
1. Number, Election and Tenure ................................... 8
2. Effect of Death, Resignation, etc. of a Trustee ............... 9
3. Powers ........................................................ 9
4. Payment of Expenses by the Trust .............................. 13
5. Payment of Expenses by Shareholders ........................... 13
6. Ownership of Assets of the Trust .............................. 13
7. Service Contracts ............................................. 13
8. Trustees and Officers as Shareholders ......................... 15
ARTICLE V Shareholders' Voting Powers and Meetings ................ 15
1. Voting Powers ................................................. 15
2. Voting Power and Meetings ..................................... 16
3. Quorum and Required Vote ...................................... 16
4. Action by Written Consent ..................................... 17
5. Record Dates .................................................. 17
6. Additional Provisions ......................................... 18
ARTICLE VI Net Asset Value, Distributions and Redemptions .......... 18
1. Determination of Net Asset Value, Net Income
and Distributions ............................................. 18
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2. Redemptions and Repurchases ................................... 18
3. Redemptions at the Option of the Trust ........................ 19
ARTICLE VII Compensation and Limitation of Liability of Trustees .... 19
1. Compensation .................................................. 19
2. Indemnification and Limitation of Liability ................... 19
3. Trustee's Good Faith Action, Expert Advice, No Bond
or Surety ................................................... 20
4. Insurance ..................................................... 20
ARTICLE VIII Miscellaneous ........................................... 20
1. Liability of Third Persons Dealing with Trustees .............. 20
2. Termination of Trust or Series ................................ 21
3. Merger and Consolidation ...................................... 21
4. Amendments .................................................... 22
5. Filing of Copies, References, Headings ........................ 23
6. Applicable Law ................................................ 23
7. Provisions in Conflict with Law or Regulations ................ 24
8. Business Trust Only ........................................... 24
9. Use of the Identifying Words "Xxxxxxxxxx" and
"The Xxxxxxxxxx Funds III" .................................. 24
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AGREEMENT AND DECLARATION OF TRUST
OF
THE XXXXXXXXXX FUNDS III
WHEREAS, THIS AGREEMENT AND DECLARATION OF TRUST is made and entered
into as of the date set forth below by the Trustees named hereunder for the
purpose of forming a Delaware business trust in accordance with the provisions
hereinafter set forth,
NOW, THEREFORE, the Trustees hereby direct that a Certificate of Trust
be filed with Office of the Secretary of State of the State of Delaware and do
hereby declare that the Trustees will hold IN TRUST all cash, securities and
other assets which the Trust now possesses or may hereafter acquire from time to
time in any manner and manage and dispose of the same upon the following terms
and conditions for the pro rata benefit of the holders of Shares in this Trust.
ARTICLE I
Name and Definitions
Section 1. Name. This Trust shall be known as THE XXXXXXXXXX FUNDS III,
and the Trustees shall conduct the business of the Trust under that name or any
other name as they may from time to time determine.
Section 2. Definitions. Whenever used herein, unless otherwise required
by the context or specifically provided:
(a) The "Trust" refers to the Delaware business trust
established under the Delaware Act by this Agreement and Declaration of Trust,
as amended from time to time and the filing of the Certificate of Trust in the
Office of the Secretary of State of the State of Delaware;
(b) The "Trust Property" means any and all property, real or
personal, tangible or intangible, which is from time to time owned or held by or
for the account of the Trust, including without limitation the rights referenced
in Article VIII, Section 9 hereof;
(c) "Trustees" refers to the persons who have signed this
Agreement and Declaration of Trust, so long as they continue in office in
accordance with the terms hereof, and all other persons who may from time to
time be duly elected or appointed to serve on the Board of Trustees in
accordance with the provisions hereof, in each case so long as such Person shall
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continue in office in accordance with the terms of this Declaration of Trust,
and reference herein to a Trustee or the Trustees shall refer to such Person or
Persons in their capacity as trustees hereunder;
(d) "Shares" means the shares of beneficial interest into
which the beneficial interest in the Trust shall be divided from time to time
and includes fractions of Shares as well as whole Shares;
(e) "Shareholder" means a record owner of outstanding Shares;
(f) "Person" means and includes individuals, corporations,
partnerships, trusts, associations, joint ventures, estates and other entities,
whether or not legal entities, and governments and agencies and political
subdivisions thereof, whether domestic or foreign;
(g) The "Investment Company Act" refers to the Investment
Company Act of 1940 and the Rules and Regulations thereunder, all as amended
from time to time;
(h) The terms "Commission" and "Principal Underwriter" shall
have the meanings given them in the Investment Company Act;
(i) "Declaration of Trust" shall mean this Agreement and
Declaration of Trust, as amended or restated from time to time;
(j) "By-Laws" shall mean the By-Laws of the Trust, as amended
from time to time, which By-Laws are expressly incorporated herein by reference
as part of the governing instruments within the meaning of the Delaware Act;
(k) The term "Interested Person" has the meaning given it in
Section 2(a)(19) of the Investment Company Act;
(l) "Investment Adviser" or "Manager" means a party furnishing
services to the Trust pursuant to any contract described in Article IV, Section
7(a) hereof;
(m) "Series" refers to each Series of Shares established and
designated under or in accordance with the provisions of Article III hereof;
(n) "Certificate of Trust" means the certificate of trust, as
amended or restated from time to time, filed by the Trustees in the Office of
the Secretary of State of the State of Delaware in accordance with the Delaware
Act;
(o) "Class" means a class of Shares of a Series of the Trust
established in accordance with the provisions of Article III hereof; and
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(p) "Delaware Act" means the Delaware Business Trust Act 12
Del. C. ss ss 3801 et seq., as amended from time to time.
ARTICLE II
Purpose of Trust
The purpose of the Trust is to conduct, operate and carry on
the business of a management investment company registered under the Investment
Company Act through one or more Series investing primarily in securities, and to
carry on such other business as the Trustees may from time to time determine
pursuant to their authority under the Declaration of Trust.
ARTICLE III
Shares
Section 1. Division of Beneficial Interest. The beneficial
interest in the Trust shall at all times be divided into an unlimited number of
Shares, with a par value of $ .01 per Share. The Trustees may authorize the
division of Shares into separate Series and the division of Series into separate
classes of Shares. Subject to the further provisions of the Article III and any
applicable requirements of the Investment Company Act, the different Series
shall be established and designated, and the variations in the relative rights
and preferences as between the different Series shall be fixed and determined,
by the Trustees, in their sole discretion, and without obtaining any
authorization or vote of the shareholders of any Series or Class thereof. If
only one or no Series (or classes) shall be established, the Shares shall have
the rights and preferences provided for herein and in Article III, Section 6
hereof to the extent relevant and not otherwise provided for herein, and all
references to Series (and Classes thereof) shall be construed (as the context
may require) to refer to the Trust. All provisions herein relating to the Trust
shall apply equally to each Series of the Trust and each Class thereof, except
as the context otherwise requires.
Subject to the further provisions of this Article III and any
applicable requirements of the 1940 Act, the Trustees shall have full power and
authority, in their sole discretion, and without obtaining any authorization or
vote of the Shareholders of any Series or Class thereof, (i) to issue shares
without limitation as to number (including fractional Shares) to such persons
and for such amount and type of consideration, subject to any restriction set
forth in the By-Laws, including cash or securities, at such time or times and on
such terms as the Trustees may deem appropriate, (ii) to establish and designate
and to change in any manner any Series or Class thereof and to fix such
preferences, voting powers, rights, duties and privileges and business purpose
of each Series or Class thereof as the Trustees may from time to time determine,
which preferences, voting powers, rights, duties and privileges may be senior or
subordinate to (or in the case of business purpose, different from) any existing
Series or Class
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thereof and may be limited to specified property or obligations of the Trust or
profits and losses associated with specified property or obligations of the
Trust, (iii) to divide or combine the Shares of any particular Series or Class
thereof into a greater or lesser number of shares of that Series or Class
without thereby materially changing the proportionate beneficial interest of the
Shares of that Series or Class in the assets held with respect to that Series or
materially affecting the rights of Shares of any other Series, (iv) to classify
or reclassify any issued Shares of any Series or Class thereof into shares of
one or more Series or Classes thereof, and (v) to take such other action with
respect to the Shares as the Trustees may deem desirable.
Subject to the provisions of Section 7 of this Article III,
each Share shall have voting rights as provided in Article V hereof, and holders
of the Shares of any series or Class thereof shall be entitled to receive
dividends when, if and as declared with respect thereto in the manner provided
in Article VI, Section 1 hereof. Subject to the distinctions permitted among
Classes of the same Series as established by the Trustees, consistent with the
requirements of the Investment Company Act, each Share of a Series of the Trust
shall represent an equal beneficial interest in the net assets of such Series,
and no Shares shall have any priority or preference over any other Share of the
same Series with respect to dividends or distributions upon termination of the
Trust or of such Series made pursuant to Article VIII, Section 4 hereof. All
dividends and distributions shall be made ratably among all Shareholders of a
particular Class of a particular Series and, if no Classes, of a particular
Series from the assets held with respect to such Series according to the number
of Shares of such Class of such Series or of such Series held of record by such
Shareholder on the record date for any dividend or distribution or on the date
of termination, as the case may be. Upon redemption of the Shares of any Series,
the applicable Shareholder shall be paid solely out of the funds and property of
such Series of the Trust. All Shares issued hereunder, including, without
limitation, Shares issued in connection with a dividend in Shares or a split or
reverse split of Shares, shall be fully paid and non-assessable. Except as
otherwise provided by the Trustees, Shareholders shall have no preemptive or
other right to subscribe to any additional Shares or other securities issued by
the Trust or any Series.
Section 2. Ownership of Shares. The ownership of Shares shall be
recorded on the books of the Trust or a transfer or similar agent for the Trust,
which books shall be maintained separately for the Shares of each Series (or
class of each Series) of the Trust. No certificates certifying the ownership of
Shares shall be issued except as the Board of Trustees may otherwise determine
from time to time. The Trustees may make such rules as they consider appropriate
for the transfer of Shares of each Series (or class of each Series) of the Trust
and similar matters. The record books of the Trust as kept by the Trust or any
transfer or similar agent, as the case may be, shall be conclusive as to the
identity of the Shareholders of each Series (or class of each Series) of the
Trust and as to the number of Shares of each Series (or class) of the Trust held
from time to time by each.
Section 3. Transfer of Shares. Except as otherwise provided by the
Trustees, Shares shall be transferable on the books of the Trust only by the
record holder thereof or by his or her
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duly authorized agent upon delivery to the Trustees or the Trust's transfer
agent of a duly executed instrument of transfer, together with a Share
certificate if one is outstanding, and such evidence of the genuineness of each
such execution and authorization and of such other matters as may be required by
the Trustees. Upon such delivery, and subject to any further requirements
specified by the Trustees or contained in the By-Laws, the transfer shall be
recorded on the books of the Trust. Until a transfer is so recorded, the
Shareholder of record of Shares shall be deemed to be the holder of such Shares
for all purposes hereunder and neither the Trustees nor the Trust, nor any
transfer agent or registrar or any officer, employee, or agent of the Trust,
shall be affected by any notice of a proposed transfer.
Section 4. Investments in the Trust. Investments may be accepted by the
Trust from such Persons, at such times, on such terms, and for such
consideration as the Trustees from time to time may authorize.
Section 5. Status of Shares and Limitation of Personal Liability.
Shares shall be deemed to be personal property giving only the rights provided
in this instrument. Every Shareholder, by virtue of having become a Shareholder,
shall be held to have expressly assented and agreed to the terms hereof and to
have become a party hereto. The death, incapacity, dissolution, termination, or
bankruptcy of a Shareholder during the existence of the Trust shall not operate
to terminate the Trust, nor entitle the representative of any deceased
Shareholder to an accounting or to take any action in court or elsewhere against
the Trust or the Trustees, but entitles such representative only to the rights
of said deceased Shareholder under this Trust. Ownership of Shares shall not
entitle the Shareholder to any title in or to the whole or any part of the Trust
Property or right to call for a partition or division of the same or for an
accounting, nor shall the ownership of Shares constitute the Shareholders as
partners. Neither the Trust nor the Trustees, nor any officer, employee or agent
of the Trust shall have any power to bind personally any Shareholder, nor,
except as specifically provided herein, to call upon any Shareholder for the
payment of any sum of money or assessment whatsoever other than such as the
Shareholder may at any time personally agree to pay.
Section 6. Power of Board of Trustees to Change Provisions Relating to
Shares. Notwithstanding any other provision of this Declaration of Trust and
without limiting the power of the Board of Trustees to amend the Declaration of
Trust as provided elsewhere herein, the Board of Trustees shall have the power
to amend this Declaration of Trust, at any time and from time to time, in such
manner as the Board of Trustees may determine in their sole discretion, without
the need for Shareholder action, so as to add to, delete, replace or otherwise
modify any provisions relating to the Shares contained in this Declaration of
Trust, provided that before adopting any such amendment without Shareholder
approval the Board of Trustees shall determine that it is consistent with the
fair and equitable treatment of all Shareholders or that Shareholder approval is
not otherwise required by the Investment Company Act or other applicable law. If
Shares have been issued, Shareholder approval shall be required to adopt any
amendments to this Declaration of Trust that would adversely affect to a
material degree the
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rights and preferences of the Shares of any Series (or class of any Series) or
to increase or decrease the par value of the Shares of any Series (or class of
any Series).
Subject to the foregoing Paragraph, the Board of Trustees may
amend the Declaration of Trust to amend any of the provisions set forth in
paragraphs (a) through (i) of Section 7 of this Article III.
Section 7. Establishment and Designation of Series. The
establishment and designation of any Series (or Class) of Shares of the Trust
shall be effective upon the resolution by a majority of the then Trustees,
adopting a resolution that sets forth such establishment and designation and the
relative rights and preferences of such Series (or Class) of the Trust, whether
directly in such resolution or by reference to another document, including,
without limitation, any registration of Trust. Each such resolution shall be
incorporated herein by reference upon adoption.
Shares of each Series (or class) established pursuant to this
Section 7, unless otherwise provided in the resolution establishing such Series,
shall have the following relative rights and preferences:
(a) Assets Held with Respect to a Particular Series.
All consideration received by the Trust for the issue or sale of Shares of a
particular Series, together with all assets in which such consideration is
invested or reinvested, all income, earnings, profits, and proceeds thereof from
whatever source derived, including, without limitation, any proceeds derived
from the sale, exchange or liquidation of such assets, and any funds or payments
derived from any reinvestment of such proceeds in whatever form the same may be,
shall irrevocably be held with respect to that Series for all purposes, subject
only to the rights of creditors of such Series, and shall be so recorded upon
the books of account of the Trust. Such consideration, assets, income, earnings,
profits and proceeds thereof, from whatever source derived, including, without
limitation, any proceeds derived from the sale, exchange or liquidation of such
assets, and any funds or payments derived from any reinvestment of such
proceeds, in whatever form the same may be, are herein referred to as "assets
held with respect to" that Series. In the event that there are any assets,
income, earnings, profits and proceeds thereof, funds or payments which are not
readily identifiable as assets held with respect to any particular Series
(collectively "General Assets"), the Trustees shall allocate such General Assets
to, between or among any one or more of the Series in such manner and on such
basis as the Trustees, in their sole discretion, deem fair and equitable, and
any General Asset so allocated to a particular Series shall be held with respect
to that Series. Each such allocation by the Trustees shall be conclusive and
binding upon the Shareholders of all Series for all purposes. Separate and
distinct records shall be maintained for each Series and the assets held with
respect to each Series shall be held and accounted for separately from the
assets held in respect to all other Series and the General Assets of the Trust
not allocated to such Series.
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(b) Liabilities Held With Respect to a Particular
Series. The assets of the Trust held with respect to each particular Series
shall be charged against the liabilities of the Trust held with respect to that
Series and all expenses, costs, charges and reserves attributable to that
Series, and any general liabilities of the Trust which are not readily
identifiable as being held with respect to any particular Series shall be
allocated and charged by the Trustees to and among any one or more of the Series
in such manner and on such basis as the Trustees in their sole discretion deem
fair and equitable. The liabilities, expenses, costs, charges, and reserves so
charged to a series are herein referred to as "liabilities held with respect to"
that Series. Each allocation of liabilities, expenses, costs, charges and
reserves by the Trustees shall be conclusive and binding upon the holders of all
Series for all purposes. All Persons who have extended credit which has been
allocated to a particular Series, or who have a claim or contract which has been
allocated to any particular Series, shall look exclusively to the assets of that
particular Series for payment of such credit, claim, or contract, and not
against the assets of the Trust generally or against the assets held with
respect to any other Series. Notice of this contractual limitation on the
liability of' each Series shall be set forth in the Certificate of Trust or in
an amendment thereto prior to the issuance of any Shares of a Series.
(c) Dividends, Distributions, Redemptions and
Repurchases. Notwithstanding any other provisions of this Declaration of Trust,
including, without limitation, Article VI, no dividend or distribution
including, without limitation, any distribution paid upon termination of the
Trust or of any Series (or class) with respect to, nor any redemption or
repurchase of, the Shares of any Series (or class) shall be effected by the
Trust other than from the assets held with respect to such Series, nor, except
as specifically provided in section 8 of this Article III, shall any Shareholder
of any particular Series otherwise have any right or claim against the assets
held with respect to any other Series except to the extent that such Shareholder
has such a right or claim hereunder as a Shareholder of such other Series. The
Trustees shall have full discretion, to the extent not inconsistent with the
Investment Company Act, to determine which items shall be treated as income and
which items as capital; and each such determination and allocation shall be
conclusive and binding upon the Shareholders.
(d) Voting. All Shares of the Trust entitled to vote
on a matter shall vote separately by Series (and, if applicable, by class): that
is, the Shareholders of each Series (or class) shall have the right to approve
or disapprove matters affecting the Trust and each respective Series (or class)
as if the Series (or classes) were separate companies. There are, however, two
exceptions to voting by separate Series (or classes). First, if the Investment
Company Act requires all Shares of the Trust to be voted in the aggregate
without differentiation between the separate Series (or classes), then all the
Trust's Shares shall be entitled to vote on a dollar-weighted basis by which
each shareholder shall vote his or her shares multiplied by the per Share net
asset value of these shares on the record date. Second, if any matter affects
only the interests of some but not all Series (or classes), then only the
Shareholders of such affected Series (or classes) shall be entitled to vote on
the matter on the same dollar-weighted basis.
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(e) Equality. All the Shares of each particular
Series shall represent an equal proportionate interest in the assets held with
respect to that Series (subject to the liabilities held with respect to that
Series and such rights and preferences as may have been established and
designated with respect to classes of Shares within such Series), and each Share
of any particular Series shall be equal to each other Share of that Series.
(f) Fractions. Any fractional Share of a Series shall
carry proportionately all the rights and obligations of a whole share of that
Series, including rights with respect to voting, receipt of dividends and
distributions, redemption of Shares and termination of the Trust.
(g) Exchange Privilege. The Trustees shall have the
authority to provide that the holders of Shares of any Series shall have the
right to exchange said Shares for Shares of one or more other Series of Shares
in accordance with such requirements and procedures as may be established by the
Trustees.
(h) Combination of Series. The Trustees shall have
the authority, without the approval of the Shareholders of any Series unless
otherwise required by applicable law, to combine the assets and liabilities held
with respect to any two or more Series into assets and liabilities held with
respect to a single Series.
(i) Elimination of Series. At any time that there are
no Shares outstanding of any particular Series (or class) previously established
and designated, the Trustees may by resolution of a majority of the then
Trustees abolish that Series (or class) and rescind the establishment and
designation thereof.
Section 8. Indemnification of Shareholders. If any Shareholder
or former Shareholder shall be exposed to liability by reason of a claim or
demand relating to his or her being or having been a Shareholder, and not
because of his or her acts or omissions, the Shareholder or former Shareholder
(or his or her heirs, executors, administrators, or other legal representatives
or in the case of a corporation or other entity, its corporate or other general
successor) shall be entitled to be held harmless from and indemnified out of the
assets of the applicable series of Shares of the Trust of which such Person is
or was a Shareholder and from or in violation to which such liability arose
against all loss and expense arising from such claim or demand.
ARTICLE IV
The Board of Trustees
Section 1. Number, Election and Tenure. The number of Trustees
constituting the Board of Trustees shall be fixed from time to time by a written
instrument
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signed, or by resolution approved at a duly constituted meeting, by a majority
of the Board of Trustees, provided, however, that the number of Trustees shall
in no event be less than one (1) nor more than fifteen (15). The Board of
Trustees, by action of a majority of the then Trustees at a duly constituted
meeting, may fill vacancies in the Board of Trustees or remove Trustees with or
without cause. Each Trustee shall serve during the continued lifetime of the
Trust until he or she dies, resigns, is declared bankrupt or incompetent by a
court of appropriate jurisdiction, or is removed, or, if sooner, until the next
meeting of Shareholders called for the purpose of electing Trustees and until
the election and qualification of his or her successor. Any Trustee may resign
at any time by written instrument signed by him or her and delivered to any
officer of the Trust or to a meeting of the Trustees. Such resignation shall be
effective upon receipt unless specified to be effective at some other time.
Except to the extent expressly provided in a written agreement with the Trust,
no Trustee resigning and no Trustee removed shall have any right to any
compensation for any period following his or her resignation or removal, or any
right to damages on account of such removal. The Shareholders may fix the number
of Trustees and elect Trustees at any meeting of Shareholders called by the
Trustees for that purpose. Any Trustee may be removed at any meeting of
Shareholders by a vote of two-thirds of the outstanding Shares of the Trust. A
meeting of Shareholders, for the purpose of electing or removing one or more
Trustees may be called (i) by the Trustees upon their own vote, or (ii) upon the
demand of Shareholders owning (i) 10% or more of the Shares, of the Trust in the
aggregate, or (ii) 10% or more of the Shares on a dollar-weighted basis.
Section 2. Effect of Death, Resignation, etc. of a Trustee.
The death, declination to serve, resignation, retirement, removal, or incapacity
of one or more Trustees, or all of them, shall not operate to annul the Trust or
to revoke any existing agency created pursuant to the terms of this Declaration
of Trust. Whenever a vacancy in the Board of Trustees shall occur, until such
vacancy is filled as provided in Article IV, Section 1, the Trustees in office,
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
of Trust. As conclusive evidence of such vacancy, a written instrument
certifying the existence of such vacancy may be executed by an officer of the
Trust or by a majority of the Board of Trustees. In the event of the death,
declination, resignation, retirement, removal, or incapacity of all the then
Trustees within a short period of time and without the opportunity for at least
one Trustee being able to appoint additional Trustees to fill vacancies, the
Trust's Investment Adviser(s) are empowered to appoint new Trustees subject to
the provisions of section 16(a) of the Investment Company Act.
Section 3. Powers. Subject to the provisions of this
Declaration of Trust, the business of the Trust shall be managed by the Board of
Trustees, and such Board shall have all powers necessary or convenient to carry
out that responsibility, including the power to engage in securities
transactions of all kinds on behalf of the Trust. Without limiting the
foregoing, the Trustees may: adopt By-Laws not inconsistent with this
Declaration of Trust providing for the regulation and management of the affairs
of the Trust and may amend and repeal them to the extent that such By-Laws do
not reserve that right to the Shareholders; remove any Trustee with
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or without cause at any time by written instrument signed by at least two-thirds
of the number of Trustees prior to such removal, specifying the date when such
removal shall become effective, and fill vacancies caused by enlargement of
their number or by the death, resignation or removal of a Trustee; fill
vacancies in or remove from their number, and may elect and remove such officers
and appoint and terminate such agents as they consider appropriate appoint from
their own number and establish and terminate one or more committees consisting
of one or more Trustees, which may exercise the powers and authority of the
Board of Trustees to the extent that the Trustees determine; employ one or more
custodians of the assets of the Trust and may authorize such custodians to
employ subcustodians and to deposit all or any part of such assets in a system
or systems for the central handling of securities or with a Federal Reserve
Bank; retain a transfer agent or a shareholder servicing agent, or both; provide
for the issuance and distribution of Shares by the Trust directly or through one
or more Principal Underwriters or otherwise; redeem, repurchase and transfer
Shares pursuant to applicable law; set record dates for the determination of
Shareholders with respect to various matters; declare and pay dividends and
distributions to Shareholders of each Series from the assets of such Series;
and, in general, delegate such authority as they consider desirable to any
officer of the Trust, to any committee of the Trustees and to any agent or
employee of the Trust or to any such custodian, transfer or shareholder
servicing agent, or Principal Underwriter. Any determination as to what is in
the interests of the Trust made by the Trustees in good faith shall be
conclusive. In construing the provisions of this Declaration of Trust, the
presumption shall be in favor of a grant of power to the Trustees. Unless
otherwise specified or required by law, any action by the Board of Trustees
shall be deemed effective if approved or taken by a majority of the Trustees
then in office.
Without limiting the foregoing, the Trust shall have power and
authority to cause the Trust (or to act on behalf of the Trust):
(a) To invest and reinvest cash, to hold cash
uninvested, and to subscribe for, invest in, reinvest in, purchase or otherwise
acquire, own, hold, pledge, sell, assign, transfer, exchange, distribute, write
options on, lend or otherwise deal in or dispose of contracts. for the future
acquisition or delivery of fixed income or other securities, and securities of
every nature and kind, including, without limitation, all types of bonds,
debentures, stocks, negotiable or non-negotiable instruments, obligations,
evidences of indebtedness, certificates of deposit or indebtedness, commercial
paper, repurchase agreements, bankers' acceptances, and other securities of any
kind, issued, created guaranteed, or sponsored by any and all Persons,
including, without limitation, states, territories, and possessions of the
United States and the District of Columbia and any political subdivision,
agency, or instrumentality thereof, any foreign government or any political
subdivision of the U.S. Government or any foreign government, or any
international instrumentality, or by any bank or savings institution, or by any
corporation or organization organized under the laws of the United States or of
any state, territory, or possession thereof, or by any corporation or
organization organized under any foreign law, or in "when issued" contracts for
any such securities, to change the investments of the assets of the Trust; and
to exercise any and all rights, powers, and privileges of ownership or
10
interest in respect of any and all such investments of every kind and
description, including, without limitation, the right to consent and otherwise
act with respect thereto, with power to designate one or more Persons, to
exercise any of said rights, powers, and privileges in respect of any of said
instruments;
(b) To sell, exchange, lend, Pledge, mortgage,
hypothecate, lease, or write options, including options on futures contracts,
with respect to or otherwise deal in any property rights relating to any or all
of the assets of the Trust or any Series;
(c) To vote or give assent, or exercise any rights of
ownership, with respect to stock or other securities or property; and to execute
and deliver proxies or powers of attorney to such person or persons as the
Trustees shall deem proper, granting to such person or persons such power and
discretion with relation to securities or property as the Trustees shall deem
proper;
(d) To exercise powers and right of subscription or
otherwise which in any manner arise out of ownership of securities;
(e) To hold any security or property in a form not
indicating any trust, whether in bearer, unregistered or other negotiable form,
or in its own name or in the name of a custodian or subcustodian or a nominee or
nominees or otherwise;
(f) To consent to or participate in any plan for the
reorganization, consolidation or merger of any corporation or issuer of any
security which is held in the Trust; to consent to any contract, lease,
mortgage, purchase or sale of property by such corporation or issuer; and to pay
calls or subscriptions with respect to any security held in the Trust;
(g) To join with other security holders in acting
through a committee, depositary, voting trustee or otherwise, and in that
connection to deposit any security with, or transfer any security to, any such
committee, depositary or trustee, and to delegate to them such power and
authority with relation to any security (whether or not so deposited or
transferred) as the Trustees shall deem proper, and to agree to pay, and to pay,
such portion of the expenses and compensation of such committee, depositary or
trustee as the Trustees shall deem proper;
(h) To compromise, arbitrate or otherwise adjust
claims in favor of or against the Trust or any matter in controversy, including
but not limited to claims for taxes;
(i) To enter into joint ventures, general or limited
partnerships and any other combinations or associations;
(j) To borrow funds or other property in the name of
the Trust exclusively for Trust purposes and in connection therewith issue notes
or other evidence of
11
indebtedness; and to mortgage and pledge the Trust Property or any part thereof
to secure any or all of such indebtedness;
(k) To endorse or guarantee the payment of any notes
or other obligations of any Person; to make contracts of guaranty or suretyship,
or otherwise assume liability for payment thereof and to mortgage and pledge the
Trust Property or any part thereof to secure any or all such obligations;
(l) To purchase and pay for entirely out of Trust
Property such insurance as the Trustees may deem necessary or appropriate for
the conduct of the business, including, without limitation, insurance policies
insuring the assets of the Trust or payment of distributions and principal on
its portfolio investments, and insurance policies insuring the Shareholders,
Trustees, officers, employees, agents, investment advisers, principal
underwriters, or independent contractors of the Trust, individually against all
claims and liabilities of every nature arising by reason of holding Shares,
holding, being or having held any such office or position, or by reason of any
action alleged to have been taken or omitted by any such Person as Trustee,
officer, employee, agent, investment adviser, principal underwriter, or
independent contractor, including any action taken or omitted that may be
determined to constitute negligence, whether or not the Trust would have the
power to indemnify such Person against liability;
(m) To adopt, establish and carry out pension,
profitsharing, share bonus, share purchase, savings, thrift and other
retirement, incentive and benefit plans, trusts and provisions, including the
purchasing of life insurance and annuity contracts as a means of providing such
retirement and other benefits, for any or all of the Trustees, officers,
employees and agents of the Trust;
(n) To operate as and carry out the business of an
investment company, and exercise all the powers necessary or appropriate to the
conduct of such operations;
(o) To enter into contracts of any kind and
description;
(p) To employ one or more banks, trust companies or
companies that are members of a national securities exchange or such other
entities as the Commission may permit as custodians of any assets of the Trust
subject to any conditions set forth in this Declaration or Trust or in the
By-Laws;
(q) To interpret the investment policies, practices,
or limitations of any Series or Class; and
(r) Subject to the Investment Company Act, to engage
in any other lawful act or activity in which a business trust organized under
the Delaware Act may engage.
12
The Trust shall not be limited to investing in obligations maturing before the
possible termination of the Trust or one or more of its Series. The Trust shall
not in any way be bound or limited by any present or future law or custom in
regard to investment by fiduciaries. The Trust shall not be required to obtain
any court order to deal with any assets of the Trust or take any other action
hereunder.
Section 4. Payment of Expenses by the Trust. The Trustees are
authorized to pay or cause to be paid out of the principal or income of the
Trust, or partly out of the principal and partly out of income, as they deem
fair, all expenses, fees, charges, taxes and liabilities incurred or arising in
connection with 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
or manager, principal underwriter, auditors, counsel, custodian, transfer agent,
Shareholder servicing agent, and such other agents or independent contractors
and such other expenses and charges as the Trustees may deem necessary or proper
to incur, which expenses, fees, charges, taxes and liabilities shall be
allocated in accordance with Article III, Section 7 hereof.
Section 5. Payment of Expenses by Shareholders. The Trustees
shall have the power, as frequently as they may determine, to cause each
Shareholder, or each Shareholder of any particular Series, to pay directly in
advance or arrears, for charges of the Trust's custodian or transfer,
Shareholder servicing or similar agent, an amount fixed from time to time by the
Trustees, by setting off such charges due from such Shareholder from declared
but unpaid dividends owed such Shareholder and/or by reducing the number of
shares in the account of such Shareholder by that number of full and/or
fractional Shares which represents the outstanding amount of such charges due
from such Shareholder.
Section 6. Ownership of Assets of the Trust. Title to all of
the assets of the Trust shall at all times be considered as vested in the Trust,
except that the 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 in the name of any other Person as nominee, on such terms
as the Trustees may determine. 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 resignation, removal or death of a Trustee, he or she
shall automatically cease to have any right, title or interest in any of the
Trust Property, and the right, title and interest of such 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 has
been executed and delivered.
Section 7. Service Contracts.
(a) Subject to such requirements and restrictions as
may be set forth under federal and/or state law in the By-Laws, including,
without limitation, the requirements of the Investment Company Act, the Trustees
may, at any time and from time to time, contract for
13
exclusive or nonexclusive advisory, management and/or administrative services
for the Trust or for any Series (or Class thereof) with any corporation, trust,
association or other organization; and any such contract may contain such other
terms as the Trustees may determine, including without limitation, authority for
the Investment Adviser or administrator to delegate certain or all of its duties
under such contract to qualified investment advisers and administrators and to
determine from time to time without prior consultation with the Trustees what
investments shall be purchased, held, sold or exchanged and what portion, if
any, of the assets of the Trust shall be held uninvested and to make changes in
the Trust's investments, or such other activities as may specifically be
delegated to such party.
(b) The Trustees may also, at any time and from time
to time, contract with any corporation, trust, association or other
organization, appointing it exclusive or nonexclusive distributor or Principal
Underwriter for the Shares of one or more of the Series (or classes) or other
securities to be issued by the Trust. Every such contract shall comply with such
requirements and restrictions as may be set forth under federal and/or state law
and in the By-Laws, including, without limitation the requirements of Section 15
of the Investment Company Act; and any such contract may contain such other
terms as the Trustees may determine.
(c) The Trustees are also empowered, at any time and
from time to time, to contract with any corporations, trusts, associations or
other organizations, appointing it or them custodian, transfer agent and/or
shareholder servicing agent for the Trust or one or more of its Series. Every
such contract shall comply with such requirements and restrictions as may be set
forth under federal and/or state law and in the By-Laws or stipulated by
resolution of the Trustees.
(d) Subject to applicable law, the Trustees are
further empowered, at any time and from time to time, to contract with any
entity to provide such other services to the Trust or one or more of the Series,
as the Trustees determine to be consistent with the best interests of the Trust
and the applicable Series.
(e) The fact that:
(i) any of the Shareholders, Trustees, or
officers of the Trust is a shareholder, director, officer,
partner, trustee, employee, investment adviser, manager,
principal underwriter, distributor, or affiliate or agent of
or for any corporation, trust, association, or other
organization, or for any parent or affiliate of any
organization with which an advisory, management or
administration contract, or principal underwriter's or
distributor's contract, or transfer, shareholder servicing or
other type of service contract may have been or may hereafter
be made, or that any such
14
organization, or any parent or affiliate thereof, is a
Shareholder or has an interest in the Trust, or that
(ii) any corporation, trust, association or
other organization with which an advisory, management or
administration contract or principal underwriter's or
distributor's contract, or transfer, shareholder servicing or
other type of service contract may have been or may hereafter
be made also has an advisory, management or administration
contract, or principal underwriter's or distributor's
contract, or transfer, shareholder servicing or other service
contract with one or more other corporations, trusts,
associations, or other organizations, or has other business or
interests,
shall not affect the validity of any such contract or disqualify any
Shareholder, Trustee or officer of the Trust from voting upon or executing the
same, or create any liability or accountability to the Trust or its
Shareholders, provided approval of each such contract is made pursuant to the
requirements of the Investment Company Act.
Section 8. Trustees and Officers as Shareholders. Any Trustee,
officer or agent of the Trust may acquire, own and dispose of Shares to the same
extent as if he were not a Trustee, officer or agent; and the Trustees may issue
and sell and cause to be issued and sold Shares to, and redeem such Shares from,
any such person or any firm or company in which such person is interested,
subject only to the general limitations contained herein or in the By-Laws
relating to the sale and redemption of such Shares.
ARTICLE V
Shareholders' Voting Powers and Meetings
Section 1. Voting Powers. Subject to the provisions of Article
III, Section 7(d), the Shareholders shall have power to vote only (i) for the
election or removal of Trustees as provided in Article IV, Section 1 hereof, and
(ii) with respect to such additional matters relating to the Trust as may be
required by this Declaration of Trust, the By-Laws or any registration of the
Trust with the Commission (or any successor agency) or any state, or as the
Trustees may consider necessary or desirable. As appropriate, voting may be by
Series (or class). Each whole Share shall be entitled to one vote multiplied by
the per-Share net asset value on the record date for the vote as to any matter
on which it is entitled to vote and each fractional Share shall be entitled to a
proportionate fractional vote. Notwithstanding any other provision of this
Declaration of Trust, on any matters submitted to a vote of the Shareholders,
all Shares of the Trust then entitled to vote shall be voted in aggregate,
except: (i) when required by the Investment Company Act, Shares shall be voted
by individual Series; (ii) when the matter
15
involves the termination of a series or any other action that the Trustees have
determined will affect only the interests of one or more Series, then only
Shareholders of such Series shall be entitled to vote thereon; and (iii) when
the matter involves any action that the Trustees have determined will affect
only the interests of one or more Classes, then only the Shareholder of such
Class or Classes shall be entitled to vote thereon. There shall be no cumulative
voting in the election of Trustees. Shares may be voted in person or by proxy. A
proxy with respect to Shares held in the name of two or more persons shall be
valid if executed by any one of them unless at or prior to exercise of the proxy
the Trust receives a specific written notice to the contrary from any one of
them. A proxy purporting to be executed by or on behalf of a Shareholder shall
be deemed valid unless challenged at or prior to its exercise and the burden of
proving invalidity shall rest on the challenger. Notwithstanding anything else
contained herein or in the By-Laws, in the event a proposal by anyone other than
the officers or Trustees of the Trust is submitted to a vote of the Shareholders
of one or more series or Classes thereof or of the Trust, or in the event of any
proxy contest or proxy solicitation or proposal in opposition to any proposal by
the officers or Trustees of the Trust, Shares may be voted only by written proxy
or in person at a meeting. 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 the Shareholders. Meetings of
the Shareholders shall be called and notice thereof and record dates therefor
shall be given and set as provided in the By-Laws.
Section 2. Voting Power and Meetings. Meetings of the
Shareholders may be called by the Trustees for the purpose of electing Trustees
as provided in Article IV, Section 1 and for such other purposes as may be
prescribed by law, by this Declaration of Trust or by the By-Laws. Meetings of
the Shareholders may also be called by the Trustees from time to time for the
purpose of taking action upon any other matter deemed by the Trustees to be
necessary or desirable. A meeting of Shareholders may be held at any place
designated by the Trustees. 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 and place
of the meeting, to each Shareholder at the Shareholder's address as it appears
on the records of the Trust. Whenever notice of a meeting is required to be
given to a Shareholder under this Declaration of Trust or the By-Laws, a written
waiver thereof, executed before or after the meeting by such Shareholder or his
or her attorney thereunto authorized and filed with the records of the meeting,
shall be deemed equivalent to such notice.
Section 3. Quorum and Required Vote. Except when a larger
quorum is required by applicable law, by the By-Laws or by this Declaration of
Trust, forty percent (40%) of the dollar-weighted voting power of the Shares
entitled to vote shall constitute a quorum at a Shareholders' meeting. When any
one or more Series (or Classes) is to vote as a single class separate from any
other Shares, forty percent (40%) of the Shares of each such Series (or Classes)
entitled to vote shall constitute a quorum at a Shareholder's meeting of that
Series (or Class), except when a larger quorum is required by any provision of
this Declaration of Trust or by the By-Laws or by applicable law. Any meeting of
Shareholders may be adjourned from time to time by a majority
16
of the dollar-weighted votes properly cast upon the question of adjourning a
meeting to another date and time, whether or not a quorum is present, and the
meeting may be held as adjourned within a reasonable time after the date set for
the original meeting without further notice. Subject to the provisions of
Article III, Section 7(d), when a quorum is present at any meeting, a majority
of the Shares voted shall decide any questions and a plurality of the Shares
voted shall elect a Trustee, except when a larger vote is required by any
provision of this Declaration of Trust or the By-Laws or by applicable law,
provided that where any provision of law or of this Declaration of Trust
requires that the holders of any Series shall vote as a Series (or that holders
of a Class shall vote as a Class), then a majority of the Shares of that Series
(or Class) voted on the matter (or a plurality with respect to the election of a
Trustee) shall decide that matter insofar as that Series (or Class) is
concerned.
Section 4. Action by Written Consent. Any action taken by
shareholders may be taken without a meeting if Shareholders holding a majority
(on a dollar-weighted basis) of the Shares entitled to vote on the matter (or
such larger proportion thereof as shall be required by any express provision of
this Declaration of Trust or by the By-Laws or by applicable law) and holding a
majority (or such larger proportion as aforesaid) of the Shares of any Series
(or Class) entitled to vote separately on the matter consent to the action in
writing and such written consents are filed with the records of the meetings of
Shareholders. Such consent shall be treated for all purposes as a vote taken at
a meeting of Shareholders.
Section 5. Record Dates. For the purpose of determining the
Shareholders of any Series (or Class) who are entitled to vote or act at any
meeting or any adjournment thereof, the Trustees may from time to time fix a
time, which shall be not more than ninety (90) days before the date of any
meeting of Shareholders, as the record date for determining the Shareholders of
such Series (or Class) having the right to notice of and to vote at such meeting
and any adjournment thereof, and in such case only Shareholders of record on
such record date shall have such right, notwithstanding any transfer of shares
on the books of the Trust after the record date. For the purpose of determining
the Shareholders of any-Series (or Class) who are entitled to receive payment of
any dividend or of any other distribution, the Trustees may from time to time
fix a date, which shall be before the date for the payment of such dividend or
such other payment, as the record date for determining the Shareholders of such
series (or Class) having the right to receive such dividend or distribution.
Without fixing a record date the Trustees may for voting and/or distribution
purposes close the register or transfer books for one or more Series (or
Classes) for all or any part of the period between a record date and a meeting
of Shareholders or the payment of a distribution. Nothing in this Section shall
be construed as precluding the Trustees from setting different record dates for
different Series (or Classes). For the purpose of determining the
dollar-weighting, such weighting shall be based on the per-Share net asset value
determined on the record date, and if none is determined on such date, the last
determined per-Share net asset value.
17
Section 6. Additional Provisions. The By-Laws may include
further provisions for Shareholders' votes and meetings and related matters.
ARTICLE VI
Net Asset Value, Distributions and Redemptions
Section 1. Determination of Net Asset Value, Net Income and
Distributions. Subject to Article III, Section 7 hereof, the Trustees, in their
absolute discretion, may prescribe and shall set forth in the By-laws or in a
duly adopted vote of the Trustees such bases and time for determining the
per-Share net asset value of the Shares of any Series or net income attributable
to the Shares of any Series, or the declaration and payment of dividends and
distributions on the Shares of any Series, as they may deem necessary or
desirable.
Section 2. Redemptions and Repurchases. The Trust shall
purchase such Shares as are offered by any Shareholder for redemption, upon the
presentation of a proper instrument of transfer together with a request directed
to the Trust or a Person designated by the Trust that the Trust purchase such
Shares or in accordance with such other procedures for redemption as the
Trustees may from time to time authorize; and the Trust will pay therefor the
net asset value thereof, in accordance with the By-Laws and applicable law.
Unless extraordinary circumstances exist, payment for said Shares shall be made
by the Trust to the Shareholder within seven days after the date on which the
request is made in proper form. The obligation set forth in this Section 2 is
subject to the provision that in the event that any time the New York Stock
Exchange (the "Exchange") is closed for other than weekends or holidays, or if
permitted by the Rules of the Commission during periods when trading on the
Exchange is restricted or during any emergency which makes it impracticable for
the Trust to dispose of the investments of the applicable Series or to determine
fairly the value of the net assets held with respect to such Series or during
any other period permitted by order of the Commission for the protection of
investors, such obligations may be suspended or postponed by the Trustees. In
the case of a suspension of the right of redemption as provided therein, a
Shareholder may either withdraw the request for redemption or receive payment
based on the net asset value per share next determined after the termination of
such suspension.
The redemption price may in any case or cases be paid wholly
or partly in kind if the Trustees determine that such payment is advisable in
the interest of the remaining Shareholders of the Series for which the Shares
are being redeemed. Subject to the foregoing, the fair value, selection and
quantity of securities or other property so paid or delivered as all or part of
the redemption price may be determined by or under authority of the Trustees. In
no case shall the Trust be liable for any delay of any corporation or other
Person in transferring securities selected for delivery as all or part of any
payment in kind.
18
Section 3. Redemptions at the Option of the Trust. The Trust
shall have the right, at its option and at any time and in good faith, determine
that direct or indirect ownership of Shares of any Series has or may become
concentrated in any Person to an extent that would disqualify any Series as a
regulated investment company under the Internal Revenue Code of 1986, as amended
(or any successor statute thereto), to redeem Shares of any Shareholder at the
net asset value thereof as described in Section 1 of this Article VI, and to
refuse to transfer or issue Shares to any Person whose acquisition of the Shares
in question would result in such disqualification: (i) if at such time such
Shareholder owns Shares of any Series having an aggregate net asset value of
less than an amount determined from time to time by the Trustees prior to the
acquisition of said Shares; or (ii) to the extent that such Shareholder owns
Shares of a particular Series equal to or in excess of a percentage of the
outstanding Shares of that Series determined from time to time by the Trustees;
or (iii) to the extent that such Shareholder owns Shares equal to or in excess
of a percentage, determined from time to time by the Trustees, of the
outstanding Shares of the Trust or of any Series.
ARTICLE VII
Compensation and Limitation of Liability of Trustees
Section 1. Compensation. The Trustees as such shall be
entitled to reasonable compensation from the Trust, and they may fix the amount
of such compensation. Nothing herein shall in any way prevent the employment of
any Trustee for advisory, management, legal, accounting, investment banking or
other services and payment for the same by the Trust.
Section 2. Indemnification and Limitation of Liability. The
Trustees shall not be responsible or liable in any event for any neglect or
wrong-doing of any officer, agent, employee, Investment Adviser or Principal
Underwriter of the Trust, nor shall any Trustee be responsible for the act or
omission of any other Trustee, and the Trust out of its assets shall indemnify
and hold harmless each and every Trustee, or each Person who is serving or has
served at the Trust's request as a director, officer, trustee, employee, or
agent of another organization in which the Trust has any interest as a
shareholder, creditor, or otherwise to the extent and in the manner provided in
the By-Laws, from and against any and all claims and demands whatsoever arising
out of or related to each Trustee's performance of his or her duties as a
Trustee of the Trust; provided that nothing herein contained shall indemnify,
hold harmless or protect any Trustee, from or against any liability to the Trust
or any Shareholder to which he or she would otherwise be subject by reason of
wilful misfeasance, bad faith, gross negligence or reckless disregard of the
duties involved in the conduct of his or her office.
All persons extending credit to, contracting with or having
any claim against the Trust of the Trustees shall look only to the assets of the
appropriate Series of the Trust for payment under such credit, contract, or
claim; and neither the Trustees nor the Shareholders, nor
19
any of the Trust's officers, employees or agents, whether past, present, or
future, shall be personally liable therefor.
Every note, bond, contract, instrument, certificate or undertaking and every
other act or thing whatsoever issued, executed or done by or on behalf of the
Trust or the Trustees or any of them in connection with the Trust shall be
conclusively deemed to have been issued, executed or done only in or with
respect to their or his or her capacity as Trustees or Trustee, and such
Trustees or Trustee shall not be personally liable thereon. At the Trustees'
discretion, any note, bond, contract, instrument, certificate or undertaking
made or issued by the Trustees or by any officer or officers may give notice
that the Certificate of Trust is on file in the Office of the Secretary of State
of the State of Delaware and that a limitation on liability of Series exists and
such note, bond, contract, instrument, certificate or undertaking may, if the
Trustees so determine, recite that the same was executed or made on behalf of
the Trust by a Trustee or Trustees in such capacity and not individually and
that the obligations of such instrument are not binding upon any of them or the
Shareholders individually but are binding only on the assets and property of the
Trust or a Series thereof, and may contain such further recital as such Person
or Persons may deem appropriate. The omission of any such notice or recital
shall in no way operate to bind any Trustees, officer, or Shareholders
individually.
Section 3. Trustee's Good Faith Action, Expert Advice, No Bond
or Surety. The exercise by the Trustees of their powers and discretion hereunder
shall be binding upon everyone interested. A Trustee shall be liable to the
Trust and to any Shareholder solely for his or her own wilful misfeasance, bad
faith, gross negligence or reckless disregard of the duties involved in the
conduct of the office of Trustee, and shall not be liable for errors of judgment
or mistakes of fact or law. The Trustees may take advice of counsel or other
experts with respect to the meaning and operation of this Declaration of Trust,
and shall be under no liability for any act or omission in accordance with such
advice nor for failing to follow such advice. The Trustees shall not be required
to give any bond as such, nor any surety if a bond is required.
Section 4. Insurance. The Trustees shall be entitled and
empowered to the fullest extent permitted by law to purchase with Trust assets
insurance for liability and for all expenses reasonably incurred or paid or
expected to be paid by a Trustee or officer in connection with any claim,
action,. suit or proceeding in which he or she becomes involved by virtue of his
or her capacity or former capacity with the Trust.
ARTICLE VIII
Miscellaneous
Section 1. 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
20
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.
Section 2. Termination of Trust or Series. Unless terminated
as provided herein, the Trust shall continue without limitation of time. The
Trust may be terminated at any time by vote of a majority of the Shares of each
Series entitled to vote, voting separately by Series, or by the Trustees by
written notice to the Shareholders. Any Series or Class thereof may be
terminated at any time by vote of a majority of the Shares of that Series or
Class entitled to vote or by the Trustees by written notice to the Shareholders
of that Series or Class.
Upon termination of the Trust (or any one or more Series or
any Class thereof, as the case may be)'by the requisite Shareholder vote or
action by the Trustees, after paying or otherwise providing for all charges,
taxes, expenses and liabilities held, severally, with respect to each Series (or
the applicable Series, as the case may be), 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 held, severally, with respect to each Series (or the applicable Series or
any Class thereof if any Series or Class remains, as the case may be), to
distributable form in cash or shares or other securities, or any combination
thereof, and distribute the proceeds held with respect to each Series or Class
(or the applicable Series, as the case may be), to the Shareholders of that
Series, as a Series or Class, ratably according to the number of Shares of that
Series or Class held by the several Shareholders on the date of termination.
Thereupon, the Trust or any affected Series or Class shall terminate and the
Trustees and the Trust shall be discharged of any and all further liabilities
and duties relating thereto or arising therefrom, and the right, title, and
interest of all parties with respect to the Trust or such Series or Class shall
be canceled and discharged.
Upon termination of the Trust, following completion of winding
up of its business, the Trustees shall cause a certificate of cancellation of
the Trust's Certificate of Trust to be filed in accordance with the Delaware
Act, which certificate of cancellation may be signed by any one Trustee.
Section 3. Merger and Consolidation. Notwithstanding anything
else herein, the Trustees may cause (i) the Trust or one or more of its Series
to the extent consistent with applicable law to be merged into or consolidated
with another trust or company (including trusts, partnerships, associations,
corporations or other business entities created by the Trustees to accomplish
such merger or consolidation) so long as the surviving or resulting entity is a
management investment company under the Investment Company Act, or is a series
thereof, that will succeed to or assume the Trust's registration under the
Investment Company Act and that is formed, organized, or existing under the laws
of the United States or of a state, commonwealth, possession or colony of the
United States, (ii) the Shares of the Trust or any Series to be converted into
beneficial interests in another business trust (or series thereof) created
pursuant to this Section 3 of Article VIII, (iii) the Shares to be exchanged
under or pursuant to any state or
21
federal statute to the extent permitted by law, or (iv) cause the Trust to
incorporate under the laws of Delaware or any other state or jurisdiction. such
merger or consolidation, Share conversion or Share exchange must be authorized
by vote of a majority of the outstanding Shares of the Trust, as a whole, or any
affected Series, as may be applicable; provided that in all respects not
governed by statute or applicable law, the Trustees shall have the power to
prescribe the procedure necessary or appropriate to accomplish a sale of assets,
merger or consolidation including the power to create one or more separate
business trusts to which all or any part of the assets, liabilities, profits or
losses of the Trust or any Series or Class thereof may be transferred and to
provide for the conversion of Shares of the Trust or any Series or Class thereof
into beneficial interests in such separate business trust or trusts (or series
or classes thereof).
Pursuant to and in accordance with the provisions of Section
3815(f) of the Delaware Act, and notwithstanding anything to the contrary
contained in this Declaration of Trust, an agreement of merger or consolidation
approved by the Trustees in accordance with this Section 3 may (i) effect any
amendment to the governing instrument of the Trust or (ii) effect the adoption
of a new governing instrument of the Trust if the Trust is the surviving or
resulting trust in the merger or consolidation.
Section 4. Amendments. Except as specifically provided in this
Section, this Declaration of Trust may be restated and/or amended or otherwise
supplemented at any time by an instrument in writing signed by a majority of the
then Trustees and, if required, by approval of such amendment by Shareholders in
accordance with Article V, Section 3 hereof. Any such restatement and/or
amendment hereto shall be effective immediately upon execution and approval.
Shareholders shall have the right to vote (i) on any amendment that would affect
their right to vote granted in Article V, Section 1 hereof, (ii) on any
amendment to this Section 4 of Article VIII, (iii) on any amendment that may be
required by applicable law or by the Trust's registration statement, as filed
with the Commission, and (iv) on any amendment submitted to them by the
Trustees. Any amendment required or permitted to be submitted to the
Shareholders that, as the Trustees determine, shall affect the Shareholders of
one or more Series shall be authorized by a vote of the Shareholders of each
Series affected and no vote of Shareholders of a Series not affected shall be
required. Notwithstanding anything else herein, no amendment hereof shall limit
the rights to insurance provided by Article VII, Section 4 with respect to any
acts or omissions of Persons covered thereby prior to such amendment nor shall
any such amendment limit the rights to indemnification referenced in Article
VII, Section 2 hereof as provided in the By-Laws with respect to any actions or
omissions of Persons covered thereby prior to such amendment. The Certificate of
Trust of the Trust may be restated and/or amended by a similar procedure
(however, only one Trustee need sign an Amendment to the Certificate of Trust,
and other Trustees need not approve such Amendment in writing when it directly
reflects provisions in, or approved amendments to, the Declaration of Trust),
and any such restatement and/or amendment shall be effective immediately upon
filing with the Office of the Secretary of State of the State of Delaware or
upon such future date as may be stated therein.
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Section 5. Filing of Copies, References, Headings. The
original or a copy of this instrument and of each restatement and/or amendment
hereto shall be kept at the office of the Trust where it may be inspected by any
Shareholder. Anyone dealing with the Trust may rely on a certificate by an
officer of the Trust as to whether or not any such restatements and/or
amendments have been made and as to any matters in connection with the Trust
hereunder; and, with the same effect as if it were the original, may rely on a
copy certified by an officer of the Trust to be a copy of this instrument or of
any such restatements and/or amendments. In this instrument and in any such
restatements and/or amendment, references to this instrument, and all
expressions like "herein," "hereof" and "hereunder," shall be deemed to refer to
this instrument as amended or affected by any such restatements and/or
amendments. Headings are placed herein for convenience of reference only and
shall not be taken as a part hereof or control or affect the meaning,
construction or effect of this instrument. Whenever the singular number is used
herein, the same shall include the plural; and the neuter, masculine and
feminine genders shall include each other, as applicable. This instrument may be
executed in any number of counterparts each of which shall be deemed an
original.
Section 6. Applicable Law. This Agreement and Declaration of
Trust is created under and is to-be governed by and construed and administered
according to the laws of the State of Delaware and the Delaware Act. The Trust
shall be a Delaware business trust pursuant to such Act, and without limiting
the provisions hereof, the Trust may exercise all powers which are ordinarily
exercised by such a business trust, and the absence of a specific reference
herein to any such power, privilege, or action shall not imply that the Trust
may not exercise such power or privilege or take such actions.
Notwithstanding the first sentence of Section 6 of this
Article VIII, there shall not be applicable to the Trust, the Trustees, or this
Declaration of Trust either the provisions of Section 3540 of Title 12 of the
Delaware Code or any provisions of the laws (statutory or common) of the State
of Delaware (other than the Delaware Act) pertaining to trusts that relate to or
regulate; (i) the filing with any court or governmental body or agency of
trustee accounts or schedules of trustee fees and charges, (ii) affirmative
requirements to post bonds for trustees, officers, agents, or employees of a
trust, (iii) the necessity for obtaining a court or other governmental approval
concerning the acquisition, holding or disposition of real or personal property,
(iv) fees or other sums applicable to trustees, officers, agents or employees of
a trust, (v) the allocation of receipts and expenditures to income or principal,
(vi) restrictions or limitations on the permissible nature, amount, or
concentration of trust investments or requirements. relating to the titling,
storage, or other manner of holding of trust assets, or (vii) the establishment
of fiduciary or other standards or responsibilities or limitations on the acts
or powers or liabilities or authorities and powers of trustees that are
inconsistent with the limitations or liabilities or authorities and powers of
the Trustees set forth or referenced in this Declaration of Trust.
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Section 7. Provisions in Conflict with Law or Regulations.
(a) The provisions of the Declaration of Trust are
severable, and if the Trustees shall determine, with the advice of counsel, that
any of such provisions is in conflict with the Investment Company Act, the
regulated investment company provisions of the Internal Revenue Code or with
other applicable laws and regulations, the conflicting provision shall be deemed
never-to have constituted a part of the Declaration of Trust; provided, however,
that such determination shall not affect any of the remaining provisions of the
Declaration of Trust or render invalid or improper any action taken or omitted
prior to such determination.
(b) If any provision of the Declaration of Trust
shall be held invalid or unenforceable in any jurisdiction, such invalidity or
unenforceability shall attach only to such provision in such jurisdiction and
shall not in any manner affect such provision in any other jurisdiction or any
other provision of the Declaration of Trust in any jurisdiction.
Section 8. Business Trust Only. It is the intention of the
Trustees to create a business trust pursuant to the Delaware Act and thereby to
create only the relationship of trustee and beneficial owners within the meaning
of such Act between the Trustees and each Shareholder. It is not the intention
of the Trustees to create a general partnership, limited partnership, joint
stock association, corporation, bailment, or any form of legal relationship
other than a business trust pursuant to the Delaware Act. Nothing in this
Declaration of Trust shall be construed to make the Shareholders, either by
themselves or with the Trustees, partners or members of a joint stock
association.
Section 9. Use of the Identifying Words "Xxxxxxxxxx" and "The
Xxxxxxxxxx Funds III." The identifying words "Xxxxxxxxxx" and "The Xxxxxxxxxx
Funds III" and all rights to the use of such identifying words belong to
Xxxxxxxxxx Asset Management, L.P., the proposed Investment Adviser of the
Trust's Shares. Xxxxxxxxxx Asset Management, L.P. has licensed the Trust to use
the identifying words "The Xxxxxxxxxx Funds III" in the Trust's name and to use
the identifying word "Xxxxxxxxxx" in the name of any series of the Trust. In the
event that Xxxxxxxxxx Asset Management, L.P. or an affiliate of Xxxxxxxxxx Asset
Management, L.P. is not appointed or ceases to be the Investment Adviser of the
Trust, the non-exclusive license may be revoked by Xxxxxxxxxx Asset Management,
L.P., and the Trust and any series thereof shall respectively cease using the
identifying words "The Xxxxxxxxxx Funds III" and "Xxxxxxxxxx," unless otherwise
consented to by Xxxxxxxxxx Asset Management, L.P. or any successor to Xxxxxxxxxx
Asset Management, L.P.'s interest.
(REMAINDER OF PAGE INTENTIONALLY LEFT BLANK)
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IN WITNESS WHEREOF, the Trustees named below do hereby make
and enter into this Agreement and Declaration of Trust as of this 16th day of
August, 1994.
/s/ Xxxxxx Xxx
----------------------
Xxxxxx Xxx
000 Xxxx Xxxxxx
Xxxxxx, Xxxxxxxx 00000
/s/ R. Xxxxxxx Xxxxx
----------------------
R. Xxxxxxx Xxxxx
000 Xxxxxxxxxx Xxxxxx
Xxx Xxxxxxxxx, Xxxxxxxxxx 00000
/s/ Xxxx X. Xxxxxxxxxx
----------------------
Xxxx X. Xxxxxxxxxx
00-X Xxxx Xxxxxx
Xxxxxxx, Xxxxxxxxxx 00000
/s/ Xxxxxxx X. Xxxxxxx
----------------------
Xxxxxxx X. Xxxxxxx
0000 Xxxxxxx Xxxxxx
Xxx Xxxxxxxxx, Xxxxxxxxxx 00000
THE PRINCIPAL PLACE OF BUSINESS OF THE TRUST IS 000 XXXXXXXXXX XXXXXX, XXX
XXXXXXXXX, XXXXXXXXXX 00000
25
