THE DLJdirect MUTUAL FUNDS
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AGREEMENT
AND DECLARATION OF TRUST
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JULY 15, 1999
TABLE OF CONTENTS
ARTICLE I
The Trust
Section 1.1 Name..............................................................................2
Section 1.2 Definitions.......................................................................2
Section 1.3 Purpose and Powers of Trust.......................................................4
ARTICLE II
Trustees
Section 2.1 Number and Qualification..........................................................4
Section 2.2 Term and Election.................................................................4
Section 2.3 Resignation and Removal...........................................................5
Section 2.4 Vacancies.........................................................................5
Section 2.5 Meetings..........................................................................6
Section 2.6 Officers..........................................................................7
ARTICLE III
Powers and Duties of Trustees
Section 3.1 General...........................................................................7
Section 3.2 Investments.......................................................................8
Section 3.3 Legal Title.......................................................................8
Section 3.4 Issuance and Repurchase of Shares.................................................8
Section 3.5 Borrow Money or Utilize Leverage..................................................9
Section 3.6 Delegation; Committees. .........................................................9
Section 3.7 Collection and Payment. .........................................................9
Section 3.8 Expenses.........................................................................10
Section 3.9 By-Laws..........................................................................10
Section 3.10 Miscellaneous Powers.............................................................10
Section 3.11 Distribution Agreements..........................................................11
Section 3.12 Further Powers...................................................................12
Section 3.13 Parties to Contract..............................................................12
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ARTICLE IV
Limitations of Liability
and Indemnification
Section 4.1 No Personal Liability of Shareholders, Trustees, etc.............................13
Section 4.2 Mandatory Indemnification........................................................13
Section 4.3 No Duty of Investigation; Notice in Trust Instruments, etc.......................15
Section 4.4 Reliance on Experts, etc.........................................................15
Section 4.4 Indemnification of Shareholders..................................................16
ARTICLE V
Shares of Beneficial Interest
Section 5.1 Beneficial Interest..............................................................16
Section 5.2 Series Designation. ............................................................16
Section 5.3 Class Designation. .............................................................17
Section 5.4 Description of Shares............................................................17
Section 5.5 Rights of Shareholders. ........................................................19
Section 5.6 Trust Only.......................................................................19
Section 5.7 Issuance of Shares...............................................................20
Section 5.8 Register of Shares. ............................................................21
Section 5.9 Transfer of Shares...............................................................21
Section 5.10 Notices..........................................................................22
Section 5.11 Net Asset Value..................................................................22
Section 5.12 Distributions to Shareholders....................................................22
ARTICLE VI
Shareholders
Section 6.1 Meetings of Shareholders.........................................................23
Section 6.2 Voting...........................................................................23
Section 6.3 Notice of Meeting, Shareholder Proposals and Record Date.........................23
Section 6.4 Quorum and Required Vote.........................................................24
Section 6.5 Proxies, etc.....................................................................25
Section 6.6 Reports..........................................................................25
Section 6.7 Inspection of Records............................................................26
Section 6.8 Shareholder Action by Written Consent............................................26
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ARTICLE VII
Redemption
Section 7.1 Redemptions......................................................................26
Section 7.2 Disclosure of Holding............................................................27
Section 7.3 Redemptions of Small Accounts....................................................27
ARTICLE VIII
Duration: Termination of Trust;
Amendment; Mergers, Etc.
Section 8.1 Duration.........................................................................27
Section 8.2 Termination......................................................................27
Section 8.3 Amendment Procedure..............................................................27
Section 8.4 Merger, Consolidation and Sale of Assets.........................................29
Section 8.5 Incorporation ...................................................................30
ARTICLE IX
Miscellaneous
Section 9.1 Filing...........................................................................31
Section 9.2 Resident Agent...................................................................31
Section 9.3 Governing Law....................................................................31
Section 9.4 Counterparts.....................................................................31
Section 9.5 Reliance by Third Parties........................................................32
Section 9.6 Provisions in Conflict with Law or Regulation....................................32
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THE DLJdirect MUTUAL FUNDS
(the "Trust")
AGREEMENT
AND
DECLARATION OF TRUST
AGREEMENT AND DECLARATION OF TRUST made as of the 15th day of
July, 1999, by the Trustees hereunder, and by the holders of shares of
beneficial interest issued hereunder as hereinafter provided.
WHEREAS, this Trust has been formed to carry on business as
set forth more particularly hereinafter;
WHEREAS, this Trust is authorized to issue an unlimited number
of its shares of beneficial interest in separate series and classes of each such
series, each separate series to be a sub-trust hereunder, all in accordance with
the provisions hereinafter set forth;
WHEREAS, the Trustees have agreed to manage all property
coming into their hands as Trustees of a Delaware business trust registered as
an investment company under the Investment Company Act of 1940 in accordance
with the provisions hereinafter set forth; and
WHEREAS, the parties hereto intend that the Trust created by
this Declaration and the Certificate of Trust filed with the Secretary of State
of the State of Delaware on July ___, 1999 shall constitute a business trust
under the Delaware Business Trust Statute and that this Declaration shall
constitute the governing instrument of such business trust.
NOW, THEREFORE, the Trustees hereby declare that they will
hold all cash, securities, and other assets which they may from time to time
acquire in any manner as Trustees hereunder IN TRUST to manage and dispose of
the same upon the following terms and conditions for the benefit of the holders
from time to time of shares of beneficial interest in this Trust or sub-trusts
created hereunder as hereinafter set forth.
ARTICLE I
The Trust
Section 1.1 Name. This Trust shall be known as the "DLJdirect
Mutual Funds" and the Trustees shall conduct the business of the Trust under
that name or any other name or names as they may from time to time determine.
Section 1.2 Definitions. As used in this Declaration, the
following terms shall have the following meanings:
"By-Laws" shall mean the By-Laws of the Trust as amended from
time to time by the Trustees.
"Class" shall mean a portion of Shares of a Series of the
Trust established in accordance with Section 5.3 hereof.
"Code" shall mean the Internal Revenue Code of 1986, as
amended, and the regulations promulgated thereunder.
"Commission" shall mean the Securities and Exchange
Commission.
"Declaration" shall mean this Agreement and Declaration of
Trust, as amended or amended and restated from time to time, including by way of
any classifying or reclassifying Shares of any Series or any Class of any such
Series or determining any designations, powers, preferences, voting, conversion
and other rights, limitations, qualifications and terms and conditions thereof.
"Delaware Business Trust Statute" shall mean the provisions of
the Delaware Business Trust Act, 12 Del. C. 'SS'3801, et. seq., as such Act may
be amended from time to time.
"Fundamental Policies" shall mean the investment policies and
restrictions set forth from time to time in any Prospectus of the Trust or any
Series that are expressly designated therein as fundamental policies of such
Series.
"Interested Person" shall have the meaning ascribed thereto in
the 1940 Act.
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"Majority Shareholder Vote" shall mean a vote of a "majority
of the outstanding voting securities" (as such term is defined in the 0000 Xxx)
of the Trust, any Series of the Trust or any Class thereof, as applicable.
The "1940 Act" refers to the Investment Company Act of 1940
and the rules and regulations promulgated thereunder and applicable exemptions
there from and interpretations thereof, all as amended from time to time.
The "1933 Act" refers to the Securities Act of 1933, and the
rules and regulations promulgated thereunder and applicable exemptions
therefrom, as amended from time to time.
"Person" shall mean and include natural persons, corporations,
partnerships, trusts, limited liability companies, associations, joint ventures
and other entities, whether or not legal entities, and governments and agencies
and political subdivisions thereof.
"Prospectus" shall mean the current Prospectus of the Trust or
of any Series thereof or of any Class of any such Series, as applicable.
"Series" shall mean the separate sub-trusts that may be
established and designated as series pursuant to Section 5.2 hereof or any one
of such sub-trusts, as applicable.
"Shareholders" shall mean as of any particular time the
holders of record of outstanding Shares of the Trust, any Series of the Trust or
any Class of any Series, as applicable, at such time.
"Shares" shall mean the transferable units of beneficial
interest into which the beneficial interest in the Trust or in a Series of the
Trust shall be divided from time to time and includes fractions of Shares as
well as whole Shares, which Shares may be divided into Series and Classes. All
references to Shares shall be deemed to be Shares of any or all Series or
Classes as the context may require.
"Trust" shall mean the trust established by this Declaration,
as amended from time to time, inclusive of each such amendment and every
sub-trust established as a Series hereunder.
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"Trustees" shall mean the signatory to this Declaration, so
long as such signatory shall continue in office in accordance with the terms
hereof, and all other persons who at the time in question have been duly elected
or appointed and have qualified as trustees in accordance with the provisions
hereof and are then in office.
"Trust Property" shall mean as of any particular time any and
all property, real or personal, tangible or intangible, which at such time is
owned or held by or for the account of the Trust or the Trustees in such
capacity.
Section 1.3 Purpose and Powers of Trust. The Trust is
established for the purpose of engaging in any activity not prohibited by
Delaware law and shall have the power to engage in any such activity and in any
activity incidental or related to any such activity.
ARTICLE II
Trustees
Section 2.1 Number and Qualification. Prior to any offering of
Shares, there may be a sole Trustee and thereafter the number of Trustees shall
be such number, not less than three or more than seven, as shall be set forth in
a written instrument signed or adopted by a majority of the Trustees then in
office. No reduction in the number of Trustees shall have the effect of removing
any Trustee from office prior to the expiration of such Trustee's term. An
individual nominated as a Trustee shall be at least 21 years of age and not
older than such age as may be set forth in a written instrument signed or
adopted by not less than a majority of the Trustees then in office and shall not
be under legal disability. Trustees need not own Shares and may succeed
themselves in office.
Section 2.2 Term and Election. Except for the Trustees
appointed to fill vacancies pursuant to Section 2.4 hereof, each Trustee shall
be elected to serve until death, resignation, removal, reelection by written
ballot at the annual meeting, if one is held, or at any special meeting. Subject
to Section 2.4 hereof, each Trustee named herein or elected or appointed
pursuant to the terms hereof shall hold office until such Trustee's successor
has been elected at such meetings and has qualified to serve as Trustee.
Election of Trustees at a meeting shall be by the affirmative vote of the
holders of a plurality of the Shares present in person or by proxy.
Each individ-
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ual elected or appointed as a Trustee of the Trust shall, unless otherwise
provided by such election or appointment, by such election or appointment also
thereby be elected or appointed, as the case may be, as a Trustee of each Series
of the Trust then in existence.
Section 2.3 Resignation and Removal. Any Trustee may resign
its trust (without need for prior or subsequent accounting) by an instrument in
writing signed and delivered or mailed to the Chairman, if any, the President or
the Secretary and such resignation shall be effective upon such delivery, or at
a later date according to the terms of the instrument. Any Trustee may be
removed (provided the aggregate number of Trustees after such removal shall not
be less than the number required by Section 2.1 hereof) for cause at any time by
written instrument, signed by two-thirds of the remaining Trustees, specifying
the date when such removal shall become effective. Any Trustee may be removed
(provided the aggregate number of Trustees after such removal shall not be less
than the minimum number required by Section 2.1 hereof) without cause at any
time by a written instrument, signed or adopted by two-thirds of the remaining
Trustees or by vote of Shares having not less than two-thirds of the aggregate
number of Shares entitled to vote in the election of such Trustee, specifying
the date when such removal shall become effective. Upon the resignation or
removal of a Trustee, or such persons otherwise ceasing to be a Trustee, such
persons shall execute and deliver such documents as the remaining Trustees shall
require for the purpose of conveying to the Trust or the remaining Trustees any
Trust Property held in the name of the resigning or removed Trustee. Upon the
incapacity or death of any Trustee, such Trustee's legal representative shall
execute and deliver on such Trustee's behalf such documents as the remaining
Trustees shall require as provided in the preceding sentence.
Section 2.4 Vacancies. The term of office of a Trustee shall
terminate and a vacancy shall occur in the event of the death, resignation,
bankruptcy, adjudicated incompetence or other incapacity to perform the duties
of the office, or removal, of a Trustee. Whenever a vacancy in the Board of
Trustees shall occur, the remaining Trustees may fill such vacancy by appointing
an individual having the qualifications described in this Article by action
taken at a meeting or by a written instrument signed or adopted by a majority of
the Trustees then in office or by election by the Shareholders, or may leave
such vacancy unfilled or may reduce the number of Trustees (provided the
aggregate number of Trustees after such reduction shall not be less than the
minimum number required by Section 2.1 hereof). Any vacancy created by an
increase in Trustees may be filled by the appointment of an individual having
the qualifications described in this Article made by action taken at
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a meeting or by a written instrument signed by a majority of the Trustees then
in office or by election by the Shareholders. No vacancy shall operate to annul
this Declaration or to revoke any existing agency created pursuant to the terms
of this Declaration. Whenever a vacancy in the number of Trustees shall occur,
until such vacancy is filled as provided herein, 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.
Section 2.5 Meetings. Meetings of the Trustees shall be held
from time to time upon the call of the Chairman, if any, the President, the
Secretary or any two Trustees. Regular meetings of the Trustees may be held
without call or notice at a time and place fixed by the By-Laws or by the
Trustees. Notice of any other meeting shall be mailed not less than 48 hours
before the meeting or otherwise actually delivered orally or in writing not less
than 24 hours before the meeting, but may be waived in writing by any Trustee
either before or after such meeting. The attendance of a Trustee at a meeting
shall constitute a waiver of notice of such meeting except where a Trustee
attends a meeting for the express purpose of objecting to the transaction of
any business on the ground that the meeting has not been lawfully called or
convened. The Trustees may act with or without a meeting. A quorum for all
meetings of the Trustees shall be a majority of the Trustees. Unless provided
otherwise in this Declaration of Trust, any action of the Trustees may be taken
at a meeting by vote of a majority of the Trustees present (a quorum being
present) or without a meeting by written consent of a majority of the Trustees
or such other proportion as shall be specified herein or by the 1940 Act for
action at a meeting at which all Trustees then in office are present.
Any committee of the Trustees, including an executive
committee, if any, may act with or without a meeting. A quorum for all meetings
of any such committee shall be a majority of the members thereof. Unless
provided otherwise in this Declaration, any action of any such committee may be
taken at a meeting by vote of a majority of the members present (a quorum being
present) or without a meeting by written consent of a majority of the members or
such other proportion as shall be specified herein for action at a meeting at
which all committee members are present.
With respect to actions of the Trustees and any committee of
the Trustees, Trustees who are Interested Persons in any action to be taken may
be counted for quorum purposes under this Section and shall be entitled to vote
to the extent not prohibited by the 1940 Act.
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All or any one or more Trustees may participate in a meeting
of the Trustees or any committee thereof by means of a conference telephone,
internet connection or similar communications equipment by means of which all
persons participating in the meeting can hear or otherwise communicate with each
other; participation in a meeting pursuant to any such communications system
shall constitute presence in person at such meeting except as otherwise provided
by the 1940 Act.
Section 2.6 Officers. The Trustees shall elect a President, a
Secretary and a Treasurer and may elect a Chairman who shall serve at the
pleasure of the Trustees or until their successors are elected. The Trustees may
elect or appoint or may authorize the Chairman, if any, or President to appoint
such other officers or agents with such other titles and powers as the Trustees
may deem to be advisable. A Chairman shall, and the President, Secretary and
Treasurer may, but need not, be a Trustee.
ARTICLE III
Powers and Duties of Trustees
Section 3.1 General. The Trustees shall owe to the Trust and
its Shareholders the same fiduciary duties as owed by directors of corporations
to such corporations and their stockholders under the general corporation law of
the State of Delaware except as otherwise specified by the 1940 Act. The
Trustees shall have exclusive and absolute control over the Trust Property and
over the business of the Trust or any Series thereof to the same extent as if
the Trustees were the sole owners of the Trust Property and business in their
own right, but with such powers of delegation as may be permitted by this
Declaration. The Trustees shall have power to engage in any activity not
prohibited by Delaware law. The enumeration of any specific power herein shall
not be construed as limiting the aforesaid power. The Trustees may perform such
acts as in their sole discretion are proper for conducting the business of the
Trust. The powers of the Trustees may be exercised without order of or resort to
any court. No Trustee shall be obligated to give any bond or other security for
the performance of any of its duties or powers hereunder.
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Section 3.2 Investments. The Trustees shall have power 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 non-equity, of any issuer, evidences of indebtedness of any
person and any other rights, interests, instruments or property of any sort and
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 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.
Section 3.3 Legal Title. 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 any Series
thereof, or in the name of any other Person as nominee, custodian or pledgee, on
such terms as the Trustees may determine, provided that the interest of the
Trust or any Series thereof 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 due election and qualification. Upon the ceasing of any person to
be a Trustee for any reason, such person 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.
Section 3.4 Issuance and Repurchase of Shares. Subject to the
provisions of this Declaration and applicable law, the Trustees shall have the
power to issue, sell, repurchase, redeem, retire, cancel, acquire, hold, resell,
reissue, dispose of, transfer, and otherwise deal in, Shares, including Shares
in fractional denomina-
8
tions, shall have the power to establish from time to time in accordance with
the provisions of Section 5.2 and 5.3 hereof Series and Classes representing
interests in the Trust or a Series thereof and, subject to the more detailed
provisions set forth in Article VII, to apply to any such repurchase,
redemption, retirement, cancellation or acquisition of Shares any funds or
property of the applicable Series of the Trust whether capital or surplus or
otherwise, to the full extent now or hereafter permitted by the laws of the
State of Delaware governing business corporations.
Section 3.5 Borrow Money or Utilize Leverage. The Trustees
shall have the power to borrow money or otherwise obtain credit or utilize
leverage in connection with the activities of the Trust to the maximum extent
permitted by law, regulation or order and the Fundamental Policies of any Series
and to secure the same by mortgaging, pledging or otherwise subjecting as
security the assets of the Trust or any Series thereof, including the lending of
portfolio securities, and to endorse, guarantee, or undertake the performance of
any obligation, contract or engagement of any other person, firm, association or
corporation; provided, however, that the assets of any particular Series shall
not be used as security for any credit extended solely to one or more other
Series.
Section 3.6 Delegation; Committees. The Trustees shall have
power, consistent with their continuing exclusive authority over the management
of the Trust and the Trust Property, to delegate from time to time to such of
their number or to officers, employees or agents of the Trust the doing of such
things and the execution of such instruments either in the name of the Trust or
the names of the Trustees or otherwise as the Trustees may deem expedient, to at
least the same extent as such delegation is permitted to directors of a Delaware
business corporation and is permitted by the 1940 Act, as well as any further
delegations the Trustees may determine to be desirable, expedient or necessary
in order to effect the purpose hereof. The Trustees may designate one or more
committees, including an executive committee, which shall have all or such
lesser portion of the authority of the entire Board of Trustees as the Trustees
shall determine from time to time except to the extent action by the entire
Board of Trustees or particular Trustees is required by the 1940 Act.
Section 3.7 Collection and Payment. The Trustees shall have
power to collect all property due to the Trust or any Series of the Trust or any
Class thereof; to pay all claims, including taxes, against the Trust Property,
the Trust or any Series of the Trust or any Class thereof, the Trustees or any
officer, employee or agent of the Trust; to prosecute, defend, compromise or
abandon any claims relating to the
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Trust Property, the Trust or any Series of the Trust or any Class thereof, or
the Trustees or any officer, employee or agent of the Trust; to foreclose any
security interest securing any obligations, by virtue of which any property is
owed to the Trust or any Series of the Trust or any Class thereof; and to enter
into releases, agreements and other instruments. Except to the extent required
for a Delaware business corporation, 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.
Section 3.8 Expenses. The Trustees shall have power to incur
and pay out of the assets or income of the Trust or any Series of the Trust or
any Class thereof, any expenses which in the opinion of the Trustees are
necessary or appropri ate to carry out any of the purposes of this Declaration,
and the business of the Trust or any Series of the Trust or any Class thereof,
and to pay reasonable compensation from the funds of the Trust to themselves as
Trustees. The Trustees shall fix the compensation of all officers, employees and
Trustees. The Trustees may pay themselves such compensation for special
services, including legal, underwriting, syndicating and brokerage services, as
they in good faith may deem reasonable and reimbursement for expenses reasonably
incurred by themselves on behalf of the Trust. The Trustees shall have the
power, as frequently as they may determine, to cause each Shareholder, or each
Shareholder of any particular Series or Class thereof, to pay directly, in
advance or arrears, for charges of distribution, of the custodian or transfer,
shareholder servicing or similar agent of such Series or Class, a pro rata
amount as defined from time to time by the Trustees, by setting off such charges
due from such Shareholder from declared but unpaid dividends or distributions
owed such Shareholder and/or by reducing the number of shares in the account of
such Shareholder by that number of full and/or fractional Shares which
represents the outstanding amount of such charges due from such Shareholder.
Section 3.9 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. Such
ByLaws shall be binding on the Trust and the Shareholders unless inconsistent
with the provisions of this Declaration. The Shareholders shall not have
authority to adopt or amend By-Laws.
Section 3.10 Miscellaneous Powers. The Trustees shall have the
power to: (a) employ or contract with such Persons as the Trustees may deem
desirable for the transaction of the business of the Trust or any Series
thereof,
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including investment advisors, administrators, custodians, transfer agents,
share holder services providers, distributors, accountants, counsel, brokers,
dealers and others; (b) enter into joint ventures, partnerships and any other
combinations or associations; (c) purchase, and pay for out of Trust Property,
insurance policies insuring the Shareholders, Trustees, officers, employees,
agents, investment advisors, distributors, selected dealers or independent
contractors of the Trust or any Series thereof against all claims arising by
reason of holding any such position or by reason of any action taken or omitted
by any such Person in such capacity, whether or not constituting negligence, or
whether or not the Trust would have the power to indemnify such Person against
such liability; (d) establish pension, profit-sharing, share purchase, and other
retirement, incentive and benefit plans for any Trustees, officers, employees
and agents of the Trust; (e) make donations, irrespective of benefit to the
Trust, for charitable, religious, educational, scientific, civic or similar
purposes; (f) to the extent permitted by applicable law, indemnify any Person
with whom the Trust or any Series thereof has dealings, including without
limitation any investment advisor, administrator, manager, transfer agent,
custodian, distributor or selected dealer, or any other person as the Trustees
may see fit to such extent as the Trustees shall determine; (g) guarantee
indebtedness or contractual obligations of others; (h) determine and change the
fiscal year of the Trust and the method in which its accounts shall be kept; and
(i) adopt a seal for the Trust but the absence of such seal shall not impair the
validity of any instrument executed on behalf of the Trust.
Section 3.11 Distribution Arrangements. Subject to compliance
with the 1940 Act, and intending to grant the maximum flexibility and
discretion, the Trustees may adopt and amend or repeal from time to time and
implement one or more plans of distribution pursuant to Rules 18f-3 and 12b-1 of
the 1940 Act on any successor or related rules for the Trust or for any Series
of the Trust or any Class thereof, each of which plans may provide to the
maximum extent then permitted by applicable law for the payment of specified
marketing, distribution, shareholder relations and all other permitted expenses
of the Trust or the respective Series or Class and its agents and the agents of
such agents as to both amounts and, manner of payment, timing, allocation of
expenses and methods of changing such fees and expenses, including direct and
indirect charges. The Trustees may in their discretion from time to time enter
into one or more contracts, providing for the sale of the Shares of the Trust or
any Series of the Trust or any Class thereof, whereby the Trust may either agree
to sell such Shares to the other party to the contract or appoint such other
party its sales agent for such Shares. In either case, the contract shall be on
such terms and conditions as the Trustees may in their discretion determine not
inconsistent with the provisions of this Article or the By-Laws; and such
contract
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may also provide for the repurchase or sale of Shares of the Trust or any Series
of the Trust or any Class thereof by such other party as principal or as agent
of the Trust or the respective Series and may provide that such other party may
enter into selected dealer agreements with registered securities dealers and
brokers and servicing and similar agreements with persons who are not registered
securities dealers to further the purposes of the distribution or repurchase of
the Shares of the Trust or any Series of the Trust or any Class thereof and any
plan or plans of distribution adopted by the Trustees.
Section 3.12 Further Powers. The Trustees shall have the power
to conduct the business of the Trust or any Series of the Trust or any Class
thereof and carry on its operations in any and all of its branches and maintain
offices both within and without the State of Delaware, in any and all states of
the United States of America, in the District of Columbia, and in any and all
commonwealths, territories, dependencies, colonies, possessions, agencies or
instrumentalities of the United States of America and of foreign governments,
and to do all such other things and execute all such instruments as they deem
necessary, proper or desirable in order to promote the interests of the Trust or
any Series of the Trust or any Class thereof although such things are not herein
specifically mentioned. Any determination as to what is in the interests of the
Trust or any Series of the Trust or any Class thereof made by the Trustees in
good faith shall be conclusive. In construing the provisions of this
Declaration, the presumption shall be in favor of a grant of power to the
Trustees.
Section 3.13 Parties to Contract. Any contract of the
character described in this Article may be entered into with any Person,
although one or more of the Trustees, officers or employees of the Trust may be
an officer, director, trustee, shareholder, or member of such other party to the
contract, and no such contract shall be invalidated or rendered voidable by
reason of the existence of any such relation ship, nor shall any Person holding
such relationship be liable merely by reason of such relationship for any loss
or expense to the Trust or any Series of the Trust or any Class thereof under or
by reason of said contract or accountable for any profit realized directly or
indirectly therefrom, provided that the contract when entered into was
reasonable and fair and not inconsistent with the provisions of this Article or
the By-Laws. The same Person may be the other party to contracts entered into
pursuant to this Article, and any individual may be financially interested or
otherwise affili ated with Persons who are parties to any or all of the
contracts mentioned in this Article.
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ARTICLE IV
Limitations of Liability
and Indemnification
Section 4.1 No Personal Liability of Shareholders, Trustees,
etc. No Shareholder of the Trust shall be subject in such capacity to any
personal liability whatsoever to any Person in connection with Trust Property or
the acts, obligations or affairs of the Trust. Shareholders shall have the same
limitation of personal liability as is extended to stockholders of a private
corporation for profit incorporated under the general corporation law of the
State of Delaware. No Trustee, officer, employee or agent of the Trust or any
Series of the Trust shall be subject in such capacity to any personal liability
whatsoever to any Person, other than the Trust or the respective Series or the
Shareholders, in connection with Trust Property or the affairs of the Trust or
the respective Series, save only liability to the Trust or its Shareholders
arising from bad faith, willful misfeasance, gross negligence or reckless
disregard for the duty to such Person; and, subject to the foregoing exception,
all such Persons shall look solely to the Trust Property for satisfaction of
claims of any nature arising in connection with the affairs of the Trust. If any
Shareholder, Trustee or officer, as such, of the Trust, is made a party to any
suit or proceeding to enforce any such liability, subject to the foregoing
exception, such shareholder shall not, on account thereof, be held to any
personal liability.
Section 4.2 Mandatory Indemnification.
(a) The Trust shall indemnify the Trustees and
officers of the Trust (each such person being an "indemnitee") against any
liabilities and expenses, including amounts paid in satisfaction of judgments,
in compromise or as fines and penalties, and reasonable counsel fees reasonably
incurred by such indemnitee in connection with the defense or disposition of any
action, suit or other proceeding, whether civil or criminal, before any court or
administrative or investigative body in which such person may be or may have
been involved as a party or otherwise (other than, except as authorized by the
Trustees, as the plaintiff or complainant) or with which such person may be or
may have been threatened, while acting in any capacity set forth above in this
Section 4.2 by reason of its having acted in any such capacity, except with
respect to any matter as to which such person shall not have acted in good faith
in the reasonable belief that its action was in the best interest of the Trust
or the respective Series of the Trust or Class thereof and furthermore, in the
case of
13
any criminal proceeding, as to which such person shall have had reasonable cause
to believe that the conduct was unlawful, provided, however, that no indemnitee
shall be indemnified hereunder against any liability to any person or any
expense of such indemnitee arising by reason of (i) willful misfeasance, (ii)
bad faith, (iii) gross negligence, or (iv) reckless disregard of the duties
involved in the conduct of its position. Notwithstanding the foregoing, with
respect to any action, suit or other proceeding voluntarily prosecuted by any
indemnitee as plaintiff, indemnification shall be mandatory only if the
prosecution of such action, suit or other proceeding by such indemnitee was
authorized by a majority of the Trustees.
(b) Notwithstanding the foregoing, no indemnification
shall be made hereunder unless there has been a determination (1) by a final
decision on the merits by a court or other body of competent jurisdiction before
whom the issue of entitlement to indemnification hereunder was brought that such
indemnitee is entitled to indemnification hereunder or, (2) in the absence of
such a decision, by (i) a majority vote of a quorum of those Trustees who are
neither Interested Persons of the Trust nor parties to the proceeding
("Disinterested Non-Party Trustees"), that the indemnitee is entitled to
indemnification hereunder, or (ii) if such quorum is not obtainable or even if
obtainable, if such majority so directs, independent legal counsel in a written
opinion conclude that the indemnitee should be entitled to indemnification
hereunder. All determinations to make advance payments in connection with the
expense of defending any proceeding shall be authorized and made in accordance
with the immediately succeeding paragraph (c) below.
(c) The Trust shall make advance payments in
connection with the expenses of defending any action with respect to which
indemnification might be sought hereunder if the Trust receives a written
affirmation by the indemnitee of the indemnitee's good faith belief that the
standards of conduct necessary for indemnification have been met and a written
undertaking to reimburse the Trust unless it is subsequently determined that
such indemnitee is entitled to such indemnification and if a majority of the
Trustees determine that the applicable standards of conduct necessary for
indemnification appear to have been met. In addition, at least one of the
following conditions must be met: (1) the indemnitee shall provide adequate
security for its undertaking, (2) the Trust shall be insured against losses
arising by reason of any lawful advances, or (3) a majority of a quorum of the
Disinterested Non-Party Trustees, or if a majority vote of such quorum so
direct, independent legal counsel in a written opinion, shall conclude, based on
a review of readily available facts (as opposed to a full trial-type inquiry),
14
that there is substantial reason to believe that the indemnitee ultimately will
be found entitled to indemnification.
(d) The rights accruing to any indemnitee under these
provi sions shall not exclude any other right to which such indemnitee may be
lawfully entitled.
(e) Notwithstanding the foregoing, subject to any
limitations provided by the 1940 Act and this Declaration, the Trust shall have
the power and authority to indemnify Persons providing services to the Trust to
the full extent provided by law as if the Trust were a corporation organized
under the Delaware General Corporation Law provided that such indemnification
has been approved by a majority of the Trustees.
Section 4.3 No Duty of Investigation; Notice in Trust
Instruments, etc. No purchaser, lender, transfer agent or other person dealing
with the Trustees or with any officer, employee or agent of the Trust or any
Series of the Trust or Class thereof shall be bound to make any inquiry
concerning the validity of any transaction purporting to be made by the Trustees
or by said officer, employee or agent or be liable for the application of money
or property paid, loaned, or delivered to or on the order of the Trustees or of
said officer, employee or agent. Every obligation, contract, undertaking,
instrument, certificate, Share, other security of the Trust or any Series of the
Trust or any Class thereof, and every other act or thing whatsoever executed in
connection with the Trust or any Series of the Trust or Class thereof shall be
conclusively taken to have been executed or done by the executors thereof only
in their capacity as Trustees under this Declaration or in their capacity as
officers, employees or agents of the Trust. The Trustees may maintain insurance
for the protection of the Trust Property, its Shareholders, Trustees, officers,
employees and agents in such amount as the Trustees shall deem adequate to cover
possible liability, and such other insurance as the Trustees in their sole
judgment shall deem advisable or is required by the 1940 Act.
Section 4.4 Reliance on Experts, etc. Each Trustee and officer
or employee of the Trust or any Series of the Trust shall, in the performance of
its duties, be fully and completely justified and protected with regard to any
act or any failure to act resulting from reliance in good faith upon the books
of account or other records of the Trust or any Series of the Trust or Class
thereof, upon an opinion of counsel, or upon reports made to the Trust or any
Series thereof by any of the Trust's officers or employees or by any advisor,
administrator, manager, distributor, selected
15
dealer, accountant, appraiser or other expert or consultant selected with
reasonable care by the Trustees, officers or employees of the Trust, regardless
of whether such counsel or other person may also be a Trustee.
Section 4.5 Indemnification of Shareholders. If any
Shareholder or former Shareholder of any Series shall be held personally liable
solely by reason of his being or having been a Shareholder and not because of
his acts or omissions or for some other reason, the Shareholder or former
Shareholder (or his heirs, executors, administrators or other legal
representatives or in the case of any entity, its general successor) shall be
entitled out of the assets belonging to the applicable Series to be held
harmless from and indemnified to the maximum extent permitted by law against all
loss and expense arising from such liability. The Trust, on behalf of the
affected Series, shall, upon request by such Shareholder, assume the defense of
any claim made against such Shareholder for any act or obligation of the Series
and satisfy any judgment thereon from the assets of the Series.
ARTICLE V
Shares of Beneficial Interest
Section 5.1 Beneficial Interest. The interest of the
beneficiaries hereunder shall be divided into an unlimited number of shares of
beneficial interest, par value $.001 per share. All Shares issued in accordance
with the terms hereof, including, without limitation, Shares issued in
connection with a dividend in Shares or a split of Shares, shall be fully paid
and nonassessable when the consideration determined by the Trustees (if any)
therefor shall have been received by the Trust.
Section 5.2 Series Designation. The Trustees, in their
discretion from time to time, may authorize the division of Shares into two or
more Series, each Series relating to a separate portfolio of investments and
each of which Series shall be a separate and distinct subtrust of the Trust.
Each Series so established hereunder shall be deemed to be a separate trust
under the provisions of Delaware law. 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 different Series. The establishment and designation
of any Series shall be effective upon the execution by a majority of the
Trustees of an instrument setting forth the establishment and designation of
such Series. Such instrument shall also set forth any rights and preferences of
such Series which are in addition to the rights and preferences of Shares set
forth in this Declara-
16
tion. At any time that there are no Shares outstanding of any particular Series
previously established and designated, the Trustees may by an instrument
executed by a majority of their number abolish or alter that Series and the
establishment and designation thereof. Each instrument referred to in this
paragraph shall have the status of an amendment to this Declaration.
Section 5.3 Class Designation. The Trustees, in their
discretion from time to time, may authorize the division of Shares of the Trust
or any Series into two or more Classes of Shares all the assets of which shall
be commingled with the other Classes of such Series. The Trustees shall have
exclusive power without the require ment of Shareholder approval to establish
and designate such separate and distinct Classes and to fix and determine the
relative rights, terms, conditions and expenses applicable to each Class of
Shares to the maximum extent permitted by the 0000 Xxx. The establishment and
designation of any Class of Shares shall be effective upon the affirmative vote
of a majority of the Trustees of the Trust, including the Trustees who are not
interested persons of the Trust. At any time that there are no Shares
outstanding of any particular Class previously established and designated, the
Trustees may, by the affirmative vote of a majority of the Trustees, including a
majority of the Trustees who are not interested persons of the Trust, abolish or
alter that Class and the establishment and designation thereof.
Section 5.4 Description of Shares. If the Trustees shall
create sub-trusts and divide the Shares into one or more Series or create
Classes of Shares, the following provisions shall be applicable:
(a) Number of Shares. The number of Shares of each
Series or Class that may be issued shall be unlimited. The Trustees may classify
or reclas sify any unissued Shares or any Shares previously issued and
reacquired of any Series or Class into one or more Series or Classes that may be
established and designated from time to time. The Trustees may hold as treasury
Shares (of the same or some other Series or Class), reissue for such
consideration and on such terms as they may determine, or cancel any Shares of
any Series or Class reacquired by the Trust at their discretion from time to
time.
(b) Investment of Property. The power of the Trustees
to invest and reinvest the Trust Property of each Series that may be established
shall be governed by Section 3.2 of this Declaration.
17
(c) Allocation of Assets. All consideration received
by the Trust for the issue or sale of Shares of a particular Series or Class,
together with all assets in which such consideration is invested or reinvested,
all income, earnings, profits, and proceeds thereof, including any proceeds
derived from the sale, exchange or liquidation of such assets, and any funds or
payment derived from any reinvestment of such proceeds in whatever form the
same may be, together with such Series' or Class' share of any assets of the
Trust not otherwise allocated to any particular Series or Class, shall be held
by the Trustees and Trust for the benefit of the Shareholders of such Series
and, subject to the rights of creditors of such Series only, shall irrevocably
belong to that Series for all purposes, and shall be so recorded upon the books
of account of the Trust. In the event that there are any assets, income, earn-
ings, profits, and proceeds thereof, funds or payments which are not readily
identifi able as belonging to any particular Series, the Trustees shall allocate
them among anyone 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 anything so allocated to a Series shall belong to such
Series. Each such allocation by the Trustees shall be conclusive and binding
upon the Shareholders of all Series for all purposes.
(d) Allocation of Expenses. The assets belonging to
each particular Series or attributable to each particular Class shall be charged
with the liabilities of the Trust in respect of that Series or Class and all
expenses, costs, charges and reserves attributable to that Series or Class, and
any general liabilities, expenses, costs, charges or reserves of the Trust which
are not readily identifiable as belonging to any particular Series or
attributable to any particular Class shall be allocated and charged by the
Trustees to and among any one or more of the Series or Classes 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; provided that any incremental
expenses allocated to one or more Classes of Shares on a basis other than the
relative net asset values of the respective Classes shall be allocated in a
manner consistent with the 1940 Act. Each allocation of liabilities, expenses,
costs, charges and reserves by the Trustees shall be conclusive and binding upon
the Shareholders of all Series and Classes for all purposes. The Trustees shall
have full discretion, to the extent not inconsistent with the 1940 Act, to
determine which items shall be treated as income and which items as capital, and
each such determination and allocation shall be conclusive and binding upon the
Shareholders. Under no circumstances shall the assets allocated or belonging to
a particular Series or attributable to a particular Class be charged with any
liabilities attributable to another Series
18
or Class. Any creditor may look only to the assets of the particular Series with
respect to which such person is a creditor for satisfaction of such creditor's
debt.
(e) Dividends. The power of the Trustees to pay
dividends and make distributions with respect to any one or more Series shall be
governed by Section 5.12 of this Trust. 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 holders of Shares of that Series, from such of the income and
capital gains, accrued or realized, from the assets belonging to that Series, as
the Trustees may determine, after providing for actual and accrued liabilities
belonging to that Series. All dividends and distributions on each Class of a
Series shall be distributed pro rata to the holders of Shares of that Class in
proportion to the number of Shares of that Class held by such holders at the
date and time of record established for the payment of such dividends or
distribu tions, and such dividends and distributions need not be pro rata with
respect to dividends and distributions paid to Shares of any other Class of such
Series. Dividends and distributions shall be paid with respect to Shares of a
given Class only out of lawfully available assets attributable to such Class.
Section 5.5 Rights of Shareholders. The Shares shall be
personal property giving only the rights in this Declaration specifically set
forth. The ownership of the Trust Property of every description and the right
to conduct any business herein before described are vested exclusively in the
Trustees, and the Shareholders shall have no interest therein other than the
beneficial interest conferred by their Shares, with respect to a particular
Series of Class and they shall have no right to call for any partition or
division of any property, profits, rights or interests of the Trust nor can they
be called upon to share or assume any losses of the Trust or, subject to the
right of the Trustees to charge certain expenses directly to Shareholders, as
provided in the last sentence of Section 3.8, suffer an assessment of any kind
by virtue of their ownership of Shares. The Shares shall not entitle the holder
to preference, preemptive, appraisal, conversion or exchange rights (except as
specified in this Section 5.5 or in Section 8.4 or as specified by the Trustees
in the designation or redesignation of any Series or Class thereof).
Notwithstanding anything to the contrary contained herein:
(i) Any Class of shares denominated as being
convertible automatically, and without any action or choice on the
part of the holder thereof, or shares denominated as being convertible
based on an election of
19
the holder thereof, into any other Class of Shares (or fractions
thereof) pursuant to such terms, conditions and restrictions as may be
established by the Board of Trustees and set forth from time to time in
the applicable Prospectus with respect to such Shares shall be
convertible on such terms as are described in such Prospectus.
(ii) The number of Shares into which each such
convertible Share shall convert pursuant to the foregoing paragraph
shall equal the number (including for this purpose fractions of a
Share) obtained by dividing the net asset value per share of the
convertible Shares for purposes of sales and redemptions thereof on the
date of such conversion (the "Conversion Date") by the net asset value
per share of the Class of Shares being converted into for purposes of
sales and redemptions thereof on the Conversion Date.
(iii) On the Conversion Date, those Shares which
are converted into another Class of Shares shall cease to accrue
dividends and will no longer be deemed outstanding and the rights of
the holders thereof (except the right to receive dividends declared
prior to the Conversion Date but unpaid as of the Conversion Date) will
cease. Certificates representing Shares resulting from conversion may
be issued pursuant to such terms and conditions as may be established
from time to time by the Board of Trustees.
Section 5.6 Trust Only. It is the intention of the Trustees to
create only the relationship of Trustee and beneficiary between the Trustees and
each Shareholder from time to time. It is not the intention of the Trustees to
create a general partnership, limited partnership, joint stock association,
corporation, bail ment or any form of legal relationship other than a trust.
Nothing in this Declaration shall be construed to make the Shareholders, either
by themselves or with the Trustees, partners or members of a joint stock
association.
Section 5.7 Issuance of Shares. The Trustees, in their
discretion, may from time to time without vote of the Shareholders issue Shares
with respect to any Series that may have been established pursuant to Section
5.2, in addition to the then issued and outstanding Shares and Shares held in
the treasury, to such party or parties and for such amount and type of
consideration, including cash or property, at such time or times, and on such
terms as the Trustees may determine, and may in such manner acquire other assets
(including the acquisition of assets subject to, and in connection with the
assumption of, liabilities) and businesses. The Trustees may
20
from time to time divide or combine the Shares of any Series into a greater or
lesser number without thereby changing the proportionate beneficial interest in
such Series of the Trust. Issuances and redemptions of Shares may be made in
whole Shares and/or l/l,000ths of a Share or multiples thereof as the Trustees
may determine in such fractions thereof.
Section 5.8 Register of Shares. A register shall be kept at
the Trust or any transfer agent duly appointed by the Trustees under the
direction of the Trustees which shall contain the names and addresses of the
Shareholders and the number of Shares held by them respectively and a record of
all transfers thereof. Separate registers shall be established and maintained
for each Series of the Trust and each Class thereof. Each such register shall be
conclusive as to who are the holders of the Shares of the applicable Series and
Classes thereof and who shall be entitled to receive dividends or distributions
or otherwise to exercise or enjoy the rights of Shareholders. No Shareholder
shall be entitled to receive payment of any dividend or distribution, nor to
have notice given to it as herein provided, until such shareholder has given its
address to a transfer agent or such other officer or agent of the Trustees as
shall keep the register for entry thereon. It is not contemplated that
certificates will be issued for the Shares; however, the Trustees, in their
discretion, may authorize the issuance of share certificates and promulgate
appropriate fees therefore and rules and regulations as to their use.
Section 5.9 Transfer of Shares. Shares shall be transferable
on the records of the Trust only by the record holder thereof or by its agent
thereto duly authorized in writing, upon delivery to the Trustees or a transfer
agent of the Trust of a duly executed instrument of transfer, together with such
evidence of the genuine ness of each such execution and authorization and of
other matters as may reasonably be required. Upon such delivery the transfer
shall be recorded on the applicable register of the Trust. Until such record is
made, the Shareholder of record shall be deemed to be the holder of such Shares
for all purposes hereof and neither the Trustees nor any transfer agent or
registrar nor any officer, employee or agent of the Trust shall be affected by
any notice of the proposed transfer.
Any person becoming entitled to any Shares in consequence of
the death, bankruptcy, or incompetence of any Shareholder, or otherwise by
operation of law, shall be recorded on the applicable register of Shares as the
holder of such Shares upon production of the proper evidence thereof to the
Trustees or a transfer agent of the Trust, but until such record is made, the
Shareholder of record shall be deemed to be the holder of such for all purposes
hereof, and neither the Trustees nor
21
any transfer agent or registrar nor any officer or agent of the Trust shall be
affected by any notice of such death, bankruptcy or incompetence, or other
operation of law.
Section 5.10 Notices. Any and all notices to which any
Shareholder hereunder may be entitled and any and all communications to any
Shareholder shall be deemed duly served or given if mailed, postage prepaid,
addressed to any Shareholder of record at its last known address as recorded on
the applicable register of the Trust and may be sent together with any such
notice or other communication to another Shareholder at the same address.
Section 5.11 Net Asset Value. The value of the assets of the
Trust or any Series and Classes thereof, the amount of liabilities of the Trust
or any Series and Classes thereof and the net asset value of each outstanding
Share of the Trust and the Series and Classes shall be determined at such time
or times and on such days as the Trustees may determine in accordance with
the 1940 Act. The method of determina tion of net asset value shall be
determined by the Trustees. The power and duty to value the assets and
liabilities of the Trust and make net asset value determinations and
calculations may be delegated by the Trustees.
Section 5.12 Distributions to Shareholders.
(a) The Trustees shall from time to time distribute
among the Shares such proportion of the net profits, surplus (including paid-in
surplus), capital, or assets held by the Trustees as they may deem proper or as
may otherwise be determined in the instrument setting forth the terms of such
Shares such Class or Series of Shares, which need not be ratable with respect to
distributions in respect of Shares of any other Class or Series thereof of the
Trust. Such distributions may be made in cash or property (including without
limitation any type of obligations of the Trust or any assets thereof) or any
combination thereof.
(b) Distributions may be made to the Shareholders of
record entitled to such distribution at the time such distribution is declared
or at such later date as shall be determined by the Trust prior to the date of
payment.
(c) The Trustees may always retain from any source
such amount as they may deem necessary to pay the debts or expenses of the Trust
or to meet obligations of the Trust, or as they otherwise may deem desirable to
use in the conduct of its affairs or to retain for future requirements or
extensions of the business of the Trust.
22
ARTICLE VI
Shareholders
Section 6.1 Meetings of Shareholders. The Trust may, but shall
not be required to, hold annual meetings of the holders of any Class or Series
of Shares. An annual or special meeting of Shareholders may be called at any
time only by the Trustees; provided, however, that if October 31 of any year
shall have passed and the Trustees shall not have called an annual meeting of
Shareholders for such year, the Trustees shall call a meeting for the purpose of
voting on the removal of one or more Trustees or the termination of any
investment advisory agreement, upon written request of holders of Shares of the
Trust or a Series having in the aggregate not less than a majority of the votes
of the outstanding Shares of the Trust entitled to vote on the matter or matters
in question, such request specifying the purpose or purposes for which such
meeting is to be called. Any meeting of Shareholders shall be held within or
without the State of Delaware on such day and at such time as the Trustees shall
designate.
Section 6.2 Voting. Shareholders shall have no power to vote
on any matter except matters on which a vote of Shares is required by applicable
law, this Declaration or resolution of the Trustees. Any matter required to be
submitted for approval of any of the Shares and affecting one or more Series or
Classes shall require approval by the required vote of Shares of the affected
Series or Class voting together as a single Series or Class and, if such matter
affects one or more Series or Class thereof differently from one or more other
Series or Class, approval by the required vote of Shares of such other Series or
Class voting as a separate Series or Class shall be required in order to be
approved with respect to such other Series or Class; provided, however, that
except to the extent required by the 1940 Act, there shall be no separate class
votes on the election or removal of Trustees or the selection of auditors for
the Trust. Shareholders of a particular Series shall not be entitled to vote on
any matter that affects the rights or interests of only one or more other
Series. There shall be no cumulative voting in the election or removal of
Trustees.
Section 6.3 Notice of Meeting, Shareholder Proposals and
Record Date. Notice of all meetings of Shareholders, stating the time, place and
purposes of the meeting, shall be given by the Trustees by mail to each
Shareholder of record entitled to vote thereat at its registered address, mailed
at least 10 days before the
23
meeting or otherwise in compliance with applicable law. Except with respect to
an annual meeting, at which any business required by the 1940 Act may be
conducted, only the business stated in the notice of the meeting shall be
considered at such meeting. Subject to the provisions of applicable law, any
Shareholder wishing to include a proposal to be considered at an annual meeting
must submit such proposal to the Trust at least 30 days in advance of such
meeting. Any adjourned meeting may be held as adjourned one or more times
without further notice not later than 130 days after the record date. For the
purposes of determining the Shareholders who are entitled to notice of and to
vote at any meeting the Trustees may, without closing the transfer books, fix a
date not more than 100 days prior to the date of such meeting of Shareholders as
a record date for the determination of the Persons to be treated as Shareholders
of record for such purposes.
Section 6.4 Quorum and Required Vote.
(a) The holders of a majority of the outstanding Shares of the
Trust on the record date present in person or by proxy shall constitute a quorum
at any meeting of the Shareholders for purposes of conducting business on which
a vote of all Shareholders of the Trust is being taken. The holders of a
majority of the outstanding Shares of one or more Series or one or more Classes
on the record date present in person or by proxy shall constitute a quorum at
any meeting of the Shareholders for purposes of conducting business on which a
vote of Shareholders of such Series or Series or Class or Classes is being
taken. Shares underlying a proxy as to which a broker or other intermediary
states its absence of authority to vote with respect to one or more matters
shall be treated as present for purposes of establishing a quorum for taking
action on any such matter only to the extent so determined by the Trustees at or
prior to the meeting of Shareholders at which such matter is to be considered.
(b) Subject to any provision of applicable law, this
Declara tion or a resolution of the Trustees specifying or requiring a greater
or lesser vote requirement for the transaction of any matter of business at any
meeting of Share holders, (i) the affirmative vote of a plurality of the Shares
entitled to vote for the election of any Trustee or Trustees shall be the act of
such Shareholders with respect to the election of such Trustee or Trustees, (ii)
the affirmative vote of a majority of the Shares present in person or
represented by proxy and entitled to vote on any other
24
matter shall be the act of the Shareholders with respect to such matter, and
(iii) where a separate vote of any Series is required on any matter, the
affirmative vote of a majority of the Shares of such Series present in person or
represented by proxy and entitled to vote on such matter shall be the act of the
Shareholders of such Series with respect to such matter.
Section 6.5 Proxies, etc. At any meeting of Shareholders, any
holder of Shares entitled to vote thereat may vote by proxy, provided that no
proxy shall be voted at any meeting unless it shall have been placed on file
with the Secretary, or with such other officer or agent of the Trust as the
Secretary may direct, for verification prior to the time at which such vote
shall be taken. Pursuant to a resolution of a majority of the Trustees, proxies
may be solicited in the name of one or more Trustees or one or more of the
officers or employees of the Trust. Only Shareholders of record shall be
entitled to vote. Each full Share shall be entitled to one vote and each
fractional Share shall be entitled to a vote equal to its fraction of a full
Share. When any Share is held jointly by several persons, any one of them may
vote at any meeting in person or by proxy in respect of such Share, but if more
than one of them shall be present at such meeting in person or by proxy, and
such joint owners or their proxies so present disagree as to any vote to be
cast, such vote shall not be received in respect of such Share. A proxy
purporting to be given by or on behalf of a Shareholder of record on the record
date for a meeting shall be deemed valid unless challenged at or prior to its
exercise, and the burden of proving invalidity shall rest on the challenger. If
the holder of any such Share is a minor or a person of unsound mind, and subject
to guardianship or to the legal control of any other person as regards the
charge or management of such Share, such person may vote by its guardian or such
other person appointed or having such control, and such vote may be given in
person or by proxy. The Trustees shall have the authority to make and modify
from time to time regulations regarding the validity of proxies. In addition to
signed proxies, such regulations may authorize facsimile, telephonic, internet
and other methods of appointing a proxy that are subject to such supervision by
or under the direction of the Trustees as the Trustees shall determine.
Section 6.6 Reports. The Trustees shall cause to be prepared
and sent to Shareholders at least annually and more frequently to the extent and
in the form required by law, regulation or any exchange on which Shares are
listed a report of operations containing financial statements of the Trust
prepared in conformity with generally accepted accounting principles and
applicable law. It is contemplated that separate reports may be prepared for the
various Series. Copies of such reports shall be mailed to all Shareholders of
record of the applicable Series within the time
25
required by the 1940 Act, and in any event within a reasonable period preceding
the meeting of Shareholders.
Section 6.7 Inspection of Records. The records of the Trust
shall be open to inspection by Persons who have been holders of record of at
least $25,000 in net asset value or liquidation preference of Shares for a
continuous period of not less than six months to the same extent and for the
same purposes as is permitted under the Delaware General Business Corporation
Law to shareholders of a Delaware business corporation.
Section 6.8 Shareholder Action by Written Consent. Any action
which may be taken by Shareholders by vote may be taken without a meeting if
the number of shares necessary to approve the act at an in-person meeting and
entitled to vote thereon consent to the action in writing and the 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.
ARTICLE VII
Redemption
Section 7.1 Redemptions. All outstanding Shares of any Series
of the Trust may be redeemed at the option of the holders thereof, upon and
subject to the terms and conditions provided in this Article VII. The Trust
shall, upon application by any Shareholder or pursuant to authorization from
any Shareholder of a particular Series or Class, redeem or repurchase from such
Shareholder outstanding Shares of such Series or Class for an amount per share
determined by the application of a formula adopted for such purpose by the
Trustees with respect to such Series (which formula shall be consistent with the
1940 Act); provided that (a) such amount per share shall not exceed any
limitations imposed under applicable law and (b) if so authorized by the
Trustees, the Trust may, at any time and from time to time, charge fees for
effecting such redemption, at such rates as the Trustees may establish, as and
to the extent permitted under the 1940 Act, and may, at any time and from time
to time, pursuant to such Act, suspend such right of redemption. The procedures
for effecting redemption shall be as set forth in the Prospectus with respect to
the applicable Series or Class from time to time. The proceeds of the redemption
of Shares shall be paid in cash or property (tangible of intangible) or any
combination thereof in the sole discretion of the Trust's investment advisor.
The proceeds of the redemption of Shares subject to a contingent deferred sales
charge (including
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fractional shares) shall be reduced by the amount of any applicable contingent
deferred sales charge payable on such redemption with respect to the respective
Class of such Shares as set forth in the applicable Prospectus (to the extent
consistent with the 1940 Act) or such other charges, fees or expenses as may be
applicable thereto.
Section 7.2 Disclosure of Holding. The holders of Shares or
other securities of the Trust shall upon demand disclose to the Trustees in
writing such information with respect to direct and indirect ownership of Shares
or other securities of the Trust as the Trustees deem necessary to comply with
the provisions of the Code or any other applicable laws.
Section 7.3 Redemptions of Small Accounts. The Trustees shall
have the power to redeem shares of any Series at a redemption price determined
in accordance with Section 7.1 above, (a) if at any time 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, (b) as provided
by Section 3.8, or (c) to the extent a Shareholder or other person beneficially
owns Shares equal to or in excess of a percentage of Shares of the Trust or any
Series or Class determined from time to time by the Trustees and specified in
the applicable Prospectus. In the event the Trustees determine to exercise their
power to redeem Shares provided in subsection (a) of this Section 7.3, the
Shareholder shall be notified that the value of its account is less than the
applicable minimum amount and shall be allowed 30 days to make an appropriate
investment before redemption is processed.
ARTICLE VIII
Duration: Termination of Trust;
Amendment; Mergers, Etc.
Section 8.1 Duration. Subject to termination in accordance
with the provisions of Section 8.2 hereof, the Trust created hereby shall have
perpetual existence.
Section 8.2 Termination.
(a) The Trust or any Series may be dissolved by the
affirma tive vote of a majority of the Trustees, and without any vote of the
Shareholders
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thereof, except as may be required by the 1940 Act. Upon the dissolution of the
Trust or any Series:
(1) The Trust or such Series shall carry
on no business except for the purpose of winding up its affairs.
(2) The Trustees shall proceed to wind
up the affairs of the Trust or such Series and all of the powers of the
Trustees under this Declaration shall continue until the affairs of the
Trust or such Series shall have been wound up, including the power to
fulfill or discharge the contracts of the Trust or such Series, collect
its assets, sell, convey, assign, exchange, merger where the Trust is
not the survivor, transfer or otherwise dispose of all or any part of
the remaining Trust Property to one or more Persons at public or
private sale for consideration which may consist in whole or in part in
cash, securities or other property of any kind, discharge or pay its
liabilities, and do all other acts appropriate to liquidate its
business; provided that any sale, conveyance, assignment, exchange,
merger in which the Trust is not the survivor, transfer or other
disposition of all or substantially all the Trust Property of the
Trust or any Series shall require approval of the principal terms of
the transaction and the nature and amount of the consideration with the
same vote as required for dissolution pursuant to paragraph (a) above.
(3) After paying or adequately providing
for the payment of all liabilities, and upon receipt of such releases,
indemnities and refunding agreements, as they deem necessary for their
protection, the Trustees may distribute the remaining Trust Property of
the Trust or any Series, in cash or in kind or partly each, among the
Shareholders of such Series according to their respective rights.
(b) After the winding up and 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 and shall
execute and file a certificate of cancellation with the Secretary of State of
the State of Delaware. Upon termination of the Trust, the Trustees shall
thereupon be discharged from all further
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liabilities and duties hereunder, and the rights and interests of all
Shareholders shall thereupon cease.
Upon termination of any Series, the Trustees shall thereunder
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.
Section 8.3 Amendment Procedure.
(a) Subject to Section 8.3(b), this Declaration may
be amended in any respect by the affirmative vote of two-thirds of the Trustees
and without any vote of the Shareholders of the Trust or any Series or Class
except as may be required by the 1940 Act.
(b) Nothing contained in this Declaration shall
permit the amendment of this Declaration to impair the exemption from personal
liability of the Shareholders, Trustees, officers, employees and agents of the
Trust or to permit assessments upon Shareholders. Expenses of the Trust charged
directly to Shareholders pursuant to Section 3.8 hereof or fees or sales
charges payable upon or in connection with redemptions of Shares pursuant to
Section 7.1 hereof shall not constitute "assessments" for purposes of this
Section 8.3(b).
(c) An amendment duly adopted by the requisite vote
of the Board of Trustees and, if required, Shareholders as aforesaid, shall
become effective at the time of such adoption or at such other time as may be
designated by the Board of Trustees or Shareholders, as the case may be. A
certification signed by a majority of the Trustees setting forth an amendment
and reciting that it was duly adopted by the Trustees and, if required,
Shareholders as aforesaid, or a copy of the Declaration, as amended, and
executed by a majority of the Trustees, shall be conclusive evidence of such
amendment when lodged among the records of the Trust or at such other time
designated by the Board.
Notwithstanding any other provision hereof, until such time as
Shares are issued and outstanding, this Declaration may be terminated or amended
in any respect by the affirmative vote of a majority of the Trustees or by an
instrument signed by a majority of the Trustees.
Section 8.4 Merger, Consolidation and Sale of Assets. The
Trust or any Series or Classes thereof may merge or consolidate with any other
corporation,
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association, trust or other organization or any Series, Class, sub-trust or
other designated portion thereof or may sell, lease or exchange all or
substantially all of the Trust Property or the property of any Series or Class
including its good will or may acquire all or substantially all of the property
of any other corporation, association, trust or other organization or any
Series, Class, sub-trust or other designated portion thereof, upon such terms
and conditions and for such consideration when and as authorized by two-thirds
of the Trustees and without any vote by the Shareholders of the Trust or any
Series or Class except as may be required by the 1940 Act, and any such merger,
consolidation, sale, lease, exchange or purchase shall be determined for all
purposes to have been accomplished under and pursuant to the statutes of the
State of Delaware.
Section 8.5 Incorporation. Upon approval by Shareholders, 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, limited liability company, association
or organization in exchange for the shares or securities thereof, or otherwise,
and to lend money to, subscribe for the shares or securities of, and enter into
any contracts with any such corporation, trust, limited liability company,
partnership, association or organization, or any corporation, partnership,
trust, limited liability company, 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, limited liability company, 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 corporations, trusts, limited liability
companies, partnerships, associations or other organizations and selling,
conveying or transferring a portion of the Trust Property to such organizations
or entities.
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ARTICLE IX
Miscellaneous
Section 9.1 Filing. This Declaration and any amendment
(including any supplement) hereto shall be filed in such places as may be
required or as the Trustees deem appropriate. Each amendment shall be
accompanied by a certificate signed and acknowledged by a Trustee stating that
such action was duly taken in a manner provided herein, and shall, upon
insertion in the Trust's minute book, be conclusive evidence of all amendments
contained therein. A restated Declaration, containing the original Declaration
and all amendments theretofore made, may be executed from time to time by a
majority of the Trustees and shall, upon insertion in the Trust's minute book,
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.
Section 9.2 Resident Agent. The Trust shall maintain a
resident agent in the State of Delaware, which agent shall initially be The
Corporation Trust Company, 0000 Xxxxxx Xxxxxx, Xxxxxxxxxx, Xxxxxxxx 00000. The
Trustees may designate a successor resident agent, provided, however, that such
appointment shall not become effective until written notice thereof is delivered
to the office of the Secretary of the State.
Section 9.3 Governing Law. This Declaration is executed and
delivered in the State of Delaware and with reference to the laws thereof, and
the rights of all parties and the validity and construction of every provision
hereof shall be subject to, governed by and construed in accordance with the
laws of said State and reference shall be specifically made to the business
corporation law of the State of Delaware as to the construction of matters not
specifically covered herein or as to which an ambiguity exists, although such
law shall not be viewed as limiting the powers otherwise granted to the Trustees
hereunder and any ambiguity shall be viewed in favor of such powers.
Section 9.4 Counterparts. This Declaration may be
simultaneously executed in several counterparts, each of which shall be deemed
to be an original, and such counterparts, together, shall constitute one and the
same instrument, which shall be sufficiently evidenced by any such original
counterpart.
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Section 9.5 Reliance by Third Parties. Any certificate
executed by an individual who, according to the records of the Trust, or of any
recording office in which this Declaration may be recorded, appears to be a
Trustee hereunder, certifying to the existence of any fact or facts which in any
manner relate to the affairs of the Trust shall be conclusive evidence as to the
matters so certified in favor of any person dealing with the Trust.
Section 9.6 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 Code or with other applicable laws and regulations,
the conflicting provision shall be deemed never to have constituted a part of
this Declaration to the extent of such conflict; 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.
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IN WITNESS WHEREOF, the undersigned has caused these presents
to be executed as of the day and year first above written.
By: __________________________________________
Name:
Title:
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