EXHIBIT (b)
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CREDIT SUISSE SHORT DURATION BOND FUND
TRUST INSTRUMENT
DATED JANUARY 31, 2002
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TABLE OF CONTENTS
Page
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ARTICLE I. NAME AND DEFINITIONS.............................................................................1
SECTION 1.1. NAME ......................................................................................1
SECTION 1.2. DEFINITIONS ...............................................................................1
ARTICLE II. BENEFICIAL INTEREST.............................................................................2
SECTION 2.1. SHARES OF BENEFICIAL INTEREST..............................................................2
SECTION 2.2. ISSUANCE OF SHARES.........................................................................2
SECTION 2.3. REGISTER OF SHARES AND SHARE CERTIFICATES..................................................2
SECTION 2.4. TRANSFER OF SHARES.........................................................................3
SECTION 2.5. TREASURY SHARES ...........................................................................3
SECTION 2.6. ESTABLISHMENT OF SERIES....................................................................3
SECTION 2.7. INVESTMENT IN THE TRUST....................................................................4
SECTION 2.8. ASSETS AND LIABILITIES OF SERIES...........................................................4
SECTION 2.9. NO PREEMPTIVE RIGHTS.......................................................................5
SECTION 2.10. STATUS OF SHARES; NO PERSONAL LIABILITY OF SHAREHOLDER.....................................5
ARTICLE III. THE TRUSTEES ..................................................................................5
SECTION 3.1. MANAGEMENT OF THE TRUST....................................................................5
SECTION 3.2. INITIAL TRUSTEE ...........................................................................6
SECTION 3.3. TERM OF OFFICE ............................................................................6
SECTION 3.4. VACANCIES AND APPOINTMENTS.................................................................6
SECTION 3.5. TEMPORARY ABSENCE..........................................................................7
SECTION 3.6. NUMBER OF TRUSTEES.........................................................................7
SECTION 3.7. EFFECT OF ENDING OF A TRUSTEE'S SERVICE....................................................7
SECTION 3.8. OWNERSHIP OF ASSETS OF THE TRUST...........................................................7
ARTICLE IV. POWERS OF THE TRUSTEES..........................................................................7
SECTION 4.1. POWERS ....................................................................................7
SECTION 4.2. ISSUANCE AND REPURCHASE OF SHARES.........................................................10
SECTION 4.3. TRUSTEES AND OFFICERS AS SHAREHOLDERS.....................................................11
SECTION 4.4. ACTION BY THE TRUSTEES....................................................................11
SECTION 4.5. CHAIRMAN OF THE BOARD OF TRUSTEES.........................................................11
SECTION 4.6. PRINCIPAL TRANSACTIONS....................................................................11
ARTICLE V. EXPENSES OF THE TRUST...........................................................................12
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ARTICLE VI. INVESTMENT ADVISER, PRINCIPAL UNDERWRITER, ADMINISTRATOR AND TRANSFER AGENT....................12
SECTION 6.1. INVESTMENT ADVISER........................................................................12
SECTION 6.2. PRINCIPAL UNDERWRITER.....................................................................13
SECTION 6.3. ADMINISTRATION ...........................................................................13
SECTION 6.4. TRANSFER AGENT ...........................................................................13
SECTION 6.5. PARTIES TO CONTRACT.......................................................................13
SECTION 6.6. PROVISIONS AND AMENDMENTS.................................................................14
ARTICLE VII. SHAREHOLDERS' VOTING POWERS AND MEETINGS......................................................14
SECTION 7.1. VOTING POWERS ............................................................................14
SECTION 7.2. MEETINGS .................................................................................15
SECTION 7.3. QUORUM AND REQUIRED VOTE..................................................................15
ARTICLE VIII. CUSTODIAN ...................................................................................16
SECTION 8.1. APPOINTMENT AND DUTIES....................................................................16
SECTION 8.2. CENTRAL CERTIFICATE SYSTEM................................................................16
ARTICLE IX. DISTRIBUTIONS AND REDEMPTIONS..................................................................16
SECTION 9.1. DISTRIBUTIONS ............................................................................16
SECTION 9.2. REDEMPTIONS ..............................................................................17
SECTION 9.3. DETERMINATION OF NET ASSET VALUE AND VALUATION OF PORTFOLIO ASSETS........................17
SECTION 9.4. SUSPENSION OF THE RIGHT OF REDEMPTION.....................................................18
SECTION 9.5. REDEMPTION OF SHARES IN ORDER TO QUALIFY AS REGULATED INVESTMENT COMPANY..................18
ARTICLE X. LIMITATION OF LIABILITY AND INDEMNIFICATION.....................................................19
SECTION 10.1. LIMITATION OF LIABILITY..................................................................19
SECTION 10.2. INDEMNIFICATION..........................................................................19
SECTION 10.3. SHAREHOLDERS ............................................................................20
ARTICLE XI. MISCELLANEOUS .................................................................................21
SECTION 11.1. TRUST NOT A PARTNERSHIP..................................................................21
SECTION 11.2. TRUSTEE'S GOOD FAITH ACTION, EXPERT ADVICE, NO BOND OR SURETY............................21
SECTION 11.3. ESTABLISHMENT OF RECORD DATES............................................................21
SECTION 11.4. TERMINATION OF TRUST.....................................................................22
SECTION 11.5. REORGANIZATION ..........................................................................22
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SECTION 11.6. FILING OF COPIES, REFERENCES, HEADINGS...................................................23
SECTION 11.7. APPLICABLE LAW ..........................................................................23
SECTION 11.8. AMENDMENTS ..............................................................................24
SECTION 11.9. FISCAL YEAR .............................................................................24
SECTION 11.10. PROVISIONS IN CONFLICT WITH LAW.........................................................24
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CREDIT SUISSE SHORT DURATION BOND FUND
January 31, 2002
TRUST INSTRUMENT, made by Xxx Xxxxxx as sole initial trustee.
WHEREAS, the Trustees desire to establish a business trust for
the investment and reinvestment of funds contributed thereto;
NOW THEREFORE, the Trustees declare that all money and property
contributed to the trust hereunder shall be held and managed in trust under this
Trust Instrument as herein set forth below.
ARTICLE I.
NAME AND DEFINITIONS
SECTION 1.1. NAME. The name of the trust created hereby is "CREDIT SUISSE SHORT
DURATION BOND FUND".
SECTION 1.2. DEFINITIONS. Wherever used herein, unless otherwise required by the
context or specifically provided:
(a) The "1940 Act" means the Investment Company Act of 1940, as amended.
Whenever reference is made hereunder to the 1940 Act, such reference shall be
interpreted as including any applicable order or orders of the Commission or any
rules or regulations adopted by the Commission thereunder or interpretive
releases of the Commission staff;
(b) "Bylaws" means the Bylaws of the Trust as adopted by the Trustees, as
amended from time to time;
(c) "Commission" has the meaning given it in the 1940 Act. In addition,
"Affiliated Person," "Assignment," "Interested Person" and "Principal
Underwriter" shall have the respective meanings given them in the 1940 Act.
"Majority Shareholder Vote" shall have the same meaning as the term "vote of a
majority of the outstanding voting securities" under the 1940 Act;
(d) "Delaware Act" refers to Chapter 38 of Title 12 of the Delaware Code
entitled "Treatment of Delaware Business Trusts," as amended from time to time;
(e) "Net Asset Value" means the net asset value of each Series of the Trust
determined in the manner provided in Article IX, Section 9.3 hereof;
(f) "Outstanding Shares" means those Shares shown from time to time in the
books of the Trust or its transfer agent as then issued and outstanding, but
shall not include Shares which have been redeemed or repurchased by the Trust
and which are at the time held in the treasury of the Trust;
(g) "Series" means a series of Shares of the Trust established in accordance
with the provisions of Article II, Section 2.6 hereof;
(h) "Shareholder" means a record owner of Outstanding Shares of the Trust;
(i) "Shares" means the equal proportionate transferable units of beneficial
interest into which the beneficial interest of each Series of the Trust or class
thereof shall be divided and may include fractions of Shares as well as whole
Shares;
(j) The "Trust" means Credit Suisse Short Duration Bond Fund, a Delaware
business trust, and reference to the Trust when applicable to one or more Series
of the Trust, shall refer to any such Series;
(k) The "Trustee" or "Trustees" means the person or persons who has or have
signed this Trust Instrument so long as he or they shall continue in office in
accordance with the terms hereof and all other persons who may from time to time
be duly qualified and serving as Trustees in accordance with the provisions of
Article III hereof, and reference herein to a Trustee or to the Trustees shall
refer to the individual Trustees in their respective capacity as Trustees
hereunder;
(l) "Trust Property" means any and all property, real or personal, tangible
or intangible, which is owned or held by or for the account of one or more of
the Trust or any Series, or the Trustees on behalf of the Trust or any Series.
ARTICLE II.
BENEFICIAL INTEREST
SECTION 2.1. SHARES OF BENEFICIAL INTEREST. The beneficial interest in the Trust
shall be divided into such Shares of one or more separate and distinct Series or
classes of a Series as set forth in Section 2.6 or as the Trustees shall
otherwise from time to time create and establish as provided in Section 2.6. The
number of Shares of each Series and class thereof authorized hereunder is
unlimited. All Shares issued hereunder, including without limitation, Shares
issued in connection with a dividend paid in Shares or a split of Shares, shall
be fully paid and non-assessable.
SECTION 2.2. ISSUANCE OF SHARES. The Trustees in their discretion may, from time
to time, without a vote of the Shareholders, issue Shares, 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, subject to
applicable law, including cash or securities, at such time or times and on such
terms as the Trustees may deem appropriate, 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. In connection with any issuance
of Shares, the Trustees may issue fractional Shares and Shares held in the
treasury. The Trustees may from time to time divide or combine the Shares into a
greater or lesser number without thereby changing the proportionate beneficial
interests in the Trust. Contributions to the Trust may be accepted for, and
Shares shall be redeemed as, whole Shares and/or 1/1000th of a Share or integral
multiples thereof. The Trustees or any person the Trustees may authorize for the
purpose may, in their discretion, reject any application for the issuance of
shares.
SECTION 2.3. REGISTER OF SHARES AND SHARE CERTIFICATES. A register shall be kept
at the principal office of the Trust or an office of the Trust's transfer agent
which shall contain the names and addresses of the Shareholders of each Series,
the number of Shares of that
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Series (or any class or classes thereof) held by them respectively and a record
of all transfers thereof. No share certificates shall be issued by the Trust
except as the Trustees may otherwise authorize, and the persons indicated as
shareholders in such register shall be entitled to receive dividends or other
distributions or otherwise to exercise or enjoy the rights of Shareholders. No
Shareholder shall be entitled to receive payment of any dividend or other
distribution, nor to have notice given to him as herein or in the Bylaws
provided, until he has given his address to the transfer agent or such officer
or other agent of the Trustees as shall keep the said register for entry
thereon.
SECTION 2.4. TRANSFER OF SHARES. Except as otherwise provided by the Trustees,
Shares shall be transferable on the records of the Trust only by the record
holder thereof or by his agent thereunto duly authorized in writing, upon
delivery to the Trustees or the Trust's transfer agent of a duly executed
instrument of transfer and such evidence of the genuineness of such execution
and authorization and of such other matters as may be required by the Trustees.
Upon such delivery the transfer shall be recorded on the 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 hereunder and neither the Trustees nor
the Trust, 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.
SECTION 2.5. TREASURY SHARES. Shares held in the treasury shall, until reissued
pursuant to Section 2.2 hereof, not confer any voting rights on the Trustees,
nor shall such Shares be entitled to any dividends or other distributions
declared with respect to the Shares.
SECTION 2.6. ESTABLISHMENT OF SERIES. The Trust created hereby shall consist
initially of one Series: the Credit Suisse Short Duration Bond Fund. Distinct
records shall be maintained by the Trust for each Series and the assets
associated with each Series shall be held and accounted for separately from the
assets of the Trust or any other Series. The Trustees shall have full power and
authority, in their sole discretion and without obtaining any prior
authorization or vote of the Shareholders of any Series, to establish and
designate and to change in any manner any Series or any classes of initial or
additional Series and to fix such preferences, voting powers, rights and
privileges of such Series or classes thereof as the Trustees may from time to
time determine, to divide or combine the Shares or any Series or classes thereof
into a greater or lesser number, to classify or reclassify any issued Shares or
any Series or classes thereof into one or more Series or classes of Shares, and
to take such other action with respect to the Shares as the Trustees may deem
desirable. The establishment and designation of any Series (other than those
established pursuant to the first sentence of this Section 2.6) shall be
effective upon the adoption of a resolution by a majority of the Trustees
setting forth such establishment and designation and the relative rights and
preferences of the Shares of such Series. A Series may issue any number of
Shares, but need not issue Shares. The Trustees may by a majority vote and
without any prior authorization or vote of Shareholders of the affected Series
abolish that Series and the establishment and designation thereof, whether of
not there are any Shares outstanding of that Series previously established and
designated at the time.
All references to Shares in this Trust Instrument shall be
deemed to be Shares of any or all Series, or classes thereof as the context may
require. 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.
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Each Share of a Series of the Trust shall represent an equal
beneficial interest in the net assets of such Series. Each holder of Shares of a
Series shall be entitled to receive his proportionate share of all distributions
made with respect to such Series, based upon the number of full and fractional
Shares of the Series held. Upon redemption of his Shares, such Shareholder shall
be paid solely out of the funds and property of such Series of the Trust.
SECTION 2.7. INVESTMENT IN THE TRUST. The Trustees shall accept investments in
any Series from such persons and on such terms as they may from time to time
authorize. At the Trustees' discretion, such investments, subject to applicable
law, may be in the form of cash or securities in which the affected Series is
authorized to invest, valued as provided in Article IX, Section 9.3. Investments
in a Series shall be credited to each Shareholder's account in the form of full
and fractional Shares at the net asset value per Share next determined after the
investment is received or accepted as may be determined by the Trustees;
provided, however, that the Trustees may, in their sole discretion, (a) fix
minimum amounts for initial and subsequent investments or (b) impose a sales
charge upon investments in such manner and at such time determined by the
Trustees.
SECTION 2.8. ASSETS AND LIABILITIES OF 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 (including any proceeds derived from the
sale, exchange or liquidation of such assets, and any funds or payments derived
from any reinvestment of such proceeds in whatever form the same may be), shall
be held and accounted for separately from the other assets of the Trust and of
every other Series and may be referred to herein as "assets belonging to" that
Series. The assets belonging to a particular Series shall belong to that Series
for all purposes, and to no other Series, and shall be subject only to the
rights of creditors of that Series. In addition, any assets, income, earnings,
profits or funds, or payments and proceeds with respect thereto, which are not
readily identifiable as belonging to any particular Series shall be allocated by
the Trustees between and among one or more of the Series in such manner as the
Trustees, in their sole discretion, deem fair and equitable. Each such
allocation shall be conclusive and binding upon the Shareholders of all Series
for all purposes, and such assets, income, earnings, profits or funds, or
payments and proceeds with respect thereto shall be assets belonging to that
Series. The assets belonging to a particular Series shall be so recorded upon
the books of the Trust, and shall be held by the Trustees in trust for the
benefit of the holders of Shares of that Series. The assets belonging to each
particular Series shall be charged with the liabilities of that Series and all
expenses, costs, charges and reserves attributable to that Series in such manner
as the Trustees in their sole discretion shall determine. Any general
liabilities, expenses, costs, charges or reserves of the Trust which are not
readily identifiable as belonging to any particular Series shall be allocated
and charged by the Trustees between or among any one or more of the Series in
such manner as the Trustees in their sole discretion deem fair and equitable.
Each such allocation shall be conclusive and binding upon the Shareholders of
all Series for all purposes without limitation of the foregoing provisions of
this Section 2.8, but subject to the right of the Trustees in their discretion
to allocate general liabilities, expenses, costs, changes or reserves as herein
provided, the debts, liabilities, obligations and expenses incurred, contracted
for or otherwise existing with respect to a particular Series shall be
enforceable against the assets of such Series only, and not against the assets
of the Trust generally. Notice of this contractual limitation on inter-Series
liabilities may, in the Trustee's sole discretion, be set forth in the
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certificate of trust of the Trust (whether originally or by amendment) as filed
or to be filed in the Office of the Secretary of State of the State of Delaware
pursuant to the Delaware Act, and upon the giving of such notice in the
certificate of trust, the statutory provisions of Section 3804 of the Delaware
Act relating to limitations on inter-Series liabilities (and the statutory
effect under Section 3804 of setting forth such notice in the certificate of
trust) shall become applicable to the Trust and each Series. Any person
extending credit to, contracting with or having any claim against any Series may
look only to the assets of that Series to satisfy or enforce any debt, with
respect to that Series. No Shareholder or former Shareholder of any Series shall
have a claim on or any right to any assets allocated or belonging to any other
Series.
SECTION 2.9. NO PREEMPTIVE RIGHTS. Shareholders shall have no preemptive or
other right to subscribe to any additional Shares or other securities issued by
the Trust or the Trustees, whether of the same or other Series.
SECTION 2.10. STATUS OF SHARES; NO PERSONAL LIABILITY OF SHAREHOLDER. Shares
shall be deemed to be personal property giving Shareholders only the rights
provided in this Trust Instrument. Every Shareholder, by virtue of having
acquired a Share, shall be held expressly to have assented to and agreed to be
bound by the terms of this Trust Instrument and to have become a party hereto.
No Shareholder shall be personally liable for the debts, liabilities,
obligations and expenses incurred by, contracted for, or otherwise existing with
respect to, the Trust or any Series. Neither the Trust nor the Trustees shall
have any power to bind any Shareholder personally or to demand payment from any
Shareholder for anything, other than as agreed by the Shareholder. Shareholders
shall have the same limitation of personal liability as is extended to
shareholders of a private corporation for profit incorporated in the State of
Delaware. Every written obligation of the Trust or any Series shall contain a
statement to the effect that such obligation may only be enforced against the
assets of the Trust or such Series; however, the omission of such statement
shall not operate to bind or create personal liability for any Shareholder or
Trustee.
ARTICLE III.
THE TRUSTEES
SECTION 3.1. MANAGEMENT OF THE TRUST. The Trustees shall have exclusive and
absolute control over the Trust Property and over the business of the Trust 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 Trust Instrument. The Trustees shall have power to conduct the
business of the Trust 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, in any
and all commonwealths, territories, dependencies, colonies, or possessions of
the United States of America, and in any foreign jurisdiction 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 although such things
are not herein specifically mentioned. Any determination as to what is in the
interests of the Trust made by the Trustees in good faith shall be conclusive.
In construing the provisions of this Trust Instrument, the presumption shall be
in favor of a grant of power to the Trustees.
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The enumeration of any specific power in this Trust Instrument
shall not be construed as limiting the aforesaid power. The powers of the
Trustees may be exercised without order of or resort to any court.
Except for the Trustees named herein or appointed to fill
vacancies pursuant to Section 3.4 of this Article III, the Trustees shall be
elected by the Shareholders owning of record a plurality of the Shares voting at
a meeting of Shareholders. Any Shareholder meeting held for such purpose shall
be held on a date fixed by the Trustees. In the event that less than a majority
of the Trustees holding office have been elected by Shareholders, the Trustees
then in office will call a Shareholders' meeting for the election of Trustees in
accordance with the provisions of the 1940 Act.
SECTION 3.2. INITIAL TRUSTEE. The initial Trustee shall be the person named
herein.
SECTION 3.3. TERM OF OFFICE. The Trustees shall hold office during the lifetime
of this Trust, and until its termination as herein provided; except (a) that any
Trustee may resign his trust by written instrument signed by him and delivered
to the other Trustees, which shall take effect upon such delivery or upon such
later date as is specified therein; (b) that any Trustee may be removed 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; (c) that any Trustee who requests in writing to be retired or
who has died, becomes physically or mentally incapacitated by reason of illness
or otherwise, or is otherwise unable to serve, may be retired by written
instrument signed by a majority of the other Trustees, specifying the date of
his retirement; and (d) that a Trustee may be removed at any meeting of the
Shareholders of the Trust by a vote of Shareholders owning at least two-thirds
of the Outstanding Shares of the Trust.
SECTION 3.4. VACANCIES AND APPOINTMENTS. In case of a Trustee's declination to
serve, death, resignation, retirement, removal, physical or mental incapacity by
reason of illness, disease or otherwise, or if a Trustee is otherwise unable to
serve, or if there is an increase in the number of Trustees, a vacancy shall
occur. Whenever a vacancy in the Board of Trustees shall occur, until such
vacancy is filled, the other Trustees shall have all the powers hereunder and
the certificate of the other Trustees of such vacancy shall be conclusive. In
the case of a vacancy, the remaining Trustees shall fill such vacancy by
appointing such other person as they in their discretion see fit, to the extent
consistent with the limitations provided under the 1940 Act. Such appointment
shall be evidenced by a written instrument signed by a majority of the Trustees
in office or by resolution of the Trustees, duly adopted, which shall be
recorded in the minutes of a meeting of the Trustees, whereupon the appointment
shall take effect.
An appointment of a Trustee may be made by the Trustees then in
office in anticipation of a vacancy to occur by reason of retirement,
resignation or increase in number of Trustees effective at a later date,
provided that said appointment shall become effective only at or after the
effective date of said retirement, resignation or increase in number of
Trustees. As soon as any person appointed as a Trustee pursuant to this Section
3.4 shall have accepted this Trust, such person shall be deemed a Trustee.
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SECTION 3.5. TEMPORARY ABSENCE. Any Trustee may, by power of attorney, delegate
his power for a period not exceeding six months at any time, unless otherwise
extended for one or more additional consecutive six (6) month periods, to any
other Trustee or Trustees, provided that in no case shall fewer than two
Trustees personally exercise the other powers hereunder except as herein
otherwise expressly provided.
SECTION 3.6. NUMBER OF TRUSTEES. The number of Trustees (other than the Initial
Trustee) shall be at least two (2), and thereafter shall be such number as shall
be fixed from time to time by a majority of the Trustees, provided, however,
that the number of Trustees shall in no event be more than twelve (12).
SECTION 3.7. EFFECT OF ENDING OF A TRUSTEE'S SERVICE. The declination to serve,
death, resignation, retirement, removal, incapacity, or inability of the
Trustees, or any one of them, shall not operate to terminate the Trust or to
revoke any existing agency created pursuant to the terms of this Trust
Instrument.
SECTION 3.8. OWNERSHIP OF ASSETS OF THE TRUST. The assets of the Trust and of
each Series shall be held separate and apart from any assets now or hereafter
held in any capacity other than as Trustee hereunder by the Trustees or any
successor Trustees. Legal title in all of the assets of the Trust and the right
to conduct any business shall at all times be considered as vested in the Trust,
except that the Trustees may cause legal title to any Trust Property to be held
by, or in the name of, one or more grantees acting for and on behalf of the
Trust or in the name of any person as nominee. No Shareholder shall be deemed to
have a severable ownership in any individual asset of the Trust or of any Series
or any right of partition or possession thereof but each Shareholder shall have,
except as otherwise provided for herein, a proportionate undivided beneficial
interest in the Trust or Series based upon the number of Shares owned. The
Shares shall be personal property giving only the rights specifically set forth
in this Trust Instrument.
ARTICLE IV.
POWERS OF THE TRUSTEES
SECTION 4.1. POWERS. The Trustees in all instances shall act as principals, and
are and shall be free from the control of the Shareholders. The Trustees shall
have full power and authority to do any and all acts and to make and execute any
and all contracts and instruments that they may consider necessary or
appropriate in connection with the management of the Trust. The Trustees shall
not in any way be bound or limited by present or future laws or customs in
regard to trust investments, but shall have full authority and power to make any
and all investments which they, in their sole discretion, shall deem proper to
accomplish the purpose of this Trust without recourse to any court or other
authority. Subject to any applicable limitation in this Trust Instrument or the
Bylaws of the Trust, the Trustees shall have the power and authority:
(a) To invest and reinvest cash and other property (including investment,
notwithstanding any other provision hereof, of all of the assets of any Series
in a single open-end investment company, including investment by means of
transfer of such assets in exchange for an interest or interests in such
investment company), and to hold cash or other property of the Trust uninvested,
without in any event being bound or limited by any present or future law or
custom
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in regard to investments by trustees, and to sell, exchange, lend, pledge,
mortgage, hypothecate, write options on and lease any or all of the assets of
the Trust;
(b) To operate as and carry on the business of an investment company, and
exercise all the powers necessary and appropriate to the conduct of such
operations;
(c) To borrow money and in this connection issue notes or other evidence of
indebtedness; to secure borrowings by mortgaging, pledging or otherwise
subjecting as security the Trust Property; to endorse, guarantee, or undertake
the performance of an obligation or engagement of any other person and to lend
Trust Property;
(d) To provide for the distribution of interests of the Trust either through
a Principal Underwriter in the manner hereinafter provided for or by the Trust
itself, or both, or otherwise pursuant to a plan of distribution of any kind;
(e) To adopt Bylaws not inconsistent with this Trust Instrument providing
for the conduct of the business of the Trust and to amend and repeal them to the
extent that they do not reserve that right to the Shareholders; such Bylaws
shall be deemed incorporated and included in this Trust Instrument;
(f) To elect and remove such officers and appoint and terminate such agents
as they consider appropriate;
(g) 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 Trust Instrument or in the Bylaws;
(h) To retain one or more transfer agents and shareholder servicing agents,
or both;
(i) To set record dates in the manner provided herein or in the Bylaws;
(j) To delegate such authority as they consider desirable to any officers of
the Trust and to any investment adviser, manager, custodian, underwriter or
other agent or independent contractor in accordance with the provisions of the
1940 Act;
(k) To sell or exchange any or all of the assets of the Trust, subject to
the provisions of Article XI, subsection 11.4(b) hereof;
(l) 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
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;
(m) To exercise powers and rights of subscription or otherwise which in any
manner arise out of ownership of securities;
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(n) To hold any security or property in a form not indicating any trust,
whether in bearer, book entry, unregistered or other negotiable form; or either
in the name of the Trust or in the name of a custodian or a nominee or nominees,
subject in either case to proper safeguards according to the usual practice of
Delaware business trusts or investment companies;
(o) To establish separate and distinct Series with separately defined
investment objectives and policies and distinct investment purposes in
accordance with the provisions of Article II hereof and to establish classes of
such Series having relative rights, powers and duties as they may provide
consistent with applicable law;
(p) To the full extent permitted by Section 3804 of the Delaware Act, to
allocate assets, liabilities and expenses of the Trust to a particular Series or
to apportion the same between or among two or more Series, provided that any
liabilities or expenses incurred by a particular Series shall be payable solely
out of the assets belonging to that Series as provided for in Article II hereof;
(q) To consent to or participate in any plan for the reorganization,
consolidation or merger of any corporation or concern, any security of which is
held in the Trust; to consent to any contract, lease, mortgage, purchase, or
sale of property by such corporation or concern, and to pay calls or
subscriptions with respect to any security held in the Trust;
(r) 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;
(s) To make distributions of income and of capital gains to Shareholders in
the manner provided herein;
(t) To establish, from time to time, minimum investments for Shareholders in
the Trust or in one or more Series or class, and to require the redemption of
the Shares of any Shareholders whose investment is less than such minimums upon
giving notice to such Shareholder;
(u) To establish one or more committees, to delegate any of the powers of
the Trustees to said committees and to adopt a committee charter providing for
such responsibilities, membership (including Trustees, officers or other agents
of the Trust therein) and any other characteristics of said committees as the
Trustees may deem proper. Notwithstanding the provisions of this Article IV, and
in addition to such provisions or any other provision of this Trust Instrument
or of the Bylaws, the Trustees may by resolution appoint a committee consisting
of less than the whole number of Trustees then in office, which committee may be
empowered to act for and bind the Trustees and the Trust, as if the acts of such
committee were the acts of all the Trustees then in office, with respect to the
institution, prosecution, dismissal, settlement, review or investigation of any
action, suit or proceeding which shall be pending or threatened to be brought
before any court, administrative agency or other adjudicatory body;
(v) To interpret the investment policies, practices or limitations of any
Series;
(w) To establish a registered office and have a registered agent in the
State of Delaware;
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(x) 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;
(y) to purchase and pay for entirely out of the Trust Estate 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, subject to applicable law, and any restrictions set forth in the
by-laws, insurance policies insuring the Shareholders, Trustees, Officers,
Employees, Agents, Investment Advisors, 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 Advisor, Principal Underwriter, or Independent Contractor including
any action taken or omitted that may be determined to constitute negligence or
gross negligence, whether or not the Trust would have the power to indemnify
such Person against liability;
(z) to enter into contracts of any kind and description;
(aa) to take any other action that may be taken by a board of directors of a
business corporation organized under the laws of the State of Delaware; and
(bb) In general to carry on any other business in connection with or
incidental to any of the foregoing powers, to do everything necessary, suitable
or proper for the accomplishment of any purpose or the attainment of any object
or the furtherance of any power hereinbefore set forth, either alone or in
association with others, and to do every other act or thing incidental or
appurtenant to or growing out of or connected with the aforesaid business or
purposes, objects or powers.
The foregoing clauses shall be construed as objects and powers,
and the foregoing enumeration of specific powers shall not be held to limit or
restrict in any manner the general powers of the Trustees. Any action by one or
more of the Trustees in their capacity as such hereunder shall be deemed an
action on behalf of the Trust or the applicable Series, and not an action in an
individual capacity.
The Trustees shall not be limited to investing in obligations
maturing before the possible termination of the Trust.
No one dealing with the Trustees shall be under any obligation
to make any inquiry concerning the authority of the Trustees, or to see the
application of any payments made or property transferred to the Trustees or upon
their order.
SECTION 4.2. ISSUANCE AND REPURCHASE OF SHARES. The Trustees shall have the
power to issue, sell, repurchase, redeem, retire, cancel, acquire, hold, resell,
reissue, dispose of and otherwise deal in Shares and, subject to the provisions
set forth in Article II and Article IX, to apply to any such repurchase,
redemption, retirement, cancellation or acquisition of Shares any funds or
property of the Trust, or the particular Series of the Trust, with respect to
which such Shares are issued.
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SECTION 4.3. TRUSTEES AND OFFICERS AS SHAREHOLDERS. Any Trustee, officer or
other 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 or cause to be issued and sold Shares to and buy such Shares from any
such person or any firm or company in which he is interested, subject only to
the general limitations herein contained as to the sale and purchase of such
Shares; and all subject to any restrictions which may be contained in the
Bylaws.
SECTION 4.4. ACTION BY THE TRUSTEES. In any action taken by the Trustees
hereunder, unless otherwise specified herein or under the 1940 Act, the Trustees
shall act by majority vote at a meeting duly called or by unanimous written
consent without a meeting or by telephone meeting provided a quorum of Trustees
participate in any such telephone meeting, unless the 1940 Act requires that a
particular action be taken only at a meeting at which the Trustees are present
in person. At any meeting of the Trustees, one-third of the Trustees shall
constitute a quorum; provided that the Trustees may increase the number if
Trustees constituting a quorum. Meetings of the Trustees may be called orally or
in writing by the Chairman of the Board of Trustees, by any two other Trustees
or by the Chairman, President, any Vice-President or Secretary of the Trust.
Notice of the time, date and place of all meetings of the Trustees shall be
given by the person calling the meeting to each Trustee by telephone, facsimile
or other electronic mechanism sent to his home or business address at least
twenty-four hours in advance of the meeting or by written notice mailed to his
home or business address at least seventy-two hours in advance of the meeting.
Notice need not be given to any Trustee who attends the meeting without
objecting to the lack of notice or who executes a written waiver of notice with
respect to the meeting. Any meeting conducted by telephone shall be deemed to
take place at the principal office of the Trust, as determined by the Bylaws or
by the Trustees. Subject to the requirements of the 1940 Act, the Trustees by
majority vote may delegate to any one or more of their number their authority to
approve particular matters or take particular actions on behalf of the Trust.
Written consents or waivers of the Trustees may be executed in one or more
counterparts. Execution of a written consent or waiver and delivery thereof to
the Trust may be accomplished by facsimile or other similar electronic
mechanism.
SECTION 4.5. CHAIRMAN OF THE BOARD OF TRUSTEES. The Trustees may appoint one of
their number to be Chairman of the Board of Trustees; however, the Trustees may
also appoint a person who is not a Trustee to serve as Chairman of the Trust.
The Chairman shall preside at all meetings of the Trustees, shall be responsible
for the execution of policies established by the Trustees and the administration
of the Trust, and may be (but is not required to be) the chief executive,
financial and/or accounting officer of the Trust.
SECTION 4.6. PRINCIPAL TRANSACTIONS. Except to the extent prohibited by
applicable law, the Trustees may, on behalf of the Trust, buy any securities
from or sell any securities to, or lend any assets of the Trust to or engage in
any other transaction with, any Trustee or officer of the Trust or any firm of
which any such Trustee or officer is a director, officer, shareholder or agent
or is otherwise affiliated acting as principal, or have any such dealings with
any investment adviser, administrator, distributor or transfer agent for, or
other affiliated person of, the Trust or with any affiliated person or
interested person of such person; and the Trust may employ any such person, firm
or company in which such person is an interested person, as broker, legal
counsel, registrar, investment adviser, administrator, distributor, transfer
agent, dividend disbursing agent, custodian or in any other capacity upon
customary terms.
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ARTICLE V.
EXPENSES OF THE TRUST
Subject to the provisions of Article II, Section 2.8, the
Trustees shall be reimbursed from the Trust estate or the assets belonging to
the appropriate Series for their expenses and disbursements, including, without
limitation, interest charges, taxes, brokerage fees and commissions; expenses of
issue, repurchase and redemption of Shares; certain insurance premiums;
applicable fees, interest charges and expenses of third parties, including the
Trust's investment advisers, managers, administrators, distributors, custodians,
transfer agent and fund accountant; fees of pricing, interest, dividend, credit
and other reporting services; costs of membership in trade associations;
telecommunications expenses; funds transmission expenses; auditing, legal and
compliance expenses; costs of forming the Trust and maintaining its existence;
costs of preparing and printing the Trust's prospectuses, statements of
additional information and shareholder reports and delivering them to existing
Shareholders; expenses of meetings of Shareholders and proxy solicitations
therefor; costs of maintaining books and accounts; costs of reproduction,
stationery and supplies; fees and expenses of the Trustees; compensation of the
Trust's officers and employees and costs of other persons performing services
for the Trust; costs of Trustee meetings, including travel expenses; Commission
registration fees and related expenses; state or foreign securities laws
registration fees and related expenses and for such non-recurring items as may
arise, including litigation to which the Trust (or a Trustee or as Trust officer
or employee acting as such) is a party, and for all losses and liabilities by
them incurred in administering the Trust, and for the payment of such expenses,
disbursements, losses and liabilities the Trustees shall have a lien on the
assets belonging to the appropriate Series, or in the case of an expense
allocable to more than one Series, on the assets of each such Series, prior to
any rights or interests of the Shareholders thereto. This section shall not
preclude the Trust from directly paying any of the aforementioned fees and
expenses.
ARTICLE VI.
INVESTMENT ADVISER, PRINCIPAL UNDERWRITER,
ADMINISTRATOR AND TRANSFER AGENT
SECTION 6.1. INVESTMENT ADVISER.
(a) The Trustees may in their discretion, from time to time, enter into an
investment advisory contract or contracts with respect to the Trust or any
Series whereby the other party or parties to such contract or contracts shall
undertake to furnish the Trustees with such investment advisory, statistical and
research facilities and services and such other facilities and services, if any,
all upon such terms and conditions (including any Shareholder vote) that may be
required under the 1940 Act, as may be prescribed in the Bylaws, or as the
Trustees may in their discretion determine (such terms and conditions not to be
inconsistent with the provisions of this Trust Instrument or of the Bylaws).
Notwithstanding any other provision of this Trust Instrument, the Trustees may
authorize any investment adviser (subject to such general or specific
instructions as the Trustees may from time to time adopt) to effect purchases,
sales or exchanges of portfolio securities, other investment instruments of the
Trust, or other Trust Property on behalf of the Trustees, or may authorize any
officer, agent, or Trustee to effect such purchases, sales or exchanges pursuant
to recommendations of the investment adviser (and all without further action
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by the Trustees). Any such purchases, sales and exchanges shall be deemed to
have been authorized by all of the Trustees.
(b) The Trustees may authorize an investment adviser to employ, from time to
time, one or more sub-advisers to perform such of the acts and services of the
investment adviser, and upon such terms and conditions, as may be agreed upon
between the investment adviser and sub-adviser (such terms and conditions not to
be inconsistent with the provisions of this Trust Instrument or of the Bylaws).
Any reference in this Trust Instrument to the investment adviser shall be deemed
to include such sub-advisers, unless the context otherwise requires; provided
that no Shareholder approval shall be required with respect to any sub-adviser
unless required under the 1940 Act or other law, contract or order applicable to
the Trust.
SECTION 6.2. PRINCIPAL UNDERWRITER. The Trustees may in their discretion from
time to time enter into an exclusive or non-exclusive underwriting contract or
contracts providing for the sale of Shares, whereby the Trust may either agree
to sell 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 may be prescribed in the Bylaws and as the Trustees may
in their discretion determine (such terms and conditions not to be inconsistent
with the provisions of this Trust Instrument or of the Bylaws); and such
contract may also provide for the repurchase or sale of Shares by such other
party as principal or as agent of the Trust.
SECTION 6.3. ADMINISTRATION. The Trustees may in their discretion from time to
time enter into one or more management or administrative contracts whereby the
other party or parties shall undertake to furnish the Trustees with management
or administrative services. The contract or contracts shall be on such terms and
conditions as may be prescribed in the Bylaws and as the Trustees may in their
discretion determine (such terms and conditions not to be inconsistent with the
provisions of this Trust Instrument or of the Bylaws).
SECTION 6.4. TRANSFER AGENT. The Trustees may in their discretion from time to
time enter into one or more transfer agency and shareholder service contracts
whereby the other party or parties shall undertake to furnish the Trustees with
transfer agency and shareholder services. The contract or contracts shall be on
such terms and conditions as may be prescribed in the Bylaws and as the Trustees
may in their discretion determine (such terms and conditions not to be
inconsistent with the provisions of this Trust Instrument or of the Bylaws).
SECTION 6.5. PARTIES TO CONTRACT. Any contract of the character described in
Sections 6.1, 6.2, 6.3 and 6.4 of this Article VI or any contract of the
character described in Article VIII hereof may be entered into with any
corporation, firm, partnership, trust or association, although one or more of
the Trustees or officers of the Trust may be an officer, director, trustee,
shareholder, employee, agent or member of such other party to the contract, and
no such contract shall be invalidated or rendered void or voidable by reason of
the existence of any relationship, nor shall any person holding such
relationship be disqualified from voting on or executing the same in his
capacity as Shareholder and/or Trustee, nor shall any person holding such
relationship be liable merely by reason of such relationship for any loss or
expense to the Trust 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 not inconsistent with the provisions of this Article VI or
Article VIII hereof or of the Bylaws. The same person (including a
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corporation, firm, partnership, trust, or association) may be the other party to
contracts entered into pursuant to Sections 6.1, 6.2, 6.3 and 6.4 of this
Article VI or pursuant to Article VIII hereof and any individual may be
financially interested or otherwise affiliated with persons who are parties to
any or all of the contracts mentioned in this Section 6.5.
SECTION 6.6. PROVISIONS AND AMENDMENTS. Any contract entered into pursuant to
Section 6.1 or 6.2 of this Article VI shall be consistent with and subject to
the requirements of Section 15 of the 1940 Act, if applicable, or other
applicable Act of Congress hereafter enacted with respect to its continuance in
effect, its termination, and the method of authorization and approval of such
contract or renewal thereof, and no amendment to any contract entered into
pursuant to Section 6.1 or 6.2 of this Article VI shall be effective unless
assented to in a manner consistent with the requirements of said Section 15, as
modified by any applicable rule, regulation or order of the Commission.
ARTICLE VII.
SHAREHOLDERS' VOTING POWERS AND MEETINGS
SECTION 7.1. VOTING POWERS.
(a) The Shareholders shall have power to vote only (a) for the election of
Trustees to the extent provided in Article III, Section 3.1 hereof, (b) for the
removal of Trustees to the extent provided in Article III, Section 3.3(d)
hereof, (c) with respect to any investment advisory contract to the extent
provided in Article VI, Section 6.1 hereof, (d) with respect to an amendment of
this Trust Instrument, to the extent provided in Article XI, Section 11.8, and
(e) with respect to such additional matters relating to the Trust as may be
required by law, by this Trust Instrument, or any registration of the Trust with
the Commission or any State, or as the Trustees may consider desirable.
(b) Notwithstanding paragraph (a) of this Section 7.1 or any other provision
of this Trust Instrument (including the Bylaws) which would by its terms provide
for or require a vote of Shareholders, the Trustees may take action without a
Shareholder vote if (i) the Trustees shall have obtained an opinion of counsel
that a vote or approval of such action by Shareholders is not required under (A)
the 1940 Act or any other applicable laws, or (B) any registrations,
undertakings or agreements of the Trust known to such counsel, and (ii) the
Trustees shall have determined that the taking of such action without a
Shareholder vote would be consistent with the best interests of the
Shareholders.
(c) On any matter submitted to a vote of the Shareholders, all Shares shall
be voted in the aggregate and not by individual Series, except that whenever the
Trustees determine that the matter affects only certain Series, such matter may
be submitted for a vote by only such Series, except (i) when required by the
1940 Act, Shares shall be voted in the aggregate and not by individual Series;
and (ii) when the Trustees have determined that the matter affects the interests
of more than one Series and that voting by shareholders of all Series would be
consistent with the 1940 Act, then the Shareholders of all such Series shall be
entitled to vote thereon (either by individual Series or by Shares voted in the
aggregate, as the Trustees in their discretion may determine). Each whole Share
shall be entitled to one vote as to any matter on which it is entitled to vote,
and each fractional Share shall be entitled to a proportionate fractional vote.
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There shall be no cumulative voting in the election of Trustees. Shares may be
voted in person or by proxy or in any manner provided for in the Bylaws. A proxy
may be given in writing. The Bylaws may provide that proxies may also, or may
instead, be given by any electronic or telecommunications device or in any other
manner. Notwithstanding anything else herein or in the Bylaws, in the event a
proposal by anyone other than the officers or Trustees of the Trust is submitted
to a vote of the Shareholders, 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 in person or by written proxy.
Until Shares are issued, the Trustees may exercise all rights of Shareholders
and may take any action required or permitted by law, this Trust Instrument or
any of the Bylaws of the Trust to be taken by Shareholders.
SECTION 7.2. MEETINGS. Meetings may be held within or without the State of
Delaware. Unless otherwise required by Section 16(c) of the 1940 Act or other
applicable law, special meetings of the Shareholders of any Series may be called
by the Trustees and shall be called by the Trustees upon the written request of
Shareholders owning at least half of the Outstanding Shares of the Trust
entitled to vote. Whenever ten or more Shareholders meeting the qualifications
set forth in Section 16(c) of the 1940 Act seek the opportunity of furnishing
materials to the other Shareholders with a view to obtaining signatures on such
a request for a meeting, the Trustees shall comply with the provisions of said
Section 16(c) with respect to providing such Shareholders access to the list of
the Shareholders of record of the Trust or the mailing of such materials to such
Shareholders of record, subject to any rights provided to the Trust or any
Trustees provided by said Section 16(c). Notice shall be sent, by First Class
Mail or such other means determined by the Trustees, at least 10 days prior to
any such meeting. Notwithstanding anything to the contrary in this Section 7.2,
the Trustees shall not be required to call a special meeting of the Shareholders
of any Series or to provide Shareholders seeking the opportunity of furnishing
the materials to other Shareholders with a view to obtaining signatures on a
request for a meeting except to the extent required by law.
SECTION 7.3. QUORUM AND REQUIRED VOTE. One-third of Shares outstanding and
entitled to vote in person or by proxy as of the record date for a Shareholders'
meeting shall be a quorum for the transaction of business at such Shareholders'
meeting, except that where any provision of law or of this Trust Instrument
permits or requires that holders of any Series shall vote as a Series (or that
holders of a class shall vote as a class), then one-third of the aggregate
number of Shares of that Series (or that class) entitled to vote shall be
necessary to constitute a quorum for the transaction of business by that Series
(or that class). Any meeting of Shareholders may be adjourned from time to time
by a majority of the votes properly cast upon the question of adjourning a
meeting to another date and time, whether or not a quorum is present. Any
adjourned session or sessions may be held, within a reasonable time after the
date set for the original meeting, without the necessity of further notice.
Except when a larger vote is required by law or by any provision of this Trust
Instrument or the Bylaws, a majority of the Shares present in person or by proxy
shall decide any questions and a plurality shall elect a Trustee, provided that
where any provision of law or of this Trust Instrument permits or requires that
the holders of any Series shall vote as a Series (or that the holders of any
class shall vote as a class), then a majority of the Shares present in person or
by proxy of that Series (or class), voted on the matter in person or by proxy
shall decide that matter insofar as that Series (or class) is concerned.
Shareholders may act by unanimous written consent, to the extent not
inconsistent
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with the 1940 Act, and any such actions taken by a Series (or class) may be
consented to unanimously in writing by Shareholders of that Series (or class).
ARTICLE VIII.
CUSTODIAN
SECTION 8.1. APPOINTMENT AND DUTIES. The Trustees shall employ a bank, a company
that is a member of a national securities exchange, or a trust company, that in
each case shall have capital, surplus and undivided profits of at least twenty
million dollars ($20,000,000) and that is a member of the Depository Trust
Company (or such other person or entity as may be permitted to act as custodian
of the Trust's assets under the 0000 Xxx) as custodian with authority as its
agent, but subject to such restrictions, limitations and other requirements, if
any, as may be contained in the Bylaws of the Trust: (a) to hold the securities
owned by the Trust and deliver the same upon written order or oral order
confirmed in writing; (b) to receive and receipt for any moneys due to the Trust
and deposit the same in its own banking department or elsewhere as the Trustees
may direct; and (c) to disburse such funds upon orders or vouchers.
The Trustees may also authorize the custodian to employ one or
more sub-custodians from time to time to perform such of the acts and services
of the custodian, and upon such terms and conditions, as may be agreed upon
between the custodian and such sub-custodian and approved by the Trustees,
provided that in every case such sub-custodian shall be a bank, a company that
is a member of a national securities exchange, or a trust company organized
under the laws of the United States or one of the states thereof and having
capital, surplus and undivided profits of at least twenty million dollars
($20,000,000) and that is a member of the Depository Trust Company or such other
person or entity as may be permitted by the Commission or is otherwise able to
act as custodian of the Trust's assets in accordance with the 1940 Act.
SECTION 8.2. CENTRAL CERTIFICATE SYSTEM. Subject to the 1940 Act and such other
rules, regulations and orders as the Commission may adopt, the Trustees may
direct the custodian to deposit all or any part of the securities owned by the
Trust in a system for the central handling of securities established by a
national securities exchange or a national securities association registered
with the Commission under the Securities Exchange Act of 1934, or such other
person as may be permitted by the Commission, or otherwise in accordance with
the 1940 Act, pursuant to which system all securities of any particular class or
series of any issuer deposited within the system are treated as fungible and may
be transferred or pledged by bookkeeping entry without physical delivery of such
securities, provided that all such deposits shall be subject to withdrawal only
upon the order of the Trust or its custodians, sub-custodians or other agents.
ARTICLE IX.
DISTRIBUTIONS AND REDEMPTIONS
SECTION 9.1. DISTRIBUTIONS
(a) The Trustees may from time to time declare and pay dividends or other
distributions with respect to any Series and/or class of a Series. The amount of
such dividends or distributions and
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the payment of them and whether they are in cash or any other Trust Property
shall be wholly in the discretion of the Trustees. All dividends and other
distributions on Shares of a particular Series shall be distributed pro rata to
the Shareholders of that Series in proportion to the number of Shares of that
Series they held on the record date established for such payment, except that
such dividends and distributions shall appropriately reflect expenses allocated
to the Series.
(b) Dividends and other distributions may be paid or made to the
Shareholders of record at the time of declaring a dividend or other distribution
or among the Shareholders of record at such other date or time or dates or times
as the Trustees shall determine, which dividends or distributions, at the
election of the Trustees, may be paid pursuant to a standing resolution or
resolutions adopted only once or with such frequency as the Trustees may
determine. The Trustees may adopt and offer to Shareholders such dividend
reinvestment plans, cash dividend payout plans or related plans as the Trustees
shall deem appropriate.
(c) Anything in this Trust Instrument to the contrary notwithstanding, the
Trustees may at any time declare and distribute a stock dividend to the
Shareholders of a particular Series, or class thereof, as of the record date of
that Series fixed as provided in Section 11.3 hereof.
SECTION 9.2. REDEMPTIONS. In case any holder of record of Shares of a particular
Series desires to dispose of his Shares or any portion thereof he may deposit at
the office of the transfer agent or other authorized agent of that Series a
written request or such other form of request as the Trustees may from time to
time authorize, requesting that the Series purchase the Shares in accordance
with this Section 9.2; and, subject to Section 9.4 hereof, the Shareholder so
requesting shall be entitled to require the Series to purchase, and the Series
or the Principal Underwriter of the Series shall purchase his said Shares, but
only at the Net Asset Value thereof (as described in Section 9.3 of this Article
IX), subject to any sales charges or redemption fees imposed in such manner and
at such times as determined by the Trustees. The Series shall make payment for
any such Shares to be redeemed, as aforesaid, in cash or property from the
assets of that Series and, subject to Section 9.4 hereof, payment for such
Shares shall be made by the Series or the Principal Underwriter of the Series to
the Shareholder of record within seven (7) days after the date upon which the
request is effective. Upon redemption, shares shall become Treasury shares and
may be re-issued from time to time.
SECTION 9.3. DETERMINATION OF NET ASSET VALUE AND VALUATION OF PORTFOLIO ASSETS.
The term "Net Asset Value" of any Series shall mean that amount by which the
assets of that Series exceed its liabilities, all as determined by or under the
direction of the Trustees. The Trustees may delegate any of their powers and
duties under this Section 9.3 with respect to valuation of assets and
liabilities. Such value shall be determined separately for each Series and shall
be determined on such days and at such times as the Trustees may determine. Such
determination shall be made with respect to securities and other instruments for
which market quotations are readily available, at the market value of such
securities or other instruments; and with respect to other securities and
assets, at the fair value as determined in good faith by the Trustees; provided,
however, that the Trustees, without Shareholder approval, may alter the method
of valuing portfolio securities or other instruments insofar as permitted under
the 1940 Act. The resulting amount, which shall represent the total Net Asset
Value of the particular Series, shall be divided by the total number of shares
of that Series outstanding at the time and the quotient so obtained shall be the
Net Asset Value per Share of that Series. At any
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time the Trustees may cause the Net Asset Value per Share last determined to be
determined again in similar manner and may fix the time when such redetermined
value shall become effective.
The Trustees shall not be required to adopt, but may at any time
adopt, discontinue or amend a practice of seeking to maintain the Net Asset
Value per Share of the Series at a constant amount. If, for any reason, the net
income of any Series, determined at any time, is a negative amount, the Trustees
shall have the power with respect to that Series (a) to offset each
Shareholder's pro rata share of such negative amount from the accrued dividend
account of such Shareholder, (b) to reduce the number of Outstanding Shares of
such Series by reducing the number of Shares in the account of each Shareholder
by a pro rata portion of that number of full and fractional Shares which
represents the amount of such excess negative net income, (c) to cause to be
recorded on the books of such Series an asset account in the amount of such
negative net income (provided that the same shall thereupon become the property
of such Series with respect to such Series and shall not be paid to any
Shareholder), which account may be reduced by the amount of dividends declared
thereafter upon the Outstanding Shares of such Series on the day such negative
net income is experienced, until such asset account is reduced to zero, (d) to
combine the methods described in clauses (a) and (b) and (c) of this sentence,
or (e) to take any other action they deem appropriate, in order to cause (or in
order to assist in causing) the Net Asset Value per Share of such Series to
remain at a constant amount per Outstanding Share immediately after each such
determination and declaration. The Trustees shall also have the power not to
declare a dividend out of net income for the purpose of causing the Net Asset
Value per Share to be increased.
In the event that any Series is divided into classes, the
provisions of this Section 9.3, to the extent applicable as determined in the
discretion of the Trustees and consistent with the 1940 Act and other applicable
law, may be equally applied to each such class.
SECTION 9.4. SUSPENSION OF THE RIGHT OF REDEMPTION. The Trustees may declare a
suspension of the right of redemption or postpone the date of payment if
permitted under the 1940 Act. Such suspension shall take effect at such time as
the Trustees shall specify but not later than the close of business on the
business day next following the declaration of suspension, and thereafter there
shall be no right of redemption or payment until the Trustees shall declare the
suspension at an end. In the case of a suspension of the right of redemption, a
Shareholder may either withdraw his request for redemption or receive payment
based on the Net Asset Value per Share next determined after the termination of
the suspension.
SECTION 9.5. REDEMPTION OF SHARES IN ORDER TO QUALIFY AS REGULATED INVESTMENT
COMPANY. If the Trustees shall, at any time and in good faith, be of the opinion
that direct or indirect ownership of Shares of any Series has or may become
concentrated in any person to an extent which would disqualify any Series as a
regulated investment company under the Internal Revenue Code of 1986 as amended,
then the Trustees shall have the power (but not the obligation) by lot or other
means deemed equitable by them (a) to call for redemption by any such person of
a number, or principal amount, of Shares sufficient to maintain or bring the
direct or indirect ownership of Shares into conformity with the requirements for
such qualification and (b) to refuse to transfer or issue Shares to any person
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whose acquisition of Shares in question would result in such disqualification.
The redemption shall be effected at the redemption price and in the manner
provided in this Article IX.
The holders of Shares shall upon demand disclose to the Trustees
in writing such information with respect to direct and indirect ownership of
Shares as the Trustees deem necessary to comply with the requirements of any
taxing authority or this Section 9.5.
ARTICLE X.
LIMITATION OF LIABILITY AND INDEMNIFICATION
SECTION 10.1. LIMITATION OF LIABILITY. Neither a Trustee nor an officer or
employee of the Trust, when acting in such capacity, shall be personally liable
to any person other than the Trust or the Shareholders for any act, omission or
obligation of the Trust, any Trustee or any officer or employee of the Trust.
Neither a Trustee nor an officer or employee of the Trust shall be liable for
any act or omission or any conduct whatsoever in his capacity as Trustee or as
an officer or employee of the Trust, provided that nothing contained herein or
in the Delaware Act shall protect any Trustee or any officer or employee of the
Trust against any liability to the Trust or to Shareholders to which he would
otherwise be subject by reason of willful misfeasance, bad faith, gross
negligence or reckless disregard of the duties involved in the conduct of the
office of Trustee or officer or employee of the Trust hereunder.
SECTION 10.2. INDEMNIFICATION.
(a) Subject to the exceptions and limitations contained in Subsection
10.2(b):
(i) every person who is, or has been, a Trustee, officer or employee
of the Trust (including any individual who serves at its request as Director,
Officer, Partner, Trustee, or employee or the like of another organization in
which it has any interest as a shareholder, creditor or otherwise), and such
person's heirs, executors, administrators and other legal representatives
(hereinafter referred to as a "Covered Person") shall be indemnified by the
Trust or Series to the fullest extent permitted by law against liability and
against all expenses reasonably incurred or paid by him in connection with any
claim, action, suit or proceeding in which he becomes involved as a party or
otherwise by virtue of his being or having been a Covered Person and against
amounts paid or incurred by him in the settlement thereof; and
(ii) the words "claim," "action," "suit," or "proceeding" shall apply
to all claims, actions, suits or proceedings (civil, criminal or other,
including appeals), actual or threatened while in office or thereafter, and the
words "liability" and "expenses" shall include, without limitation, attorneys'
fees, costs, judgments, amounts paid in settlement, fines, penalties and other
liabilities.
(b) No indemnification shall be provided hereunder to a Covered Person:
(i) who shall have been adjudicated by a court or body before which
the proceeding was brought (A) to be liable to the Trust or its Shareholders by
reason of willful misfeasance, bad faith, gross negligence or reckless disregard
of the duties involved in the conduct of his office or (B) not to have acted in
good faith in the reasonable belief that his action was in the best interest of
the Trust; or
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(ii) in the event of a settlement, unless there has been a
determination that such Trustee or officer did not engage in willful
misfeasance, bad faith, gross negligence or reckless disregard of the duties
involved in the conduct of his office, (A) by the court or other body approving
the settlement; (B) by at least a majority of those Trustees who are neither
interested persons of the Trust nor are parties to the matter based upon a
review of readily available facts (as opposed to a full trial-type inquiry); (C)
by written opinion of independent legal counsel based upon a review of readily
available facts (as opposed to a full trial-type inquiry) or (D) by a vote of a
majority of the Outstanding Shares entitled to vote (excluding any Outstanding
Shares owned of record or beneficially by such Covered Person).
(c) The rights of indemnification herein provided may be insured against by
policies maintained by the Trust, shall be severable, shall not be exclusive of
or affect any other rights to which any Covered Person may now or hereafter be
entitled, shall continue as to a person who has ceased to be a Covered Person
and shall inure to the benefit of the heirs, executors and administrators of
such a person. Nothing contained herein shall affect any rights to
indemnification to which Trust personnel, other than Covered Persons, and other
persons may be entitled by contract or otherwise under law.
(d) Expenses in connection with the preparation and presentation of a
defense to any claim, action, suit or proceeding of the character described in
Subsection (a) of this Section 10.2 may be paid by the Trust or Series from time
to time prior to final disposition thereof upon receipt of an undertaking by or
on behalf of such Covered Person that such amount will be paid over by him to
the Trust or Series if it is ultimately determined that he is not entitled to
indemnification under this Section 10.2; provided, however, that either (i) such
Covered Person shall have provided appropriate security for such undertaking,
(ii) the Trust is insured against losses arising out of any such advance
payments or (iii) either a majority of the Trustees who are neither interested
persons of the Trust nor parties to the matter, or independent legal counsel in
a written opinion, shall have determined, based upon a review of readily
available facts (as opposed to a full trial-type inquiry), that there is reason
to believe that such Covered Person will be found entitled to indemnification
under this Section 10.2.
(e) Any repeal or modification of this Article X by the Shareholders, or
adoption or modification of any other provisions of this Trust Instrument or
By-laws inconsistent with this Article, shall be applied prospectively only to
the extent that such repeal or modification would, if applied retrospectively,
adversely affect any limitation on the liability of any Covered Person or
indemnification available to any Covered Person with respect to any act or
omission which occurred prior to such repeal, modification or adoption.
SECTION 10.3. SHAREHOLDERS. In case any Shareholder of any Series shall be held
to be personally liable solely by reason of his being or having been a
Shareholder of such Series 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 a corporation
or other entity, its corporate or other general successor) shall be entitled out
of the assets belonging to the applicable Series to be held harmless from and
indemnified against all loss and expense arising from such liability. The Trust,
on behalf of the affected Series, shall, upon request by the Shareholder, assume
the defense of any claim made against the Shareholder
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for any act or obligation of the Series and satisfy any judgment thereon from
the assets of the Series.
ARTICLE XI.
MISCELLANEOUS
SECTION 11.1. TRUST NOT A PARTNERSHIP. It is hereby expressly declared that a
trust and not a partnership is created hereby. No Trustee hereunder shall have
any power to bind personally either the Trust officers or any Shareholder. All
persons extending credit to, contracting with or having any claim against the
Trust or the Trustees shall look only to the assets of the appropriate Series or
(if the Trustees shall have yet to have established Series) of the Trust for
payment under such credit, contract or claim; and neither the Shareholders nor
the Trustees, nor any of their agents, whether past, present or future, shall be
personally liable therefor. Nothing in this Trust Instrument shall protect a
Trustee against any liability to which the Trustee would otherwise be subject by
reason of willful misfeasance, bad faith, gross negligence or reckless disregard
of the duties involved in the conduct of the office of Trustee hereunder.
SECTION 11.2. TRUSTEE'S GOOD FAITH ACTION, EXPERT ADVICE, NO BOND OR SURETY. The
exercise by the Trustees or the officers of the Trust of their powers and
discretion hereunder in good faith and with reasonable care under the
circumstances then prevailing shall be binding upon everyone interested. Subject
to the provisions of Article X hereof and to Section 11.1 of this Article XI,
the Trustees and the officers of the Trust shall not be liable for errors of
judgment or mistakes of fact or law. The Trustees and the officers of the Trust
may take advice of counsel or other experts with respect to the meaning and
operation of this Trust Instrument, and subject to the provisions of Article X
hereof and Section 11.1 of this Article XI, shall be under no liability for any
act or omission in accordance with such advice or for failing to follow such
advice. The Trustees and the officers of the Trust shall not be required to give
any bond as such, nor any surety if a bond is obtained.
SECTION 11.3. ESTABLISHMENT OF RECORD DATES. The Trustees may close the Share
transfer books of the Trust for a period not exceeding one hundred and twenty
(120) days preceding the date of any meeting of Shareholders, or the date for
the payment of any dividends or other distributions, or the date for the
allotment of rights, or the date when any change or conversion or exchange of
Shares shall go into effect; or in lieu of closing the stock transfer books as
aforesaid, the Trustees may fix in advance a date, not exceeding one hundred and
twenty (120) days preceding the date of any meeting of Shareholders, or the date
for payment of any dividend or other distribution, or the date for the allotment
of rights, or the date when any change or conversion or exchange of Shares shall
go into effect, as a record date for the determination of the Shareholders
entitled to notice of, and to vote at, any such meeting, or entitled to receive
payment of any such dividend or other distribution, or to any such allotment of
rights, or to exercise the rights in respect of any such change, conversion or
exchange of Shares, and in such case such Shareholders and only such
Shareholders as shall be Shareholders of record on the date so fixed shall be
entitled to such notice of, and to vote at, such meeting, or to receive payment
of such dividend or other distribution, or to receive such allotment or rights,
or to exercise such rights, as the case may be, notwithstanding any transfer of
any Shares on the books of the Trust after any such record date fixed as
aforesaid.
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SECTION 11.4. TERMINATION OF TRUST.
(a) This Trust shall continue without limitation of time but subject to the
provisions of Subsection 11.4(b).
(b) The Trustees may, subject to a vote of majority of the Trustees and any
shareholder approval required under the 1940 Act, if any:
(i) sell and convey all or substantially all of the assets of the
Trust or any affected Series to another Series of the Trust or to another trust,
partnership, association or corporation, or to a separate series of shares
thereof, organized under the laws of any state which trust, partnership,
association or corporation is a management investment company as defined in the
1940 Act, or is a series thereof, for adequate consideration which may include
the assumption of all outstanding obligations, taxes and other liabilities,
accrued or contingent, of the Trust or any affected Series, and which may
include shares of beneficial interest, stock or other ownership interests of
such trust, partnership, association or corporation or of a series thereof;
(ii) enter into a plan of liquidation in order to terminate and
liquidate any Series (or class) of the Trust, or the Trust; or
(iii) at any time sell and convert into money all of the assets of the
Trust or any affected Series.
Upon making reasonable provision, in the determination of the Trustees, for the
payment of all liabilities by assumption or otherwise, the Trustees shall
distribute the remaining proceeds or assets (as the case may be) of each Series
(or class) ratably among the holders of Shares of the affected Series, based
upon the ratio that each Shareholder's Shares bears to the number of Shares of
such Series (or class) then outstanding.
(c) Upon completion of the distribution of the remaining proceeds or the
remaining assets as provided in Subsection 11.4(b), the Trust or any affected
Series shall terminate and the Trustees and the Trust shall be discharged of any
and all further liabilities and duties hereunder and the right, title and
interest of all parties with respect to the Trust or Series 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 11.5. REORGANIZATION.
(a) Notwithstanding anything else herein, the Trustees may, subject to a
vote of majority of the Trustees and any shareholder approval required under the
1940 Act, if any, in order to change the form or jurisdiction of organization of
the Trust, (i) cause the Trust to merge or consolidate with or into one or more
trusts, partnerships (general or limited), associations or corporations so long
as the surviving or resulting entity is an open-end management investment
company under the 1940 Act, or is a series thereof, that will succeed to or
assume the Trust's registration under
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that Act and which is formed, organized or existing under the laws of a state,
commonwealth, possession or colony of the United States or (ii) cause the Trust
to incorporate under the laws of Delaware.
(b) The Trustees may, subject to a vote of a majority of the Trustees and
any shareholder vote required under the 1940 Act, if any, cause the Trust to
merge or consolidate with or into one or more trusts, partnerships (general or
limited), associations, limited liability companies or corporations formed,
organized or existing under the laws of a state, commonwealth, possession or
colony of the United States.
(c) Any agreement of merger or consolidation or certificate of merger or
consolidation may be signed by a majority of Trustees and facsimile signatures
conveyed by electronic or telecommunication means shall be valid.
(d) 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
Trust Instrument, an agreement of merger or consolidation approved by the
Trustees in accordance with paragraph (a) or (b) of this Section 11.5 may effect
any amendment to the Trust Instrument or effect the adoption of a new trust
instrument of the Trust if it is the surviving or resulting trust in the merger
or consolidation.
SECTION 11.6. FILING OF COPIES, REFERENCES, HEADINGS. The original or a copy of
this Trust Instrument and of each amendment hereof or Trust Instrument
supplemental 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 or Trustee of the Trust as to whether or not any such
amendments or supplements 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 or Trustee of the Trust to be a copy
of this Trust Instrument or of any such amendment or supplemental Trust
Instrument. In this Trust Instrument or in any such amendment or supplemental
Trust Instrument, references to this Trust Instrument, and all expressions such
as "herein," "hereof" and "hereunder," shall be deemed to refer to this Trust
Instrument as amended or affected by any such supplemental Trust Instrument. All
expressions like "his," "the" and "him," shall be deemed to include the feminine
and neuter, as well as masculine, genders. Headings are placed herein for
convenience of reference only and in case of any conflict, the text of this
Trust Instrument, rather than the headings, shall control. This Trust Instrument
may be executed in any number of counterparts each of which shall be deemed an
original.
SECTION 11.7. APPLICABLE LAW. The trust set forth in this instrument is made in
the State of Delaware, and the Trust and this Trust Instrument, and the rights
and obligations of the Trustees and Shareholders hereunder, are to be governed
by and construed and administered according to the Delaware Act and the laws of
said State; provided, however, that there shall not be applicable to the Trust,
the Trustees or this Trust Instrument (unless separately required under the 0000
Xxx) (a) the provisions of Section 3540 of Title 12 of the Delaware Code or (b)
any provisions of the laws (statutory or common) of the State of Delaware (other
than the Delaware Act) pertaining to trusts which 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
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requirements to post bonds for trustees, officers, agents or employees of a
trust, (iii) the necessity for obtaining court or other governmental approval
concerning the acquisition, holding or disposition of real or personal property,
(iv) fees or other sums payable 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 of responsibilities or limitations on the acts
or powers of trustees, which are inconsistent with the limitations or
liabilities or authorities and powers of the Trustees set forth or referenced in
this Trust Instrument. The Trust shall be of the type commonly called a
"business trust," and without limiting the provisions hereof, the Trust may
exercise all powers which are ordinarily exercised by such a trust under
Delaware law. The Trust specifically reserves the right to exercise any of the
powers or privileges afforded to trusts or actions that may be engaged in by
trusts under the Delaware Act, 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.
SECTION 11.8. AMENDMENTS. Except as specifically provided herein, the Trustees
may, without Shareholder vote, amend or otherwise supplement this Trust
Instrument by making an amendment, a Trust Instrument supplemental hereto or an
amended and restated Trust Instrument. Shareholders shall have the right to vote
(a) on any amendment which would materially adversely affect their rights under
this Trust Instrument to vote, to receive dividends and distributions, or to
receive any other financial benefit to which they are entitled hereunder, (b) on
any amendment to this Section 11.8, (c) on any amendment as may be required by
law or by the Trust's registration statement filed with the Commission and (d)
on any amendment submitted to them by the Trustees. Any amendment required or
permitted to be submitted to Shareholders which, as the Trustees determine,
shall affect the Shareholders of one or more Series shall be authorized by vote
of the Shareholders of each Series affected and no vote of shareholders of a
Series not affected shall be required. Notwithstanding any other provision of
this Trust Instrument, any amendment to Article X hereof shall not limit the
rights to indemnification or insurance provided therein with respect to action
or omission of Covered Persons prior to such amendment.
SECTION 11.9. FISCAL YEAR. The fiscal year of the Trust shall end on a specified
date as set forth in the Bylaws, provided, however, that the Trustees may change
the fiscal year of the Trust.
SECTION 11.10. PROVISIONS IN CONFLICT WITH LAW. The provisions of this Trust
Instrument are severable, and if the Trustees shall determine, with the advice
of counsel, that any of such provisions are in conflict with the 1940 Act, the
regulated investment company provisions of the Internal Revenue Code of 1986, as
amended, or with other applicable laws and regulations, the conflicting
provision shall be deemed never to have constituted a part of this Trust
Instrument; provided, however, that such determination shall not affect any of
the remaining provisions of this Trust Instrument or render invalid or improper
any action taken or omitted prior to such determination. If any provision of
this Trust Instrument 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 Trust Instrument in any
jurisdiction.
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IN WITNESS WHEREOF, the undersigned, being the sole initial
Trustee of the Trust, has executed this Instrument as of the date first written
above.
/s/ Xxx Xxxxxx
----------------------------------
Xxx Xxxxxx, as Trustee
and not individually
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