Exhibit No. EX-99.a.1.
AMENDED AND RESTATED
AGREEMENT AND DECLARATION OF TRUST
of
The Xxxxxxx Funds
a Delaware Business Trust
Established September 29, 1998
TABLE OF CONTENTS
Page
ARTICLE I. Name and Definitions.............................................1
Section 1. Name...........................................................1
Section 2. Registered Agent and Registered Office; Principal
Place of Business..............................................2
(a) Registered Agent and Registered Office........................2
(b) Principal Place of Business...................................2
Section 3. Definitions....................................................2
(a) "1940 Act"....................................................2
(b) "Affiliate"...................................................2
(c) "Board of Trustees"...........................................2
(d) "By-Laws".....................................................2
(e) "Certificate of Trust"........................................2
(f) "Code"........................................................2
(g) "Commission"..................................................2
(h) "DBTA"........................................................2
(i) "Declaration of Trust"........................................2
(j) "General Liabilities".........................................3
(k) "Interested Person"...........................................3
(l) "Investment Adviser" or "Adviser".............................3
(m) "National Financial Emergency"................................3
(n) "Person"......................................................3
(o) "Principal Underwriter".......................................3
(p) "Series"......................................................3
(q) "Shares"......................................................3
(r) "Shareholder".................................................3
(s) "Trust".......................................................3
(t) "Trust Property"..............................................3
(u) "Trustee" or "Trustees".......................................4
ARTICLE II. Purpose of Trust.................................................4
ARTICLE III. Shares...........................................................7
Section 1. Division of Beneficial Interest................................7
Section 2. Ownership of Shares............................................9
Section 3. Investments in the Trust.......................................9
Section 4. Status of Shares and Limitation of Personal Liability..........9
Section 5. Power of Board of Trustees to Change Provisions
Relating to Shares............................................10
Section 6. Establishment and Designation of Series.......................10
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(a) Assets Held with Respect to a Particular Series..............11
(b) Liabilities Held with Respect to a Particular Series.........11
(c) Dividends, Distributions, Redemptions and Repurchases........12
(d) Voting.......................................................13
(e) Equality.....................................................13
(f) Fractions....................................................13
(g) Exchange Privilege...........................................13
(h) Combination of Series........................................13
(i) Elimination of Series........................................13
Section 7. Indemnification of Shareholders...............................14
ARTICLE IV. The Board of Trustees...........................................14
Section 1. Number, Election and Tenure...................................14
Section 2. Effect of Death, Resignation, Removal, etc. of a Trustee......15
Section 3. Powers........................................................15
Section 4. Payment of Expenses by the Trust..............................16
Section 5. Payment of Expenses by Shareholders...........................17
Section 6. Ownership of Trust Property...................................17
Section 7. Service Contracts.............................................17
ARTICLE V. Shareholders' Voting Powers and Meetings.........................19
Section 1. Voting Powers.................................................19
Section 2. Meetings......................................................19
Section 3. Quorum and Required Vote......................................19
Section 4. Shareholder Action by Written Consent without a Meeting.......20
Section 5. Record Dates..................................................20
Section 6. Additional Provisions.........................................21
ARTICLE VI. Net Asset Value, Distributions and Redemptions...................21
Section 1. Determination of Net Asset Value, Net Income and
Distributions.................................................21
Section 2. Redemptions at the Option of a Shareholder....................21
Section 3. Redemptions at the Option of the Trust........................23
ARTICLE VII. Compensation and Limitation of Liability of
Officers and Trustees...........................................23
Section 1. Compensation..................................................23
Section 2. Indemnification and Limitation of Liability...................23
Section 3. Officers and Trustees' Good Faith Action, Expert
Advice, No Bond or Surety.....................................24
Section 4. Insurance.....................................................24
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ARTICLE VIII. Miscellaneous..................................................24
Section 1. Liability of Third Persons Dealing with Trustees..............24
Section 2. Dissolution of Trust or Series................................25
Section 3. Merger and Consolidation; Conversion..........................25
(a) Merger and Consolidation.....................................25
(b) Conversion...................................................26
Section 4. Reorganization................................................26
Section 5. Amendments....................................................27
Section 6. Filing of Copies, References, Headings........................27
Section 7. Applicable Law................................................28
Section 8. Provisions in Conflict with Law or Regulations................28
Section 9. Business Trust Only...........................................28
Section 10. Use of the Name "Xxxxxxx".....................................28
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AMENDED AND RESTATED
AGREEMENT AND DECLARATION OF TRUST
The Xxxxxxx Funds
AGREEMENT AND DECLARATION OF TRUST made as of the 29th day of September,
1998 and amended and restated as of the ____ day __________, 1999 by the
Trustees hereunder, and by the holders of shares of beneficial interest issued
hereunder as hereinafter provided. This Agreement and Declaration of Trust was
made be effective upon the filing of the Certificate of Trust in the office of
the Secretary of State of the State of Delaware.
W I T N E S S E T H:
WHEREAS this Trust has been formed to carry on the business of an
investment company; and
WHEREAS this Trust is authorized to issue its shares of beneficial interest
in separate Series, and to issue classes of Shares of any Series or divide
Shares of any Series into two or more classes, all in accordance with the
provisions hereinafter set forth; and
WHEREAS the Trustees have agreed to manage all property coming into their
hands as trustees of a Delaware business trust in accordance with the provisions
of the Delaware Business Trust Act (12 Del. C.ss.3801, et seq.), as from time to
time amended and including any successor statute of similar import (the "DBTA"),
and the provisions hereinafter set forth;
NOW, THEREFORE, the Trustees hereby declare that they will hold all cash,
securities and other assets which they may from time to time acquire in any
manner as Trustees hereunder IN TRUST to manage and dispose of the same upon the
following terms and conditions for the benefit of the holders from time to time
of shares of beneficial interest in this Trust and the Series created hereunder
as hereinafter set forth.
ARTICLE I.
Name and Definitions
Section 1. Name. This trust shall be known as "The Xxxxxxx Funds" and the
Trustees shall conduct the business of the Trust under that name, or any other
name as they may from time to time determine.
Section 2. Registered Agent and Registered Office; Principal Place of
Business.
(a) Registered Agent and Registered Office. The name of the registered
agent of the Trust and the address of the registered office of the Trust are as
set forth on the Certificate of Trust.
(b) Principal Place of Business. The principal place of business of the
Trust is 000 Xxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000 or such other location
within or outside of the State of Delaware as the Board of Trustees may
determine from time to time.
Section 3. Definitions. Whenever used herein, unless otherwise required by
the context or specifically provided:
(a) "1940 Act" shall mean the Investment Company Act of 1940 and the rules
and regulations thereunder, all as adopted or amended from time to time.
(b) "Affiliate" shall have the meaning given to "Affiliated Person" in
Section 2(a)(3) of the 1940 Act when used with reference to a specified Person.
(c) "Board of Trustees" shall mean the governing body of the Trust, which
is comprised of the Trustees of the Trust.
(d) "By-Laws" shall mean the By-Laws of the Trust, as amended from time to
time in accordance with Article X of the By-Laws, and incorporated herein by
reference.
(e) "Certificate of Trust" shall mean the certificate of trust filed with
the Office of the Secretary of State of the State of Delaware as required under
the DBTA to form the Trust.
(f) "Code" shall mean the Internal Revenue Code of 1986, and the rules and
regulations thereunder, all as adopted or amended from time to time.
(g) "Commission" shall have the meaning given to it in Section 2(a)(7) of
the 1940 Act.
(h) "DBTA" shall mean the Delaware Business Trust Act, (12 Del. C.ss.3801,
et seq.), as amended from time to time.
(i) "Declaration of Trust" shall mean this Agreement and Declaration of
Trust, as amended or restated from time to time.
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(j) "General Liabilities" shall have the meaning given it in Article III,
Section 6(b) of this Declaration of Trust.
(k) "Interested Person" shall have the meaning given to it in Section
2(a)(19) of the 1940 Act.
(l) "Investment Adviser" or "Adviser" shall mean a party furnishing
services to the Trust pursuant to any contract described in Article IV, Section
7(a) hereof.
(m) "National Financial Emergency" shall mean the whole or any part of any
period set forth in Section 22(e) of the 1940 Act. The Board of Trustees may, in
its discretion, declare that the suspension relating to a National Financial
Emergency shall terminate, as the case may be, on the first business day on
which the New York Stock Exchange shall have reopened or the period specified in
Section 22(e) of the 1940 Act shall have expired (as to which, in the absence of
an official ruling by the Commission, the determination of the Board of Trustees
shall be conclusive).
(n) "Person" shall include a natural person, partnership, limited
partnership, trust, estate, association, corporation, custodian, nominee or any
other individual or entity in its own or any representative capacity.
(o) "Principal Underwriter" shall have the meaning given to it in Section
2(a)(29) of the 1940 Act.
(p) "Series" shall refer to each Series of Shares established and
designated under or in accordance with the provisions of Article III and shall
mean an entity such as that described in Section 18(f)(2) of the 1940 Act, and
subject to Rule 18f-2 thereunder.
(q) "Shares" shall mean the outstanding shares of beneficial interest into
which the beneficial interest in the Trust shall be divided from time to time,
and shall include fractional and whole shares.
(r) "Shareholder" shall mean a record owner of Shares.
(s) "Trust" shall refer to the Delaware business trust established by this
Declaration of Trust, as amended or restated from time to time.
(t) "Trust Property" shall mean any and all property, real or personal,
tangible or intangible, which is owned or held by or for the account of the
Trust or one or more of any Series, including, without limitation, the rights
referenced in Article
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VIII, Section 2 hereof.
(u) "Trustee" or "Trustees" shall refer to each signatory to this
Declaration of Trust as a trustee, so long as such signatory continues in office
in accordance with the terms hereof, and all other Persons who may, from time to
time, be duly elected or appointed, qualified and serving on the Board of
Trustees in accordance with the provisions hereof. Reference herein to a Trustee
or the Trustees shall refer to such Person or Persons in their capacity as
trustees hereunder.
ARTICLE II.
Purpose of Trust
The purpose of the Trust is to conduct, operate and carry on the business
of a management investment company registered under the 1940 Act through one or
more Series investing primarily in securities and, in addition to any authority
given by law, to exercise all of the powers and to do any and all of the things
as fully and to the same extent as any private corporation organized for profit
under the general corporation law of the State of Delaware, now or hereafter in
force, including, without limitation, the following powers:
(a) To invest and reinvest cash, to hold cash uninvested, and to subscribe
for, invest in, reinvest in, purchase or otherwise acquire, own, hold, pledge,
sell, assign, mortgage, transfer, exchange, distribute, write options on, lend
or otherwise deal in or dispose of contracts for the future acquisition or
delivery of fixed income or other securities, and securities or property of
every nature and kind, including, without limitation, all types of bonds,
debentures, stocks, preferred stocks, negotiable or non-negotiable instruments,
obligations, evidences of indebtedness, certificates of deposit or indebtedness,
commercial paper, repurchase agreements, bankers' acceptances, and other
securities of any kind, issued, created, guaranteed, or sponsored by any and all
Persons, including, without limitation, states, territories, and possessions of
the United States and the District of Columbia and any political subdivision,
agency, or instrumentality thereof, any foreign government or any political
subdivision of the U.S. Government or any foreign government, or any
international instrumentality, or by any bank or savings institution, or by any
corporation or organization organized under the laws of the United States or of
any state, territory, or possession thereof, or by any corporation or
organization organized under any foreign law, or "when issued" contracts for any
such securities, or to change the investments of the assets of the Trust;
(b) To exercise any and all rights, powers and privileges with reference
to or incident to ownership or interest, use and enjoyment of any of such
securities and other instruments or property of every kind and description,
including, but without limitation, the right, power and privilege to own, vote,
hold, purchase, sell, negotiate,
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assign, exchange, lend, transfer, mortgage, hypothecate, lease, pledge or write
options with respect to or otherwise deal with, dispose of, use, exercise or
enjoy any rights, title, interest, powers or privileges under or with reference
to any of such securities and other instruments or property, the right to
consent and otherwise act with respect thereto, with power to designate one or
more Persons, to exercise any of said rights, powers, and privileges in respect
of any of said instruments, and to do any and all acts and things for the
preservation, protection, improvement and enhancement in value of any of such
securities and other instruments or property;
(c) To sell, exchange, lend, pledge, mortgage, hypothecate, lease or write
options with respect to or otherwise deal in any property rights relating to any
or all of the assets of the Trust or any Series, subject to any requirements of
the 1940 Act;
(d) To vote or give assent, or exercise any rights of ownership, with
respect to stock or other securities or property; and to execute and deliver
proxies or powers of attorney to such person or persons as the Trustees shall
deem proper, granting to such person or persons such power and discretion with
relation to securities or property as the Trustees shall deem proper;
(e) To exercise powers and right of subscription or otherwise which in any
manner arise out of ownership of securities;
(f) To hold any security or property in a form not indicating that it is
trust property, whether in bearer, unregistered or other negotiable form, or in
its own name or in the name of a custodian or subcustodian or a nominee or
nominees or otherwise or to authorize the custodian or a subcustodian or a
nominee or nominees to deposit the same in a securities depository, subject in
each case to proper safeguards according to the usual practice of investment
companies or any rules or regulations applicable thereto;
(g) To consent to, or participate in, any plan for the reorganization,
consolidation or merger of any corporation or issuer of any security which is
held in the Trust; to consent to any contract, lease, mortgage, purchase or sale
of property by such corporation or issuer; and to pay calls or subscriptions
with respect to any security held in the Trust;
(h) To join with other security holders in acting through a committee,
depositary, voting trustee or otherwise, and in that connection to deposit any
security with, or transfer any security to, any such committee, depositary or
trustee, and to delegate to them such power and authority with relation to any
security (whether or not so deposited or transferred) as the Trustees shall deem
proper, and to agree to pay, and to pay, such portion of the expenses and
compensation of such committee, depositary or trustee as the Trustees shall deem
proper;
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(i) To compromise, arbitrate or otherwise adjust claims in favor of or
against the Trust or any matter in controversy, including but not limited to
claims for taxes;
(j) To enter into joint ventures, general or limited partnerships and any
other combinations or associations;
(k) To endorse or guarantee the payment of any notes or other obligations
of any Person; to make contracts of guaranty or suretyship, or otherwise assume
liability for payment thereof;
(l) To purchase and pay for entirely out of Trust Property such insurance
as the Trustees may deem necessary or appropriate for the conduct of the
business, including, without limitation, insurance policies insuring the assets
of the Trust or payment of distributions and principal on its portfolio
investments, and insurance policies insuring the Shareholders, Trustees,
officers, employees, agents, Investment Advisers, Principal Underwriters, or
independent contractors of the Trust, individually against all claims and
liabilities of every nature arising by reason of holding Shares, holding, being
or having held any such office or position, or by reason of any action alleged
to have been taken or omitted by any such Person as Trustee, officer, employee,
agent, Investment Adviser, Principal Underwriter, or independent contractor, to
the fullest extent permitted by this Declaration of Trust, the Bylaws and by
applicable law;
(m) To adopt, establish and carry out pension, profit-sharing, share
bonus, share purchase, savings, thrift and other retirement, incentive and
benefit plans, trusts and provisions, including the purchasing of life insurance
and annuity contracts as a means of providing such retirement and other
benefits, for any or all of the Trustees, officers, employees and agents of the
Trust;
(n) To purchase or otherwise acquire, own, hold, sell, negotiate,
exchange, assign, transfer, mortgage, pledge or otherwise deal with, dispose of,
use, exercise or enjoy, property of all kinds;
(o) To buy, sell, mortgage, encumber, hold, own, exchange, rent or
otherwise acquire and dispose of, and to develop, improve, manage, subdivide,
and generally to deal and trade in real property, improved and unimproved, and
wheresoever situated; and to build, erect, construct, alter and maintain
buildings, structures, and other improvements on real property;
(p) To borrow or raise moneys for any of the purposes of the Trust, and to
mortgage or pledge the whole or any part of the property and franchises of the
Trust, real, personal, and mixed, tangible or intangible, and wheresoever
situated;
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(q) To enter into, make and perform contracts and undertakings of every
kind for any lawful purpose, without limit as to amount; and
(r) To issue, purchase, sell and transfer, reacquire, hold, trade and deal
in Shares, bonds, debentures and other securities, instruments or other property
of the Trust, from time to time, to such extent as the Board of Trustees shall,
consistent with the provisions of this Declaration of Trust, determine; and to
repurchase, re-acquire and redeem, from time to time, its Shares or, if any, its
bonds, debentures and other securities.
The Trust shall not be limited to investing in obligations maturing before
the possible dissolution of the Trust or one or more of its Series. The Trust
shall not in any way be bound or limited by any present or future law or custom
in regard to investment by fiduciaries. Neither the Trust nor the Trustees shall
be required to obtain any court order to deal with any assets of the Trust or
take any other action hereunder.
The foregoing clauses shall each be construed as purposes, objects and
powers, and it is hereby expressly provided that the foregoing enumeration of
specific purposes, objects and powers shall not be held to limit or restrict in
any manner the powers of the Trust, and that they are in furtherance of, and in
addition to, and not in limitation of, the general powers conferred upon the
Trust by the DBTA and the other laws of the State of Delaware or otherwise; nor
shall the enumeration of one thing be deemed to exclude another, although it be
of like nature, not expressed.
ARTICLE III.
Shares
Section 1. Division of Beneficial Interest. The beneficial interest in the
Trust shall at all times be divided into Shares, with a par value of $0.001 per
share. The number of Shares authorized hereunder is unlimited. The Board of
Trustees may authorize the division of Shares into separate and distinct Series
and the division of any Series into separate classes of Shares. The different
Series and classes shall be established and designated, and the variations in
the relative rights and preferences as between the different Series and classes
shall be fixed and determined by the Board of Trustees without the requirement
of Shareholder approval. If no separate Series or classes shall be established,
the Shares shall have the rights and preferences provided for herein and in
Article III, Section 6 hereof to the extent relevant and not otherwise provided
for herein, and all references to Series and classes shall be construed (as the
context may require) to refer to the Trust. The fact that a Series shall have
initially been established and designated without any specific establishment or
designation of classes (i.e., that all Shares of such Series are initially of a
single class) shall not limit the authority of
7
the Board of Trustees to establish and designate separate classes of said
Series. The fact that a Series shall have more than one established and
designated class, shall not limit the authority of the Board of Trustees to
establish and designate additional classes of said Series, or to establish and
designate separate classes of the previously established and designated classes.
The Board of Trustees shall have the power to issue Shares of the Trust, or
any Series or class thereof, from time to time for such consideration (but not
less than the net asset value thereof) and in such form as may be fixed from
time to time pursuant to the direction of the Board of Trustees.
The Board of Trustees may hold as treasury shares, reissue for such
consideration and on such terms as they may determine, or cancel, at their
discretion from time to time, any Shares of any Series reacquired by the Trust.
The Board of Trustees may classify or reclassify any unissued Shares or any
Shares previously issued and reacquired of any Series or class into one or more
Series or classes that may be established and designated from time to time.
Notwithstanding the foregoing, the Trust and any Series thereof may acquire,
hold, sell and otherwise deal in, for purposes of investment or otherwise, the
Shares of any other Series of the Trust or Shares of the Trust, and such Shares
shall not be deemed treasury shares or cancelled.
Subject to the provisions of Section 6 of this Article III, each Share
shall have voting rights as provided in Article V hereof, and the Shareholders
of any Series shall be entitled to receive dividends and distributions, when, if
and as declared with respect thereto in the manner provided in Article IV,
Section 3 hereof. No Share shall have any priority or preference over any other
Share of the same Series or class with respect to dividends or distributions
paid in the ordinary course of business or distributions upon dissolution of the
Trust or of such Series or class made pursuant to Article VIII, Section 2
hereof. All dividends and distributions shall be made ratably among all
Shareholders of a particular class of Series from the Trust Property held with
respect to such Series according to the number of Shares of such class of such
Series held of record by such Shareholders on the record date for any dividend
or distribution. Shareholders shall have no preemptive or other right to
subscribe to new or additional Shares or other securities issued by the Trust or
any Series. The Trustees may from time to time divide or combine the Shares of
any particular Series into a greater or lesser number of Shares of that Series.
Such division or combination may not materially change the proportionate
beneficial interests of the Shares of that Series in the Trust Property held
with respect to that Series or materially affect the rights of Shares of any
other Series.
Pursuant to the powers contained herein, a single initial series of shares
of beneficial interest of the Trust shall be established and designated as The
Xxxxxxx Growth Fund series and an unlimited number of shares of beneficial
interest are
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hereby allocated to such Series.
Any Trustee, officer or other agent of the Trust, and any organization in
which any such Person is interested, may acquire, own, hold and dispose of
Shares of the Trust to the same extent as if such Person were not a Trustee,
officer or other agent of the Trust; and the Trust may issue and sell or cause
to be issued and sold and may purchase Shares from any such Person or any such
organization subject only to the general limitations, restrictions or other
provisions applicable to the sale or purchase of such Shares generally.
Section 2. Ownership of Shares. The ownership of Shares shall be recorded
on the books of the Trust kept by the Trust or by a transfer or similar agent
for the Trust, which books shall be maintained separately for the Shares of each
Series and class thereof that has been established and designated. No
certificates certifying the ownership of Shares shall be issued except as the
Board of Trustees may otherwise determine from time to time. The Board of
Trustees may make such rules not inconsistent with the provisions of the 1940
Act as they consider appropriate for the issuance of Share certificates, the
transfer of Shares of each Series or class and similar matters. The record books
of the Trust as kept by the Trust or any transfer or similar agent, as the case
may be, shall be conclusive as to who are the Shareholders of each Series or
class thereof and as to the number of Shares of each Series or class thereof
held from time to time by each such Shareholder.
Section 3. Investments in the Trust. Investments may be accepted by the
Trust from such Persons, at such times, on such terms, and for such
consideration as the Board of Trustees may, from time to time, authorize. Each
investment shall be credited to the individual Shareholder's account in the form
of full and fractional Shares of the Trust, in such Series or class as the
purchaser may select, at the net asset value per Share next determined for such
Series or class after receipt of the investment; provided, however, that the
Principal Underwriter may, in its sole discretion, impose a sales charge upon
investments in the Trust.
Section 4. Status of Shares and Limitation of Personal Liability. Shares
shall be deemed to be personal property giving to Shareholders only the rights
provided in this Declaration of Trust and under applicable law. Every
Shareholder by virtue of having become a Shareholder shall be held to have
expressly assented and agreed to the terms hereof and to have become a party
hereto. The death of a Shareholder during the existence of the Trust shall not
operate to dissolve the Trust or any Series, nor entitle the representative of
any deceased Shareholder to an accounting or to take any action in court or
elsewhere against the Trust or the Trustees or any Series, but entitles such
representative only to the rights of said deceased Shareholder under this
Declaration of Trust. Ownership of Shares shall not entitle the Shareholder to
any title in or to the whole or any part of the Trust
9
Property or right to call for a partition or division of the same or for an
accounting, nor shall the ownership of Shares constitute the Shareholders as
partners. Neither the Trust nor the Trustees, nor any officer, employee or agent
of the Trust, shall have any power to bind personally any Shareholder, nor,
except as specifically provided herein, to call upon any Shareholder for the
payment of any sum of money or assessment whatsoever other than such as the
Shareholder may at any time personally agree to pay. All Shares, when issued on
the terms determined by the Board of Trustees, shall be fully paid and
nonassessable. As provided in the DBTA, Shareholders of the Trust shall be
entitled to the same limitation of personal liability extended to stockholders
of a private corporation organized for profit under the general corporation law
of the State of Delaware.
Section 5. Power of Board of Trustees to Change Provisions Relating to
Shares. Notwithstanding any other provisions of this Declaration of Trust and
without limiting the power of the Board of Trustees to amend this Declaration of
Trust or the Certificate of Trust as provided elsewhere herein, the Board of
Trustees shall have the power to amend this Declaration of Trust, or the
Certificate of Trust, at any time and from time to time, in such manner as the
Board of Trustees may determine in its sole discretion, without the need for
Shareholder action, so as to add to, delete, replace or otherwise modify any
provisions relating to the Shares contained in this Declaration of Trust;
provided that before adopting any such amendment without Shareholder approval,
the Board of Trustees shall determine that it is consistent with the fair and
equitable treatment of all Shareholders and that Shareholder approval is not
otherwise required by the 1940 Act or other applicable law. If Shares have been
issued, Shareholder approval shall be required to adopt any amendments to this
Declaration of Trust which would adversely affect to a material degree the
rights and preferences of the Shares of any Series or class already issued;
provided, however, that in the event that the Board of Trustees determines that
the Trust shall no longer be operated as an investment company in accordance
with the provisions of the 1940 Act, the Board of Trustees may adopt such
amendments to this Declaration of Trust to delete those terms the Board of
Trustees identifies as being required by the 1940 Act.
Subject to the foregoing Paragraph, the Board of Trustees may amend the
Declaration of Trust to amend any of the provisions set forth in paragraphs (a)
through (i) of Section 6 of this Article III.
The Board of Trustees shall have the power, in its discretion, to make such
elections as to the tax status of the Trust as may be permitted or required
under the Code as currently in effect or as amended, without the vote of any
Shareholder.
Section 6. Establishment and Designation of Series. The establishment and
designation of any Series or class of Shares shall be effective upon the
resolution by a majority of the then Board of Trustees, adopting a resolution
which sets forth
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such establishment and designation and the relative rights and preferences of
such Series or class. Each such resolution shall be incorporated herein by
reference upon adoption.
Each Series shall be separate and distinct from any other Series and shall
maintain separate and distinct records on the books of the Trust, and the assets
and liabilities belonging to any such Series shall be held and accounted for
separately from the assets and liabilities of the Trust or any other Series.
Shares of each Series or class established pursuant to this Section 6,
unless otherwise provided in the resolution establishing such Series, shall have
the following relative rights and preferences:
(a) Assets Held with Respect to a Particular Series. All consideration
received by the Trust for the issue or sale of Shares of a particular Series,
together with all assets in which such consideration is invested or reinvested,
all income, earnings, profits, and proceeds thereof from whatever source
derived, including, without limitation, any proceeds derived from the sale,
exchange or liquidation of such assets, and any funds or payments derived from
any reinvestment of such proceeds in whatever form the same may be, shall
irrevocably be held with respect to that Series for all purposes, subject only
to the rights of creditors with respect to that Series, and shall be so recorded
upon the books of account of the Trust. Such consideration, assets, income,
earnings, profits and proceeds thereof, from whatever source derived, including,
without limitation, any proceeds derived from the sale, exchange or liquidation
of such assets, and any funds or payments derived from any reinvestment of such
proceeds, in whatever form the same may be, are herein referred to as "assets
held with respect to" that Series. In the event that there are any assets,
income, earnings, profits and proceeds thereof, funds or payments which are not
readily identifiable as assets held with respect to any particular Series
(collectively "General Assets"), the Board of Trustees shall allocate such
General Assets to, between or among any one or more of the Series in such manner
and on such basis as the Board of Trustees, in its sole discretion, deems fair
and equitable, and any General Asset so allocated to a particular Series shall
be held with respect to that Series. Each such allocation by the Board of
Trustees shall be conclusive and binding upon the Shareholders of all Series for
all purposes.
(b) Liabilities Held with Respect to a Particular Series. The assets of
the Trust held with respect to each particular Series shall be charged against
the liabilities of the Trust held with respect to that Series and all expenses,
costs, charges and reserves attributable to that Series, and any liabilities,
expenses, costs, charges and reserves of the Trust that are not readily
identifiable as being held with respect to any particular Series (collectively
"General Liabilities") shall be allocated and charged by the Board of Trustees
to and among any one or more of the Series in such manner and on such basis as
the Board of Trustees in its sole
11
discretion deems fair and equitable. The liabilities, expenses, costs, charges,
and reserves so charged to a Series are herein referred to as "liabilities held
with respect to" that Series. Each allocation of liabilities, expenses, costs,
charges and reserves by the Board of Trustees shall be conclusive and binding
upon the Shareholders of all Series for all purposes. All Persons who have
extended credit that has been allocated to a particular Series, or who have a
claim or contract that has been allocated to any particular Series, shall look,
and shall be required by contract to look exclusively, to the assets of that
particular Series for payment of such credit, claim, or contract. In the absence
of an express contractual agreement so limiting the claims of such creditors,
claimants and contract providers, each creditor, claimant and contract provider
will be deemed nevertheless to have impliedly agreed to such limitation unless
an express provision to the contrary has been incorporated in the written
contract or other document establishing the creditor, claimant or contract
provider relationship.
Subject to the right of the Board of Trustees in its discretion to allocate
General Liabilities as provided herein, the debts, liabilities, obligations and
expenses incurred, contracted for or otherwise existing with respect to a
particular Series, whether such Series is now authorized and existing pursuant
to this Declaration of Trust or is hereafter authorized and existing pursuant to
this Declaration of Trust, shall be enforceable against the assets held with
respect to that Series only, and not against the assets of any other Series or
the Trust generally and none of the debts, liabilities, obligations and expenses
incurred, contracted for or otherwise existing with respect to the Trust
generally or any other Series thereof shall be enforceable against the assets
held with respect to such Series. Notice of this limitation on liabilities
between and among Series shall be set forth in the Certificate of Trust 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 DBTA, and
upon the giving of such notice in the Certificate of Trust, the statutory
provisions of Section 3804 of the DBTA relating to limitations on liabilities
between and among Series (and the statutory effect under Section 3804 of setting
forth such notice in the Certificate of Trust) shall become applicable to the
Trust and each Series.
(c) Dividends, Distributions, Redemptions and Repurchases. Notwithstanding
any other provisions of this Declaration of Trust, including, without
limitation, Article VI, no dividend or distribution, including without
limitation, any distribution paid upon dissolution of the Trust or of any Series
with respect to, nor any redemption or repurchase of, the Shares of any Series
or class shall be effected by the Trust other than from the assets held with
respect to such Series, nor, except as specifically provided in Section 7 of
this Article III, shall any Shareholder of any particular Series otherwise have
any right or claim against the assets held with respect to any other Series or
the Trust generally except to the extent that such Shareholder has such a right
or claim hereunder as a Shareholder
12
of such other Series. The Board of Trustees shall have full discretion, to the
extent not inconsistent with the 1940 Act, to determine which items shall be
treated as income and which items as capital, and each such determination and
allocation shall be conclusive and binding upon the Shareholders.
(d) Voting. All Shares of the Trust entitled to vote on a matter shall
vote on the matter, separately by Series and, if applicable, by class; provided
that (1) where the 1940 Act requires all Shares of the Trust to be voted in the
aggregate, without differentiation between the separate Series or classes, on
any matter, then all of the Trust's Shares shall be entitled to vote in the
aggregate on the matter; and (2) if any matter affects only the interests of
some but not all Series or classes, then only the Shares of such affected Series
or classes shall be entitled to vote on the matter.
(e) Equality. All Shares of each particular Series shall represent an
equal proportionate undivided beneficial interest in the assets held with
respect to that Series (subject to the liabilities held with respect to that
Series and such rights and preferences as may have been established and
designated with respect to classes of Shares within such Series), and each Share
of any particular Series shall be equal to each other Share of that Series
(subject to the rights and preferences with respect to separate classes of such
Series).
(f) Fractions. Any fractional Share of a Series shall carry
proportionately to the fractional amount of such Share all the rights and
obligations of a whole Share of that Series, including rights with respect to
voting, receipt of dividends and distributions, redemption of Shares and
dissolution of the Trust or that Series.
(g) Exchange Privilege. The Board of Trustees shall have the authority to
provide that the holders of Shares of any Series shall have the right to
exchange said Shares for Shares of one or more other Series in accordance with
such requirements and procedures as may be established by the Board of Trustees,
and in accordance with the 1940 Act and the rules and regulations thereunder.
(h) Combination of Series. The Board of Trustees shall have the authority,
without the approval of the Shareholders of any Series unless otherwise required
by applicable law, to combine the assets and liabilities held with respect to
any two or more Series into assets and liabilities held with respect to a single
Series; provided that upon completion of such combination of Series, the
proportionate interest of each Shareholder of each Series that is combined, in
the assets and liabilities held with respect to the combined Series shall equal
the proportionate interest that such Shareholder held in the assets and
liabilities held with respect to the Series that is combined.
(i) Elimination of Series. At any time that there are no Shares
13
outstanding of any particular Series or class previously established and
designated, the Board of Trustees may by resolution of a majority of the then
Board of Trustees abolish that Series or class and rescind the establishment and
designation thereof. Each such resolution shall be incorporated herein by
reference upon adoption.
Section 7. Indemnification of Shareholders. If any Shareholder or former
Shareholder shall be exposed to liability by reason of a claim or demand
relating solely to his or her being or having been a Shareholder of the Trust
(or by having been a Shareholder of a particular Series), and not because of
such Person's acts or omissions, the Shareholder or former Shareholder (or, in
the case of a natural person, his or her heirs, executors, administrators, or
other legal representatives or, in the case of a corporation or other entity,
its corporate or other general successor) shall be entitled to be held harmless
from, and indemnified out of the assets of the Trust or out of the assets of the
applicable Series (as the case may be) against, all loss and expense arising
from such claim or demand; provided, however, that there shall be no liability
or obligation of the Trust (or any particular Series) arising hereunder to
reimburse any Shareholder for taxes paid by reason of such Shareholder's
ownership of any Shares.
ARTICLE IV.
The Board of Trustees
Section 1. Number, Election and Tenure. The number of Trustees constituting
the Board of Trustees may be fixed from time to time by a written instrument
signed, or by resolution approved at a duly constituted meeting, by a majority
of the Board of Trustees, provided, however, that the number of Trustees shall
in no event be less than one (1) nor more than fifteen (15). The Board of
Trustees, by action of a majority of the then Trustees at a duly constituted
meeting, may fill vacancies in the Board of Trustees or remove any Trustee with
or without cause. The Shareholders may elect Trustees, including filling any
vacancies in the Board of Trustees, at any meeting of Shareholders called by the
Board of Trustees for that purpose. A meeting of Shareholders for the purpose of
electing one or more Trustees may be called by the Board of Trustees or, to the
extent provided by the 1940 Act and the rules and regulations thereunder, by the
Shareholders. Shareholders shall have the power to remove a Trustee only to the
extent provided by the 1940 Act and the rules and regulations thereunder.
Each Trustee shall serve during the continued lifetime of the Trust until
he or she dies, resigns, is declared bankrupt or incompetent by a court of
appropriate jurisdiction, or is removed, or, if sooner than any of such events,
until the next meeting of Shareholders called for the purpose of electing
Trustees and until the election and qualification of his or her successor. Any
Trustee may resign at any time by written instrument signed by him or her and
delivered to any officer of the Trust
14
or to a meeting of the Board of Trustees. Such resignation shall be effective
upon receipt unless specified to be effective at some later time. Except to the
extent expressly provided in a written agreement with the Trust, no Trustee that
resigns or is removed shall have any right to any compensation for any period
following any such event or any right to damages on account of such events or
any actions taken in connection therewith following his or her resignation or
removal.
Section 2. Effect of Death, Resignation, Removal, etc. of a Trustee. The
death, declination, resignation, retirement, removal, declaration as bankrupt or
incapacity of one or more Trustees, or of all of them, shall not operate to
dissolve the Trust or any Series or to revoke any existing agency created
pursuant to the terms of this Declaration of Trust. Whenever a vacancy in the
Board of Trustees shall occur, until such vacancy is filled as provided in this
Article IV, Section 1, the Trustee(s) in office, regardless of the number, shall
have all the powers granted to the Board of Trustees and shall discharge all the
duties imposed upon the Board of Trustees by this Declaration of Trust. In the
event of the death, declination, resignation, retirement, removal, declaration
as bankrupt or incapacity of all of the then Trustees, the Trust's Investment
Adviser or Advisers is or are, as the case may be, empowered to appoint new
Trustees subject to the provisions of Section 16(a) of the 1940 Act.
Section 3. Powers. Subject to the provisions of this Declaration of Trust,
the business of the Trust shall be managed by the Board of Trustees, and such
Board of Trustees shall have all powers necessary or convenient to carry out
that responsibility, including, without limitation, the power to engage in
securities or other transactions of all kinds on behalf of the Trust. The Board
of Trustees shall have full power and authority to do any and all acts and to
make and execute any and all contracts and instruments that it may consider
necessary or appropriate in connection with the administration of the Trust. The
Trustees shall not be bound or limited by present or future laws or customs with
regard to investment by trustees or fiduciaries, but shall have full authority
and absolute power and control over the assets of the Trust and the business of
the Trust to the same extent as if the Trustees were the sole owners of the
assets and business of the Trust in their own right, including such authority,
power and control to do all acts and things as they, in their sole discretion,
shall deem proper to accomplish the purposes of this Trust. Without limiting the
foregoing, the Trustees may (1) adopt, amend and repeal By-Laws, not
inconsistent with this Declaration of Trust, that provide for the regulation and
management of the affairs of the Trust; (2) fill vacancies in or remove from
their number in accordance with this Declaration of Trust or the By-Laws, and
may elect and remove such officers and appoint and terminate such agents as they
consider appropriate; (3) appoint from their own number and establish and
terminate one or more committees consisting of two or more Trustees which may
exercise the powers and authority of the Board of Trustees to the extent that
the Board of Trustees determine; (4) employ one or more custodians of the Trust
Property and may authorize such custodians to employ subcustodians and to
deposit all or any part of
15
such Trust Property in a system or systems for the central handling of
securities or with a Federal Reserve Bank; (5) retain a transfer agent, dividend
disbursing agent, a shareholder servicing agent or administrative services
agent, or all of them; (6) provide for the issuance and distribution of Shares
by the Trust directly or through one or more Principal Underwriters or
otherwise; (7) retain one or more Investment Advisers; (8) redeem, repurchase or
transfer Shares pursuant to applicable law; (9) set record dates for the
determination of Shareholders with respect to various matters, in the manner
provided in Article V, Section 5 of this Declaration of Trust; (10) declare and
pay dividends and distributions to Shareholders from the Trust Property; (11)
establish from time to time, in accordance with the provisions of Article III,
Section 6 hereof, any Series or class of Shares, each such Series to operate as
a separate and distinct investment medium and with separately defined investment
objectives and policies and distinct investment purposes; and (12) in general
delegate such authority as they consider desirable to any officer of the Trust,
any committee of the Board of Trustees, any agent or employee of the Trust, or
any such custodian, transfer agent, dividend disbursing agent, shareholder
servicing agent, administrative services agent, Principal Underwriter or
Investment Adviser. Any determination as to what is in the best interests of the
Trust made by the Board of Trustees in good faith shall be conclusive.
In construing the provisions of this Declaration of Trust, the presumption
shall be in favor of a grant of power to the Trustees. Unless otherwise
specified herein or required by law, any action by the Board of Trustees shall
be deemed effective if approved or taken by a majority of the Trustees then in
office.
Any action required or permitted to be taken by the Board of Trustees, or a
committee thereof, may be taken without a meeting if a majority of the members
of the Board of Trustees, or committee thereof, as the case may be, shall
individually or collectively consent in writing to that action. Such action by
written consent shall have the same force and effect as a majority vote of the
Board of Trustees, or committee thereof, as the case may be. Such written
consent or consents shall be filed with the minutes of the proceedings of the
Board of Trustees, or committee thereof, as the case may be.
The Trustees shall devote to the affairs of the Trust such time as may be
necessary for the proper performance of their duties hereunder, but the Trustees
are not expected to devote their full time to the performance of such duties.
The Trustees, or any Affiliate partner or employee thereof, may engage in, or
possess an interest in, any other business or venture of any nature and
description, independently or with or for the account of others.
Section 4. Payment of Expenses by the Trust. The Board of Trustees is
authorized to pay or cause to be paid out of the principal or income of the
Trust or any particular Series or class of Shares, or partly out of the
16
principal and partly out of the income of the Trust or any particular Series or
class of Shares and to charge or allocate the same to, between or among such one
or more of the Series or classes of Shares, as the Board of Trustees deems fair
and in compliance with this Declaration of Trust, including particularly Article
III, Section 6 hereof, all expenses, fees, charges, taxes and liabilities
incurred by or arising in connection with the maintenance or operation of the
Trust or a particular Series or class of Shares, or in connection with the
management thereof, including, but not limited to, the Trustees' compensation
and such expenses, fees, charges, taxes and liabilities for the services of the
Trust's officers, employees, Investment Adviser, Principal Underwriter,
auditors, counsel, custodian, sub-custodian (if any), transfer agent, dividend
disbursing agent, shareholder servicing agent, administrative services agent,
and such other agents or independent contractors and such other expenses, fees,
charges, taxes and liabilities as the Board of Trustees may deem necessary or
proper to incur.
Section 5. Payment of Expenses by Shareholders. The Board of Trustees shall
have the power, as frequently as it may determine, to cause each Shareholder of
the Trust, or each Shareholder of any particular Series, to pay directly, in
advance or arrears, for charges of the Trust's custodian or transfer, dividend
disbursing, shareholder servicing, administrative services or similar agent, an
amount fixed from time to time by the Board of Trustees, by setting off such
charges due from such Shareholder from declared but unpaid dividends or
distributions owed such Shareholder and/or by reducing the number of Shares in
the account of such Shareholder by that number of full and/or fractional Shares
which represents the outstanding amount of such charges due from such
Shareholder.
Section 6. Ownership of Trust Property. Legal title to all of the Trust
Property shall at all times be considered to be vested in the Trust, except that
the Board of Trustees shall have the power to cause legal title to any Trust
Property to be held by or in the name of any Person as nominee, on such terms as
the Board of Trustees may determine, in accordance with applicable law.
Section 7. Service Contracts.
(a) Subject to such requirements and restrictions as may be set forth in
the By-Laws and/or the 1940 Act, the Board of Trustees may, at any time and from
time to time, contract for exclusive or nonexclusive advisory, management and/or
administrative services for the Trust or for any Series with any corporation,
trust, association or other organization, including any Affiliate; and any such
contract may contain such other terms as the Board of Trustees may determine,
including without limitation, authority for the Investment Adviser or
administrator to determine from time to time without prior consultation with the
Board of Trustees what securities and other instruments or property shall be
purchased or otherwise acquired, owned, held, invested or reinvested in, sold,
exchanged, transferred, mortgaged, pledged, assigned, negotiated, or otherwise
dealt with or disposed of, and what portion, if any,
17
of the Trust Property shall be held uninvested and to make changes in the
Trust's or a particular Series' investments, or such other activities as may
specifically be delegated to such party.
(b) The Board of Trustees may also, at any time and from time to time,
contract with any corporation, trust, association or other organization,
including any Affiliate, appointing it or them as the exclusive or nonexclusive
distributor or Principal Underwriter for the Shares of the Trust or one or more
of the Series or classes thereof or for other securities to be issued by the
Trust, or appointing it or them to act as the custodian, transfer agent,
dividend disbursing agent and/or shareholder servicing agent for the Trust or
one or more of the Series or classes thereof.
(c) The Board of Trustees is further empowered, at any time and from time
to time, to contract with any Persons to provide such other services to the
Trust or one or more of its Series, as the Board of Trustees determines to be in
the best interests of the Trust or one or more of its Series.
(d) The fact that:
(i) any of the Shareholders, Trustees, employees or officers of
the Trust is a shareholder, director, officer, partner, trustee,
employee, manager, Adviser, Principal Underwriter, distributor, or
Affiliate or agent of or for any corporation, trust, association, or
other organization, or for any parent or Affiliate of any
organization, with which an Adviser's, management or administration
contract, or Principal Underwriter's or distributor's contract, or
custodian, transfer, dividend disbursing, shareholder servicing or
other type of service contract may have been or may hereafter be made,
(ii) any such organization, or any parent or Affiliate thereof,
is a Shareholder or has an interest in the Trust, or
(iii) any corporation, trust, association or other organization
with which an Adviser's, management or administration contract or
Principal Underwriter's or distributor's contract, or custodian,
transfer, dividend disbursing, shareholder servicing or other type of
service contract may have been or may hereafter be made also has an
Adviser's, management or administration contract, or Principal
Underwriter's or distributor's contract, or custodian, transfer,
dividend disbursing, shareholder servicing or other service contract
with one or more other corporations, trusts, associations, or other
organizations, or has other business or interests,
18
shall not affect the validity of any such contract or disqualify any
Shareholder, Trustee, employee or officer of the Trust from voting upon or
executing the same, or create any liability or accountability to the Trust or
its Shareholders, provided that the establishment of and performance under each
such contract is permissible under the provisions of the 1940 Act.
(e) Every contract referred to in this Section 7 shall comply with such
requirements and restrictions as may be set forth in the By-Laws or the 1940 Act
or stipulated by resolution of the Board of Trustees. Any such contract may
contain such other terms as the Board of Trustees may determine.
ARTICLE V.
Shareholders' Voting Powers and Meetings
Section 1. Voting Powers. Subject to the provisions of Article III, Section
6(d), the Shareholders shall have power to vote only (i) for the election of
Trustees, including the filling of any vacancies in the Board of Trustees, as
provided in Article IV, Section 1; (ii) with respect to such additional matters
relating to the Trust as may be required by this Declaration of Trust, the
By-Laws, the 1940 Act or any registration statement of the Trust filed with the
Commission; and (iii) on such other matters as the Board of Trustees may
consider necessary or desirable. The Shareholder of record (as of the record
date established pursuant to Section 5 of this Article V) of each Share shall be
entitled to one vote for each full Share, and a fractional vote for each
fractional Share. Shareholders shall not be entitled to cumulative voting in the
election of Trustees or on any other matter. Shares may be voted in person or by
proxy.
Section 2. Meetings. Meetings of the Shareholders may be called by the
Board of Trustees for the purpose of electing Trustees as provided in Article
IV, Section 1 and for such other purposes as may be prescribed by law, this
Declaration of Trust or the By-Laws. Meetings of the Shareholders may also be
called by the Board of Trustees from time to time for the purpose of taking
action upon any other matter deemed by the Board of Trustees to be necessary or
desirable.
Section 3. Quorum and Required Vote. Except when a larger quorum is
required by applicable law, the By-Laws or this Declaration of Trust,
thirty-three and one-third percent (33-1/3%) of the Shares present in person or
represented by proxy and entitled to vote at a Shareholders' meeting shall
constitute a quorum at such meeting. When a separate vote by one or more Series
or classes is required, thirty-three and one-third percent (33-1/3%) of the
Shares of each such Series or class present in person or represented by proxy
and entitled to vote shall constitute a quorum at a Shareholders' meeting of
such Series or class. Subject to the provisions of Article III, Section 6(d),
Article VIII, Section 4 and any other provision of this
19
Declaration of Trust, the By-Laws or applicable law which requires a different
vote: (1) in all matters other than the election of Trustees, the affirmative
vote of the majority of votes cast at a Shareholders' meeting at which a quorum
is present shall be the act of the Shareholders; and (2) Trustees shall be
elected by a plurality of the votes cast at a Shareholders' meeting at which a
quorum is present.
Section 4. Shareholder Action by Written Consent without a MeetingAny
action which may be taken at any meeting of Shareholders may be taken without a
meeting and without prior notice if a consent in writing setting forth the
action so taken is signed by the holders of Shares having not less than the
minimum number of votes that would be necessary to authorize or take that action
at a meeting at which all Shares entitled to vote on that action were present
and voted. All such consents shall be filed with the secretary of the Trust and
shall be maintained in the Trust's records. Any Shareholder giving a written
consent, the Shareholder's proxy holders, a transferee of the Shares (prior to
the record date), a personal representative of the Shareholder or its respective
proxy-holder may revoke the consent by a writing received by the secretary of
the Trust before written consents of the number of Shares required to authorize
the proposed action have been filed with the secretary.
If the consents of all Shareholders entitled to vote have not been
solicited in writing and if the unanimous written consent of all such
Shareholders shall not have been received, the secretary shall give prompt
notice of the action taken without a meeting to such Shareholders. This notice
shall be given in the manner specified in the By-Laws.
Section 5. Record Dates. For purposes of determining the Shareholders
entitled to notice of any meeting, to vote at any meeting, or to give consent to
action without a meeting, the Board of Trustees may fix in advance a record date
which shall not be more than one hundred eighty (180) days nor less than seven
(7) days before the date of any such meeting.
If the Board of Trustees does not so fix a record date:
(a) The record date for determining Shareholders entitled to notice of or
to vote at a meeting of Shareholders shall be at the close of business on the
business day next preceding the day on which notice is given or, if notice is
waived, at the close of business on the business day which is five (5) business
days next preceding to the day on which the meeting is held.
(b) The record date for determining Shareholders entitled to give consent
to action in writing without a meeting, (i) when no prior action by the Board of
Trustees has been taken, shall be the day on which the first written consent is
given, or (ii) when prior action of the Board of Trustees has been taken, shall
be at the close of
20
business on the day on which the Board of Trustees adopts the resolution taking
such prior action or the seventy-fifth (75th) day before the date of such other
action, whichever is later.
For the purpose of determining the Shareholders of any Series or class who
are entitled to receive payment of any dividend or of any other distribution,
the Board of Trustees may from time to time fix a date, which shall be before
the date for the payment of such dividend or such other distribution, as the
record date for determining the Shareholders of such Series or class having the
right to receive such dividend or distribution. Nothing in this Section shall be
construed as precluding the Board of Trustees from setting different record
dates for different Series or classes.
Section 6. Additional Provisions. The By-Laws may include further
provisions for Shareholders' votes, meetings and related matters.
ARTICLE VI.
Net Asset Value, Distributions and Redemptions
Section 1. Determination of Net Asset Value, Net Income and Distributions.
Subject to Article III, Section 6 hereof, the Board of Trustees shall have the
power to fix an initial offering price for the Shares of the Trust, or any
Series or class thereof which shall yield to the Trust, such Series or class not
less than the net asset value thereof, at which price the Shares of the Trust,
such Series or class shall be offered initially for sale, and to determine from
time to time thereafter the offering price which shall yield to the Trust, such
Series or class not less than the net asset value thereof from sales of the
Shares of the Trust, such Series or class; provided, however, that no Shares of
the Trust or Series or class thereof shall be issued or sold for consideration
which shall yield to the Trust, such Series or class less than the net asset
value of the Shares of the Trust, such Series or class next determined after the
receipt of the order (or at such other times set by the Board of Trustees),
except in the case of Shares of the Trust, such Series or class issued in
payment of a dividend properly declared and payable.
Subject to Article III, Section 6 hereof, the Board of Trustees, in their
absolute discretion, may prescribe and shall set forth in the By-laws or in a
duly adopted vote of the Board of Trustees such bases and time for determining
the per Share or net asset value of the Shares of the Trust, any Series or class
of a Series or net income attributable to the Shares of the Trust, any Series or
class of a Series, or the declaration and payment of dividends and distributions
on the Shares of the Trust, any Series or class of a Series, as they may deem
necessary or desirable.
Section 2. Redemptions at the Option of a Shareholder. Unless otherwise
provided in the prospectus of the Trust relating to the Shares of the Trust or
Series
21
thereof, as such prospectus may be amended from time to time ("Prospectus"):
(a) The Trust shall purchase such Shares as are offered by any Shareholder
for redemption, upon the presentation of a proper instrument of transfer
together with a request directed to the Trust or a Person designated by the
Trust that the Trust purchase such Shares or in accordance with such other
procedures for redemption as the Board of Trustees may from time to time
authorize; and the Trust will pay therefor the net asset value thereof, in
accordance with the By-Laws and applicable law. Payment for said Shares shall be
made by the Trust to the Shareholder within seven days after the date on which
the request is received in proper form. The obligation set forth in this Section
2 is subject to the provision that (i) in the event that the New York Stock
Exchange (the "Exchange") is closed for other than weekends or holidays, (ii) if
permitted by the Rules of the Commission during periods when trading on the
Exchange is restricted or during any National Financial Emergency which makes it
impracticable for the Trust to dispose of the investments of the Trust or
applicable Series or to determine fairly the value of the net assets of the
Trust or held with respect to such Series, or (iii) during any other period
permitted by order of the Commission for the protection of investors, such
obligations may be suspended or postponed by the Board of Trustees. If
certificates have been issued to a Shareholder, any such request by such
Shareholder must be accompanied by surrender of any outstanding certificate or
certificates for such Shares in form for transfer, together with such proof of
the authenticity of signatures as may reasonably be required on such Shares and
accompanied by proper stock transfer stamps, if applicable.
(b) Payments for Shares so redeemed by the Trust shall be made in cash,
except payment for such Shares may, at the option of the Board of Trustees, or
such officer or officers as the Board of Trustees may duly authorize in its
complete discretion, be made in kind, or partially in cash and partially in
kind. In case of any payment in kind, the Board of Trustees, or its delegate,
shall have absolute discretion as to what security or securities of the Trust
shall be distributed in kind and the amount of the same; and the securities
distributed shall be valued for purposes of distribution at the value at which
they were appraised in computing the then current net asset value of the Shares,
provided that any Shareholder who cannot legally acquire securities so
distributed in kind by reason of the prohibitions of the 1940 Act or the
provisions of the Employee Retirement Income Security Act of 1974, as amended
("ERISA"), shall receive cash. Shareholders shall bear the expenses of in-kind
transactions, including, but not limited to, transfer agency fees, custodian
fees and costs of disposition of such securities.
(c) Payment for Shares so redeemed by the Trust shall be made by the Trust
as provided above within seven days after the date on which the redemption
request is received in good order; provided, however, that if payment shall be
made other than exclusively in cash, any securities to be delivered as part of
such payment
22
shall be delivered as promptly as any necessary transfers of such securities on
the books of the several corporations whose securities are to be delivered
practicably can be made, which may not necessarily occur within such seven-day
period. Moreover, redemptions may be suspended in the event of a National
Financial Emergency. In no case shall the Trust be liable for any delay of any
corporation or other Person in transferring securities selected for delivery as
all or part of any payment in kind.
(d) The right of Shareholders to receive dividends or other distributions
on Shares may be set forth in a Plan adopted by the Board of Trustees and
amended from time to time pursuant to Rule 18f-3 under the 1940 Act. The right
of any Shareholder of the Trust to receive dividends or other distributions on
Shares redeemed and all other rights of such Shareholder with respect to the
Shares so redeemed by the Trust, except the right of such Shareholder to receive
payment for such Shares, shall cease at the time as of which the purchase price
of such Shares shall have been fixed, as provided above.
Section 3. Redemptions at the Option of the Trust. The Board of Trustees
may, from time to time, without the vote or consent of the Shareholders, and
subject to the 1940 Act, redeem Shares or authorize the closing of any
Shareholder account, subject to such conditions as may be established by the
Board of Trustees.
ARTICLE VII.
Compensation and Limitation of Liability of
Officers and Trustees
Section 1. Compensation. Except as set forth in the last sentence of this
Section 1, the Board of Trustees may, from time to time, fix a reasonable amount
of compensation to be paid by the Trust to the Trustees and officers of the
Trust. Nothing herein shall in any way prevent the employment of any Trustee for
advisory, management, legal, accounting, investment banking or other services
and payment for the same by the Trust.
Section 2. Indemnification and Limitation of Liability.
(a) To the fullest extent that limitations on the liability of Trustees
and officers are permitted by the DBTA, the officers and Trustees shall not be
responsible or liable in any event for any act or omission of any agent,
employee, Investment Adviser or Principal Underwriter of the Trust; or with
respect to each Trustee and officer, the act or omission of any other Trustee or
officer, respectively. The Trust, out of the Trust Property, shall indemnify and
hold harmless each and every officer and Trustee from and against any and all
claims and demands whatsoever arising out of or related to such officer's or
Trustee's performance of his or her duties as an officer or Trustee of the
Trust. This limitation on liability applies to events occurring at the
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time a Person serves as a Trustee or officer of the Trust whether or not such
Person is a Trustee or officer at the time of any proceeding in which liability
is asserted. Nothing herein contained shall indemnify, hold harmless or protect
any officer or Trustee from or against any liability to the Trust or any
Shareholder to which such Person would otherwise be subject by reason of willful
misfeasance, bad faith, gross negligence or reckless disregard of the duties
involved in the conduct of such Person's office.
(b) Every note, bond, contract, instrument, certificate or undertaking and
every other act or document whatsoever issued, executed or done by or on behalf
of the Trust, the officers or the Trustees or any of them in connection with the
Trust shall be conclusively deemed to have been issued, executed or done only in
such Person's capacity as Trustee and/or as officer, and such Trustee or
officer, as applicable, shall not be personally liable therefore, except as
described in the last sentence of the first paragraph of this Section 2 of this
Article VII.
Section 3. Officers and Trustees' Good Faith Action, Expert Advice, No Bond
or Surety. The exercise by the Trustees of their powers and discretions
hereunder shall be binding upon everyone interested. An officer or Trustee shall
be liable to the Trust and to any Shareholder solely for such officer's or
Trustee's own willful misfeasance, bad faith, gross negligence or reckless
disregard of the duties involved in the conduct of the office of such officer or
Trustee, and for nothing else, and shall not be liable for errors of judgment or
mistakes of fact or law. The officers and Trustees may obtain the advice of
counsel or other experts with respect to the meaning and operation of this
Declaration of Trust and their duties as officers or Trustees. No such officer
or Trustee shall be liable for any act or omission in accordance with such
advice and no inference concerning liability shall arise from a failure to
follow such advice. The officers and Trustees shall not be required to give any
bond as such, nor any surety if a bond is required.
Section 4. Insurance. To the fullest extent permitted by applicable law,
the officers and Trustees shall be entitled and have the authority to purchase
with Trust Property, insurance for liability and for all expenses reasonably
incurred, paid or expected to be paid by a Trustee or officer in connection with
any claim, action, suit or proceeding in which such Person becomes involved by
virtue of such Person's capacity or former capacity with the Trust, whether or
not the Trust would have the power to indemnify such Person against such
liability under the provisions of this Article.
ARTICLE VIII.
Miscellaneous
Section 1. Liability of Third Persons Dealing with Trustees. No person
dealing with the Trustees shall be bound to make any inquiry concerning the
validity
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of any actions made or to be made by the Trustees.
Section 2. Dissolution of Trust or Series. Unless dissolved as provided
herein, the Trust shall have perpetual existence. The Trust may be dissolved at
any time by vote of a majority of the Shares of the Trust entitled to vote or by
the Board of Trustees by written notice to the Shareholders. Any Series may be
dissolved at any time by vote of a majority of the Shares of that Series or by
the Board of Trustees by written notice to the Shareholders of that Series.
Upon dissolution of the Trust (or a particular Series, as the case may be),
the Trustees shall (in accordance withss.3808 of the DBTA) pay or make
reasonable provision to pay all claims and obligations of the Trust and/or each
Series (or the particular Series, as the case may be), including all contingent,
conditional or unmatured claims and obligations known to the Trust, and all
claims and obligations which are known to the Trust but for which the identity
of the claimant is unknown. If there are sufficient assets held with respect to
the Trust and/or each Series of the Trust (or the particular Series, as the case
may be), such claims and obligations shall be paid in full and any such
provisions for payment shall be made in full. If there are insufficient assets
held with respect to the Trust and/or each Series of the Trust (or the
particular Series, as the case may be), such claims and obligations shall be
paid or provided for in accordance with Article III, Section 6, according to
their priority and, among claims and obligations of equal priority, ratably to
the extent of assets available therefor. Any remaining assets (including without
limitation, cash, securities or any combination thereof) held with respect to
the Trust and/or each Series of the Trust (or the particular Series, as the case
may be) shall be distributed to the Shareholders of the Trust and/or such Series
(or the particular Series) in accordance with Article III, Section 6, and
ratably according to the number of Shares of the Trust and/or such Series (or
the particular Series) held by the several Shareholders on the record date for
such dissolution distribution.
Section 3. Merger and Consolidation; Conversion.
(a) Merger and Consolidation. Pursuant to an agreement of merger or
consolidation, the Trust, or any one or more Series, may, by act of a majority
of the Board of Trustees, merge or consolidate with or into one or more business
trusts or other business entities formed or organized or existing under the laws
of the State of Delaware or any other state or the United States or any foreign
country or other foreign jurisdiction. Any such merger or consolidation shall
not require the vote of the Shareholders affected thereby, unless such vote is
required by the 1940 Act, or unless such merger or consolidation would result in
an amendment of this Declaration of Trust which would otherwise require the
approval of such Shareholders. In accordance with Section 3815(f) of the DBTA,
an agreement of merger or consolidation may effect any amendment to this
Declaration of Trust or the By-Laws or effect the adoption of a new declaration
of trust or by-laws of the Trust if
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the Trust is the surviving or resulting business trust. Upon completion of the
merger or consolidation, the Trustees shall file a certificate of merger or
consolidation in accordance with Section 3810 of the DBTA.
(b) Conversion. A majority of the Board of Trustees may, without the vote
or consent of the Shareholders, cause (i) the Trust to convert to a common-law
trust, a general partnership, limited partnership or a limited liability company
organized, formed or created under the laws of the State of Delaware as
permitted pursuant to Section 3821 of the DBTA; (ii) the Shares of the Trust or
any Series to be converted into beneficial interests in another business trust
(or series thereof) created pursuant to this Section 3 of this Article VIII, or
(iii) the Shares to be exchanged under or pursuant to any state or federal
statute to the extent permitted by law; provided, however, that if required by
the 1940 Act, no such statutory conversion, Share conversion or Share exchange
shall be effective unless the terms of such transaction shall first have been
approved at a meeting called for that purpose by the "vote of a majority of the
outstanding voting securities," as such phrase is defined in the 1940 Act, of
the Trust or Series, as applicable; provided, further, that in all respects not
governed by statute or applicable law, the Board of Trustees shall have the
power to prescribe the procedure necessary or appropriate to accomplish a sale
of assets, merger or consolidation including the power to create one or more
separate business trusts to which all or any part of the assets, liabilities,
profits or losses of the Trust may be transferred and to provide for the
conversion of Shares of the Trust or any Series into beneficial interests in
such separate business trust or trusts (or series thereof).
Section 4. Reorganization.
A majority of the Board of Trustees may cause the Trust to sell, convey and
transfer all or substantially all of the assets of the Trust, or all or
substantially all of the assets held with respect to any one or more Series (the
"Acquired Series"), to another trust, business trust, partnership, limited
partnership, limited liability company, association or corporation organized
under the laws of any state, or to one or more separate series thereof, or to
the Trust to be held as assets held with respect to one or more other Series of
the Trust, in exchange for cash, shares or other securities (including, without
limitation, in the case of a transfer to another Series of the Trust, Shares of
such other Series) with such transfer either (a) being made subject to, or with
the assumption by the transferee of, the liabilities of the Trust or the
liabilities held with respect to each Acquired Series, or (b) not being made
subject to, or not with the assumption of, such liabilities; provided, however,
that, if required by the 1940 Act, no assets held with respect to any particular
Series shall be so sold, conveyed or transferred unless the terms of such
transaction shall first have been approved at a meeting called for that purpose
by the "vote of a majority of the outstanding voting securities," as such phrase
is defined in the 1940 Act, of that Series. Following such sale, conveyance and
transfer, the Board of Trustees shall
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distribute such cash, shares or other securities (giving due effect to the
assets and liabilities held with respect to the Acquired Series, and any other
differences between or among the Acquired Series), ratably among the
Shareholders of the Trust or the Acquired Series, (giving due effect to the
differences among the various classes within the Trust or each such Acquired
Series); and if all of the assets of the Trust have been so sold, conveyed and
transferred, the Trust shall be dissolved.
Section 5. Amendments.
Subject to the provisions of the second paragraph of this Section 5 of this
Article VIII, this Declaration of Trust may be restated and/or amended at any
time by an instrument in writing signed by a majority of the then Board of
Trustees and, if required, by approval of such amendment by Shareholders in
accordance with Article V, Section 3 hereof. Any such restatement and/or
amendment hereto shall be effective immediately upon execution and approval or
upon such future date and time as may be stated therein. The Certificate of
Trust of the Trust may be restated and/or amended by a similar procedure, and
any such restatement and/or amendment shall be effective immediately upon filing
with the Office of the Secretary of State of the State of Delaware or upon such
future date as may be stated therein.
Notwithstanding the above, the Board of Trustees expressly reserves the
right to amend or repeal any provisions contained in this Declaration of Trust
or the Certificate of Trust, in accordance with the provisions of Section 5 of
Article III hereof, and all rights, contractual and otherwise, conferred upon
Shareholders are granted subject to such reservation. The Board of Trustees
further expressly reserves the right to amend or repeal any provision of the
By-Laws pursuant to Article X of the By-Laws.
Section 6. Filing of Copies, References, Headings. The original or a copy
of this Declaration of Trust and of each restatement and/or amendment hereto
shall be kept at the principal executive office of the Trust where it may be
inspected by any Shareholder. Anyone dealing with the Trust may rely on a
certificate by an officer of the Trust as to whether or not any such
restatements and/or amendments have been made and as to any matters in
connection with the Trust hereunder; and, with the same effect as if it were the
original, may rely on a copy certified by an officer of the Trust to be a copy
of this instrument or of any such restatements and/or amendments. In this
Declaration of Trust and in any such restatements and/or amendments, references
to this instrument, and all expressions of similar effect to "herein," "hereof"
and "hereunder," shall be deemed to refer to this instrument as amended or
affected by any such restatements and/or amendments. Headings are placed herein
for convenience of reference only and shall not be taken as a part hereof or
control or affect the meaning, construction or effect of this instrument.
Whenever the singular number is used herein, the same shall include the plural;
and the neuter, masculine and feminine genders shall include each other, as
applicable. This instrument may
27
be executed in any number of counterparts, each of which shall be deemed an
original.
Section 7. Applicable Law. This Declaration of Trust is created under and
is to be governed by and construed and administered according to the laws of the
State of Delaware and the applicable provisions of the 1940 Act and the Code.
The Trust shall be a Delaware business trust pursuant to the DBTA, and without
limiting the provisions hereof, the Trust may exercise all powers that are
ordinarily exercised by such a business trust.
Section 8. Provisions in Conflict with Law or Regulations.
(a) The provisions of this Declaration of Trust are severable, and if the
Board of Trustees shall determine, with the advice of counsel, that any of such
provisions is in conflict with the 1940 Act, the Code, the DBTA, or with other
applicable laws and regulations, the conflicting provision shall be deemed not
to have constituted a part of this Declaration of Trust from the time when such
provisions became inconsistent with such laws or regulations; provided, however,
that such determination shall not affect any of the remaining provisions of this
Declaration of Trust or render invalid or improper any action taken or omitted
prior to such determination.
(b) If any provision of this Declaration of Trust shall be held invalid or
unenforceable in any jurisdiction, such invalidity or unenforceability shall
attach only to such provision in such jurisdiction and shall not in any manner
affect such provision in any other jurisdiction or any other provision of this
Declaration of Trust in any jurisdiction.
Section 9. Business Trust Only. It is the intention of the Trustees to
create a business trust pursuant to the DBTA, and thereby to create the
relationship of trustee and beneficial owners within the meaning of the DBTA
between the Trustees and each Shareholder. It is not the intention of the
Trustees to create a general or limited partnership, limited liability company,
joint stock association, corporation, bailment, or any form of legal
relationship other than a business trust pursuant to the DBTA. Nothing in this
Declaration of Trust shall be construed to make the Shareholders, either by
themselves or with the Trustees, partners or members of a joint stock
association.
Section 10. Use of the Name "Xxxxxxx". The name "Xxxxxxx" and all rights to
the use of the name "Xxxxxxx" belong to Xxxxxxx Associates, Inc. ("Xxxxxxx
Associates"), the Manager of the Trust. Xxxxxxx Associates has consented to the
use by the Trust of the identifying word "Xxxxxxx" and has granted to the Trust
a non-exclusive license to use the name "Xxxxxxx" as part of the name of the
Trust and the name of any Series of Shares. In the event Xxxxxxx Associates or
an affiliate of
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Xxxxxxx Associates is not appointed as Manager or ceases to be the Manager of
the Trust or of any Series using such name, the non-exclusive license granted
herein may be revoked by Xxxxxxx Associates. Upon receipt of such a written
revocation from Xxxxxxx Associates or any successor to its interests in such
name, the Trustees agreed to execute such amendment to the Trust's Certificate
of Trust and this Declaration of Trust as may be required to effect a change in
the name of Trust or any Series of Shares of the Trust, and the Trust promptly
shall cease using the name "Xxxxxxx" as part of its name or the name of any
Series of Shares.
IN WITNESS WHEREOF, the Trustees named below do hereby amend and restate
this Declaration of Trust as of the 28th day of April, 1999, which Declaration
of Trust was first made and entered into as of the date first written above.
/s/ Xxxx X. Xxxxxxx, XX /s/ Xxxxxx X. Xxxxxx
Xxxx X. Xxxxxxx, XX Xxxxxx X. Xxxxxx
Chairman and Trustee Trustee
/s/ Xxxxxx X. Xxxxxx /s/ R. Xxxxx Xxxxxxx
Xxxxxx X. Xxxxxx R. Xxxxx Xxxxxxx
Trustee Trustee
/s/ Xxxxx X. Xxxxxxxxxx /s/ Xxxxxx X. Xxxxx
Xxxxx X. Xxxxxxxxxx Xxxxxx X. Xxxxx
Trustee Trustee
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