AMENDED AND RESTATED AGREEMENT AND DECLARATION OF TRUST
of
The Xxxxxx Xxxxxxxxx Trust
a Delaware Business Trust
Principal Place of Business:
000 Xxxx Xxxxxxxxxx Xxxx, Xxxxx 000,
Xxxxx, Xxxxxxxxxxxx 00000-0000.
TABLE OF CONTENTS
ARTICLE I Name and Definitions 1
Section 1. Name 1
Section 2. Definitions. 1
ARTICLE II Purpose of Trust 2
ARTICLE III Shares 2
Section 1. Division of Beneficial Interest. 2
Section 2. Ownership of Shares. 3
Section 3. Investments in the Trust. 3
Section 4. Status of Shares and Limitations of Personal Liability. 3
Section 5. Power of Board of Trustees to Change Provisions Relating to
Shares. 4
Section 6. Establishment and Designation of Shares. 4
ARTICLE IV The Board of Trustees 7
Section 1. Number, Election and Tenure. 7
Section 2. Effect of Death, Resignation, etc. of a Trustee. 7
Section 3. Powers. 8
Section 4. Payment of Expenses by the Trust. 11
Section 5. Payment of Expense by Shareholders. 11
Section 6. Ownership of Assets of the Trust. 11
Section 7. Service Contracts. 11
ARTICLE V Shareholders' Voting Powers and Meetings 13
Section 1. Voting Powers. 13
Section 2. Voting Power and Meetings. 13
Section 3. Quorum and Required Vote. 13
Section 4. Action by Written Consent. 14
Section 5. Record Dates. 14
Section 6. Additional Provisions. 14
ARTICLE VI Net Asset Value, Distributions, and Redemptions 15
Section 1. Determination of Net Asset Value, Net Income, and
Distributions. 15
Section 2. Redemptions and Repurchases. 15
Section 3. Redemptions at the Option of the Trust. 15
ARTICLE VII Compensation and Limitation of Liability of Trustees 16
Section 1. Compensation. 16
Section 2. Indemnification and Limitation of Liability. 16
Section 3. Trustee's Good Faith Action, Expert Advice, No Bond or
Surety. 16
Section 4. Insurance. 17
ARTICLE VIII Miscellaneous 17
Section 1. Liability of Third Persons Dealing with Trustees. 17
Section 2. Termination of Trust or Series. 17
Section 3. Merger and Consolidation. 17
Section 4. Amendments. 18
Section 5. Filing of Copies, References, Headings. 18
Section 6. Applicable Law. 18
Section 7. Provisions in Conflict with Law or Regulations. 19
Section 8. Business Trust Only. 19
AMENDED AND RESTATED
AGREEMENT AND DECLARATION OF TRUST
OF
The Xxxxxx Xxxxxxxxx Trust
WHEREAS, THIS AGREEMENT AND DECLARATION OF TRUST is made and entered
into as of the date set forth below by the Trustees named hereunder for
the purpose of forming a Delaware business trust in accordance with the
provisions hereinafter set forth,
NOW, THEREFORE, the Trustees hereby direct that a Certificate of Trust
be filed with Office of the Secretary of State of the State of Delaware
and do hereby declare that the Trustees will hold IN TRUST all cash,
securities and other assets which the Trust now possesses or may
hereafter acquire from time to time in any manner and manage and
dispose of the same upon the following terms and conditions for the pro
rata benefit of the holders of Shares in this Trust.
ARTICLE I
Name and Definitions
Section 1. Name. This trust shall be known as The Xxxxxx Xxxxxxxxx
Trust and the Trustees shall conduct the business of the Trust under
that name or any other name as they may from time to time determine.
Section 2. Definitions. Whenever used herein, unless otherwise
required by the context or specifically provided:
(a) The "Trust" refers to the Delaware business trust established by
this Declaration of Trust, as amended from time to time;
(b) The "Trust Property" means any and all property, real or personal,
tangible or intangible, which is owned or held by or for the account of
the Trust, including without limitation the rights referenced in
Article VIII, Section 9 hereof;
(c) "Trustee" refers to each person who has signed this Agreement and
Declaration of Trust, so long a each such person continues in office in
accordance with the terms hereof, and any other person who may from
time to time be duly elected or appointed to serve on the Board of
Trustees in accordance with the provisions hereof, and reference herein
to a Trustee or the Trustees shall refer to such person or persons in
their capacity as trustees hereunder;
(d) "Shares" means the shares of beneficial interest into which the
beneficial interest in the Trust shall be divided from time to time and
includes fractions of Shares as well as whole Shares;
(e) "Shareholder" means a record owner of outstanding Shares;
(f) "Person" means and includes individuals, corporations,
partnerships, trusts, associations, joint ventures, estates and other
entities, whether or not legal entities, and governments and agencies
and political subdivisions thereof, whether domestic or foreign;
(g) The "1940 Act" refers to the Investment Company Act of 1940 and
the Rules and Regulations thereunder, all as amended from time to time;
(h) The terms "Commission" and "Principal Underwriter" shall have the
meanings given them in the 1940 Act;
(i) "Declaration of Trust" shall mean this Agreement and Declaration
of Trust, as amended or restated from time to time;
(j) "By-Laws" shall mean the By-Laws of the Trust as amended from time
to time and incorporated herein by reference;
(k) The term "Interested Person" has the meaning given it in Section
2(a)(19) of the 1940 Act;
(l) "Investment Manager" or "Manager" means a party furnishing
services to the Trust pursuant to any contract described in Article IV,
Section 7(a) hereof;
(m) "Series" refers to each Series of Shares established and
designated under or in accordance with the provisions of Article III.
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.
ARTICLE III
Shares
Section 1. Division of Beneficial Interest. The beneficial interests
in the Trust shall at all times be divided into an unlimited number of
Shares, with a par value of $ .001 per Share and Shares shall have the
rights and preferences provided for herein. The Trustees may authorize
the division of Shares into separate Series. The different Series
shall be established and designated, and the variations in the relative
rights and preferences as between the different Series shall be fixed
and determined, by the Trustees. If the context so requires, all
references to Series shall be construed to refer to the Trust.
Subject to the provisions of Section 6 of this Article III, each Share
shall have voting rights as provided in Article V hereof, and holders
of the Shares of any Series shall be entitled to receive dividends,
when, if and as declared with respect thereto in the manner provided in
Article VI, Section 1 hereof. No Shares shall have any priority or
preference over any other Share of the same Series with respect to
dividends or distributions upon termination of the Trust or of such
Series made pursuant to Article VIII, Section 4 hereof. All dividends
and distributions shall be made ratably among all Shareholders of a
particular Series from the assets held with respect to such Series
according to the number of Shares of such Series held of record by such
Shareholder on the record date for any dividend or distribution or on
the date of termination, as the case may be. Shareholders shall have
no preemptive or other right to subscribe to any 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 without
thereby materially changing the proportionate beneficial interest of
the Shares of that Series in the assets held with respect to that
Series or materially affecting the rights of Shares of any other
Series.
Section 2. Ownership of Shares. The ownership of Shares shall be
recorded on the books of the Trust or a transfer or similar agent for
the Trust, which books shall be maintained separately for the Shares of
each Series . No certificates certifying the ownership of Shares shall
be issued except as the Board of Trustees may otherwise determine from
time to time. The Trustees may make such rules as they consider
appropriate for the transfer of Shares of each Series 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 and as to the number of
Shares of each Series held from time to time by each.
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
considerations as the Trustees from time to time may authorize. The
Board of Trustees has the right to suspend sales of Shares of any
series or to decline to sell Shares to any investor, in its sole
discretion.
Section 4. Status of Shares and Limitations of Personal Liability.
Shares shall be deemed to be personal property giving only the rights
provided in this instrument. Every Shareholder by virtue of having
become a Shareholder shall be held to have expressly assented and
agreed to the terms hereof and to have become a party hereto. The
death of a Shareholder during the existence of the Trust shall not
operate to terminate the Trust, nor entitle the representative of any
deceased Shareholder to an accounting or to take any action in court or
elsewhere against the Trust or the Trustees, but entitles such
representative only to the rights of said deceased Shareholder under
this Trust. Ownership of Shares shall not entitle the Shareholder to
any title in or to the whole or any part of the Trust Property or right
to call for a partition or division of the same or for an accounting,
nor shall the ownership of Shares constitute the Shareholders as
partners. Neither the Trust nor the Trustees, nor any officer,
employee or agent of the Trust shall have any power to bind personally
any Shareholders nor, except as specifically provided herein, to call
upon any Shareholder for the payment of any sum of money or assessment
whatsoever other than such as the Shareholder may at any time
personally agree to pay.
Section 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
the Declaration of Trust as provided elsewhere herein, the Board of
Trustees shall have the power to amend this Declaration of Trust, at
any time and from time to time, in such manner as the Board of Trustees
may determine in their sole discretion, without the need for
Shareholder action, so as to add to, delete, replace or otherwise
modify any provisions relating to the Shares contained in this
Declaration of Trust including, without limitation, the power to
establish separate classes of shares within any Series and determine
the relative rights and preferences of any such class, provided that
the creation of separate classes within any Series comports with
applicable requirements of the 1940 Act and 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 to increase or decrease the par value of the Shares of
any Series. Subject to the foregoing Paragraph, the Board of Trustees
may amend the Declaration of Trust to amend any of the provisions
set forth in paragraphs (a) through (i) of Section 6 of this
Article III.
Section 6. Establishment and Designation of Shares. The establishment
and designation of any Series of Shares shall be effective upon the
resolution by a majority of the then Trustees, adopting a resolution
which sets forth such establishment and designation and the relative
rights and preferences of such Series . Each such resolution shall be
incorporated herein by reference upon adoption.
Shares of each Series 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, and shall be so recorded upon the books of account
of the Trust. Such consideration, assets, income, earnings, profits
and proceeds thereof, from whatever source derived, including, without
limitation, any proceeds derived from the sale, exchange or liquidation
of such assets, and any funds or payments derived from any reinvestment
of such proceeds, in whatever form the same may be, are herein referred
to as "assets held with respect to" that Series. In the event that
there are any assets, income, earnings, profits and proceeds thereof,
funds or payments which are not readily identifiable as assets held
with respect to any particular Series (collectively "General Assets"),
the Trustees shall allocate such General Assets to, between or among
any one or more of the Series in such manner and on such basis as the
Trustees, in their sole discretion, deem fair and equitable, and any
General Asset so allocated to a particular Series shall be held with
respect to that Series. Each such allocation by the Trustees shall be
conclusive and binding upon the Shareholders of all Series for all
purposes.
(b) Liabilities Held with Respect to a Particular Series. The assets
of the Trust held with respect to each particular Series shall be
charged against the liabilities of the Trust held with respect to that
Series and all expenses, costs, charges and reserves attributable to
that Series, and any general liabilities of the Trust which are not
readily identifiable as being held with respect to any particular
Series shall be allocated and charged by the Trustees to and among any
one or more of the Series in such manner and on such basis as the
Trustees in their sole discretion deem fair and equitable. The
liabilities, expenses, costs, charges, and reserves so charged to a
Series are herein referred to as "liabilities held with respect to"
that Series. Each allocation of liabilities, expenses, costs, charges
and reserves by the Trustees shall be conclusive and binding upon the
holders of all Series for all purposes. All Persons who have extended
credit which has been allocated to a particular Series, or who have a
claim or contract which has been allocated to any particular Series,
shall look, 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 claimant relationship.
(c) Dividends, Distributions, Redemptions, and Repurchases.
Notwithstanding any other provisions of this Declaration of Trust,
including, without limitation, Article VI, no dividend or distribution
including, without limitation, any distribution paid upon termination
of the Trust or of any Series with respect to, nor any redemption or
repurchase of, the Shares of any Series 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 except
to the extent that such Shareholder has such a right or claim hereunder
as a Shareholder of such other Series. The Trustees shall have full
discretion, to the extent not inconsistent with the 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 separately by Series, that is, the Shareholders of each
Series shall have the right to approve or disapprove matters affecting
the Trust and each respective Series as if the Series were separate
companies. There are, however, two exceptions to voting by separate
Series. First, if the 1940 Act requires all Shares of the Trust to be
voted in the aggregate without differentiation between the separate
Series, then all the Trust's Shares shall be entitled to vote on a
one-vote-per-Share basis. Second, if any matter affects only the
interests of some but not all Series then only the Shareholders of such
affected Series shall be entitled to vote on the matter.
(e) Equality. All the Shares of each particular Series shall
represent an equal proportionate interest in the assets held with
respect to that Series, and each Share of any particular Series shall
be equal to each other Share of that Series.
(f) Fractions. Any fractional Share of a Series shall carry
proportionately all the rights and obligations of a whole share of that
Series, including rights with respect to voting, receipt of dividends
and distributions, redemption of Shares and termination of the Trust.
(g) Exchange Privilege. The Trustees shall have the authority to
provide that the holders of Shares of any Series shall have the right
to exchange said Shares for Shares of one or more other Series of
Shares in accordance with such requirements and procedures as may be
established by the Trustees.
(h) Combination of Series. The Trustees shall have the authority,
without the approval of the Shareholders of any Series unless otherwise
required by applicable law, to combine the assets and liabilities held
with respect to any two or more Series into assets and liabilities held
with respect to a single Series.
(i) Elimination of Series. At any time that there are no Shares
outstanding of any particular Series previously established and
designated, the Trustees may by resolution abolish that Series and
rescind the establishment and designation thereof.
Section 7. Indemnification of Shareholders. If any Shareholder or
former Shareholder shall be exposed to liability by reason of a claim
or demand relating to his or her being or having been a Shareholder,
and not because of his or her acts or omissions, the Shareholder or
former Shareholder (or his or her heirs, executors, administrators, or
other legal representatives or in the case of a corporation or other
entity, its corporate or other general successor) shall be entitled to
be held harmless from and indemnified out of the assets of the Trust
against all loss and expense arising from such claim or demand.
ARTICLE IV
The Board of Trustees
Section 1. Number, Election and Tenure. The number of Trustees
constituting the Board of Trustees shall be fixed from time to time by
a written instrument signed, or by resolution approved at a duly
constituted meeting, by a majority of the Board of Trustees, provided,
however, that the number of Trustees shall in no event be less than one
(1) nor more than fifteen (15). The Board of Trustees, by action of a
majority of the then Trustees at a duly constituted meeting, may fill
vacancies in the Board of Trustees or remove Trustees with or without
cause. Each Trustee shall serve until the next meeting of Shareholders
called for the purpose of electing Trustees and until the election and
qualification of his or her successor, unless he or she sooner resigns,
is declared bankrupt or incompetent by a court of appropriate
jurisdiction, is removed or dies. Any Trustee may resign at any time
by written instrument signed by him and delivered to any officer of the
Trust or to a meeting of the Trustees. Such resignation shall be
effective upon receipt unless specified to be effective at some other
time. Except to the extent expressly provided in a written agreement
with the Trust, no Trustee resigning and no Trustee removed shall have
any right to any compensation for any period following his or her
resignation or removal, or any right to damages on account of such
removal. The Shareholders may elect Trustees at any meeting of
Shareholders called by the Trustees for that purpose. Any Trustee may
be removed at any meeting of Shareholders by a vote of two-thirds of
the outstanding Shares of the Trust. A meeting of Shareholders for the
purpose of electing or removing one or more Trustees may be called (i)
by the Trustees upon their own vote, or (ii) upon the demand of
Shareholders owning 10% or more of the Shares of the Trust in the
aggregate.
Section 2. Effect of Death, Resignation, etc. of a Trustee. The
death, declination, resignation, retirement, removal, or incapacity of
one or more Trustees, or all of them, shall not operate to annul the
Trust or to revoke any existing agency created pursuant to the terms of
this Declaration of Trust. Whenever a vacancy in the Board of Trustees
shall occur, until such vacancy is filled as provided in Article IV,
Section 1, the Trustees in office, regardless of their number, shall
have all the powers granted to the Trustees and shall discharge all the
duties imposed upon the Trustees by this Declaration of Trust. As
conclusive evidence of such vacancy, a written instrument certifying
the existence of such vacancy may be executed by an officer of the
Trust or by a majority of the Board of Trustees. In the event of the
death, declination, resignation, retirement, removal, or incapacity of
all the then Trustees within a short period of time and without the
opportunity for at least one Trustee being able to appoint additional
Trustees to fill vacancies, the Trust's Investment Manager(s) are
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 shall have all powers necessary or convenient
to carry out that responsibility including the power to engage in
securities transactions of all kinds on behalf of the Trust. Without
limiting the foregoing, the Trustees may: adopt By-Laws not
inconsistent with this Declaration of Trust providing for the
regulation and management of the affairs of the Trust and may amend and
repeal them to the extent that such By-Laws do not reserve that right
to the Shareholders; fill vacancies in or remove from their number, and
may elect and remove such officers and appoint and terminate such
agents as they consider appropriate; to contract for management,
administrative, advisory, and other services for the Trust or for any
Series, in accordance with Section 7 of the Article IV; establish, from
time to time, an executive committee and/or such other committee or
committees of the Board of Trustees consisting of two or more Trustees
(unless otherwise expressly provided by the By-Laws), which committee
may exercise such powers and authority as may be provided in the
By-Laws or as otherwise determined by the Board of Trustees; employ one
or more custodians of the assets of the Trust and authorize such
custodians to employ subcustodians and to deposit all or any part of
such assets in a system or systems for the central handling of
securities or with a Federal Reserve Bank, retain a transfer agent or a
shareholder servicing agent, or both; provide for the issuance and
distribution of Shares by the Trust directly or through one or more
Principal Underwriters or otherwise; redeem, repurchase and transfer
Shares pursuant to applicable law; set record dates for the
determination of Shareholders with respect to various matters; declare
and pay dividends and distributions to Shareholders of each Series from
the assets of such Series; and in general delegate such authority as
they consider desirable to any officer of the Trust, to any committee
of the Trustees and to any agent or employee of the Trust or to any
such custodian, transfer or shareholder servicing agent, or Principal
Underwriter. Any determination as to what is in the interests of the
Trust made by the Trustees in good faith shall be conclusive. In
construing the provisions of this Declaration of Trust, the presumption
shall be in favor of a grant of power to the Trustees. Any action by
the Board of Trustees shall be deemed effective if approved or taken by
a majority of the Trustees then in office unless this Declaration of
Trust, the By-Laws, the 1940 Act or other applicable law expressly
provides otherwise, and provided that any such action may be taken by
any committee of the Board of Trustees duly constituted under this
Declaration of Trust and under the By-Laws and acting in accordance
with such By-Laws, and notwithstanding that such committee may consist
of fewer than a majority of the Trustees then in office.
Without limiting the foregoing, the Trust shall have power and
authority:
(a) To invest and reinvest cash, to hold cash uninvested, and to
subscribe for, invest in, reinvest in, purchase or otherwise acquire,
own, hold, pledge, sell, assign, transfer, exchange, distribute, write
options on, lend or otherwise deal in securities and contracts for the
future acquisition or delivery of fixed income securities or other
instruments (including, for this purpose, contracts relating to
currencies in which securities that the Trust may invest in are
denominated) of every nature and kind, including, without limitation,
all types of bonds, debentures, stocks, negotiable or non-negotiable
instruments, obligations, evidences of indebtedness, certificates of
deposit or indebtedness, commercial paper, repurchase agreements,
bankers' acceptances, and other securities of any kind, issued,
created, guaranteed, or sponsored by any and all Persons, including,
without limitation, states, territories, and possessions of the United
States and the District of Columbia and any political subdivision,
agency, or instrumentality thereof, any foreign government or any
political subdivision of the U.S. Government or any foreign government,
or any international instrumentality, or by any bank or savings
institution, or by any corporation or organization organized under the
laws of the United States or of any state, territory, or possession
thereof, or by any corporation or organization organized under any
foreign law, or in "when issued" contracts for any such securities, to
change the investments of the assets of the Trust; and to exercise any
and all rights, powers, and privileges of ownership or interest in
respect of any and all such investments of every kind and description,
including, without limitation, the right to consent and otherwise act
with respect thereto, with power to designate one or more Persons, to
exercise any of said rights, powers, and privileges in respect of any
of said instruments;
(b) To sell, exchange, lend, pledge, mortgage, hypothecate, lease, or
write options with respect to or otherwise deal in any property rights
relating to any or all of the assets of the Trust or any Series;
(c) To vote or give assent, or exercise any rights of ownership, with
respect to stock or other securities or property; and to execute and
deliver proxies or powers of attorney to such person or persons as the
Trustees shall deem proper, granting to such person or persons such
power and discretion with relation to securities or property as the
Trustees shall deem proper;
(d) To exercise powers and right of subscription or otherwise which in
any manner arise out of ownership of securities;
(e) To hold any security or property in a form not indicating any
trust, whether in bearer, unregistered or other negotiable form, or in
its own name or in the name of a custodian or subcustodian or a nominee
or nominees or otherwise;
(f) To consent to or participate in any plan for the reorganization,
consolidation or merger of any corporation or issuer of any security
which is held in the Trust; to consent to any contract, lease,
mortgage, purchase or sale of property by such corporation or issuer;
and to pay calls or subscriptions with respect to any security held in
the Trust;
(g) To join with other security holders in acting through a committee,
depositary, voting trustee or otherwise, and in that connection to
deposit any security with, or transfer any security to, any such
committee, depositary or trustee, and to delegate to them such power
and authority with relation to any security (whether or not so
deposited or transferred) as the Trustees shall deem proper, and to
agree to pay, and to pay, such portion of the expenses and compensation
of such committee, depositary or trustee as the Trustees shall deem
proper;
(h) To compromise, arbitrate or otherwise adjust claims in favor of or
against the Trust or any matter in controversy, including but not
limited to claims for taxes;
(i) To enter into joint ventures, general or limited partnerships and
any other combinations or associations;
(j) To borrow funds or other property in the name of the Trust
exclusively for Trust purposes;
(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, Managers, 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, Manager,
principal underwriter, or independent contractor, including any action
taken or omitted that may be determined to constitute negligence,
whether or not the Trust would have the power to indemnify such Person
against liability; and
(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.
The Trust shall not be limited to investing in obligations maturing
before the possible termination of the Trust or one or more of its
Series. The Trust shall not in any way be bound or limited by any
present or future law or custom in regard to investment by fiduciaries.
The Trust shall not be required to obtain any court order to deal with
any assets of the Trust or take any other action hereunder.
Section 4. Payment of Expenses by the Trust. The Trustees are
authorized to pay or cause to be paid out of the principal or income of
the Trust, or partly out of the principal and partly out of income, as
they deem fair, all expenses, fees, charges, taxes and liabilities
incurred or arising in connection with the Trust, or in connection with
the management thereof, including, but not limited to, the Trustees'
compensation and such expenses and charges for the services of the
Trust's officers, employees, investment adviser or Manager, principal
underwriter, auditors, counsel, custodian, transfer agent, Shareholder
servicing agent, and such other agents, consultants, or independent
contractors and such other expenses and charges as the Trustees may
deem necessary or proper to incur.
Section 5. Payment of Expense by Shareholders. The Trustees shall
have the power, as frequently as they may determine, to cause each
Shareholder, or each Shareholder of any particular Series, to pay
directly, in advance or arrears, for charges of the Trust's custodian
or transfer agent, Shareholder servicing or similar agent, an amount
fixed from time to time by the Trustees, by setting off such charges
due from such Shareholder from declared but unpaid dividends owed such
Shareholder and/or by reducing the number of shares in the account of
such Shareholder by that number of full and/or fractional Shares which
represents the outstanding amount of such charges due from such
Shareholder.
Section 6. Ownership of Assets of the Trust. Title to all of the
assets of the Trust shall at all times be considered as vested in the
Trust, except that the Trustees shall have power to cause legal title
to any Trust Property to be held by or in the name of one or more of
the Trustees, or in the name of the Trust, or in the name of any other
Person as nominee, on such terms as the Trustees may determine. The
right, title and interest of the Trustees in the Trust Property shall
vest automatically in each Person who may hereafter become a Trustee.
Upon the resignation, removal or death of a Trustee he or she shall
automatically cease to have any right, title or interest in any of the
Trust Property, and the right, title and interest of such Trustee in
the Trust Property shall vest automatically in the remaining Trustees.
Such vesting and cessation of title shall be effective whether or not
conveyancing documents have been executed and delivered.
Section 7. Service Contracts.
(a) The Trustees may, at any time and from time to time, contract for
exclusive or nonexclusive advisory, management, consulting and/or
administrative services for the Trust or for any Series with any
corporation, trust, association or other organization; and any such
contract may contain such other terms as the Trustees may determine,
including without limitation, authority for the Investment Manager(s)
or administrator to determine from time to time without prior
consultation with the Trustees what investments shall be purchased,
held, sold or exchanged and what portion, if any, of the assets of the
Trust shall be held uninvested and to make changes in the Trust's
investments, or such other activities as may specifically be delegated
to such party.
(b) The Trustees may also, at any time and from time to time, contract
with any corporation, trust, association or other organization,
appointing it exclusive or nonexclusive distributor or Principal
Underwriter for the Shares of one or more of the Series or other
securities to be issued by the Trust.
(c) The Trustees are also empowered, at any time and from time to
time, to contract with any corporations, trusts, associations or other
organizations, appointing it or them the custodian, transfer agent
and/or shareholder servicing agent for the Trust or one or more of its
Series.
(d) The Trustees are further empowered, at any time and from time to
time, to contract with any entity to provide such other services to the
Trust or one or more of the Series, as the Trustees determine to be in
the best interests of the Trust and the applicable Series.
(e) In the event that
(i) any Shareholder, Trustee, or officer of the Trust is a
shareholder, director, officer, partner, trustee, employee,
affiliate or agent of any Person (or of any affiliate or parent of
such Person) with which a service contract of any kind may have
been or may hereafter be made, or has any other interest in any
Service Provider (or in any affiliate or agent of such Service
Provider);
(ii) any Service Provider (or any affiliate or agent of any Service
Provider) is a Shareholder of or has any other interest in the
Trust; or
(iii) any Service Provider (or any affiliate or agent of any
Service Provider) has entered into, or may at any time enter into a
service contract with Persons other that the Trust;
such fact shall not affect the validity of any contract between a
Service Provider and the Trust, or disqualify any Shareholder, Trustee
or officer of the Trust from voting upon or executing any such
contract, nor shall any liability or accountability to the Trust or its
Shareholders arise solely as a result of any interest identified in
(i), (ii) or (iii) above on the part of any such Shareholder, Trustee
or officer to the Trust, provided that all applicable resuirements of
the 1940 are satisfied.
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 or removal of Trustees as provided in Article IV, Section
1, and (ii) with respect to such additional matters relating to the
Trust as may be required by this Declaration of Trust, the By-Laws or
any registration of the Trust with the Commission (or any successor
agency) or any state, or as the Trustees may consider necessary or
desirable. 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. There shall be no
cumulative voting in the election of Trustees. Shares may be voted in
person or by proxy. A proxy with respect to Shares held in the name of
two or more persons shall be valid if executed by any one of them
unless at or prior to exercise of the proxy the Trust receives a
specific written notice to the contrary from any one of them. A proxy
purporting to be executed by or on behalf of a Shareholder shall be
deemed valid unless challenged at or prior to its exercise and the
burden of proving invalidity shall rest on the challenger.
Section 2. Voting Power and Meetings. Meetings of the Shareholders
may be called by the Trustees for the purpose of electing Trustees as
provided in Article IV, Section 1 and for such other purposes as may be
prescribed by law, by this Declaration of Trust or by the By-Laws.
Meetings of the Shareholders may also be called by the Trustees from
time to time for the purpose of taking action upon any other matter
deemed by the Trustees to be necessary or desirable. A meeting of
Shareholders may be held at any place designated by the Trustees.
Written notice of any meeting of Shareholders shall be given or caused
to be given by the Trustees by mailing such notice at least seven (7)
days before such meeting, postage prepaid, stating the time and place
of the meeting, to each Shareholder at the Shareholder's address as it
appears on the records of the Trust. Whenever notice of a meeting is
required to be given to a Shareholder under this Declaration of Trust
or the By-Laws, a written waiver thereof, executed before or after the
meeting by such Shareholder or his or her attorney thereunto authorized
and filed with the records of the meeting, shall be deemed equivalent
to such notice.
Section 3. Quorum and Required Vote. Except when a larger quorum is
required by applicable law, by the By-Laws or by this Declaration of
Trust, forty percent (40%) of the Shares "entitled to vote" (as that
term is defined in the By-Laws) shall constitute a quorum at a
Shareholders' meeting. When one or more Series is to vote on a
particular matter as a single Series separate from Shares of any other
Series , forty percent (40%) of the Shares of each such Series
entitled to vote shall constitute a quorum of the holders of such
Series . Any meeting of Shareholders may be adjourned from time to
time by a majority of the "votes properly cast" (as that term is
defined in the By-Laws) upon the question of adjourning a meeting to
another date and time, whether or not a quorum is present, and the
meeting may be held as adjourned within a reasonable time after the
date set for the original meeting without further notice. Subject to
the provisions of Article III, Section 6(d), when a quorum is present
at any meeting, a majority of the Shares "voted" (as that term is
defined in the By-Laws) shall decide any questions properly before the
meeting and a plurality shall elect a Trustee, except when a larger
vote is required by any provision of this Declaration of Trust, the
By-Laws, the 1940 Act or other applicable law.
Section 4. Action by Written Consent. Any action taken by
Shareholders may be taken without a meeting if Shareholders holding a
majority of the Shares entitled to vote on the matter (or such larger
proportion thereof as shall be required by any express provision of
this Declaration of Trust or by the By-Laws) and holding a majority (or
such larger proportion as aforesaid) of the Shares of any Series
entitled to vote separately on the matter consent to the action in
writing and such written consents are filed with the records of the
meetings of Shareholders. Such consent shall be treated for all
purposes as a vote taken at a meeting of Shareholders.
Section 5. Record Dates. For the purpose of determining the
Shareholders of any Series who are entitled to vote or act at any
meeting or any adjournment thereof, the Trustees may from time to time
fix a time, which shall be not more than ninety (90) days before the
date of any meeting of Shareholders, as the record date for determining
the Shareholders of such Series having the right to notice of and to
vote at such meeting and any adjournment thereof, and in such case only
Shareholders of record on such record date shall have such right,
notwithstanding any transfer of shares on the books of the Trust after
the record date. For the purpose of determining the Shareholders of
any Series who are entitled to receive payment of any dividend or of
any other distribution, the Trustees may from time to time fix a date,
which shall be before the date for the payment of such dividend or such
other payment, as the record date for determining the Shareholders of
such Series having the right to receive such dividend or distribution.
Without fixing a record date the Trustees may for voting and/or
distribution purposes close the register or transfer books for one or
more Series for all or any part of the period between a record date and
a meeting of Shareholders or the payment of a distribution. Nothing in
this Section shall be construed as precluding the Trustees from setting
different record dates for different Series .
Section 6. Additional Provisions. The By-Laws may include further
provisions for Shareholders' votes and meetings and related matters.
ARTICLE VI
Net Asset Value, Distributions, and Redemptions
Section 1. Determination of Net Asset Value, Net Income, and
Distributions. Subject to Article III, Section 6 hereof, the Trustees,
in their absolute discretion, may prescribe and shall set forth in the
By-laws or in a duly adopted vote of the Trustees such bases and time
for determining the net asset value of the Shares of any Series or net
income attributable to the Shares of any Series , or the declaration
and payment of dividends and distributions on the Shares of any Series
, as they may deem necessary or desirable.
Section 2. Redemptions and Repurchases. The Trust shall honor
requests for redemption, upon the presentation of a proper instrument
of transfer together with a request directed to the Trust or a Person
designated by the Trust that the Trust purchase such Shares or in
accordance with such other procedures for redemption as the Trustees
may from time to time authorize; and the Trust will pay therefor the
net asset value thereof, in accordance with the By-Laws and applicable
law. Payment for said Shares shall be made by the Trust to the
Shareholder within seven days after the date on which the request is
made in proper form. The obligation set forth in this Section 2 is
subject to the provision that in the event that at any time the New
York Stock Exchange (the "Exchange") is closed for other than weekends
or holidays, or if permitted by the Rules of the Commission during
periods when trading on the Exchange is restricted or during any
emergency which makes it impracticable for the Trust to dispose of the
investments of the applicable Series or to determine fairly the value
of the net assets held with respect to such Series or during any other
period permitted by order of the Commission for the protection of
investors, such obligations may be suspended or postponed by the
Trustees.
The redemption price may in any case or cases be paid wholly or partly
in kind if the Trustees determine that such payment is advisable in the
interest of the remaining Shareholders of the Series for which the
shares are being redeemed. Subject to the foregoing, the fair value,
selection and quantity of securities or other property so paid or
delivered as all or part of the redemption price may be determined by
or under authority of the Trustees. In no case shall the Trust be
liable for any delay on the part of any corporation or other Person in
transferring securities selected for delivery as all or part of any
payment in kind.
Section 3. Redemptions at the Option of the Trust. The Trust shall
have the right at its option and at any time to redeem Shares of any
Shareholder at the net asset value thereof as described in Section 1 of
this Article VI: (i) if at such time such Shareholder owns Shares of
any Series having an aggregate net asset value of less than an amount
determined from time to time by the Trustees prior to the acquisition
of said Shares; or (ii) to the extent that such Shareholder owns Shares
of a particular Series equal to or in excess of a percentage of the
outstanding Shares of that Series determined from time to time by the
Trustees; (iii) to the extent that such Shareholder owns Shares equal
to or in excess of a percentage, determined from time to time by the
Trustees, of the outstanding Shares of the Trust or of any Series; or,
(iv) in accordance with any agreement by and among all Shareholders of
record of the Trust, provided such agreement is consistent with the
1940 Act and other applicable law.
ARTICLE VII
Compensation and Limitation of Liability of Trustees
Section 1. Compensation. The Trustees as such shall be entitled to
reasonable compensation from the Trust, and they may fix the amount of
such compensation. Nothing herein shall in any way prevent the
employment of any Trustee for advisory, management, legal, accounting,
investment banking or other services and payment for the same by the
Trust.
Section 2. Indemnification and Limitation of Liability. The Trustees
shall not be responsible or liable in any event for any neglect or
wrong-doing of any officer, agent, employee, Manager or Principal
Underwriter of the Trust, nor shall any Trustee be responsible for the
act or omission of any other Trustee, and the Trust out of its assets
shall indemnify and hold harmless each and every Trustee from and
against any and all claims and demands whatsoever arising out of or
related to each Trustee's performance of his or her duties as a Trustee
of the Trust; provided that nothing herein contained shall indemnify,
hold harmless or protect any Trustee from or against any liability to
the Trust or any Shareholder to which he or she would otherwise be
subject by reason of wilful misfeasance, bad faith, gross negligence or
reckless disregard of the duties involved in the conduct of his or her
office.
Every note, bond, contract, instrument, certificate or undertaking and
every other act or thing whatsoever issued, executed or done by or on
behalf of the Trust or the Trustees or any of them in connection with
the Trust shall be conclusively deemed to have been issued, executed or
done only in or with respect to their or his or her capacity as
Trustees or Trustee, and such Trustees or Trustee shall not be
personally liable thereon.
Section 3. Trustee's Good Faith Action, Expert Advice, No Bond or
Surety. The exercise by the Trustees of their powers and discretion
hereunder shall be binding upon everyone interested. A Trustee shall
be liable to the Trust and to any Shareholder solely for his or her own
wilful misfeasance, bad faith, gross negligence or reckless disregard
of the duties involved in the conduct of the office of Trustee, and
shall not be liable for errors of judgment or mistakes of fact or law.
The Trustees may take advice of counsel or other experts with respect
to the meaning and operation of this Declaration of Trust, and shall be
under no liability for any act or omission in accordance with such
advice nor for failing to follow such advice. The Trustees shall not
be required to give any bond as such, nor any surety if a bond is
required.
Section 4. Insurance. The Trustees shall be entitled and empowered to
the fullest extent permitted by law to purchase with Trust assets
insurance for liability and for all expenses reasonably incurred or
paid or expected to be paid by a Trustee or officer in connection with
any claim, action, suit or proceeding in which he or she becomes
involved by virtue of his or her capacity or former capacity with the
Trust.
ARTICLE VIII
Miscellaneous
Section 1. Liability of Third Persons Dealing with Trustees. No
Person dealing with the Trustees shall be bound to make any inquiry
concerning the validity of any transaction made or to be made by the
Trustees or to see to the application of any payments made or property
transferred to the Trust or upon its order.
Section 2. Termination of Trust or Series. Unless terminated as
provided herein, the Trust shall continue without limitation of time.
The Trust may be terminated at any time by vote of a majority of the
Shares of each Series entitled to vote, voting separately by Series, or
by the Trustees by written notice to the Shareholders. Any Series may
be terminated at any time by vote of a majority of the Shares of that
Series or by the Trustees by written notice to the Shareholders of that
Series.
Upon termination of the Trust (or any Series, as the case may be),
after paying or otherwise providing for all charges, taxes, expenses
and liabilities held, severally, with respect to each Series (or the
applicable Series, as the case may be), whether due or accrued or
anticipated as may be determined by the Trustees, the Trust shall, in
accordance with such procedures as the Trustees consider appropriate,
reduce the remaining assets held, severally, with respect to each
Series (or the applicable Series, as the case may be), to distributable
form in cash or shares or other securities, or any combination thereof,
and distribute the proceeds held with respect to each Series (or the
applicable Series, as the case may be), to the Shareholders of that
Series, as a Series, ratably according to the number of Shares of that
Series held by the several Shareholders on the date of termination.
Section 3. Merger and Consolidation. The Trustees may cause (i) the
Trust or one or more of its Series to the extent consistent with
applicable law to be merged into or consolidated with another Trust or
company, (ii) the Shares of the Trust or any Series to be converted
into beneficial interests in another business trust (or series thereof)
created pursuant to this Section 3 of Article VIII, or (iii) the Shares
to be exchanged under or pursuant to any state or federal statute to
the extent permitted by law. Such merger or consolidation, Share
conversion or Share exchange must be authorized by vote of a majority
of the outstanding Shares of the Trust, as a whole, or any affected
Series, as may be applicable; provided that in all respects not
governed by statute or applicable law, the Trustees shall have 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. Amendments. 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 Trustees or by a majority of the then Trustees, by
resolution approved at a meeting of the Trust's Board of Trustees. The
approval of the Trust's Shareholders will not be required with respect
to any such restatement or amendment unless (i) such approval is
mandated by applicable state law or the 1940 Act; or (ii) such approval
is found by a majority of the Trustees, in their sole discretion and by
resolution, to be appropriate or desirable. Any such restatement
and/or amendment hereto shall be effective immediately upon execution
and approval. 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.
Section 5. Filing of Copies, References, Headings. The original or a
copy of this instrument and of each restatement and/or amendment hereto
shall be kept at the office of the Trust where it may be inspected by
any Shareholder. Anyone dealing with the Trust may rely on a
certificate by an officer of the Trust as to whether or not any such
restatements and/or amendments have been made and as to any matters in
connection with the Trust hereunder; and, with the same effect as if it
were the original, may rely on a copy certified by an officer of the
Trust to be a copy of this instrument or of any such restatements
and/or amendments. In this instrument and in any such restatements
and/or amendment, references to this instrument, and all expressions
like "herein", "hereof" and "hereunder", shall be deemed to refer to
this instrument as amended or affected by any such restatements and/or
amendments. Headings are placed herein for convenience of reference
only and shall not be taken as a part hereof or control or affect the
meaning, construction or effect of this instrument. Whenever the
singular number is used herein, the same shall include the plural; and
the neuter, masculine and feminine genders shall include each other, as
applicable. This instrument may be executed in any number of
counterparts each of which shall be deemed an original.
Section 6. Applicable Law. This Agreement and Declaration of Trust is
created under and is to be governed by construed and administered
according to the laws of the State of Delaware and the Delaware
Business Trust Act, as amended from time to time (the "Act"). The
Trust shall be a Delaware business trust pursuant to such Act, and
without limiting the provisions hereof, the Trust may exercise all
powers which are ordinarily exercised by such a business trust.
Section 7. Provisions in Conflict with Law or Regulations.
(a) The provisions of the Declaration of Trust are severable, and if
the Trustees shall determine, with the advice of counsel, that any of
such provisions is in conflict with the 1940 Act, the regulated
investment company provisions of the Internal Revenue Code or with
other applicable laws and regulations, the conflicting provision shall
be deemed never to have constituted a part of the Declaration of Trust;
provided, however, that such determination shall not affect any of the
remaining provisions of the Declaration of Trust or render invalid or
improper any action taken or omitted prior to such determination.
(b) If any provision of the Declaration of Trust shall be held invalid
or unenforceable in any jurisdiction, such invalidity or
unenforceability shall attach only to such provision in such
jurisdiction and shall not in any manner affect such provision in any
other jurisdiction or any other provision of the Declaration of Trust
in any jurisdiction.
Section 8. Business Trust Only. It is the intention of the Trustees
to create a business trust pursuant to the Delaware Business Trust Act,
as amended from time to time (the "Act"), and thereby to create only
the relationship of trustee and beneficial owners within the meaning of
such Act between the Trustees and each Shareholder. It is not the
intention of the Trustees to create a general partnership, limited
partnership, joint stock association, corporation, bailment, or any
form of legal relationship other than a business trust pursuant to such
Act. Nothing in this Declaration of Trust shall be construed to make
the Shareholders, either by themselves or with the Trustees, partners
or members of a joint stock association.
