Claymore Exchange-Traded Fund Trust 2
Amended and Restated Agreement and Declaration of Trust
Dated as of May 18, 2016
TABLE OF CONTENTS
Page
ARTICLE I THE TRUST ....................................................... 1
1.1 Name ............................................................ 1
1.2 Definitions ..................................................... 1
ARTICLE II TRUSTEES ....................................................... 3
2.1 Number and Qualification ........................................ 3
2.2 Term and Election ............................................... 3
2.3 Resignation and Removal ......................................... 3
2.4 Vacancies ....................................................... 4
2.5 Meetings ........................................................ 4
2.6 Trustee Action by Written Consent ............................... 5
2.7 Officers ........................................................ 5
ARTICLE III POWERS AND DUTIES OF TRUSTEES ................................. 5
3.1 General ......................................................... 5
3.2 Investments ..................................................... 5
3.3 Legal Title ..................................................... 6
3.4 Issuance and Repurchase of Shares ............................... 6
3.5 Borrow Money or Utilize Leverage ................................ 6
3.6 Delegation; Committees .......................................... 6
3.7 Collection and Payment .......................................... 7
3.8 Expenses ........................................................ 7
3.9 By-Laws ......................................................... 7
3.10 Miscellaneous Powers ........................................... 7
3.11 Further Powers ................................................. 8
ARTICLE IV SERIES AND CLASSES OF SHARES ................................... 8
4.1 Classification of Shares ........................................ 8
4.2 Establishment and Designation ................................... 8
4.3 Separate and Distinct Nature .................................... 9
4.4 Conversion Rights ............................................... 9
4.5 Rights and Preferences .......................................... 9
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TABLE OF CONTENTS
(continued)
Page
ARTICLE V ADVISORY, MANAGEMENT AND DISTRIBUTION ARRANGEMENTS .............. 13
5.1 Advisory and Management Arrangements ............................ 13
5.2 Distribution Arrangements ....................................... 13
5.3 Parties to Contract ............................................. 13
ARTICLE VI LIMITATIONS OF LIABILITY AND INDEMNIFICATION ................... 14
6.1 No Personal Liability of Shareholders, Trustees, etc ............ 14
6.2 Mandatory Indemnification ....................................... 14
6.3 No Bond Required of Trustees .................................... 16
6.4 No Duty of Investigation; Notice in Trust Instruments, etc ...... 16
6.5 Reliance on Experts, etc ........................................ 16
ARTICLE VII SHARES OF BENEFICIAL INTEREST ................................. 16
7.1 Beneficial Interest ............................................. 16
7.2 Rights of Shareholders .......................................... 16
7.3 Trust Only ...................................................... 17
7.4 Issuance of Shares .............................................. 17
7.5 Register of Shares .............................................. 17
7.6 Transfer Agent and Registrar .................................... 17
7.7 Notices ......................................................... 18
ARTICLE VIII CUSTODIANS ................................................... 18
8.1 Appointment and Duties .......................................... 18
8.2 Central Certificate System ...................................... 18
ARTICLE IX HOLDING ........................................................ 19
9.1 Disclosure of Holding ........................................... 19
ARTICLE X NET INCOME; DISTRIBUTIONS ....................................... 19
10.1 Distributions to Shareholders .................................. 19
10.2 Power to Modify Foregoing Procedures ........................... 20
ARTICLE XI SHAREHOLDERS ................................................... 20
11.1 Meetings of Shareholders ....................................... 20
11.2 Voting ......................................................... 20
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TABLE OF CONTENTS
(continued)
Page
11.3 Notice of Meeting and Record Date .............................. 20
11.4 Quorum and Required Vote ....................................... 21
11.5 Proxies, etc ................................................... 21
11.6 Reports ........................................................ 21
11.7 Inspection of Records .......................................... 22
11.8 Shareholder Action by Written Consent .......................... 22
ARTICLE XII DURATION; TERMINATION OF TRUST; AMENDMENT; MERGERS, ETC ....... 22
12.1 Duration ....................................................... 22
12.2 Termination .................................................... 22
12.3 Amendment Procedure ............................................ 23
12.4 Merger, Consolidation and Sale of Assets ....................... 24
12.5 Subsidiaries ................................................... 24
12.6 Certain Transactions ........................................... 24
12.7 Restatements ................................................... 25
ARTICLE XIII MISCELLANEOUS ................................................ 26
13.1 Filing ......................................................... 26
13.2 Resident Agent ................................................. 26
13.3 Governing Law .................................................. 26
13.4 Counterparts ................................................... 26
13.5 Reliance by Third Parties ...................................... 26
13.6 Provisions in Conflict with Law or Regulation .................. 27
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CLAYMORE EXCHANGE TRADED FUND TRUST 2
AMENDED AND RESTATED AGREEMENT AND DECLARATION OF TRUST
AMENDED AND RESTATED AGREEMENT AND DECLARATION OF TRUST made as of the
18th day of May, 2016, by the Trustees hereunder, and by the holders of shares
of beneficial interest issued hereunder as hereinafter provided.
WHEREAS, this Trust has been formed to carry on business as set forth more
particularly hereinafter;
WHEREAS, this Trust is authorized to issue an unlimited number of its
shares of beneficial interest all in accordance with the provisions hereinafter
set forth;
WHEREAS, the Trustees have agreed to manage all property coming into their
hands as Trustees of a Delaware statutory trust in accordance with the
provisions hereinafter set forth; and
WHEREAS, the parties hereto intend that the Trust created by this
Declaration and the Certificate of Trust filed with the Secretary of State of
the State of Delaware on June 8, 2006 shall constitute a statutory trust under
the Delaware Statutory Trust Act and that this Declaration shall constitute the
governing instrument of such statutory trust.
NOW, THEREFORE, the Trustees hereby declare that they will hold all cash,
securities, and other assets which they may from time to time acquire in any
manner as Trustees hereunder IN TRUST to manage and dispose of the same upon the
following terms and conditions for the benefit of the holders from time to time
of shares of beneficial interest in this Trust as hereinafter set forth.
ARTICLE I
THE TRUST
1.1 Name. This Trust shall be known as the "Claymore Exchange-Traded Fund
Trust 2" and the Trustees shall conduct the business of the Trust under that
name or any other name or names as they may from time to time determined.
1.2 Definitions. As used in this Declaration, the following terms shall
have the following meanings:
The "1940 Act" refers to the Investment Company Act of 1940 and the rules
and regulations promulgated thereunder and exemptions granted therefrom, as
amended from time to time.
The terms "Affiliated Person", "Assignment", "Commission", "Interested
Person" and "Principal Underwriter" shall have the meanings given them in the
1940 Act.
"By-Laws" shall mean the By-Laws of the Trust as amended from time to time
by the Trustees.
"Class" shall mean any of the separate classes of Shares established and
designated under or in accordance with the provisions of Article 4 hereof and to
which the Trustees have allocated assets and liabilities of the Trust in
accordance with Article 4.
"Code" shall mean the Internal Revenue Code of 1986, as amended, and the
regulations promulgated thereunder.
"Commission" shall mean the Securities and Exchange Commission.
"Declaration" shall mean this Amended and Restated Agreement and
Declaration of Trust, as may be further amended, supplemented or amended and
restated from time to time.
"Delaware Statutory Trust Statute" shall mean the provisions of the
Delaware Statutory Trust Act, 12 Del. C.ss.3801, et. seq., as such Act may be
amended from time to time.
"Delaware General Corporation Law" means the Delaware General Corporation
Law, 8 Del. C.ss.100, et. seq., as amended from time to time.
"Fundamental Policies" shall mean the investment policies and restrictions
as set forth from time to time in any Prospectus or contained in any current
Registration Statement of the Trust filed with the Commission or as otherwise
adopted by the Trustees and the Shareholders in accordance with the requirements
of the 1940 Act and designated as fundamental policies therein as they may be
amended from time to time in accordance with the requirements of the 1940 Act.
"Majority Shareholder Vote" shall mean a vote of "a majority of the
outstanding voting securities" (as such term is defined in the ▇▇▇▇ ▇▇▇) of the
Trust with each class and series of Shares voting together as a single class,
except to the extent otherwise required by the 1940 Act or this Declaration with
respect to any one or more classes or series of Shares, in which case the
applicable proportion of such classes or series of Shares voting as a separate
class or series, as case may be, also will be required.
"Person" shall mean and include individuals, corporations, partnerships,
trusts, limited liability companies, associations, joint ventures and other
entities, whether or not legal entities, and governments and agencies and
political subdivisions thereof.
"Prospectus" shall mean the Prospectus of the Trust, if any, as in effect
from time to time under the Securities Act of 1933, as amended.
"Series" shall mean any of the separate series of Shares established and
designated under or in accordance with the provisions of Article 4 hereof and to
which the Trustees have allocated assets and liabilities of the Trust in
accordance with Article 4;
"Shareholders" shall mean as of any particular time the holders of record
of outstanding Shares of the Trust, at such time.
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"Shares" shall mean the transferable units 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. In addition, Shares
also means any preferred shares or preferred units of beneficial interest which
may be issued from time to time, as described herein. All references to Shares
shall be deemed to be Shares of any or all series or classes as the context may
require.
"Trust" shall mean the trust established by this Declaration, as amended
from time to time, inclusive of each such amendment.
"Trust Property" shall mean as of any particular time any and all
property, real or personal, tangible or intangible, which at such time is owned
or held by or for the account of the Trust or the Trustees in such capacity.
"Trustees" shall mean the signatories to this Declaration, so long as they
shall continue in office in accordance with the terms hereof, and all other
persons who at the time in question have been duly elected or appointed and have
qualified as trustees in accordance with the provisions hereof and are then in
office.
ARTICLE II
TRUSTEES
2.1 Number and Qualification. Prior to a public offering of Shares there
may be a sole Trustee. Thereafter, the number of Trustees shall be determined by
a written instrument signed by a majority of the Trustees then in office,
provided that the number of Trustees shall be no less than two or more than
fifteen. No reduction in the number of Trustees shall have the effect of
removing any Trustee from office prior to the expiration of his term. An
individual nominated as a Trustee shall be at least 21 years of age and not
older than 80 years of age at the time of nomination and not under legal
disability. Trustees need not own Shares and may succeed themselves in office.
2.2 Term and Election. Each Trustee shall hold office until the next
meeting of Shareholders called for the purpose of considering the election or
re-election of such Trustee or of a successor to such Trustee, and until his or
her successor is elected and qualified, and any Trustee who is appointed by the
Trustees in the interim to fill a vacancy as provided hereunder shall have the
same remaining term as that of his or her predecessor, if any, or such term as
the Trustees may determine.
2.3 Resignation and Removal. Any of the Trustees may resign their trust
(without need for prior or subsequent accounting) by an instrument in writing
signed by such Trustee and delivered or mailed to the Trustees or the Chairman,
if any, the President or the Secretary and such resignation shall be effective
upon such delivery, or at a later date according to the terms of the instrument.
Any of the Trustees may be removed (provided the aggregate number of Trustees
after such removal shall not be less than the minimum number required by Section
2.1 hereof) for cause only, and not without cause, and only by action taken by a
majority of the remaining Trustees followed by the holders of at least
seventy-five percent (75%) of the Shares then entitled to vote in an election of
such Trustee. Upon the resignation or removal of a
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Trustee, each such resigning or removed Trustee shall execute and deliver such
documents as the remaining Trustees shall require for the purpose of conveying
to the Trust or the remaining Trustees any Trust Property held in the name of
such resigning or removed Trustee. Upon the incapacity or death of any Trustee,
such Trustee's legal representative shall execute and deliver on such Trustee's
behalf such documents as the remaining Trustees shall require as provided in the
preceding sentence.
2.4 Vacancies. Whenever a vacancy in the Board of Trustees shall occur,
the remaining Trustees may fill such vacancy by appointing an individual having
the qualifications described in this Article by a written instrument signed by a
majority of the Trustees then in office or may leave such vacancy unfilled or
may reduce the number of Trustees; provided the aggregate number of Trustees
after such reduction shall not be less than the minimum number required by
Section 2.1 hereof; provided, further, that if the Shareholders of any Class or
Series of Shares are entitled separately to elect one or more Trustees, a
majority of the remaining Trustees or the sole remaining Trustee elected by that
Class or Series may fill any vacancy among the number of Trustees elected by
that Class or Series. Any vacancy created by an increase in Trustees may be
filled by the appointment of an individual having the qualifications described
in this Article made by a written instrument signed by a majority of the
Trustees then in office. No vacancy shall operate to annul this Declaration or
to revoke any existing agency created pursuant to the terms of this Declaration.
Whenever a vacancy in the number of Trustees shall occur, until such vacancy is
filled as provided herein, the Trustees in office, regardless of their number,
shall have all the powers granted to the Trustees and shall discharge all the
duties imposed upon the Trustees by this Declaration.
2.5 Meetings. Meetings of the Trustees shall be held from time to time
upon the call of the Chairman, if any, or the President or any two Trustees.
Regular meetings of the Trustees may be held without call or notice at a time
and place fixed by the By-Laws or by resolution of the Trustees. Notice of any
other meeting shall be given by the Secretary and shall be delivered to the
Trustees orally not less than 24 hours, or in writing not less than 72 hours,
before the meeting, but may be waived in writing by any Trustee either before or
after such meeting. The attendance of a Trustee at a meeting shall constitute a
waiver of notice of such meeting except where a Trustee attends a meeting for
the express purpose of objecting to the transaction of any business on the
ground that the meeting has not been properly called or convened. A quorum for
all meetings of the Trustees shall be one-third, but not less than two, of the
Trustees. Unless provided otherwise in this Declaration and except as required
under the 1940 Act, any action of the Trustees may be taken at a meeting by vote
of a majority of the Trustees present (a quorum being present) or without a
meeting by written consent of a majority of the Trustees.
Any committee of the Trustees, including an executive committee, if any,
may act with or without a meeting. A quorum for all meetings of any such
committee shall be one-third of the members thereof. Unless provided otherwise
in this Declaration, any action of any such committee may be taken at a meeting
by vote of a majority of the members present (a quorum being present) or without
a meeting by written consent of all of the members.
With respect to actions of the Trustees and any committee of the Trustees,
Trustees who are Interested Persons in any action to be taken may be counted for
quorum
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purposes under this Section and shall be entitled to vote to the extent not
prohibited by the 1940 Act. For any committee of the Trustees comprised of one
Trustee, a quorum shall be one.
All or any one or more Trustees may participate in a meeting of the
Trustees or any committee thereof by means of a conference telephone or similar
communications equipment by means of which all persons participating in the
meeting can hear each other; participation in a meeting pursuant to any such
communications system shall constitute presence in person at such meeting.
2.6 Trustee Action by Written Consent. Any action which may be taken by
Trustees by vote may be taken without a meeting if that number of the Trustees,
or members of a committee, as the case may be, required for approval of such
action at a meeting of the Trustees or of such committee consent to the action
in writing and the written consents are filed with the records of the meetings
of Trustees. Such consent shall be treated for all purposes as a vote taken at a
meeting of Trustees.
2.7 Officers. The Trustees shall elect a President, a Secretary and a
Treasurer, and may elect a Chairman, who shall serve at the pleasure of the
Trustees or until their successors are elected. The Trustees may elect or
appoint or may authorize the Chairman, if any, or President to appoint such
other officers or agents with such powers as the Trustees may deem to be
advisable. A Chairman shall, and the President and Treasurer may, but need not,
be a Trustee.
ARTICLE III
POWERS AND DUTIES OF TRUSTEES
3.1 General. The Trustees shall owe to the Trust and its Shareholders the
same fiduciary duties as owed by directors of corporations to such corporations
and their stockholders under the Delaware General Corporation Law. The Trustees
shall have exclusive and absolute control over the Trust Property and over the
business of the Trust to the same extent as if the Trustees were the sole owners
of the Trust Property and business in their own right, but with such powers of
delegation as may be permitted by this Declaration. The Trustees may perform
such acts as in their sole discretion are proper for conducting the business of
the Trust. The enumeration of any specific power herein shall not be construed
as limiting the aforesaid power. Such powers of the Trustees may be exercised
without order of or resort to any court.
3.2 Investments. The Trustees shall have power, subject to the Fundamental
Policies in effect from time to time with respect to the Trust, to: (a) manage,
conduct, operate and carry on the business of an investment company; (b)
subscribe for, invest in, reinvest in, purchase or otherwise acquire, hold,
pledge, sell, assign, transfer, exchange, distribute or otherwise deal in or
dispose of any and all sorts of property, tangible or intangible, including but
not limited to securities of any type whatsoever, whether equity or non-equity,
of any issuer, evidences of indebtedness of any person and any other rights,
interests, instruments or property of any sort and to exercise any and all
rights, powers and privileges of ownership or interest in respect of any and all
such investments of every kind and description, including, without limitation,
the right to consent and otherwise act with respect thereto, with power to
designate
5
one or more Persons to exercise any of said rights, powers and privileges in
respect of any of said investments. The Trustees shall not be limited by any law
limiting the investments which may be made by fiduciaries.
3.3 Legal Title. Legal title to all the Trust Property shall be vested in
the Trustees as joint tenants except that the Trustees shall have power to cause
legal title to any Trust Property to be held by or in the name of one or more of
the Trustees, or in the name of the Trust, or in the name of any other Person as
nominee, custodian or pledgee, on such terms as the Trustees may determine,
provided that the interest of the Trust therein is appropriately protected.
The right, title and interest of the Trustees in the Trust Property shall
vest automatically in each person who may hereafter become a Trustee upon his
due election and qualification. Upon the ceasing of any person to be a Trustee
for any reason, such person shall automatically cease to have any right, title
or interest in any of the Trust Property, and the right, title and interest of
such Trustee in the Trust Property shall vest automatically in the remaining
Trustees. Such vesting and cessation of title shall be effective whether or not
conveyancing documents have been executed and delivered.
3.4 Issuance and Repurchase of Shares. The Trustees shall have the power
to issue, sell, repurchase, redeem, retire, cancel, acquire, hold, resell,
reissue, dispose of, transfer, and otherwise deal in, Shares, including Shares
in fractional denominations, and, subject to the more detailed provisions set
forth in Articles IV, VIII and IX, to apply to any such repurchase, redemption,
retirement, cancellation or acquisition of Shares any funds or property whether
capital or surplus or otherwise, to the full extent now or hereafter permitted
corporations formed under the Delaware General Corporation Law.
3.5 Borrow Money or Utilize Leverage. Subject to the Fundamental Policies
in effect from time to time with respect to the Trust, the Trustees shall have
the power to borrow money or otherwise obtain credit or utilize leverage to the
maximum extent permitted by law or regulation as such may be needed from time to
time and to secure the same by mortgaging, pledging or otherwise subjecting as
security the assets of the Trust, including the lending of portfolio securities,
and to endorse, guarantee, or undertake the performance of any obligation,
contract or engagement of any other person, firm, association or corporation.
3.6 Delegation; Committees. Subject only to any limitations required by
federal law including the 1940 Act, the Trustees may delegate any and all powers
and authority hereunder as they consider desirable to any officer of the Trust,
to any committee of the Trustees, any committee composed of Trustees and other
persons and any committee composed only of persons other than Trustees and to
any agent, independent contractor or employee of the Trust or to any custodian,
administrator, transfer or shareholder servicing agent, investment advisor or
sub-advisor, principal underwriter or other service provider, provided that such
delegation of power or authority by the Trustees shall not cause any Trustee to
cease to be a Trustee of the Trust or cause such person, officer, agent,
employee, custodian, transfer or shareholder servicing agent, principal
underwriter or other service provider to whom any power or authority has been
delegated to be a Trustee of the Trust. The reference in this Declaration to the
right of the Trustees to, or circumstances under which they may, delegate any
power or authority, or the reference in this Declaration to the authorized
agents of the Trustees or any other Person to
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whom any power or authority has been or may be delegated pursuant to any
specific provision of this Declaration, shall not limit the authority of the
Trustees to delegate any other power or authority under this Declaration to any
Person, subject only to any limitations under federal law including the 1940
Act.
3.7 Collection and Payment. The Trustees shall have power to collect all
property due to the Trust; to pay all claims, including taxes, against the Trust
Property or the Trust, the Trustees or any officer, employee or agent of the
Trust; to prosecute, defend, compromise or abandon any claims relating to the
Trust Property or the Trust, or the Trustees or any officer, employee or agent
of the Trust; to foreclose any security interest securing any obligations, by
virtue of which any property is owed to the Trust; and to enter into releases,
agreements and other instruments. Except to the extent required for a
corporation formed under the Delaware General Corporation Law, the Shareholders
shall have no power to vote as to whether or not a court action, legal
proceeding or claim should or should not be brought or maintained derivatively
or as a class action on behalf of the Trust or the Shareholders.
3.8 Expenses. The Trustees shall have power to incur and pay out of the
assets or income of the Trust any expenses which in the opinion of the Trustees
are necessary or incidental to carry out any of the purposes of this
Declaration, and the business of the Trust, and to pay reasonable compensation
from the funds of the Trust to themselves as Trustees. The Trustees shall fix
the compensation of all officers, employees and Trustees. The Trustees may pay
themselves such compensation for special services, including legal,
underwriting, syndicating and brokerage services, as they in good faith may deem
reasonable reimbursement for expenses reasonably incurred by themselves on
behalf of the Trust. The Trustees shall have the power, as frequently as they
may determine, to cause each Shareholder to pay directly, in advance or arrears,
for charges of distribution, of the custodian or transfer, Shareholder servicing
or similar agent, a pro rata amount as defined from time to time by the
Trustees, by setting off such charges due from such Shareholder from declared
but unpaid dividends or distributions owed such Shareholder and/or by reducing
the number of shares in the account of such Shareholder by that number of full
and/or fractional Shares which represents the outstanding amount of such charges
due from such Shareholder.
3.9 By-Laws. The Trustees shall have the exclusive authority to adopt and
from time to time amend or repeal By-Laws for the conduct of the business of the
Trust.
3.10 Miscellaneous Powers. The Trustees shall have the power to: (a)
employ or contract with such Persons as the Trustees may deem desirable for the
transaction of the business of the Trust; (b) enter into joint ventures,
partnerships and any other combinations or associations; (c) purchase, and pay
for out of Trust Property, insurance policies insuring the Shareholders,
Trustees, officers, employees, agents, investment advisors, distributors,
selected dealers or independent contractors of the Trust against all claims
arising by reason of holding any such position or by reason of any action taken
or omitted by any such Person in such capacity, whether or not constituting
negligence, or whether or not the Trust would have the power to indemnify such
Person against such liability; (d) establish pension, profit-sharing, share
purchase, and other retirement, incentive and benefit plans for any Trustees,
officers, employees and agents of the Trust; (e) make donations, irrespective of
benefit to the Trust, for charitable, religious, educational, scientific, civic
or similar purposes; (f) to the extent permitted by law,
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indemnify any Person with whom the Trust has dealings, including without
limitation any advisor, administrator, manager, transfer agent, custodian,
distributor or selected dealer, or any other person as the Trustees may see fit
to such extent as the Trustees shall determine; (g) guarantee indebtedness or
contractual obligations of others; (h) determine and change the fiscal year of
the Trust and the method in which its accounts shall be kept; (i)
notwithstanding the Fundamental Policies of the Trust, convert the Trust to a
master-feeder structure; provided, however, the Trust obtains the approval of
shareholders holding at least a majority of the Trust's Shares present at a
meeting of Shareholders at which a quorum is present and (j) adopt a seal for
the Trust but the absence of such seal shall not impair the validity of any
instrument executed on behalf of the Trust.
3.11 Further Powers. The Trustees shall have the power to conduct the
business of the Trust and carry on its operations in any and all of its branches
and maintain offices both within and without the State of Delaware, in any and
all states of the United States of America, in the District of Columbia, and in
any and all commonwealths, territories, dependencies, colonies, possessions,
agencies or instrumentalities of the United States of America and of foreign
governments, and to do all such other things and execute all such instruments as
they deem necessary, proper or desirable in order to promote the interests of
the Trust although such things are not herein specifically mentioned. Any
determination as to what is in the interests of the Trust made by the Trustees
in good faith shall be conclusive. In construing the provisions of this
Declaration, the presumption shall be in favor of a grant of power to the
Trustees. The Trustees will not be required to obtain any court order to deal
with the Trust Property.
ARTICLE IV
SERIES AND CLASSES OF SHARES
4.1 Classification of Shares. The 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 Class that may be established and designated
from time to time.
4.2 Establishment and Designation. The Trustees shall have exclusive power
without the requirement of Shareholder approval to establish and designate
separate and distinct Series and Classes of Shares and to fix such preferences,
voting powers, rights and privileges of such Series or Class as the Trustees may
from time to time determine, to divide or combine the Shares or any Series or
Class into a greater or lesser number without thereby materially changing the
proportionate beneficial interest of the Shares of such Series or Class in the
assets held with respect to that Series, to classify or reclassify any issued
Shares or any Series or Class thereof into one or more Series or Classes, and to
take such other action with respect to the Shares as the Trustees may deem
desirable. The establishment of any Series or Class (other than the Initial
Series, as defined below) shall be effective upon the adoption by the Trustees
of a resolution that sets forth the designation of, or otherwise identifies,
such Series or Class, whether directly in such resolution or by reference to, or
approval of, another document that sets forth the designation of, or otherwise
identifies, such Series or Class including any registration statement of the
Trust, any amendment and/or restatement of this Declaration and/or Schedule A or
as otherwise provided in such resolution. Without limiting the authority of the
Trustees to establish
8
and designate any further Series or Class, the Trustees hereby establish and
designate the Series listed on Schedule A attached hereto and made a part
hereof, which Schedule A may be amended and revised from time to time by
resolution of the Trustees in order to add or remove Series. The Series
indicated on Schedule A as of the date hereof hereby are referred to as the
"Initial Series." The Trust is authorized to issue an unlimited number of Shares
of each Initial Series and upon the establishment of any additional Series or
Class as provided herein, the Trust shall be authorized to issue an unlimited
number of Shares of each such Series and Class, unless otherwise determined, and
subject to any conditions set forth by the Trustees. Upon the establishment of
any Series or Class of Shares or the termination of any existing Series or Class
of Shares, Schedule A shall be amended to reflect the addition or termination of
such Series of Class and any officer of the Trust is hereby authorized to make
such amendment; provided that the amendment of Schedule A shall not be a
condition precedent to the establishment or termination of any Series or Class
in accordance with this Declaration.
4.3 Separate and Distinct Nature. Each Series and Class, including without
limitation the Initial Series, shall be separate and distinct from any other
Series and Class and shall maintain separate and distinct records on the books
of the Trust, and the assets belonging to any such Series or Class shall be held
and accounted for separately from the assets of the Trust or any other Series or
Class.
4.4 Conversion Rights. Subject to compliance with the requirements of the
1940 Act, the Trustees shall have the authority to provide that holders of
Shares of any Series or Class shall have the right to convert said Shares into
Shares of one or more other Series or Class in accordance with such requirements
and procedures as may be established by the Trustees.
4.5 Rights and Preferences. The Trustees shall have exclusive power
without the requirement of Shareholder approval to fix and determine the
relative rights and preferences as between the Shares of the separate Series and
Classes. The relative rights and preferences of each Series and each Class
(including the Initial Series) shall be as set forth herein and as set forth in
any registration statement of the Trust relating thereto unless (with respect to
any Series or Class other than the Initial Series) otherwise provided in the
resolution establishing such Series or Class. Any action that may be taken by
the Trustees with respect to any Series or Class, including any addition,
modification, division, combination, classification, reclassification, change of
name or termination may be made in the same manner as the establishment of such
Series or Class. Unless otherwise provided in any registration statement of the
Trust relating thereto, Shares of the Initial Series and each additional Series
or Class established pursuant to this Article IV (unless otherwise provided in
the resolution establishing such additional Series or Class), shall have the
following relative rights and preferences:
(a) Assets and Liabilities "Belonging" to a Series or Class. All
consideration received by the Trust for the issue or sale of Shares of
particular Series or Class, together with all assets in which such consideration
is invested or reinvested, all income, earnings, profits, and proceeds thereof,
including any proceeds derived from the sale, exchange or liquidation of such
assets, and any funds or payments derived from any reinvestment of such proceeds
in whatever form the same may be, shall be held and accounted for separately
from the other assets of the Trust and of every other Series or Class and may be
referred to herein as "assets belonging to" that Series or Class. The assets
belonging to a particular Series or Class
9
shall belong to that Series or Class for all purposes, and to no other Series or
Class, subject only to the rights of creditors of that Series or Class. Such
consideration, assets, income, earnings, profits, and proceeds thereof,
including any proceeds derived from the sale, exchange or liquidation of such
assets, and any funds or payments which are not readily identifiable as
belonging to any particular Series or Class (collectively "General Items"), the
Trustees shall allocate to and among any one or more of the Series and/or
Classes in such manner and on such basis as they, in their sole discretion, deem
fair and equitable. Any General Items so allocated to a particular Series or
Class shall belong to that Series/Class. Each such allocation by the Trustees
shall be conclusive and binding upon all Shareholders for all purposes. The
assets belonging to each particular Series and Class shall be charged with the
liabilities in respect of that Series/Class and all expenses, costs, charges and
reserves attributable to that Series/Class, and any general liabilities,
expenses, costs, charges or reserves of the Trust which are not readily
identifiable as belonging to any particular Series or Class shall be allocated
and charged by the Trustees to and among any one or more of the Series and
Classes established and designated from time to time in such manner and on such
basis as the Trustees in their sole discretion deem fair and equitable. Each
allocation of liabilities, expenses, costs, charges and reserves by the Trustees
shall be conclusive and binding upon all Shareholders for all purposes.
(b) Treatment of Particular Items. The Trustees shall have full
discretion, to the extent consistent with the 1940 Act and consistent with
generally accepted accounting principles, 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.
(c) Limitation on Interseries and Interclass Liabilities. Subject to the
right of the Trustees in their discretion to allocate general liabilities,
expenses, costs, charges or reserves as provided in Section 4.5(a), the debts,
liabilities, obligations and expenses incurred, contracted for or otherwise
existing with respect to a particular Series or Class shall be enforceable
against the assets of such Series/Class only, and not against the assets of any
other Series or Class. 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 Delaware
Statutory Trust Statute, and upon the giving of such notice in the certificate
of trust, the statutory provisions of Section 3804 of the Delaware Statutory
Trust Statute 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.
(d) Dividends. Dividends and capital gains distributions on Shares of a
particular Series may be paid with such frequency, in such form, and in such
amount as the Trustees may determine by resolution adopted from time to time, or
pursuant to a standing resolution or resolutions adopted only once or with such
frequency as the Trustees may determine. All dividends and distributions on
Shares of a particular Series or Class shall be distributed pro rata to the
holders of Shares of that Series/Class in proportion to the number of Shares of
that Series/Class held by such holders at the date and time of record
established for the payment of such dividends or distributions. Such dividends
and distributions may be paid in cash, property or additional Shares of that
Series/Class, or a combination thereof, as determined by the Trustees or
pursuant to any program that the Trustees may have in effect at the time for
10
the election by each Shareholder of the form in which dividends or distributions
are to be paid to that Shareholder. Any such dividend or distribution paid in
Shares shall be paid at the net asset value thereof as determined in accordance
with Section 4.5(h) herein.
(e) Redemption by Shareholder. Each Shareholder of a particular Series or
Class shall have the right on any business day to require the Trust to redeem
all or any part of his Shares of that Series or Class, upon and subject to the
terms and conditions provided in this Section 4.5(e), in accordance with and
pursuant to procedures or methods prescribed or approved by the Trustees and, in
the case of any Series or Class now or hereafter authorized, if so determined by
the Trustees, shall be redeemable only in aggregations of such number of Shares
and at such times as may be determined by, or determined pursuant to procedures
or methods prescribed by or approved by, the Trustees from time to time with
respect to such Series or Class. The number of Shares comprising an aggregation
for purposes of redemption or repurchase so determined from time to time with
respect to any Series or Class shall be referred to herein as a "Creation Unit"
and collectively, as "Creation Units". The Trustees shall have the unrestricted
power to determine from time to time the number of Shares constituting a
Creation Unit by resolutions adopted at any regular or special meeting of the
Trustees. Each holder of a Creation Unit aggregation of a Series or Class, upon
request to the Trust accompanied by surrender of the appropriate stock
certificate or certificates in proper form for transfer if certificates have
been issued to such holder, or in accordance with such other procedures as may
from time to time be in effect if certificates have not been issued, shall be
entitled to require the Trust to redeem all or any number of such holder's
Shares standing in the name of such holder on the books of the Trust, but in the
case of Shares of any Series or Class as to which the Trustees have determined
that such Shares shall be redeemable in Creation Unit aggregations, only in such
Creation Unit aggregations of shares of such Series or Class as the Trustees may
determine from time to time in accordance with this Section 4.5(e). The Trust
shall, upon application of any Shareholder or pursuant to authorization from any
Shareholder, redeem or repurchase from such Shareholder outstanding Shares for
an amount per share determined by the Trustees in accordance with any applicable
laws and regulations; provided that (i) such amount per share shall not exceed
the cash equivalent of the proportionate interest of each Share or of any Class
or Series of Shares in the assets of the Trust at the time of the redemption or
repurchase and (ii) if so authorized by the Trustees, the Trust may, at any time
and from time to time, charge fees for effecting such redemption or repurchase,
at such rates as the Trustees may establish, as and to the extent permitted
under the 1940 Act and the rules and regulations promulgated thereunder, and
may, at any time and from time to time, pursuant to such Act and such rules and
regulations, suspend such right of redemption. The procedures for effecting and
suspending redemption shall be as set forth in the Prospectus from time to time.
Payment may be in cash, securities or a combination thereof, as determined by or
pursuant to the direction of the Trustees from time to time, less any applicable
sales charges and/or fees.
(f) Redemption by Trust. The Trustees may cause the Trust to redeem the
Shares of any Series or Class held by a Shareholder at the redemption price that
would be applicable if such Shares were then being redeemed by the Shareholder
pursuant to Section 4.5(e) upon such conditions as may from time to time be
determined by the Trustees. Upon redemption of Shares pursuant to this Section
4.5(f), the Trust shall promptly cause payment of the full redemption price to
be made to such Shareholder for Shares so redeemed.
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(g) Prevention of Personal Holding Company Status. The Trust may reject
any purchase order, refuse to transfer any Shares, and compel the redemption of
Shares if, in its opinion, any such rejection, refusal, or redemption would
prevent the Trust from becoming a personal holding company as defined by the
Code.
(h) Net Asset Value. The net asset value per Share of any Series or Class
shall be determined in accordance with the methods and procedures established by
the Trustees from time to time and, to the extent required by applicable law, as
disclosed in the then current prospectus or statement of additional information
for the Series/Class.
(i) Maintenance of Stable Net Asset Value. The Trustees may determine to
maintain the net asset value per Share of any Series at a designated constant
dollar amount and in connection therewith may adopt procedures not inconsistent
with the 1940 Act for the continuing declarations of income attributable to that
Series, or any Class thereof, as dividends payable in additional Shares of that
Series/Class at the designated constant dollar amount and for the handling of
any losses attributable to that Series/Class. Such procedures may provide that
in the event of any loss each Shareholder shall be deemed to have contributed to
the capital of the Trust attributable to that Series/Class his or her pro rata
portion of the total number of Shares required to be canceled in order to permit
the net asset value per Share of that Series/Class to be maintained, after
reflecting such loss, at the designated constant dollar amount. Each Shareholder
of the Trust shall be deemed to have agreed, by his investment in any Series
with respect to which the Trustees shall have adopted any such procedure, to
make the contribution referred to in the preceding sentence in the event of any
such loss. The Trustees may delegate any of their powers and duties under this
Section 4.5(i) with respect to appraisal of assets and liabilities in the
determination of net asset value or with respect to a suspension of the
determination of net asset value to an officer or officers or agent or agents of
the Trust designated from time to time by the Trustees.
(j) Transfer of Shares. Except to the extent that transferability is
limited by applicable law or such procedures as may be developed from time to
time by the Trustees or the appropriate officers of the Trust, Shares shall be
transferable on the records of the Trust only by the record holder thereof or by
his agent thereunto duly authorized in writing, upon delivery to the Trustees or
the Trust's transfer agent of a duly executed instrument of transfer, together
with a Share certificate, if one is outstanding, and such evidence of the
genuineness of each such execution and authorization and of such other matters
as may be required by the Trustees. Upon such delivery the transfer shall be
recorded on the register of the Trust.
(k) Equality of Shares. All Shares of each particular Series or Class
shall represent an equal proportionate interest in the assets belonging or
attributable to that Series/Class (subject to the liabilities belonging to that
Series/Class), and each Share of any particular Series or Class shall be equal
in this respect to each other Share of that Series or Class, as applicable.
(l) Fractional Shares. Any fractional Share of any Series or Class, if any
such fractional Share is outstanding, shall carry proportionately all the rights
and obligations of a whole Share of that Series/Class, including rights and
obligations with respect to voting,
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receipt of dividends and distributions, redemption of Shares, and liquidation of
the Trust or any Series or Class.
ARTICLE V
ADVISORY, MANAGEMENT AND DISTRIBUTION ARRANGEMENTS
5.1 Advisory and Management Arrangements. Subject to the requirements of
applicable law as in effect from time to time, the Trustees may in their
discretion from time to time enter into advisory, administration or management
contracts (including, in each case, one or more sub-advisory, sub-administration
or sub-management contracts) whereby the other party to any such contract shall
undertake to furnish the Trustees such advisory, administrative and management
services, with respect to the Trust as the Trustees shall from time to time
consider desirable and all upon such terms and conditions as the Trustees may in
their discretion determine. Notwithstanding any provisions of this Declaration,
the Trustees may authorize any advisor, administrator or manager (subject to
such general or specific instructions as the Trustees may from time to time
adopt) to effect investment transactions with respect to the assets on behalf of
the Trustees to the full extent of the power of the Trustees to effect such
transactions or may authorize any officer, employee or Trustee to effect such
transactions pursuant to recommendations of any such advisor, administrator or
manager (and all without further action by the Trustees). Any such investment
transaction shall be deemed to have been authorized by all of the Trustees.
5.2 Distribution Arrangements. Subject to compliance with the 1940 Act,
the Trustees may retain underwriters, placement agents and/or other distribution
agents to sell Trust Shares. The Trustees may in their discretion from time to
time enter into one or more contracts, providing for the sale of the Shares of
the Trust, whereby the Trust may either agree to sell such Shares to the other
party to the contract or appoint such other party its sales agent for such
Shares. In either case, the contract shall be on such terms and conditions as
the Trustees may in their discretion determine not inconsistent with the
provisions of this Article V or the By-Laws; and such contract may also provide
for the repurchase or sale of Shares of the Trust by such other party as
principal or as agent of the Trust and may provide that such other party may
enter into selected dealer agreements with registered securities dealers and
brokers and servicing and similar agreements with persons who are not registered
securities dealers to further the purposes of the distribution or repurchase of
the Shares of the Trust.
5.3 Parties to Contract. Any contract of the character described in
Sections 5.1 and 5.2 of this Article V or in Article VIII hereof may be entered
into with any Person, although one or more of the Trustees, officers or
employees of the Trust may be an officer, director, trustee, shareholder, or
member of such other party to the contract, and no such contract shall be
invalidated or rendered voidable by reason of the existence of any such
relationship, nor shall any Person holding such relationship be liable merely by
reason of such relationship for any loss or expense to the Trust under or by
reason of said contract or accountable for any profit realized directly or
indirectly therefrom, provided that the contract when entered into was
reasonable and fair and not inconsistent with the provisions of this Article V
or the By-Laws. The same Person may be the other party to contracts entered into
pursuant to Sections 5.1 and 5.2 above or Article VIII, and any individual may
be financially
13
interested or otherwise affiliated with Persons who are parties to any or all of
the contracts mentioned in this Section 5.3.
ARTICLE VI
LIMITATIONS OF LIABILITY AND INDEMNIFICATION
6.1 No Personal Liability of Shareholders, Trustees, etc. No Shareholder
of the Trust shall be subject in such capacity to any personal liability
whatsoever to any Person in connection with Trust Property or the acts,
obligations or affairs of the Trust. Shareholders shall have the same limitation
of personal liability as is extended to stockholders of a private corporation
for profit incorporated under the Delaware General Corporation Law. No Trustee
or officer of the Trust shall be subject in such capacity to any personal
liability whatsoever to any Person, save only liability to the Trust or its
Shareholders arising from bad faith, willful misfeasance, gross negligence or
reckless disregard for his duty to such Person; and, subject to the foregoing
exception, all such Persons shall look solely to the Trust Property for
satisfaction of claims of any nature arising in connection with the affairs of
the Trust. If any Shareholder, Trustee or officer, as such, of the Trust, is
made a party to any suit or proceeding to enforce any such liability, subject to
the foregoing exception, he shall not, on account thereof, be held to any
personal liability. Any repeal or modification of this Section 6.1 shall not
adversely affect any right or protection of a Trustee or officer of the Trust
existing at the time of such repeal or modification with respect to acts or
omissions occurring prior to such repeal or modification.
6.2 Mandatory Indemnification. (a) The Trust hereby agrees to indemnify
each person who at any time serves as a Trustee or officer of the Trust (each
such person being an "indemnitee") against any liabilities and expenses,
including amounts paid in satisfaction of judgments, in compromise or as fines
and penalties, and reasonable counsel fees reasonably incurred by such
indemnitee in connection with the defense or disposition of any action, suit or
other proceeding, whether civil or criminal, before any court or administrative
or investigative body in which he may be or may have been involved as a party or
otherwise or with which he may be or may have been threatened, while acting in
any capacity set forth in this Article VI by reason of his having acted in any
such capacity, except with respect to any matter as to which he shall not have
acted in good faith in the reasonable belief that his action was in the best
interest of the Trust or, in the case of any criminal proceeding, as to which he
shall have had reasonable cause to believe that the conduct was unlawful,
provided, however, that no indemnitee shall be indemnified hereunder against any
liability to any person or any expense of such indemnitee arising by reason of
(i) willful misfeasance, (ii) bad faith, (iii) gross negligence, or (iv)
reckless disregard of the duties involved in the conduct of his position (the
conduct referred to in such clauses (i) through (iv) being sometimes referred to
herein as "disabling conduct"). Notwithstanding the foregoing, with respect to
any action, suit or other proceeding voluntarily prosecuted by any indemnitee as
plaintiff, indemnification shall be mandatory only if the prosecution of such
action, suit or other proceeding by such indemnitee (1) was authorized by a
majority of the Trustees or (2) was instituted by the indemnitee to enforce his
or her rights to indemnification hereunder in a case in which the indemnitee is
found to be entitled to such indemnification. The rights to indemnification set
forth in this Declaration shall continue as to a person who has ceased to be a
Trustee or officer of the Trust and shall inure to the benefit of his or her
heirs, executors and personal and legal representatives. No amendment or
restatement of
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this Declaration or repeal of any of its provisions shall limit or eliminate any
of the benefits provided to any person who at any time is or was a Trustee or
officer of the Trust or otherwise entitled to indemnification hereunder in
respect of any act or omission that occurred prior to such amendment,
restatement or repeal.
(b) Notwithstanding the foregoing, no indemnification shall be made
hereunder unless there has been a determination (i) by a final decision on the
merits by a court or other body of competent jurisdiction before whom the issue
of entitlement to indemnification hereunder was brought that such indemnitee is
entitled to indemnification hereunder or, (ii) in the absence of such a
decision, by (1) a majority vote of a quorum of those Trustees who are neither
"interested persons" of the Trust (as defined in Section 2(a)(19) of the ▇▇▇▇
▇▇▇) nor parties to the proceeding ("Disinterested Non-Party Trustees"), that
the indemnitee is entitled to indemnification hereunder, or (2) if such quorum
is not obtainable or even if obtainable, if such majority so directs,
independent legal counsel in a written opinion concludes that the indemnitee
should be entitled to indemnification hereunder. All determinations to make
advance payments in connection with the expense of defending any proceeding
shall be authorized and made in accordance with the immediately succeeding
paragraph (c) below.
(c) The Trust shall make advance payments in connection with the expenses
of defending any action with respect to which indemnification might be sought
hereunder if the Trust receives a written affirmation by the indemnitee of the
indemnitee's good faith belief that the standards of conduct necessary for
indemnification have been met and a written undertaking to reimburse the Trust
unless it is subsequently determined that the indemnitee is entitled to such
indemnification and if a majority of the Trustees determine that the applicable
standards of conduct necessary for indemnification appear to have been met. In
addition, at least one of the following conditions must be met: (i) the
indemnitee shall provide adequate security for his undertaking, (ii) the Trust
shall be insured against losses arising by reason of any lawful advances, or
(iii) a majority of a quorum of the Disinterested Non-Party Trustees, or if a
majority vote of such quorum so direct, independent legal counsel in a written
opinion, shall conclude, based on a review of readily available facts (as
opposed to a full trial-type inquiry), that there is substantial reason to
believe that the indemnitee ultimately will be found entitled to
indemnification.
(d) The rights accruing to any indemnitee under these provisions shall not
exclude any other right which any person may have or hereafter acquire under
this Declaration, the By-Laws of the Trust, any statute, agreement, vote of
stockholders or Trustees who are "disinterested persons" (as defined in Section
2(a)(19) of the ▇▇▇▇ ▇▇▇) or any other right to which he or she may be lawfully
entitled.
(e) Subject to any limitations provided by the 1940 Act and this
Declaration, the Trust shall have the power and authority to indemnify and
provide for the advance payment of expenses to employees, agents and other
Persons providing services to the Trust or serving in any capacity at the
request of the Trust to the full extent corporations organized under the
Delaware General Corporation Law may indemnify or provide for the advance
payment of expenses for such Persons, provided that such indemnification has
been approved by a majority of the Trustees.
15
6.3 No Bond Required of Trustees. No Trustee shall, as such, be obligated
to give any bond or other security for the performance of any of his duties
hereunder.
6.4 No Duty of Investigation; Notice in Trust Instruments, etc. No
purchaser, lender, transfer agent or other person dealing with the Trustees or
with any officer, employee or agent of the Trust shall be bound to make any
inquiry concerning the validity of any transaction purporting to be made by the
Trustees or by said officer, employee or agent or be liable for the application
of money or property paid, loaned, or delivered to or on the order of the
Trustees or of said officer, employee or agent. Every obligation, contract,
undertaking, instrument, certificate, Share, other security of the Trust, and
every other act or thing whatsoever executed in connection with the Trust shall
be conclusively taken to have been executed or done by the executors thereof
only in their capacity as Trustees under this Declaration or in their capacity
as officers, employees or agents of the Trust. The Trustees may maintain
insurance for the protection of the Trust Property, its Shareholders, Trustees,
officers, employees and agents in such amount as the Trustees shall deem
adequate to cover possible tort liability, and such other insurance as the
Trustees in their sole judgment shall deem advisable or is required by the 1940
Act.
6.5 Reliance on Experts, etc. Each Trustee and officer or employee of the
Trust shall, in the performance of its duties, be fully and completely justified
and protected with regard to any act or any failure to act resulting from
reliance in good faith upon the records of the Trust and upon information,
opinions, reports or statements presented by another Trustee or any officer,
employee or other agent of the Trust, or by any other Person as to matters the
Trustee reasonably believes are within such other Person's professional or
expert competence, including information, opinions, reports or statements as to
the value and amount of the assets, liabilities, profits or losses of the Trust
or any Series or Class, or the value and amount of assets or reserves or
contracts, agreements or other undertakings that would be sufficient to pay
claims and obligations of the Trust or any Series or Class or to make reasonable
provision to pay such claims and obligations, or any other facts pertinent to
the existence and amount of assets from which distributions to Shareholders or
creditors of the Trust might properly be paid.
ARTICLE VII
SHARES OF BENEFICIAL INTEREST
7.1 Beneficial Interest. The interest of the beneficiaries hereunder shall
be divided into an unlimited number of transferable shares of beneficial
interest, without par value, pursuant to Article IV hereof. All Shares issued in
accordance with the terms hereof, including, without limitation, Shares issued
in connection with a dividend in Shares or a split of Shares, shall be fully
paid and, except as provided in the last sentence of Section 3.8, nonassessable
when the consideration determined by the Trustees (if any) therefor shall have
been received by the Trust.
7.2 Rights of Shareholders. The Shares shall be personal property given
only the rights in this Declaration specifically set forth. The ownership of the
Trust Property of every description and the right to conduct any business herein
before described are vested exclusively in the Trustees, and the Shareholders
shall have no interest therein other than the beneficial
16
interest conferred by their Shares, and they shall have no right to call for any
partition or division of any property, profits, rights or interests of the Trust
nor can they be called upon to share or assume any losses of the Trust or,
subject to the right of the Trustees to charge certain expenses directly to
Shareholders, as provided in the last sentence of Section 3.8, suffer an
assessment of any kind by virtue of their ownership of Shares. The Shares shall
not entitle the holder to preference, preemptive, appraisal, conversion or
exchange rights (except as specified in this Section 7.2, in Section 12.4 or as
specified by the Trustees when creating the Shares, as in preferred shares).
7.3 Trust Only. It is the intention of the Trustees to create only the
relationship of Trustee and beneficiary between the Trustees and each
Shareholder from time to time. It is not the intention of the Trustees to create
a general partnership, limited partnership, joint stock association,
corporation, bailment or any form of legal relationship other than a trust.
Nothing in this Declaration shall be construed to make the Shareholders, either
by themselves or with the Trustees, partners or members of a joint stock
association.
7.4 Issuance of Shares. The Trustees, in their discretion, may from time
to time without vote of the Shareholders issue Shares pursuant to Article IV, in
addition to the then issued and outstanding Shares and Shares held in the
treasury, to such party or parties and for such amount and type of
consideration, including cash or property, at such time or times, and on such
terms as the Trustees may determine, and may in such manner acquire other assets
(including the acquisition of assets subject to, and in connection with the
assumption of, liabilities) and businesses. The Trustees may from time to time
divide or combine the Shares into a greater or lesser number without thereby
changing the proportionate beneficial interest in such Shares. Issuances and
redemptions of Shares may be made in whole Shares and/or l/l,000ths of a Share
or multiples thereof as the Trustees may determine pursuant to Article IV
hereof.
7.5 Register of Shares. A register shall be kept at the offices of the
Trust or any transfer agent duly appointed by the Trustees under the direction
of the Trustees which shall contain the names and addresses of the Shareholders
and the number of Shares held by them respectively and a record of all transfers
thereof. Separate registers shall be established and maintained for each class
or series of Shares. Each such register shall be conclusive as to who are the
holders of the Shares of the applicable class or series of Shares and who shall
be entitled to receive dividends or distributions or otherwise to exercise or
enjoy the rights of Shareholders. No Shareholder shall be entitled to receive
payment of any dividend or distribution, nor to have notice given to him as
herein provided, until he has given his address to a transfer agent or such
other officer or agent of the Trustees as shall keep the register for entry
thereon. It is not contemplated that certificates will be issued for the Shares;
however, the Trustees, in their discretion, may authorize the issuance of share
certificates and promulgate appropriate fees therefore and rules and regulations
as to their use.
7.6 Transfer Agent and Registrar. The Trustees shall have power to employ
a transfer agent or transfer agents, and a registrar or registrars, with respect
to the Shares. The transfer agent or transfer agents may keep the applicable
register and record therein, the original issues and transfers, if any, of the
said Shares. Any such transfer agents and/or registrars shall
17
perform the duties usually performed by transfer agents and registrars of
certificates of stock in a corporation, as modified by the Trustees.
7.7 Notices. Any and all notices to which any Shareholder hereunder may be
entitled and any and all communications shall be deemed duly served or given if
mailed, postage prepaid, addressed to any Shareholder of record at his last
known address as recorded on the applicable register of the Trust.
ARTICLE VIII
CUSTODIANS
8.1 Appointment and Duties. The Trustees shall at all times employ a
custodian or custodians, meeting the qualifications for custodians for portfolio
securities of investment companies contained in the 1940 Act, as custodian with
respect to the assets of the Trust. Any custodian shall have authority as agent
of the Trust with respect to which it is acting as determined by the custodian
agreement or agreements, but subject to such restrictions, limitations and other
requirements, if any, as may be contained in the By-Laws of the Trust and the
1940 Act:
(1) to hold the securities owned by the Trust and deliver the same
upon written order;
(2) to receive any receipt for any moneys due to the Trust and
deposit the same in its own banking department (if a bank) or elsewhere as
the Trustees may direct;
(3) to disburse such funds upon orders or vouchers;
(4) if authorized by the Trustees, to keep the books and accounts of
the Trust and furnish clerical and accounting services; and
(5) if authorized to do so by the Trustees, to compute the net
income or net asset value of the Trust;
all upon such basis of compensation as may be agreed upon between the Trustees
and the custodian.
The Trustees may also authorize each custodian to employ one or more
sub-custodians from time to time to perform such of the acts and services of the
custodian and upon such terms and conditions, as may be agreed upon between the
custodian and such sub-custodian and approved by the Trustees, provided that in
every case such sub-custodian shall meet the qualifications for custodians
contained in the 1940 Act.
8.2 Central Certificate System. Subject to such rules, regulations and
orders as the Commission may adopt, the Trustees may direct the custodian to
deposit all or any part of the securities owned by the Trust in a system for the
central handling of securities established by a national securities exchange or
a national securities association registered with the Commission
18
under the Securities Exchange Act of 1934, or such other Person as may be
permitted by the Commission, or otherwise in accordance with the 1940 Act,
pursuant to which system all securities of any particular class of any issuer
deposited within the system are treated as fungible and may be transferred or
pledged by bookkeeping entry without physical delivery of such securities,
provided that all such deposits shall be subject to withdrawal only upon the
order of the Trust.
ARTICLE IX
HOLDING
9.1 Disclosure of Holding. The holders of Shares or other securities of
the Trust shall upon demand disclose to the Trustees in writing such information
with respect to direct and indirect ownership of Shares or other securities of
the Trust as the Trustees deem necessary to comply with the provisions of the
Code, the 1940 Act or other applicable laws or regulations, or to comply with
the requirements of any other taxing or regulatory authority.
ARTICLE X
NET INCOME; DISTRIBUTIONS
10.1 Distributions to Shareholders. (a) The Trustees shall from time to
time distribute ratably among the Shareholders of any Class, or any Series of
any such Class, in accordance with the number of outstanding full and fractional
Shares of such Class or any Series of such Class, such proportion of the net
profits, surplus (including paid-in surplus), capital, or assets held by the
Trustees as they may deem proper or as may otherwise be determined in accordance
with this Declaration. Any such distribution may be made in cash or property
(including without limitation any type of obligations of the Trust or any assets
thereof) or Shares of any Class or Series or any combination thereof, and the
Trustees may distribute ratably among the Shareholders of any Class of shares or
Series of any such Class, in accordance with the number of outstanding full and
fractional Shares of such class or any series of such class, additional Shares
of any Class or Series in such manner, at such times, and on such terms as the
Trustees may deem proper or as may otherwise be determined in accordance with
this Declaration.
(b) Distributions pursuant to this Section 10.1 may be among the
Shareholders of record of the applicable class or series of Shares at the time
of declaring a distribution or among the Shareholders of record at such later
date as the Trustees shall determine and specify.
(c) The Trustees may always retain from the net profits such amount as
they may deem necessary to pay the debts or expenses of the Trust or to meet
obligations of the Trust, or as they otherwise may deem desirable to use in the
conduct of its affairs or to retain for future requirements or extensions of the
business.
(d) Inasmuch as the computation of net income and gains for Federal income
tax purposes may vary from the computation thereof on the books, the above
provisions
19
shall be interpreted to give the Trustees the power in their discretion to
distribute for any fiscal year as ordinary dividends and as capital gains
distributions, respectively, additional amounts sufficient to enable the Trust
to avoid or reduce liability for taxes.
10.2 Power to Modify Foregoing Procedures. Notwithstanding any of the
foregoing provisions of this Article X, the Trustees may prescribe, in their
absolute discretion except as may be required by the 1940 Act, such other bases
and times for determining the per share asset value of the Trust's Shares or net
income, or the declaration and payment of dividends and distributions as they
may deem necessary or desirable for any reason, including to enable the Trust to
comply with any provision of the 1940 Act, or any securities exchange or
association registered under the Securities Exchange Act of 1934, or any order
of exemption issued by the Commission, all as in effect now or hereafter amended
or modified.
ARTICLE XI
SHAREHOLDERS
11.1 Meetings of Shareholders. The Trust is not required to hold regular
or annual meetings of the Shareholders. A special meeting of Shareholders may be
called at any time by a majority of the Trustees or the President and shall be
called by any Trustee for any proper purpose upon written request of
Shareholders of the Trust holding in the aggregate not less than 51% of the
outstanding Shares of the Trust or Class or Series of Shares having voting
rights on the matter, such request specifying the purpose or purposes for which
such meeting is to be called. Any shareholder meeting, including a Special
Meeting, shall be held within or without the State of Delaware on such day and
at such time as the Trustees shall designate.
11.2 Voting. Shareholders shall have no power to vote on any matter except
matters on which a vote of Shareholders is required by applicable law, this
Declaration or resolution of the Trustees. Except as otherwise provided herein,
any matter required to be submitted to Shareholders and affecting one or more
Classes or Series of Shares shall require approval by the required vote of all
the affected Classes and Series of Shares voting together as a single class;
provided, however, that as to any matter with respect to which a separate vote
of any Class or Series of Shares is required by the 1940 Act, such requirement
as to a separate vote by that Class or Series of Shares shall apply in addition
to a vote of all the affected Classes and Series voting together as a single
class. Shareholders of a particular Class or Series of Shares shall not be
entitled to vote on any matter that affects only one or more other Classes or
Series of Shares. There shall be no cumulative voting in the election or removal
of Trustees.
11.3 Notice of Meeting and Record Date. Notice of all meetings of
Shareholders, stating the time, place and purposes of the meeting, shall be
given by the Trustees by mail to each Shareholder of record entitled to vote
thereat at its registered address, mailed at least 10 days and not more than 120
days before the commencement of the meeting or otherwise in compliance with
applicable law. Only the business stated in the notice of the meeting shall be
considered at such meeting. Any adjourned meeting may be held as adjourned one
or more times without further notice not later than 180 days after the record
date. For the purposes of determining the Shareholders who are entitled to
notice of and to vote at any meeting the Trustees may, without closing the
transfer books, fix a date not more than 120 nor less than
20
10 days prior to the date of such meeting of Shareholders as a record date for
the determination of the Persons to be treated as Shareholders of record for
such purposes.
11.4 Quorum and Required Vote. (a) The holders of a majority of the Shares
entitled to vote on any matter at a meeting present in person or by proxy shall
constitute a quorum at such meeting of the Shareholders for purposes of
conducting business on such matter. The absence from any meeting, in person or
by proxy, of a quorum of Shareholders for action upon any given matter shall not
prevent action at such meeting upon any other matter or matters which may
properly come before the meeting, if there shall be present thereat, in person
or by proxy, a quorum of Shareholders in respect of such other matters.
(b) Subject to any provision of applicable law, this Declaration or a
resolution of the Trustees specifying a greater or a lesser vote requirement for
the transaction of any item of business at any meeting of Shareholders, (i) the
affirmative vote of a majority of the Shares present in person or represented by
proxy and entitled to vote on the subject matter shall be the act of the
Shareholders with respect to such matter, and (ii) where a separate vote of one
or more Classes or Series of Shares is required on any matter, the affirmative
vote of a majority of the Shares of such Class or Series of Shares present in
person or represented by proxy at the meeting shall be the act of the
Shareholders of such Class or Series with respect to such matter.
11.5 Proxies, etc. At any meeting of Shareholders, any holder of Shares
entitled to vote thereat may vote by properly executed proxy, provided that no
proxy shall be voted at any meeting unless it shall have been placed on file
with the Secretary, or with such other officer or agent of the Trust as the
Secretary may direct, for verification prior to the time at which such vote
shall be taken. Pursuant to a resolution of a majority of the Trustees, proxies
may be solicited in the name of one or more Trustees or one or more of the
officers or employees of the Trust. No proxy shall be valid after the expiration
of 11 months from the date thereof, unless otherwise provided in the proxy. Only
Shareholders of record shall be entitled to vote. Each full Share shall be
entitled to one vote and fractional Shares shall be entitled to a vote of such
fraction. When any Share is held jointly by several persons, any one of them may
vote at any meeting in person or by proxy in respect of such Share, but if more
than one of them shall be present at such meeting in person or by proxy, and
such joint owners or their proxies so present disagree as to any vote to be
cast, such vote shall not be received in respect of such Share. A proxy
purporting to be 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. If the holder of any such Share is a
minor or a person of unsound mind, and subject to guardianship or to the legal
control of any other person as regards the charge or management of such Share,
he may vote by his guardian or such other person appointed or having such
control, and such vote may be given in person or by proxy.
11.6 Reports. The Trustees shall cause to be prepared at least annually
and more frequently to the extent and in the form required by law, regulation or
any exchange on which Trust Shares are listed a report of operations containing
a balance sheet and statement of income and undistributed income of the Trust
prepared in conformity with generally accepted accounting principles and an
opinion of an independent public accountant on such financial statements. Copies
of such reports shall be mailed to all Shareholders of record within the time
required by the 1940 Act, and in any event within a reasonable period preceding
the meeting of
21
Shareholders. The Trustees shall, in addition, furnish to the Shareholders at
least semi-annually to the extent required by law, interim reports containing an
unaudited balance sheet of the Trust as of the end of such period and an
unaudited statement of income and surplus for the period from the beginning of
the current fiscal year to the end of such period.
11.7 Inspection of Records. The records of the Trust shall be open to
inspection by Shareholders to the same extent as is permitted shareholders of a
corporation formed under the Delaware General Corporation Law.
11.8 Shareholder Action by Written Consent. Any action which may be taken
by Shareholders by vote may be taken without a meeting if the holders entitled
to vote thereon of the proportion of Shares required for approval of such action
at a meeting of Shareholders pursuant to Section 11.4 consent to the action in
writing and the written consents are filed with the records of the meetings of
Shareholders. Such consent shall be treated for all purposes as a vote taken at
a meeting of Shareholders.
ARTICLE XII
DURATION; TERMINATION OF TRUST; AMENDMENT; MERGERS, ETC.
12.1 Duration. Subject to possible termination in accordance with the
provisions of Section 12.2 hereof, the Trust created hereby shall have perpetual
existence.
12.2 Termination. (a) The Trust may be dissolved, after a majority of the
Trustees have approved a resolution therefor, upon approval by not less than 75%
of the Shares of each Class or Series outstanding and entitled to vote, voting
as separate Classes or Series, unless such resolution has been approved by 80%
of the Trustees, in which case approval by a Majority Shareholder Vote shall be
required. Upon the dissolution of the Trust:
(i) The Trust shall carry on no business except for the purpose of
winding up its affairs.
(ii) The Trustees shall proceed to wind up the affairs of the Trust
and all of the powers of the Trustees under this Declaration shall
continue until the affairs of the Trust shall have been wound up,
including the power to fulfill or discharge the contracts of the Trust,
collect its assets, sell, convey, assign, exchange, merge where the Trust
is not the survivor, transfer or otherwise dispose of all or any part of
the remaining Trust Property to one or more Persons at public or private
sale for consideration which may consist in whole or in part in cash,
securities or other property of any kind, discharge or pay its
liabilities, and do all other acts appropriate to liquidate its business;
provided that any sale, conveyance, assignment, exchange, merger in which
the Trust is not the survivor, transfer or other disposition of all or
substantially all the Trust Property of the Trust shall require approval
of the principal terms of the transaction and the nature and amount of the
consideration by Shareholders with the same vote as required to dissolve
the Trust.
(iii) After paying or adequately providing for the payment of all
liabilities, and upon receipt of such releases, indemnities and refunding
agreements, as
22
they deem necessary for their protection, the Trustees may distribute the
remaining Trust Property, in cash or in kind or partly each, among the
Shareholders according to their respective rights.
(b) After the winding up and termination of the Trust and distribution to
the Shareholders as herein provided, a majority of the Trustees shall execute
and lodge among the records of the Trust an instrument in writing setting forth
the fact of such termination and shall execute and file a certificate of
cancellation with the Secretary of State of the State of Delaware. Upon
termination of the Trust, the Trustees shall thereupon be discharged from all
further liabilities and duties hereunder, and the rights and interests of all
Shareholders shall thereupon cease.
12.3 Amendment Procedure. (a) Except as provided in subsection (b) of this
Section 12.3, this Declaration may be amended, after a majority of the Trustees
have approved a resolution therefor, by the affirmative vote of the holders of
not less than a majority of the affected Shares. The Trustees also may amend
this Declaration without any vote of Shareholders of any class of series to
divide the Shares of the Trust into one or more classes or additional classes,
or one or more series of any such class or classes, to change the name of the
Trust or any class or series of Shares, to make any change that does not
adversely affect the relative rights or preferences of any Shareholder, as they
may deem necessary, or to conform this Declaration to the requirements of the
1940 Act or any other applicable federal laws or regulations including pursuant
to the requirements of the regulated investment company provisions of the Code,
but the Trustees shall not be liable for failing to do so.
(b) No amendment may be made to Section 2.1, Section 2.2, Section 2.3,
Section 3.9, Section 6.1, Section 6.2, Section 12.2(a), this Section 12.3,
Section 12.4 or Section 12.6 of this Declaration and no amendment may be made to
this Declaration which would change any rights with respect to any Shares of the
Trust by reducing the amount payable thereon upon liquidation of the Trust or by
diminishing or eliminating any voting rights pertaining thereto, except after a
majority of the Trustees have approved a resolution therefor, and such proposed
amendment has been approved by the affirmative vote of the holders of not less
than seventy-five percent (75%) of the Shares of each affected Class or Series
outstanding, voting as separate Classes or Series, or unless such amendment has
been approved by 80% of the Trustees, in which case approval by a Majority
Shareholder Vote shall be required. Nothing contained in this Declaration shall
permit the amendment of this Declaration to impair the exemption from personal
liability of the Shareholders, Trustees, officers, employees and agents of the
Trust or to permit assessments upon Shareholders.
(c) An amendment duly adopted by the requisite vote of the Board of
Trustees and, if required, the Shareholders as aforesaid, shall become effective
at the time of such adoption or at such other time as may be designated by the
Board of Trustees or Shareholders, as the case may be. A certification in
recordable form signed by a majority of the Trustees setting forth an amendment
and reciting that it was duly adopted by the Trustees and, if required, the
Shareholders as aforesaid, or a copy of the Declaration, as amended, in
recordable form, and executed by a majority of the Trustees, shall be conclusive
evidence of such amendment when lodged among the records of the Trust or at such
other time designated by the Board.
23
Notwithstanding any other provision hereof, until such time as a
Registration Statement under the Securities Act of 1933, as amended, covering
the first public offering of Shares of the Trust shall have become effective,
this Declaration may be terminated or amended in any respect by the affirmative
vote of a majority of the Trustees or by an instrument signed by a majority of
the Trustees.
12.4 Merger, Consolidation and Sale of Assets. Except as provided in
Section 12.6, the Trust may merge or consolidate with any other corporation,
association, trust or other organization or may sell, lease or exchange all or
substantially all of the Trust Property or the property, including its good
will, upon such terms and conditions and for such consideration when and as
authorized by two-thirds of the Trustees and approved by a Majority Shareholder
Vote and any such merger, consolidation, sale, lease or exchange shall be
determined for all purposes to have been accomplished under and pursuant to the
statutes of the State of Delaware.
12.5 Subsidiaries. Without approval by Shareholders, the Trustees may
cause to be organized or assist in organizing one or more corporations, trusts,
partnerships, associations or other organizations to take over all of the Trust
Property or to carry on any business in which the Trust shall directly or
indirectly have any interest, and to sell, convey and transfer all or a portion
of the Trust Property to any such corporation, trust, limited liability company,
association or organization in exchange for the shares or securities thereof, or
otherwise, and to lend money to, subscribe for the shares or securities of, and
enter into any contracts with any such corporation, trust, limited liability
company, partnership, association or organization, or any corporation,
partnership, trust, limited liability company, association or organization in
which the Trust holds or is about to acquire shares or any other interests.
12.6 Certain Transactions. (a) Notwithstanding any other provision of this
Declaration and subject to the exceptions provided in paragraph (d) of this
Section, the types of transactions described in paragraph (c) of this Section
shall require the affirmative vote or consent of a majority of the Trustees then
in office followed by the affirmative vote of the holders of not less than
seventy-five percent (75%) of the Shares of each affected class or series
outstanding, voting as separate classes or series, when a Principal Shareholder
(as defined in paragraph (b) of this Section) is a party to the transaction.
Such affirmative vote or consent shall be in addition to the vote or consent of
the holders of Shares otherwise required by law or by the terms of any class or
series of preferred stock, whether now or hereafter authorized, or any agreement
between the Trust and any national securities exchange.
(b) The term "Principal Shareholder" shall mean any corporation, Person or
other entity which is the beneficial owner, directly or indirectly, of five
percent (5%) or more of the outstanding Shares of any class or series and shall
include any affiliate or associate, as such terms are defined in clause (ii)
below, of a Principal Shareholder. For the purposes of this Section, in addition
to the Shares which a corporation, Person or other entity beneficially owns
directly, (a) any corporation, Person or other entity shall be deemed to be the
beneficial owner of any Shares (i) which it has the right to acquire pursuant to
any agreement or upon exercise of conversion rights or warrants, or otherwise
(but excluding share options granted by the Trust) or (ii) which are
beneficially owned, directly or indirectly (including Shares deemed owned
through application of clause (i) above), by any other corporation, Person or
entity with which its "affiliate" or "associate" (as defined below) has any
agreement,
24
arrangement or understanding for the purpose of acquiring, holding, voting or
disposing of Shares, or which is its "affiliate" or "associate" as those terms
are defined in Rule 12b-2 of the General Rules and Regulations under the
Securities Exchange Act of 1934, and (b) the outstanding Shares shall include
Shares deemed owned through application of clauses (i) and (ii) above but shall
not include any other Shares which may be issuable pursuant to any agreement, or
upon exercise of conversion rights or warrants, or otherwise.
(c) This Section shall apply to the following transactions: (i) The merger
or consolidation of the Trust or any subsidiary of the Trust with or into any
Principal Shareholder (ii) The issuance of any securities of the Trust to any
Principal Shareholder for cash (other than pursuant to any automatic dividend
reinvestment plan). (iii) The sale, lease or exchange of all or any substantial
part of the assets of the Trust to any Principal Shareholder (except assets
having an aggregate fair market value of less than $1,000,000, aggregating for
the purpose of such computation all assets sold, leased or exchanged in any
series of similar transactions within a twelve-month period.) (iv) The sale,
lease or exchange to the Trust or any subsidiary thereof, in exchange for
securities of the Trust, of any assets of any Principal Shareholder (except
assets having an aggregate fair market value of less than $1,000,000,
aggregating for the purposes of such computation all assets sold, leased or
exchanged in any series of similar transactions within a twelve-month period).
(d) The provisions of this Section shall not be applicable to (i) any of
the transactions described in paragraph (c) of this Section if 80% of the
Trustees shall by resolution have approved a memorandum of understanding with
such Principal Shareholder with respect to and substantially consistent with
such transaction, in which case approval by a Majority Shareholder Vote shall be
the only vote of Shareholders required by this Section, or (ii) any such
transaction with any entity of which a majority of the outstanding shares of all
classes and series of a stock normally entitled to vote in elections of
directors is owned of record or beneficially by the Trust and its subsidiaries.
(e) The Board of Trustees shall have the power and duty to determine for
the purposes of this Section on the basis of information known to the Trust
whether (i) a corporation, person or entity beneficially owns five percent (5%)
or more of the outstanding Shares of any class or series, (ii) a corporation,
person or entity is an "affiliate" or "associate" (as defined above) of another,
(iii) the assets being acquired or leased to or by the Trust or any subsidiary
thereof constitute a substantial part of the assets of the Trust and have an
aggregate fair market value of less than $1,000,000, and (iv) the memorandum of
understanding referred to in paragraph (d) hereof is substantially consistent
with the transaction covered thereby. Any such determination shall be conclusive
and binding for all purposes of this Section.
12.7 Restatements. Any officer of the Trust is authorized from time to
time to restate this Declaration into a single instrument to reflect all
amendments hereto made in accordance with the terms hereof. The Certificate of
Trust of the Trust may be restated and/or amended by any Trustee as necessary or
desirable to reflect any change in the information set forth therein, and any
such restatement and/or amendment shall be effective immediately upon filing
with the Office of the Secretary of the State of Delaware or upon such future
date as may be stated therein.
25
ARTICLE XIII
MISCELLANEOUS
13.1 Filing. (a) This Declaration and any amendment or supplement hereto
shall be filed in such places as may be required or as the Trustees deem
appropriate. Each amendment or supplement shall be accompanied by a certificate
signed and acknowledged by a Trustee stating that such action was duly taken in
a manner provided herein, and shall, upon insertion in the Trust's minute book,
be conclusive evidence of all amendments contained therein. A restated
Declaration, containing the original Declaration and all amendments and
supplements theretofore made, may be executed from time to time by a majority of
the Trustees and shall, upon insertion in the Trust's minute book, be conclusive
evidence of all amendments and supplements contained therein and may thereafter
be referred to in lieu of the original Declaration and the various amendments
and supplements thereto.
(b) The Trustees hereby authorize and direct a Certificate of Trust, in
the form attached hereto as Exhibit A, to be executed and filed with the Office
of the Secretary of State of the State of Delaware in accordance with the
Delaware Statutory Trust Act.
13.2 Resident Agent. The Trust shall maintain a resident agent in the
State of Delaware, which agent shall initially be The Corporation Trust Company,
▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇. The Trustees may designate a
successor resident agent, provided, however, that such appointment shall not
become effective until written notice thereof is delivered to the office of the
Secretary of the State.
13.3 Governing Law. This Declaration is executed by the Trustees and
delivered in the State of Delaware and with reference to the laws thereof, and
the rights of all parties and the validity and construction of every provision
hereof shall be subject to and construed according to laws of said State and
reference shall be specifically made to the Delaware General Corporation Law as
to the construction of matters not specifically covered herein or as to which an
ambiguity exists, although such law shall not be viewed as limiting the powers
otherwise granted to the Trustees hereunder and any ambiguity shall be viewed in
favor of such powers. All disputes arising under this Declaration shall be
brought in the Delaware Court of Chancery unless otherwise required by the 1940
Act.
13.4 Counterparts. This Declaration may be simultaneously executed in
several counterparts, each of which shall be deemed to be an original, and such
counterparts, together, shall constitute one and the same instrument, which
shall be sufficiently evidenced by any such original counterpart.
13.5 Reliance by Third Parties. Any certificate executed by an individual
who, according to the records of the Trust, or of any recording office in which
this Declaration may be recorded, appears to be a Trustee hereunder, certifying
to: (a) the number or identity of Trustees or Shareholders, (b) the name of the
Trust, (c) the due authorization of the execution of any instrument or writing,
(d) the form of any vote passed at a meeting of Trustees or Shareholders, (e)
the fact that the number of Trustees or Shareholders present at any meeting or
executing any written instrument satisfies the requirements of this Declaration,
(f) the form of any By Laws
26
adopted by or the identity of any officers elected by the Trustees, or (g) the
existence of any fact or facts which in any manner relate to the affairs of the
Trust, shall be conclusive evidence as to the matters so certified in favor of
any person dealing with the Trustees and their successors.
13.6 Provisions in Conflict with Law or Regulation. (a) The provisions of
this Declaration are severable, and if the Trustees shall determine, with the
advice of counsel, that any of such provisions is in conflict with the 1940 Act,
the regulated investment company provisions of the Internal Revenue Code or with
other applicable laws and regulations, the conflicting provision shall be deemed
never to have constituted a part of this Declaration; provided, however, that
such determination shall not affect any of the remaining provisions of this
Declaration or render invalid or improper any action taken or omitted prior to
such determination.
(b) If any provision of this Declaration shall be held invalid or
unenforceable in any jurisdiction, such invalidity or unenforceability shall
attach only to such provision in such jurisdiction and shall not in any manner
affect such provision in any other jurisdiction or any other provision of this
Declaration in any jurisdiction.
27
IN WITNESS WHEREOF, the undersigned, being the Trustees of Claymore
Exchange-Traded Fund Trust 2, have executed this Amended and Restated Agreement
and Declaration of Trust as of the 18th day of May, 2016.
/s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇▇▇
--------------------------
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇▇▇
Trustee
/s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇
-------------------
▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Trustee
/s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇, ▇▇.
------------------------
▇▇▇▇▇▇ ▇. ▇▇▇▇▇, ▇▇.
Trustee
/s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
------------------------
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
Trustee
/s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
---------------------
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Trustee
/s/ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ III
-----------------------
▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ III
Trustee
/s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇ III
----------------------
▇▇▇▇▇▇ ▇. ▇▇▇▇ III
Trustee
/s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
--------------------
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Trustee
/s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, ▇▇.
-------------------------
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, ▇▇.
Trustee
28
SCHEDULE A
SERIES
As of May 18, 2016
Guggenheim Canadian Energy Income ETF
Guggenheim China All-Cap ETF
Guggenheim China Real Estate ETF
Guggenheim China Small Cap ETF
Guggenheim China Technology ETF
Guggenheim Emerging Markets Real Estate ETF
Guggenheim Frontier Markets ETF
Guggenheim International Multi-Asset Income Index ETF
Guggenheim S&P Global Water Index ETF
Guggenheim S&P High Income Infrastructure ETF
Guggenheim Shipping Index ETF
Guggenheim Solar ETF
Guggenheim MSCI Global Timber ETF (name change effective as of May 20, 2016)
Guggenheim Total Return Bond ETF
Guggenheim U.S. Large Cap Optimized Volatility ETF
