VERACITY FUNDS
AGREEMENT AND DECLARATION OF TRUST
Dated: December 29, 2003
TABLE OF CONTENTS
PAGE
----
ARTICLE I NAME AND DEFINITIONS.......................................
Section 1.1 Name.......................................................
Section 1.2 Definitions................................................
ARTICLE II BENEFICIAL INTEREST........................................
Section 2.1 Shares of Beneficial Interest..............................
Section 2.2 Issuance of Shares.........................................
Section 2.3 Register of Shares and Share Certificates..................
Section 2.4 Transfer of Shares.........................................
Section 2.5 Treasury Shares............................................
Section 2.6 Establishment of Series and Classes........................
Section 2.7 Investment in the Trust....................................
Section 2.8 Assets and Liabilities Belonging to Series, etc............
Section 2.9 No Preemptive Rights.......................................
Section 2.10 Conversion Rights..........................................
Section 2.11 Legal Proceedings..........................................
Section 2.12 Status of Shares...........................................
ARTICLE III THE TRUSTEES...............................................
Section 3.1 Management of the Trust....................................
Section 3.2 Term of Office of Trustees.................................
Section 3.3 Vacancies and Appointment of Trustees......................
Section 3.4 Temporary Absence of Trustee...............................
Section 3.5 Number of Trustees.........................................
Section 3.6 Effect of Death, Resignation, Etc. of a Trustee............
Section 3.7 Ownership of Assets of the Trust...........................
Section 3.8 Series Trustees............................................
Section 3.9 No Accounting..............................................
ARTICLE IV POWERS OF THE TRUSTEES.....................................
Section 4.1 Powers.....................................................
Section 4.2 Issuance and Repurchase of Shares..........................
Section 4.3 Trustees and Officers as Shareholders......................
Section 4.4 Action by the Trustees and Committees......................
Section 4.5 Chairman of the Trustees...................................
Section 4.6 Principal Transactions.....................................
ARTICLE V INVESTMENT ADVISOR, INVESTMENT SUB-ADVISOR,
PRINCIPAL UNDERWRITER, ADMINISTRATOR,
TRANSFER AGENT, CUSTODIAN AND OTHER
CONTRACTORS................................................
Section 5.1 Certain Contracts..........................................
ARTICLE VI SHAREHOLDER VOTING POWERS AND MEETINGS.....................
Section 6.1 Voting.....................................................
Section 6.2 Meetings...................................................
Section 6.3 Quorum and Required Vote...................................
Section 6.4 Action by Written Consent..................................
-i-
ARTICLE VII DISTRIBUTIONS AND REDEMPTIONS..........................19
Section 7.1 Distributions..........................................19
Section 7.2 Redemption by Shareholder..............................20
Section 7.3 Redemption by Trust....................................20
Section 7.4 Net Asset Value........................................21
ARTICLE VIII LIMITATION OF LIABILITY AND INDEMNIFICATION............21
Section 8.1 Limitation of Liability................................21
Section 8.2 Indemnification........................................21
Section 8.3 Indemnification Determinations.........................22
Section 8.4 Indemnification Not Exclusive..........................22
Section 8.5 Shareholders...........................................22
ARTICLE IX MISCELLANEOUS..........................................23
Section 9.1 Trust Not a Partnership................................23
Section 9.2 Trustees' Good Faith Action, Expert Advice,
No Bond or Surety......................................23
Section 9.3 Establishment of Record Dates..........................24
Section 9.4 Dissolution and Termination of Trust or Series.........24
Section 9.5 Merger, Consolidation, Incorporation...................25
Section 9.6 Filing of Copies, References, Headings.................26
Section 9.7 Applicable Law.........................................26
Section 9.8 Amendments.............................................26
Section 9.9 Fiscal Year............................................27
Section 9.10 Provisions in Conflict with Law........................27
Section 9.11 Allocation of Certain Expenses.........................27
-ii-
VERACITY FUNDS
AGREEMENT AND DECLARATION OF TRUST
----------------------------------
AGREEMENT AND DECLARATION OF TRUST of Veracity Funds (the "Trust"), a
Delaware statutory business trust, made as of December 29, 2003, by the
undersigned Trustee.
WHEREAS, the undersigned Trustee desires to establish the Trust for the
investment and reinvestment of funds contributed thereto and to operate as an
open-end management investment company of the series type, all as described and
regulated under the Investment Company Act of 1940, as amended (the "1940 Act";
WHEREAS, the Trustee desires that the beneficial interest in the Trust's
assets be divided into transferable shares of beneficial interest, as
hereinafter provided;
WHEREAS, the Trustee declares that all money and property contributed to
the Trust established hereunder shall be held and managed in trust for the
benefit of the holders of the shares of beneficial interest issued hereunder and
subject to the provisions hereof;
NOW, THEREFORE, in consideration of the foregoing, the undersigned Trustee
hereby declares that all money and property contributed to the Trust hereunder
shall be held and managed in trust under this Declaration of Trust ("Trust
Instrument") as herein set forth below.
ARTICLE I
---------
NAME AND DEFINITIONS
--------------------
Section 1.1 NAME. The name of the Trust established hereby is "Veracity
Funds."
Section 1.2 DEFINITIONS. Wherever used herein, unless otherwise required by
the context or specifically provided:
(a) "Act" means the Delaware Business Trust Act, 12 DEL.
C.ss.ss.3801 ET SEQ., as from time to time amended;
(b) "By-laws" means the By-laws referred to in Section 4.1(e)
hereof, as from time to time amended;
(c) The terms "Affiliated Person," "Assignment," "Commission,"
"Interested Person" and "Principal Underwriter" shall have
the meanings given them in the 1940 Act. "Majority
Shareholder Vote" shall have the same meaning as the term
"vote of a majority of the outstanding voting securities" is
given in the 1940 Act;
(d) "Class" means any division of Shares within a Series, which
Class is or has been established in accordance with the
provisions of Article II.
(e) "Net Asset Value" means the net asset value of each Series
or Class of the Trust determined in the manner provided in
Section 7.4 hereof;
(f) "Outstanding Shares" means those Shares recorded from time
to time in the books of the Trust or its transfer agent as
then issued and outstanding, but shall not include Shares
which have been redeemed or repurchased by the Trust and
which are at the time held in the treasury of the Trust;
(g) "Series" means a series of Shares of the Trust established
in accordance with the provisions of Section 2.6 hereof;
(h) "Shareholder" means a record owner of Outstanding Shares of
the Trust;
(i) "Shares" means the equal proportionate transferable units of
beneficial interest into which the beneficial interest of
each Series of the Trust or Class thereof shall be divided
and may include fractions of Shares as well as whole Shares;
(j) "Trust" refers to Veracity Funds and reference to the Trust,
when applicable to one or more Series of the Trust, shall
refer to any such Series;
(k) "Trustee" or "Trustees" means the person or persons who has
or have signed this Trust Instrument, so long as such person
or persons shall continue in office in accordance with the
terms hereof, and all other persons who may from time to
time be duly qualified and serving as Trustees in accordance
with the provisions of Article III hereof, and reference
herein to a Trustee or to the Trustees shall refer to the
individual Trustees in their capacity as Trustees hereunder;
(l) "Trust Property" means any and all property, real or
personal, tangible or intangible, which is owned or held by
or for the account of one or more of the Trust or any
Series, or the Trustees on behalf of the Trust or any
Series.
(m) The "1940 Act" refers to the Investment Company Act of 1940
and the Rules and Regulations thereunder, all as may be
amended from time to time.
-2-
ARTICLE II
----------
BENEFICIAL INTEREST
-------------------
Section 2.1 SHARES OF BENEFICIAL INTEREST. The beneficial interest in the
Trust shall be divided into such transferable Shares of one or
more separate and distinct Series and Classes within a Series as
the Trustees shall from time to time create and establish. The
number of Shares of each Series and Class authorized hereunder is
unlimited. Each Share shall have no par value, unless otherwise
determined by the Trustees in connection with the creation and
establishment of a Series or Class. All Shares issued hereunder,
including without limitation, Class Shares issued in connection
with a dividend in Shares or a split or reverse split of Shares,
shall be fully paid and nonassessable.
Section 2.2 ISSUANCE OF SHARES. The Trustees in their discretion may, from
time to time, without vote of the Shareholders, issue Shares of
each Series and Class to such party or parties and for such
amount and type of consideration (or for no consideration if
pursuant to a Share dividend or split-up), subject to applicable
law, including cash or securities (including Shares of a
different Series or Class), at such time or times and on such
terms as the Trustees may deem appropriate, and may in such
manner acquire other assets (including the acquisitions of assets
subject to, and in connection with, the assumption of
liabilities) and businesses. In connection with any issuance of
Shares, the Trustees may issue fractional Shares and Shares held
in the treasury. The Trustees may from time to time divide or
combine the Shares into a greater or lesser number without
thereby changing the proportionate beneficial interests in the
Trust. 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 Classes that may be
established and designated from time to time.
Any Trustee, officer or other agent of the Trust, and any
organization in which any such person is interested, may acquire,
own, hold and dispose of Shares of any Series or Class of the
Trust to the same extent as if such person were not a Trustee,
officer or other agent of the Trust; and the Trust may issue and
sell or cause to be issued and sold and may purchase Shares of
any Series or Class from any such person or any such organization
subject only to the general limitations, restrictions or other
provisions applicable to the sale or purchase of Shares of such
Series or Class generally.
Section 2.3 REGISTER OF SHARES AND SHARE CERTIFICATES. A register shall be
kept at the principal office of the Trust or an office of the
Trust's transfer agent which shall contain the names and
addresses of the Shareholders of each Series and Class, the
number of Shares of that Series and Class thereof held by them
respectively and a record of all transfers thereof. As to Shares
for which no certificate has been issued, such register shall be
conclusive as to who are the holders of the Shares and who shall
be entitled to receive dividends or other distributions or
otherwise to exercise or enjoy the rights of Shareholders. No
Shareholder shall be entitled to receive payment of any dividend
or other distribution, nor to have notice given to him as herein
-3-
or in the By-laws provided, until he has given his address to the
transfer agent or such other officer or agent of the Trust as
shall keep the said register for entry thereon. The Trustees, in
their discretion, may authorize the issuance of share
certificates and promulgate appropriate rules and regulations as
to their use. In the event that one or more certificates are
issued, whether in the name of a Shareholder or a nominee, such
certificate or certificates shall constitute evidence of
ownership of Shares for all purposes, including transfer,
assignment or sale of such Shares, subject to such limitations as
the Trustees may, in their discretion, prescribe.
Section 2.4 TRANSFER OF SHARES. Except as otherwise provided by the Trustees,
Shares shall be transferable on the records of the Trust only by
the record holder thereof or by his agent thereunto duly
authorized in writing, upon delivery to the Trustees or the
Trust's transfer agent of a duly executed instrument of transfer,
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. Until such record is made, the
Shareholder of record shall be deemed to be the holder of such
Shares for all purposes hereunder and neither the Trustees nor
the Trust, nor any transfer agent or registrar nor any officer,
employee or agent of the Trust shall be affected by any notice of
the proposed transfer.
Section 2.5 TREASURY SHARES. Shares held in the treasury shall, until
reissued pursuant to Section 2.2 hereof, not confer any voting
rights on the Trustees, nor shall such Shares be entitled to any
dividends or other distributions declared with respect to the
Shares.
Section 2.6 ESTABLISHMENT OF SERIES AND CLASSES. The Trust shall consist of
one or more Series and Classes and separate and distinct records
shall be maintained by the Trust for each Series and Class. The
Trustees shall have full power and authority, in their sole
discretion, and without obtaining any prior authorization or vote
of the Shareholders of any Series or Class of the Trust, to
establish and designate and to change in any manner any initial
or additional Series or Classes and to fix such preferences,
voting powers, rights and privileges of such Series or Classes as
the Trustees may from time to time determine, to divide or
combine the Shares or any Series or Classes into a greater or
lesser number, to classify or reclassify any issued Shares or any
Series or Classes into one or more Series or Classes of Shares,
and to take such other action with respect to the Shares as the
Trustees may deem desirable. Unless another time is specified by
the Trustees, the establishment and designation of any Series or
Class shall be effective upon the adoption of a resolution by the
Trustees setting forth such establishment and designation and the
preferences, powers, rights and privileges of the Shares of such
Series or Class, whether directly in such resolution or by
reference to, or approval of, another document that sets forth
such relative rights and preferences of such Series (or Class)
including, without limitation, any registration statement of the
Trust, or as otherwise provided in such resolution. The Trust may
issue any number of Shares of each Series or Class and need not
issue certificates for any Shares.
-4-
All references to Shares in this Trust Instrument shall be deemed
to be Shares of any or all Series or Classes as the context may
require. All provisions herein relating to the Trust shall apply
equally to each Series and Class of the Trust except as the
context otherwise requires.
All Shares of each Class of a particular Series shall represent
an equal proportionate interest in the assets belonging to that
Series (subject to the liabilities belonging to the Series, and,
in the case of each Class, to the liabilities belonging to that
Class), and each Share of any Class of a particular Series shall
be equal to each other Share of that Class; but the provisions of
this sentence shall not restrict any distinctions permissible
under this Section 2.6.
Section 2.7 INVESTMENT IN THE TRUST. The Trustees shall accept investments in
any Series of the Trust or Class, if the Series has been divided
into Classes, from such persons and on such terms as they may
from time to time authorize. At the Trustees' discretion, such
investments, subject to applicable law, may be in the form of
cash or securities in which the affected Series is authorized to
invest, valued as provided in Section 7.4 hereof. Unless the
Trustees otherwise determine, investments in a Series shall be
credited to each Shareholder's account in the form of full Shares
at the Net Asset Value per Share next determined after the
investment is received. Without limiting the generality of the
foregoing, the Trustees may, in their sole discretion, (a) fix
the Net Asset Value per Share of the initial capital
contribution, (b) impose sales or other charges upon investments
in the Trust or (c) issue fractional Shares.
Section 2.8 ASSETS AND LIABILITIES BELONGING TO SERIES, ETC. All
consideration received by the Trust for the issue or sale of
Shares of a particular Series, together with all assets in which
such consideration is invested or reinvested, all income,
earnings, profits, and proceeds thereof, including any proceeds
derived from the sale, exchange or liquidation of such assets,
and any funds or payments derived from any reinvestment of such
proceeds in whatever form the same may be, shall be held and
accounted for separately from the other assets of the Trust and
of every other Series and may be referred to herein as "assets
belonging to" that Series. The assets belonging to a particular
Series shall belong to that Series for all purposes, and to no
other Series, subject only to the rights of creditors of that
Series. In addition, any assets, income, earnings, profits or
funds, or payments and proceeds with respect thereto, which are
not readily identifiable as belonging to any particular Series
shall be allocated by the Trustees between and among one or more
of the Series in such manner as the Trustees, in their sole
discretion, deem fair and equitable. If there are classes of
Shares within a Series, the assets belonging to the Series shall
be further allocated to each Class in the proportion that the
"assets belonging to" the Class (calculated in the same manner as
with determination of assets "belonging to" the Series) bears to
the assets of all Classes within the Series. Each such allocation
shall be conclusive and binding upon the Shareholders of all
Series and Classes for all purposes, and such assets, income,
earnings, profits or funds, or payments and proceeds with respect
thereto shall be assets belonging to that Series or Class, as the
case may be. The assets belonging to a particular Series and
Class shall be so recorded upon the
-5-
books of the Trust, and shall be held by the Trustees in trust
for the benefit of the holders of Shares of that Series or Class,
as the case may be.
The assets belonging to each Series shall be charged with the
liabilities of that Series and all expenses, costs, charges and
reserves attributable solely to that Series. Any general
liabilities, expenses, costs, charges or reserves of the Trust
which are not readily identifiable as belonging to any particular
Series shall be allocated and charged by the Trustees between or
among any one or more of the Series in such manner as the
Trustees in their sole discretion deem fair and equitable. Each
such allocation shall be conclusive and binding upon the
Shareholders of all Series for all purposes. The liabilities,
expenses, costs, charges and reserves allocated and so charged to
a Series are herein referred to as "liabilities belonging to"
that Series. Except as provided in the next sentence or otherwise
required or permitted by applicable law or any rule or order of
the Securities and Exchange Commission (the "Commission"), the
"liabilities belonging to" such Series shall be allocated to each
Class of a Series in the proportion that the assets belonging to
such Class bear to the assets belonging to all Classes in the
Series. To the extent permitted by rule or order of the
Commission, the Trustees may allocate all or a portion of any
liabilities belonging to a Series to a particular Class or
Classes (collectively, "Class Expenses") as the Trustees may from
time to time determine is appropriate. In addition, all
liabilities, expenses, costs, charges and reserves belonging to a
Class shall be allocated to such Class.
Without limitation of the foregoing provisions of this Section
2.8, but subject to the right of the Trustees in their discretion
to allocate general liabilities, expenses, costs, charges or
reserves as herein provided, the debts, liabilities, obligations
and expenses incurred, contracted for or otherwise existing with
respect to a particular Series shall be enforceable against the
assets belonging to such Series only, and not against the assets
of the Trust generally or any other Series. Notice of this
limitation on inter-Series liabilities 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 Act, and upon
the giving of such notice in the certificate of trust, the
statutory provisions of Section 3804 of the Act relating to
limitations on inter-Series liabilities (and the statutory effect
under Section 3804 of setting forth such notice in the
certificate of trust) shall become applicable to the Trust and
each Series. Any person extending credit to, contracting with or
having any claim against any Series may satisfy or enforce any
debt, liability, obligation or expense incurred, contracted for
or otherwise existing with respect to that Series from the assets
of that Series only. No Shareholder or former Shareholder of any
Series shall have a claim on or any right to any assets allocated
or belonging to any other Series.
Similarly, the debts, liabilities, obligations and expenses
incurred, contracted for or otherwise existing with respect to a
particular Class shall be enforceable against the assets
belonging to such Class only, and not against the assets of the
Series or the Trust generally or any other Class. Each contract
entered into by the Trust which is or may be an obligation of a
Class within a Series shall contain a provision to the
-6-
effect that the parties to the contract will look only to the
assets belonging to the Class for the satisfaction of any
liability, and not to any extent to the assets of any other Class
or Series or the Trust generally. If, notwithstanding the
preceding sentence, any liability properly charged to a Class is
paid from the assets of another Class, the Class from whose
assets the liability was paid shall be reimbursed from the assets
of the Class to which such liability belonged.
Section 2.9 NO PREEMPTIVE RIGHTS. Shareholders shall have no preemptive or
other similar rights to subscribe to any additional Shares or
other securities issued by the Trust or the Trustees, whether of
the same or another Series or Class.
Section 2.10 CONVERSION RIGHTS. The Trustees shall have the authority to
provide from time to time that the holders of Shares of any
Series or Class shall have the right to convert or exchange said
Shares for or into Shares of one or more other Series or Classes
in accordance with such requirements and procedures as may be
established from time to time by the Trustees.
Section 2.11 LEGAL PROCEEDINGS. Except for Trustees, only Shareholder of a
particular Series or Class shall be entitled to bring any
derivative action, suit or other proceeding on behalf of or with
respect to such Series or Class. No Shareholder of a Series or a
Class may maintain a derivative action with respect to such
Series or Class unless holders of a least ten percent (10%) of
the outstanding Shares of such Series or Class join in the
bringing of such action. Except as otherwise provided in Section
3816 of the Act and the foregoing provisions of this Section
2.11, all matters relating to the bringing of derivative actions
in the right of the Trust shall be governed by the General
Corporation Law of the State of Delaware relating to derivative
actions, and judicial interpretations thereunder, as if the Trust
were a Delaware corporation and the Shareholders were
shareholders of a Delaware corporation.
In addition to the requirements set forth in Section 3816 of the
Act, a Shareholder may bring a derivative action on behalf of the
Trust with respect to a Series or Class only if the following
conditions are met: (a) the Shareholder or Shareholders must make
a pre-suit demand upon the Trustees to bring the subject action
unless an effort to cause the Trustees to bring such an action is
not likely to succeed; and a demand on the Trustees shall only be
deemed not likely to succeed and therefore excused if a majority
of the Trustees, or a majority of any committee established to
consider the merits of such action, has a personal financial
interest in the transaction at issue, and a Trustee shall not be
deemed interested in a transaction or otherwise disqualified from
ruling on the merits of a Shareholder demand by virtue of the
fact that such Trustee receives remuneration for his service as a
Trustee of the Trust or as a trustee or director of one or more
investment companies that are under common management with or
otherwise affiliated with the Trust; and (b) unless a demand is
not required under clause (a) of this paragraph, the Trustees
must be afforded a reasonable amount of time to consider such
shareholder request and to investigate the basis of such claim;
and the Trustees shall be entitled to retain counsel or other
advisors in considering the merits of the request and shall
require an undertaking by the Shareholders making such request to
reimburse the Trustfor the
-7-
expense of any such advisors in the event that the Trustees
determine not to bring such action. For purposes of this Section
2.11, the Trustees may designate a committee of one Trustee to
consider a Shareholder demand if necessary to create a committee
with a majority of Trustees who do not have a personal financial
interest in the transaction at issue.
Section 2.12 STATUS OF SHARES. Shares shall be deemed to be personal property
giving only the rights provided in this instrument. Every
Shareholder by virtue of having become a Shareholder shall be
held to have expressly assented and agreed to the terms hereof.
The death of a Shareholder during the continuance of the Trust
shall not operate to terminate the Trust nor entitle the
representative of any deceased Shareholder to an accounting or to
take any action in court or elsewhere against the Trust or the
Trustees, but only to the rights of said decedent under this
Trust. Ownership of Shares shall not entitle the Shareholder to
any title in or to the whole or any part of the Trust property or
right to call for a partition or division of the same or for an
accounting, nor shall the ownership of Shares constitute the
Shareholders partners.
ARTICLE III
-----------
THE TRUSTEES
------------
Section 3.1 MANAGEMENT OF THE TRUST. The Trustees shall have exclusive and
absolute control over the Trust Property and over the business of
the Trust to the same extent as if the Trustees were the sole
owners of the Trust Property and business in their own right, but
with such powers of delegation as may be permitted by this Trust
Instrument. The Trustees shall have power to conduct the business
of the Trust and carry on its operations in any and all of its
branches and maintain offices both within and without the State
of Delaware, in any and all states of the United States of
America, in the District of Columbia, in any and all
commonwealths, territories, dependencies, colonies, or
possessions of the United States of America, and in any foreign
jurisdiction and to do all such other things and execute all such
instruments as they deem necessary, proper or desirable in order
to promote the interests of the Trust although such things are
not herein specifically mentioned. Any determination as to what
is in the interests of the Trust made by the Trustees in good
faith shall be conclusive. In construing the provisions of this
Trust Instrument, the presumption shall be in favor of a grant of
power to the Trustees.
The enumeration of any specific power in this Trust Instrument
shall not be construed as limiting the aforesaid power. The
powers of the Trustees may be exercised without order of or
resort to any court.
Except for the Trustees named herein or appointed pursuant to
Section 3.8, or Trustees appointed to fill vacancies pursuant to
Section 3.3 hereof, the Trustees shall be elected by the
Shareholders owning of record a plurality of the Shares voting at
a meeting of Shareholders. The initial Trustee of the Trust shall
be Xxxxxxx X. Xxxxx.
-8-
Section 3.2 TERM OF OFFICE OF TRUSTEES. Each Trustee shall hold office during
the existence of this Trust, and until its termination as herein
provided; except: (a) that any Trustee may resign his position by
written instrument signed by him and delivered to the Chairman,
President, Secretary, or other Trustee of the Trust, which shall
take effect upon such delivery or upon such later date as is
specified therein; (b) that any Trustee may be removed at any
time by written instrument, signed by a two-thirds (2/3rd)
majority of the Trustees prior to such removal, specifying the
date when such removal shall become effective; (c) that any
Trustee who requests in writing to be retired or who has died,
become physically or mentally incapacitated by reason of disease
or otherwise, or is otherwise unable to serve, may be retired by
written instrument signed by a two-thirds (2/3rd) majority of the
other Trustees, specifying the date of his retirement; and (d)
that a Trustee may be removed at any meeting of the Shareholders
of the Trust by a vote of Shareholders owning a two-thirds
(2/3rd) majority of the outstanding Shares of all Series, in the
aggregate.
Section 3.3 VACANCIES AND APPOINTMENT OF TRUSTEES. In case of the declination
to serve, death, resignation, retirement, removal, physical or
mental incapacity by reason of disease or otherwise of a Trustee,
or a Trustee is otherwise unable to serve, or an increase in the
number of Trustees, a vacancy shall occur. Whenever a vacancy in
the Board of Trustees shall occur, until such vacancy is filled,
the other Trustees shall have all the powers hereunder and the
certificate of the other Trustees of such vacancy shall be
conclusive. In the case of an existing vacancy, the remaining
Trustee or Trustees shall fill such vacancy by appointing such
other person as such Trustee or Trustees in their discretion
shall see fit consistent with the limitations under the 1940 Act,
unless such Trustee or Trustees determine, in accordance with
Section 3.5, to decrease the size of the Board to the number of
remaining Trustees.
An appointment of a Trustee may be made by the Trustees then in
office in anticipation of a vacancy to occur by reason of
retirement, resignation or increase in number of Trustees
effective at a later date, provided that said appointment shall
become effective only at or after the effective date of said
retirement, resignation or increase in number of Trustees.
An appointment of a Trustee shall be effective upon the
acceptance of the person so appointed to serve as trustee, except
that any such appointment in anticipation of a vacancy shall
become effective at or after the date such vacancy occurs.
Section 3.4 TEMPORARY ABSENCE OF TRUSTEE. Any Trustee may, by power of
attorney, delegate his power for a period not exceeding six
months at any one time to any other Trustee or Trustees, provided
that in no case shall less than two Trustees personally exercise
the other powers hereunder except as herein otherwise expressly
provided or unless there is only one or two Trustees.
Section 3.5 NUMBER OF TRUSTEES. The number of Trustees shall be one, or such
other number as shall be fixed from time to time by the Trustees
at their sole discretion.
-9-
Section 3.6 EFFECT OF DEATH, RESIGNATION, ETC. OF A TRUSTEE. The declination
to serve, death, resignation, retirement, removal, incapacity, or
inability of the Trustees, or any one of them, shall not operate
to terminate the Trust or to revoke any existing agency created
pursuant to the terms of this Trust Instrument.
Section 3.7 OWNERSHIP OF ASSETS OF THE TRUST. Legal title in and beneficial
ownership of all of the assets of the Trust shall at all times be
considered as vested in the Trust, except that the Trustees may
cause legal title in and beneficial ownership of any Trust
Property to be held by, or in the name of one or more of the
Trustees acting for and on behalf of the Trust, or in the name of
any person as nominee acting for and on behalf of the Trust. No
Shareholder shall be deemed to have a severable ownership
interest in any individual asset of the Trust or of any Series or
Class, or any right of partition or possession thereof, but each
Shareholder shall have, except as otherwise provided for herein,
a proportionate undivided beneficial interest in each Series or
Class the Shares of which are owned by such Shareholders. The
Shares shall be personal property giving only the rights
specifically set forth in this Trust Instrument. The Trust, or at
the determination of the Trustees, one or more of the Trustees or
a nominee acting for and on behalf of the Trust, shall be deemed
to hold legal title and beneficial ownership of any income earned
on securities of the Trust issued by any business entities
formed, organized, or existing under the laws of any
jurisdiction, including the laws of any foreign country.
Section 3.8 SERIES TRUSTEES. In connection with the establishment of one or
more Series or Classes, the Trustees establishing such Series or
Class may appoint, to the extent permitted by the 1940 Act,
separate Trustees with respect to such Series or Classes (the
"Series Trustees"). Series Trustees may, but are not required to,
serve as Trustees of the Trust of any other Series or Class of
the Trust. To the extent provided by the Trustees in the
appointment of Series Trustees, the Series Trustees may have, to
the exclusion of any other Trustee of the Trust, all the powers
and authorities of Trustees hereunder with respect to such Series
or Class, but may have no power or authority with respect to any
other Series or Class. Any provision of this Trust Instrument
relating to election of Trustees by Shareholders only shall
entitle the Shareholders of a Series or Class for which Series
Trustees have been appointed to vote with respect to the election
of such Series Trustees and the Shareholders of any other Series
or Class shall not be entitled to participate in such vote. In
the event that Series Trustees are appointed, the Trustees
initially appointing such Series Trustees shall, without the
approval of any Outstanding Shares, amend either this Trust
Instrument or the By-laws to provide for the respective
responsibilities of the Trustees and the Series Trustees in
circumstances where an action of the Trustees or Series Trustees
affects all Series of the Trust or two or more Series represented
by different Trustees.
Section 3.9 NO ACCOUNTING. Except to the extent required by the 1940 Act or,
if determined to be necessary or appropriate by the other
Trustees under circumstances which would justify his or her
removal for cause, no person ceasing to be a Trustee for reasons
including, but not limited to, death, resignation, retirement,
removal or incapacity
-10-
(nor the estate of any such person) shall be required to make an
accounting to the Shareholders or remaining Trustees upon such
cessation.
ARTICLE IV
----------
POWERS OF THE TRUSTEES
----------------------
Section 4.1 POWERS. The Trustees in all instances shall act as principals,
and are and shall be free from the control of the Shareholders.
The Trustees shall have full power and authority to do any and
all acts and to make and execute any and all contracts and
instruments that they may consider necessary or appropriate in
connection with the management of the Trust. The Trustees shall
have full authority and power to make any and all investments
which they, in their sole discretion, shall deem proper to
accomplish the purpose of the Trust. Subject to any applicable
limitation in this Trust Instrument, the Trustees shall have
power and authority:
(a) To invest and reinvest cash and other property, and to hold
cash or other property uninvested, and to sell, exchange,
lend, pledge, mortgage, hypothecate, write options on and
lease any or all of the assets of the Trust;
(b) To operate as and carry on the business of an investment
company, and exercise all the powers necessary and
appropriate to the conduct of such operators, including the
power to invest all or any part of its assets in the
securities of another investment company;
(c) To borrow money and in this connection issue notes or other
evidence of indebtedness; to secure borrowings by
mortgaging, pledging or otherwise subjecting as security the
Trust Property; to endorse, guarantee, or undertake the
performance of an obligation, liability or engagement of any
person and to lend Trust Property;
(d) To provide for the distribution of interests of the Trust
either through a Principal Underwriter in the manner
hereinafter provided for or by the Trust itself, or both, or
otherwise pursuant to a plan of distribution of any kind;
(e) To adopt By-laws not inconsistent with this Trust Instrument
providing for the conduct of the business of the Trust and
to amend and repeal them to the extent that they do not
reserve that right to the Shareholders, which By-laws shall
be deemed a part of this Trust Instrument and are
incorporated herein by reference;
(f) To elect and remove such officers and appoint and terminate
such agents and contractors as they consider appropriate,
any of whom may be a Trustee, and may provide for the
compensation of all of the foregoing;
-11-
(g) To employ one or more banks, trust companies or companies
that are members of a national securities exchange or such
other entities as custodians of any assets of the Trust,
subject to the 1940 Act and to any conditions set forth in
this Trust Instrument;
(h) To retain one or more transfer agents and shareholder
servicing agents, or both;
(i) To set record dates in the manner provided herein or in the
By-laws;
(j) To delegate such authority (which delegation may include the
power to sub delegate) as they consider desirable to any
officers of the Trust and to any investment adviser,
manager, administrator, custodian, underwriter or other
agent or independent contractor;
(k) To join with other holders of any securities or debt
instruments in acting through a committee, depository,
voting trustee or otherwise, and in that connection to
deposit any security or debt instrument with, or transfer
any security or debt instrument to, any such committee,
depository or trustee, and to delegate to them such power
and authority with relation to any security or debt
instrument (whether or not so deposited or transferred) as
the Trustees shall deem proper and to agree to pay, and to
pay, such portion of the expenses and compensation of such
committee, depository or trustee as the Trustees shall deem
proper;
(l) To enter into joint ventures, general or limited
partnerships and any other combinations or associations;
(m) To pay pensions for faithful service, as deemed appropriate
by the Trustees, and to adopt, establish and carry out
pension, profit-sharing, share bonus, share purchase,
savings, thrift and other retirement, incentive and benefit
plans, trusts and provisions, including the purchasing of
life insurance and annuity contracts as a means of providing
such retirement and other benefits, for any or all of the
Trustees, officers, employees and agents of the Trust;
(n) To the extent permitted by law, indemnify any person with
whom the Trust or any Series or Class has dealings;
(o) To engage in and to prosecute, defend, compromise, abandon,
or adjust by arbitration, or otherwise, any actions, suits,
proceedings, disputes, claims and demands relating to the
Trust, and out of the assets of the Trust or any Series or
Class thereof to pay or to satisfy any debts, claims or
expenses incurred in connection therewith, including those
of litigation, and such power shall include without
limitation the power of the Trustees or any appropriate
committee thereof, in the exercise of their or its good
faith business judgment, to dismiss any action, suit,
proceeding, dispute, claim or demand, derivative or
otherwise, brought by any person, including a Shareholder in
its
-12-
own name or the name of the Trust, whether or not the Trust
or any of the Trustees may be named individually therein or
the subject matter arises by reason of business for or on
behalf of the Trust;
(p) To purchase and pay for entirely out of Trust Property such
insurance as they may deem necessary or appropriate for the
conduct of the business of the Trust, including, without
limitation, insurance policies insuring the Trust Property
and payment of distributions and principal on its
investments, and insurance policies insuring the
Shareholders, Trustees, officers, representatives,
employees, agents, investment advisers, managers,
administrators, custodians, underwriters, or independent
contractors of the Trust individually against all claims and
liabilities of every nature arising by reason of holding,
being or having held any such office or position, or by
reason of any action alleged to have been taken or omitted
by any such person in such capacity, including any action
taken or omitted that may be determined to constitute
negligence, whether or not the Trust would have the power to
indemnify such person against such liability;
(q) To sell, exchange, lend, pledge, mortgage, hypothecate,
write options on and lease any or all of the assets of the
Trust, subject to the provisions of Section 9.4(b) hereof;
(r) To vote or give assent, or exercise any rights of ownership,
with respect to stock or other securities, debt instruments
or property; and to execute and deliver powers of attorney
to such person or persons as the Trustees shall deem proper,
granting to such person or persons such power and discretion
with relation to securities, debt instruments or property as
the Trustees shall deem proper;
(s) To exercise powers and rights of subscription or otherwise
which in any manner arise out of ownership of securities or
debt instruments;
(t) To hold any security or property in a form not indicating
any trust, whether in bearer, book entry, unregistered or
other negotiable form; or either in the name of the Trustees
or of the Trust or in the name of a custodian, sub custodian
or other depository or a nominee or nominees or otherwise;
(u) To establish separate and distinct Series with separately
defined investment objectives and policies and distinct
investment purposes in accordance with the provisions of
Article II hereof and to establish Classes thereof having
relative rights, powers and duties as they may provide
consistent with applicable law;
(v) To consent to or participate in any plan for the
reorganization, consolidation or merger of any corporation,
issuer or concern, any security or debt instrument of which
is held in the Trust; to consent to any contract, lease,
mortgage, purchase or sale of property by such corporation,
issuer or
-13-
concern, and to pay calls or subscriptions with respect to
any security or debt instrument held in the Trust;
(w) To compromise, arbitrate, or otherwise adjust claims in
favor of or against the Trust or any matter in controversy
including, but not limited to, claims for taxes;
(x) To make distributions of income and of capital gains to
Shareholders in the manner herein provided;
(y) To establish, from time to time, a minimum investment for
Shareholders in the Trust or in one or more Series or
Classes, and to require the redemption of the Shares of any
Shareholders whose investment is less than such minimum upon
giving notice to such Shareholder;
(z) To cause each Shareholder, or each Shareholder of any
particular Series of Class, to pay directly, in advance or
arrears, for charges of the Trust's custodian or transfer,
shareholder servicing or similar agent, an amount fixed from
time to time by the Trustees, by setting off such charges
due from such Shareholder from declared but unpaid dividends
owed such Shareholder and/or by reducing the number of
Shares in the account of such Shareholder by that number of
full and/or fractional Shares which represents the
outstanding amount of such charges due from such
Shareholder;
(aa) To establish one or more committees comprised of one or more
of the Trustees, and to delegate any of the powers of the
Trustees to said committees;
(bb) To interpret the investment policies, practices or
limitations of any Series or Class;
(cc) To establish a registered office and have a registered agent
in the State of Delaware;
(dd) To compensate or provide for the compensation of the
Trustees, officers, advisers, administrators, custodians,
other agents, consultants, contractors and employees of the
Trust or the Trustees on such terms as they deem
appropriate;
(ee) To invest part or all of the Trust Property (or part or all
of the assets of any Series), or to dispose of part or all
of the Trust Property (or part or all of the assets of any
Series) and invest the proceeds of such disposition, in
interests issued by one or more other investment companies
or pooled portfolios (including investment by means of
transfer of part or all of the Trust Property in exchange
for an interest or interests in such one or more investment
companies or pooled
-14-
portfolios) all without any requirement of approval by
Shareholders. Any such other investment company or pooled
portfolio may (but need not) be a trust (formed under the
laws of any state or jurisdiction) which is classified as a
partnership for federal income tax purposes; and
(ff) In general, to carry on any other business in connection
with or incidental to any of the foregoing powers, to do
everything necessary, suitable or proper for the
accomplishment of any purpose or the attainment of any
object or the furtherance of any power herein set forth,
either alone or in association with others, and to do every
other act or thing incidental or appurtenant to or growing
out of or connected with the aforesaid business or purposes,
objects or powers.
The foregoing clauses shall be construed both as objects and
powers, and the foregoing enumeration of specific powers shall
not be held to limit or restrict in any manner the general powers
of the Trustees. Any action by one or more of the Trustees in
their capacity as such hereunder shall be deemed an action on
behalf of the Trust or the applicable Series or Class, and not an
action in an individual capacity.
No one dealing with the Trustees shall be under any obligation to
make any inquiry concerning the authority of the Trustees, or to
see to the application of any payments made or property
transferred to the Trustees or upon their order.
Section 4.2 ISSUANCE AND REPURCHASE OF SHARES. The Trustees shall have the
power to issue, sell, repurchase, redeem, retire, cancel,
acquire, hold, resell, reissue, dispose of, exchange, and
otherwise deal in Shares and, subject to the provisions set forth
in Article II and Article VII, to apply to any such repurchase,
redemption, retirement, cancellation or acquisition of Shares any
funds or property of the Trust, or the particular Series or Class
of the Trust, with respect to which such Shares are issued.
Section 4.3 TRUSTEES AND OFFICERS AS SHAREHOLDERS. Any Trustee, officer or
other agent of the Trust may acquire, own and dispose of Shares
to the same extent as if such person were not a Trustee, officer
or agent; and the Trustees may issue and sell or cause to be
issued and sold Shares to and buy such Shares from any such
person or any firm or company in which such person invested,
subject to the general limitations herein contained as to the
sale and purchase of such Shares.
Section 4.4 ACTION BY THE TRUSTEES AND COMMITTEES. The Trustees (and any
committee thereof) may act at a meeting held in person or in
whole or in part by conference telecommunications equipment.
One-third, but not less than two, of the Trustees shall
constitute a quorum at any meeting unless there is only one
Trustee. Except as the Trustees may otherwise determine,
one-third of the members of any committee shall constitute a
quorum at any meeting. The vote of a majority of the Trustees (or
committee members) present at a meeting at which a quorum is
present shall be the act of the Trustees (or any committee
thereof). The Trustees (and any committee thereof) may also act
by written consent signed by a majority of the Trustees (or
committee members). Regular meetings of the Trustees may be held
at such places
-15-
and at such times as the Trustees may from time to time
determine. Special meetings of the Trustees (and meetings of any
committee thereof) may be called orally or in writing by the
Chairman of the Board of Trustees (or the chairman of any
committee thereof), the President of the Trust, or by any two
other Trustees. Notice of the time, date and place of all
meetings of the Trustees (or any committee thereof) shall be
given by the party calling the meeting to each Trustee (or
committee member) by telephone, telefax, e-mail or telegram sent
to the person's home or business address at least twenty-four
hours in advance of the meeting or by written notice mailed to
the person's home or business address at least seventy-two hours
in advance of the meeting. Notice of all proposed written
consents of Trustees (or committees thereof) shall be given to
each Trustee (or committee member) by telephone, telefax, e-mail,
telegram, or first class mail sent to the person's home or
business address. Notice need not be given to any person who
attends a meeting without objecting to the lack of notice or who
executes a written consent or a written waiver of notice with
respect to a meeting. Written consents or waivers may be executed
in one or more counterparts. Execution of a written consent or
waiver and delivery thereof may be accomplished by telefax or
other electronic means approved by the Trustees.
Section 4.5 CHAIRMAN OF THE TRUSTEES. The Trustees may appoint one of their
number to be Chairman of the Board of Trustees. The Chairman
shall preside at all meetings of the Trustees at which he is
present and may be (but is not required to be) the chief
executive officer of the Trust.
Section 4.6 PRINCIPAL TRANSACTIONS. Except to the extent prohibited by
applicable law, the Trustees may, on behalf of the Trust, buy any
securities from or sell any securities to, or lend any assets of
the Trust to, any Trustee or officer of the Trust or any firm of
which any such Trustee or officer is a member acting as
principal, or have any such dealings with any Affiliated Person
of the Trust, investment adviser, investment sub-adviser,
distributor or transfer agent for the Trust or with any
Interested Person of such Affiliated Person or other person; and
the Trust may employ any such Affiliated Person or other person,
or firm or company in which such Affiliated Person or other
person is an Interested Person, as broker, legal counsel,
registrar, investment advisor, investment sub-advisor,
distributor, transfer agent, dividend disbursing agent, custodian
or in any other capacity upon customary terms.
ARTICLE V
---------
INVESTMENT ADVISOR, INVESTMENT SUB-ADVISOR,
PRINCIPAL UNDERWRITER, ADMINISTRATOR, TRANSFER AGENT,
CUSTODIAN AND OTHER CONTRACTORS
-------------------------------
Section 5.1 CERTAIN CONTRACTS. Subject to compliance with the provisions of
the 1940 Act, but notwithstanding any limitations of present and
future law or custom in regard to delegation of powers by
trustees generally, the Trustees may, at any time and from time
to time and without limiting the generality of their powers and
authority otherwise set forth herein, enter into one or more
-16-
contracts with any one or more corporations, trusts,
associations, partnerships, limited partnerships, other type of
organizations, or individuals to provide for the performance and
assumption of some or all of the following services, duties and
responsibilities to, for or of the Trust and/or the Trustees, and
to provide for the performance and assumption of such other
services, duties and responsibilities in addition to those set
forth below as the Trustees may determine to be appropriate:
(a) INVESTMENT ADVISER AND INVESTMENT SUB-ADVISER. The Trustees
may in their discretion, from time to time, enter into an
investment advisory or management contract or contracts with
respect to the Trust or any Series whereby the other party
or parties to such contract or contracts shall undertake to
furnish the Trust with such management, investment advisory,
statistical and research facilities and services and such
other facilities and services, if any, and all upon such
terms and conditions, as the Trustees may in their
discretion determine. Notwithstanding any other provision of
this Trust Instrument, the Trustees may authorize any
investment adviser (subject to such general or specific
instructions as the Trustees may from time to time adopt) to
effect purchases, sales or exchanges of portfolio
securities, other investment instruments of the Trust, or
other Trust Property on behalf of the Trustees, or may
authorize any officer, agent, or Trustee to effect such
purchases, sales or exchanges pursuant to recommendations of
the investment adviser (and all without further action by
the Trustees). Any such purchases, sales and exchanges shall
be deemed to have been authorized by the Trustees.
The Trustees may authorize, subject to applicable
requirements of the 1940 Act, the investment adviser to
employ, from time to time, one or more sub-advisers to
perform such of the acts and services of the investment
adviser, and upon such terms and conditions, as may be
agreed upon between the investment adviser and sub-adviser.
Any reference in this Trust Instrument to the investment
adviser shall be deemed to include such sub-advisers, unless
the context otherwise requires.
(b) PRINCIPAL UNDERWRITER. The Trustees may in their discretion
from time to time enter into an exclusive or non-exclusive
underwriting contract or contracts providing for the sale of
Shares, whereby the Trust may either agree to sell Shares to
the other party to the contract or appoint such other party
its sales agent for such Shares. In either case, the
contract may also provide for the repurchase or sale of
Shares by such other party as principal or as agent of the
Trust.
(c) ADMINISTRATOR. The Trustees may in their discretion from
time to time enter into one or more contracts whereby the
other party or parties shall undertake to furnish the Trust
with administrative services. The contract or contracts
shall be on such terms and conditions as the Trustees may in
their discretion determine.
-17-
(d) TRANSFER AGENT. The Trustees may in their discretion from
time to time enter into one or more transfer agency and
Shareholder service contracts whereby the other party or
parties shall undertake to furnish the Trustees with
transfer agency and Shareholder services. The contract or
contracts shall be on such terms and conditions as the
Trustees may in their discretion determine.
(e) ADMINISTRATIVE SERVICE AND DISTRIBUTION PLANS. The Trustees
may, on such terms and conditions as they may in their
discretion determine, adopt one or more plans pursuant to
which compensation may be paid directly or indirectly by the
Trust for Shareholder servicing, administration and/or
distribution services with respect to one or more Series or
Classes including without limitation, plans subject to Rule
12b-1 under the 1940 Act, and the Trustees may enter into
agreements pursuant to such plans.
(f) FUND ACCOUNTING. The Trustees may in their discretion from
time to time enter into one or more contracts whereby the
other party or parties undertakes to handle all or any part
of the Trust's accounting responsibilities, whether with
respect to the Trust's properties, Shareholders or
otherwise.
(g) CUSTODIAN AND DEPOSITORY. The Trustees may in their
discretion from time to time enter into one or more
contracts whereby the other party or parties undertakes to
act as depository for and to maintain custody of the
property of the Trust or any Series or Class and accounting
records in connection therewith.
(h) PARTIES TO CONTRACT. Any contract described in this Article
V hereof may be entered into with any corporation, firm,
partnership, trust or association, although one or more of
the Trustees or officers of the Trust may be an officer,
director, trustee, shareholder, or member of such other
party to the contract, and no such contract shall be
invalidated or rendered void or voidable by reason of the
existence of any relationship, nor shall any person holding
such relationship be disqualified from voting on or
executing the same in his capacity as Shareholder and/or
Trustee, nor shall any person holding such relationship be
liable merely by reason of such relationship for any loss or
expense to the Trust under or by reason of said contract or
accountable for any profit realized directly or indirectly
therefrom, provided that the contract when entered into was
not inconsistent with the provisions of this Article V. The
same person (including a firm, corporation, partnership,
trust, or association) may be the other party to contracts
entered into pursuant to this Article V, and any individual
may be financially interested or otherwise affiliated with
persons who are parties to any or all of the contracts
mentioned in this Section 5.1.
-18-
ARTICLE VI
----------
SHAREHOLDER VOTING POWERS AND MEETINGS
--------------------------------------
Section 6.1 VOTING. The Shareholders shall have power to vote only: (a) for
the election of one or more Trustees in order to comply with the
provisions of the 1940 Act (including Section 16(a) thereof); (b)
with respect to any contract entered into pursuant to Article V
to the extent required by the 1940 Act; (c) with respect to
termination of the Trust or a Series or Class thereof to the
extent required by applicable law; (d) with respect to any plan
adopted pursuant to Rule 12b-1 (or any successor rule) under the
1940 Act, and related matters, to the extent required under the
1940 Act; and (e) with respect to such additional matters
relating to the Trust as may be required by this Trust
Instrument, the By-laws or any registration of the Trust or
Series as an investment company under the 1940 Act with the
Commission (or any successor agency) or as the Trustees may
consider necessary or desirable.
On each matter submitted to a vote of Shareholders, unless the
Trustees determine otherwise, all Shares of all Series and
Classes shall vote as a single class; provided, however, that:
(a) as to any matter with respect to which a separate vote of any
Series or Class is required by the 1940 Act or other applicable
law or is required by attributes applicable to any Series or
Class, such requirements as to a separate vote by that Series or
Class shall apply; (b) unless the Trustees determine that this
clause (b) shall not apply in a particular case, to the extent
that a matter referred to in clause (a) above affects more than
one Series or Class and the interests of each such Series or
Class in the matter are identical, then the Shares of all such
affected Series or Classes shall vote as a single class; and (c)
as to any matter which does not affect the interests of a
particular Series or Class, only the holders of Shares of the one
or more affected Series or Classes shall be entitled to vote.
Each whole Share shall be entitled to one vote as to any matter
on which it is entitled to vote, and each fractional Share shall
be entitled to a proportionate fractional vote. There shall be no
cumulative voting in the election of Trustees. Shares may be
voted in person or by proxy or in any manner provided for in the
By-laws. A proxy may be given in writing, by telefax, or in any
other manner provided for in the By-laws. Anything in this Trust
Instrument to the contrary notwithstanding, in the event a
proposal by anyone other than the officers or Trustees of the
Trust is submitted to a vote of the Shareholders of the Trust or
one or more Series or Classes thereof, or in the event of any
proxy contest or proxy solicitation or proposal in opposition to
any proposal by the officers or Trustees of the Trust, Shares may
be voted only in person or by written proxy. Until Shares are
issued, the Trustees may exercise all rights of Shareholders and
may take any action required or permitted by law, this Trust
Instrument or any of the By-laws of the Trust to be taken by
Shareholders.
Section 6.2 MEETINGS. Meetings of Shareholders (including meetings involving
only the holders of Shares of one or more but less than all
Series or Classes) may be called by the Trustees from time to
time to be held at such place within or without the State of
Delaware, and on such date as may be designated in the call
thereof for the purpose of taking action upon any matter as to
which the vote or authority of the
-19-
Shareholders is required or permitted as provided in Section 6.1.
Special meetings of the Shareholders of any Series may be called
by the Trustees and shall be called by the Trustees upon the
written request of Shareholders owning at least twenty-five
percent (25%) of the Outstanding Shares entitled to vote, except
to the extent that a lesser percentage is prescribed by the 1940
Act. Notice shall be sent, postage prepaid, by mail or such other
means determined by the Trustees, at least 7 days prior to any
such meeting.
Section 6.3 QUORUM AND REQUIRED VOTE. Unless a larger percentage is required
by law, by any provision of this Trust Instrument or by the
Trustees, one-third of the Shares entitled to vote in person or
by proxy on a particular matter shall be a quorum for the
transaction of business at a Shareholders' meeting with respect
to that matter. Any lesser number shall be sufficient for
adjournments. Any adjourned session or sessions may be held
without the necessity of further notice. Except when a larger
vote is required by law, by any provision of this Trust
Instrument or by the Trustees, a majority of the Shares voted in
person or by proxy on a particular matter at a meeting at which a
quorum is present shall decide any questions with respect to that
matter and a plurality shall elect a Trustee.
Section 6.4 ACTION BY WRITTEN CONSENT. Subject to the provisions of the 1940
Act and other applicable law, any action taken by Shareholders
may be taken without a meeting if a majority of the Shares
entitled to vote on the matter (or such larger proportion thereof
as shall be required by law, by any provision of this Trust
Instrument or by the Trustees) consent to the action in writing.
Such consent shall be treated for all purposes as a vote taken at
a meeting of Shareholders. The Trustees may adopt additional
rules and procedures regarding the taking of Shareholder action
by written consents.
ARTICLE VII
-----------
DISTRIBUTIONS AND REDEMPTIONS
-----------------------------
Section 7.1 DISTRIBUTIONS.
(a) The Trustees may from time to time declare and pay dividends
or other distributions with respect to any Series or Class.
The amount of such dividends or distributions and the
payment of them and whether they are in cash or any other
Trust Property shall be wholly in the discretion of the
Trustees.
(b) Dividends and other distributions may be paid or made to the
Shareholders of record at the time of declaring a dividend
or other distribution or among the Shareholders of record at
such other date or time or dates or times as the Trustees
shall determine, which dividends or distributions, at the
election of the Trustees, may be paid pursuant to a standing
resolution or resolutions adopted only once or with such
frequency as the Trustees may determine.
-20-
All dividends and other distributions on Shares of a
particular Class shall be distributed pro rata to the
Shareholders of that Series or Class in proportion to the
number of Shares of that Series or Class they held on the
record date established for such payment, except that in
connection with any dividend or distribution program or
procedure the Trustees may determine that no dividend or
distribution shall be payable on Shares as to which the
Shareholder's purchase order and/or payment in the
prescribed form has not been received by the time or times
established by the Trustees under such program or procedure.
The Trustees may adopt and offer to Shareholders such
dividend reinvestment plans, cash dividend payout plans or
related plans as the Trustees shall deem appropriate.
(c) Anything in this Trust Instrument to the contrary
notwithstanding, the Trustees may at any time declare and
distribute a stock dividend pro rata among the Shareholders
of a particular Series, or Class thereof, as of the record
date of that Series or Class fixed as provided in Section
(b) hereof. The Trustees shall have full discretion, to the
extent allowed under the 1940 Act, to determine which items
shall be treated as income and which items as capital; and
each such determination and allocation shall be conclusive
and binding upon the Shareholders.
Section 7.2 REDEMPTION BY SHAREHOLDER.
(a) Unless the Trustees otherwise determine with respect to a
particular Series or Class at the time of establishing and
designating the same, each holder of Shares of a particular
Series or Class thereof shall have the right at such times
as may be permitted by the Trust, but not less frequently
than once each week, to require the Trust to redeem (out of
the assets belonging to the applicable Series or Class) all
or any part of his Shares at a redemption price equal to the
Net Asset Value per Share of that Series or Class next
determined in accordance with Section 7.4 after the Shares
are properly tendered for redemption, less such redemption
fee or other charge, if any, as may be fixed by the
Trustees. Except as otherwise provided in this Trust
Instrument, payment of the redemption price shall be in
cash; provided, however, that to the extent permitted by
applicable law, the Trustees may authorize the Trust to make
payment wholly or partly in securities or other assets
belonging to the applicable Series at the value of such
securities or assets used in such determination of Net Asset
Value.
(b) Notwithstanding the foregoing, the Trust may postpone
payment of the redemption price and may suspend the right of
the holders of Shares of any Series or Class to require the
Trust to redeem Shares of that Series or Class during any
period or at any time when and to the extent permitted under
the 1940 Act.
-21-
(c) In the event that a Shareholder shall submit a request for
the redemption of a greater number of Shares than are then
allocated to such Shareholder, such request shall not be
honored.
Section 7.3 REDEMPTION BY TRUST. Unless the Trustees otherwise determine with
respect to a particular Series or Class at the time of
establishing and designating the same, each Share of each Series
or Class thereof that has been established and designated is
subject to redemption (out of the assets belonging to the
applicable Series or Class) by the Trust at the redemption price
which would be applicable if such Share was then being redeemed
by the Shareholder pursuant to Section 7.2 at any time if the
Trustees determine in their sole discretion that failure to so
redeem may have materially adverse consequences to the holders of
the Shares, or any Series or Class of the Trust, and upon such
redemption the holders of the Shares so redeemed shall have no
further right with respect thereto other than to receive payment
of such redemption price. In addition, the Trustees, in their
sole discretion, may cause the Trust to redeem (out of the assets
belonging to the applicable Series or Class) all of the Shares of
one or more Series or Classes held by (a) any Shareholder if the
value of such Shares held by such Shareholder is less than the
minimum amount established from time to time by the Trustees, (b)
all Shareholders of one or more Series or Classes if the value of
such Shares held by all Shareholders is less than the minimum
amount established from time to time by the Trustees or (c) any
Shareholder to reimburse the Trust for any loss or expense it has
sustained or incurred by reason of the failure of such
Shareholder to make full payment for Shares purchased by such
Shareholder, or by reason of any defective redemption request, or
by reason of indebtedness incurred because of such Shareholder as
described in Section 9.11 or to collect any charge relating to a
transaction effected for the benefit of such Shareholder or as
provided in the prospectus relating to such Shares.
Section 7.4 NET ASSET VALUE. The Net Asset Value per Share of any Series or
Class thereof shall be the quotient obtained by dividing the
value of the net assets of that Series or Class (being the value
of the assets belonging to that Series or Class less the
liabilities belonging to that Series or Class) by the total
number of Shares of that Series or Class outstanding, all
determined in accordance with the methods and procedures,
including without limitation those with respect to rounding,
established by the Trustees from time to time.
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 as set forth under the
1940 Act for the continuing declarations of income attributable
to that Series or Class thereof as dividends payable in
additional Shares of that Series or Class thereof at the
designated constant dollar amount and for the handling of any
losses attributable to that Series or Class thereof. Such
procedures may, among other things, provide that in the event of
any loss, each Shareholder of a Series or Class thereof shall be
deemed to have contributed to the capital of the Trust
attributable to that Series or Class thereof his pro rata portion
of the total number of Shares required to be cancelled in order
to permit the Net Asset Value
-22-
per Share of that Series or Class thereof 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 the Trust, to make the contribution referred to
in the preceding sentence in the event of any such loss.
ARTICLE VIII
------------
LIMITATION OF LIABILITY AND INDEMNIFICATION
-------------------------------------------
Section 8.1 LIMITATION OF LIABILITY. Neither a Trustee nor an officer of the
Trust, when acting in such capacity, shall be personally liable
to any person other than the Trust or a beneficial owner for any
act, omission or obligation of the Trust, any Trustee or any
officer of the Trust. Neither a Trustee nor an officer of the
Trust shall be liable for any act or omission in his capacity as
Trustee or as an officer of the Trust, or for any act or omission
of any other officer or any employee of the Trust or of any other
person or party, provided that nothing contained herein or in the
Act shall protect any Trustee or officer against any liability to
the Trust or to Shareholders to which he would otherwise be
subject by reason of willful misfeasance, bad faith, gross
negligence or reckless disregard of the duties involved in the
conduct of the office of Trustee or the duties of such officer
hereunder.
Section 8.2 INDEMNIFICATION. The Trust shall indemnify each of its Trustees
and officers and persons who serve at the Trust's request as
directors, officers or trustees of another organization in which
the Trust has any interest as a shareholder, creditor, or
otherwise, and may indemnify any trustee, director or officer of
a predecessor organization (each a "Covered Person"), against all
liabilities and expenses (including amounts paid in satisfaction
of judgments, in compromise, as fines and penalties, and expenses
including reasonable accountants' and counsel fees) reasonably
incurred in connection with the defense or disposition of any
action, suit or other proceeding, whether civil or criminal,
before any court or administrative or legislative body, in which
he may be involved or with which he may be threatened, while as a
Covered Person or thereafter, by reason of being or having been
such a Covered Person, except that no Covered Person shall be
indemnified against any liability to the Trust or its
Shareholders to which such Covered Person would otherwise be
subject by reason of bad faith, willful misfeasance, gross
negligence or reckless disregard of his duties involved in the
conduct of such Covered Person's office (such willful
misfeasance, bad faith, gross negligence or reckless disregard
being referred to herein as "Disabling Conduct"). Expenses,
including accountants' and counsel fees so incurred by any such
Covered Person (but excluding amounts paid in satisfaction of
judgments, in compromise or as fines or penalties), may be paid
from time to time by the Trust in advance of the final
disposition of any such action, suit or proceeding upon receipt
of (a) an undertaking by or on behalf of such Covered Person to
repay amounts so paid to the Trust if it is ultimately determined
that indemnification of such expenses is not authorized under
this Article VIII and either (b) such Covered Person provides
security for such undertaking, (c) the Trust is insured against
losses arising by reason of such payment, or (d) a majority of a
quorum of disinterested,
-23-
non-party Trustees, or independent legal counsel in a written
opinion, determines, based on a review of readily available
facts, that there is reason to believe that such Covered Person
ultimately will be found entitled to indemnification.
Section 8.3 INDEMNIFICATION DETERMINATIONS. Indemnification of a Covered
Person pursuant to Section 8.2 shall be made if (a) the court or
body before whom the proceeding is brought determines, in a final
decision on the merits, that such Covered Person was not liable
by reason of Disabling Conduct or (b) in the absence of such a
determination, a majority of a quorum of disinterested, non-party
Trustees or independent legal counsel in a written opinion make a
reasonable determination, based upon a review of the facts, that
such Covered Person was not liable by reason of Disabling
Conduct.
Section 8.4 INDEMNIFICATION NOT EXCLUSIVE. The right of indemnification
provided by this Article VIII shall not be exclusive of or affect
any other rights to which any such Covered Person may be
entitled. As used in this Article VIII, "Covered Person" shall
include such person's heirs, executors and administrators, and a
"disinterested, non-party Trustee" is a Trustee who is neither an
Interested Person of the Trust nor a party to the proceeding in
question.
Section 8.5 SHAREHOLDERS. Each Shareholder of the Trust and of each Series or
Class shall not be personally liable for the debts, liabilities,
obligations and expenses incurred by, contracted for, or
otherwise existing with respect to, the Trust or by or on behalf
of any Series or Class. The Trustees shall have no power to bind
any Shareholder personally or to call upon any Shareholder for
the payment of any sum of money or assessment whatsoever other
than such as the Shareholder may at any time personally agree to
pay pursuant to terms hereof or by way of subscription for any
Shares or otherwise.
In case any Shareholder or former Shareholder of any Series or
Class shall be held to be personally liable solely by reason of
his being or having been a Shareholder of such Series or Class
and not because of his acts or omissions or for some other
reason, the Shareholder or former Shareholder (or his heirs,
executors, administrators or other legal representatives, or, in
the case of a corporation or other entity, its corporate or other
general successor) shall be entitled out of the assets belonging
to the applicable Series or Class to be held harmless from and
indemnified against all loss and expense arising from such
liability. The Trust, on behalf of the affected Series, shall,
upon request by the Shareholder, assume the defense of any claim
made against the Shareholder for any act or obligation of the
Series or Class and satisfy any judgment thereon from the assets
of the Series or Class. The indemnification and reimbursement
required by the preceding sentence shall be made only out of
assets of the one or more Series or Classes whose Shares were
held by said Shareholder at the time the act or event occurred
which gave rise to the claim against or liability of said
Shareholder. The rights accruing to a Shareholder under this
Section shall not impair any other right to which such
Shareholder may be lawfully entitled, nor shall anything herein
contained restrict the rightof the Trust or
-24-
any Series or Class thereof to indemnify or reimburse a
Shareholder in any appropriate situation even though not
specifically provided herein.
ARTICLE IX
----------
MISCELLANEOUS
-------------
Section 9.1 TRUST NOT A PARTNERSHIP. It is hereby expressly declared that a
trust and not a partnership is created hereby. All persons
extending credit to, contracting with or having any claim against
any Series of the Trust or any Class within any Series shall look
only to the assets of such Series or Class for payment under such
credit, contract or claim; and neither the Shareholders nor the
Trustees, nor any of the Trust's officers, employees or agents,
whether past, present or future, shall be personally liable
therefor. Every note, bond, contract or other undertaking issued
by or on behalf of the Trust or the Trustees relating to the
Trust or to a Series or Class shall include a recitation limiting
the obligations represented thereby to the Trust or to one or
more Series or Classes and its or their assets (but the omission
of such a recitation shall not operate to bind any Shareholder,
Trustee, officer, employee or agent of the Trust).
Section 9.2 TRUSTEES' GOOD FAITH ACTION, EXPERT ADVICE, NO BOND OR SURETY.
The exercise by the Trustees of their powers and discretions
hereunder shall be binding upon everyone interested. Subject to
the provisions of Article VIII: (i) the Trustees shall not be
responsible or liable in any event for any neglect or wrongdoing
of any officer, agent, employee, consultant, adviser,
administrator, distributor or principal underwriter, custodian or
transfer, dividend disbursing, Shareholder servicing or
accounting agent of the Trust, nor shall any Trustee be
responsible for the act or omission of any other Trustee; (ii)
the Trustees may take advice of counsel or other experts with
respect to the meaning and operation of this Trust Instrument and
their duties as Trustees, and shall be under no liability for any
act or omission in accordance with such advice or for failing to
follow such advice; and (iii) in discharging their duties, the
Trustees, when acting in good faith, shall be entitled to rely
upon the books of account of the Trust and upon written reports
made to the Trustees by any officer appointed by them, any
independent public accountant, and (with respect to the subject
matter of the contract involved) any officer, partner or
responsible employee of a contracting party appointed by the
Trustees. The Trustees as such shall not be required to give any
bond or surety or any other security for the performance of their
duties.
Section 9.3 ESTABLISHMENT OF RECORD DATES. The Trustees may close the Share
transfer books of the Trust for a period not exceeding one
hundred twenty (120) days preceding the date of any meeting of
Shareholders, or the date for the payment of any dividends or
other distributions, or the date for the allotment of rights, or
the date when any change or conversion or exchange of Shares
shall go into effect; or in lieu of closing the stock transfer
books as aforesaid, the Trustees may fix in advance a date, not
exceeding one hundred twenty (120) days preceding the date of any
meeting of
-25-
Shareholders, or the date for payment of any dividend or other
distribution, or the date for the allotment of rights, or the
date when any change or conversion or exchange of Shares shall go
into effect, as a record date for the determination of the
Shareholders entitled to notice of, and to vote at, any such
meeting, or entitled to receive payment of any such dividend or
other distribution, or to any such allotment of rights, or to
exercise the rights in respect of any such change, conversion or
exchange of Shares, and in such case such Shareholders and only
such Shareholders as shall be Shareholders of record on the date
so fixed shall be entitled to such notice of, and to vote at,
such meeting, or to receive payment of such dividend or other
distribution, or to receive such allotment or rights, or to
exercise such rights, as the case may be, notwithstanding any
transfer of any Shares on the books of the Trust after any such
record date fixed as aforesaid.
Section 9.4 DISSOLUTION AND TERMINATION OF TRUST OR SERIES.
(a) This Trust shall continue without limitation of time but
subject to the provisions of sub-sections (b) and (c) of
this Section 9.4.
(b) Notwithstanding anything in Section 9.5 to the contrary, the
Trustees may without Shareholder approval (unless such
approval is required by the 0000 Xxx) in dissolution of the
Trust or an applicable Series or Class,
(i) sell and convey all or substantially all of the assets
of the Trust or any Series or Class to another trust,
partnership, limited liability company, association or
corporation, or to a separate Series or Class of shares
thereof, organized under the laws of any state or
jurisdiction, for adequate consideration which may
include the assumption of all outstanding obligations,
taxes and other liabilities, accrued or contingent, of
the Trust or any Series or Class, and which may include
shares of beneficial interest, stock or other ownership
interests of such trust, partnership, limited liability
company, association or corporation or of a series
thereof; or
(ii) at any time sell and convert into money all of the
assets of the Trust or any Series or Class.
Following a sale or conversion in accordance with the
foregoing sub-section 9.4(b)(i) or (ii), and upon making
reasonable provision, in the determination of the Trustees,
for the payment of all liabilities of the Trust or the
affected Series or Class as required by applicable law, by
such assumption or otherwise, the Shareholders of each Class
of a Series involved in such sale or conversion shall be
entitled to receive, as a Class, when and as declared by the
Trustees, the excess of the assets belonging to that Series
that are allocated to such Class over the liabilities
belonging to that Series that are allocated to such Class.
The assets so distributable to the Shareholders of any
particular Class of a Series shall be distributed among such
Shareholders in proportion to the number of Shares of that
Class held by them and
-26-
recorded on the books of the Trust. In the event a Series is
not divided into Classes, the foregoing provisions shall be
applied on a Series by Series basis.
(c) Upon completion of the distribution of the remaining
proceeds or the remaining assets as provided in sub-section
(b), the Trust (in the case of a sale or conversion with
respect to the Trust as a whole or the last remaining
Series) or any affected Series or Class shall terminate and
the Trustees and the Trust or any affected Series or Class
shall be discharged of any and all further liabilities and
duties hereunder and the right, title and interest of all
parties with respect to the Trust or such affected Series or
Class shall be cancelled and discharged.
Upon termination of the Trust, following completion of winding up
of its business, the Trustees shall cause a certificate of
cancellation of the Trust's certificate of trust to be filed in
accordance with the Act, which certificate of cancellation may be
signed by any one Trustee.
Section 9.5 MERGER, CONSOLIDATION, INCORPORATION. Anything in this Trust
Instrument to the contrary notwithstanding, the Trustees, in
order to change the form of organization and/or domicile of the
Trust, may, without prior Shareholder approval, (i) cause the
Trust to merge or consolidate with or into one or more trusts,
partnerships, limited liability companies, associations or
corporations which is or are formed, organized or existing under
the laws of a state, commonwealth possession or colony of the
United States, or (ii) cause the Trust to incorporate under the
laws of Delaware. Any agreement of merger or consolidation or
certificate of merger may be signed by a majority of the
Trustees. Pursuant to and in accordance with the provisions of
Section 3815(f) of the Act, and notwithstanding anything to the
contrary contained in this Trust Instrument, an agreement of any
merger or consolidation approved in accordance with this Section
9.5 may effect any amendment to the Trust Instrument or effect
the adoption of a new trust instrument of the Trust if it is the
surviving or resulting trust in the merger or consolidation. Any
merger or consolidation of the Trust other than as described in
the foregoing provisions of this Section 9.5 shall, in addition
to the approval of the Trustees, require a Majority Shareholder
Vote. Nothing in this Section 9.5 shall require, however,
Shareholder approval of any transaction whereby the Trust or any
Series thereof acquires or assumes all or any part of the assets
and liabilities of any other entity.
Section 9.6 FILING OF COPIES, REFERENCES, HEADINGS. The original or a copy of
this Trust Instrument and of each amendment hereof or Trust
Instrument supplemental hereto shall be kept at the office of the
Trust where it may be inspected by any Shareholder. Anyone
dealing with the Trust may rely on a certificate by an officer or
Trustee of the Trust as to whether or not any such amendments or
supplements have been made and as to any matters in connection
with the Trust hereunder, and with the same effect as if it were
the original, may rely on a copy certified by an officer or
Trustee of the Trust to be a copy of this Trust Instrument or of
any such amendment or supplemental Trust Instrument. In this
Trust Instrument or in any such amendment or supplemental Trust
Instrument, references to this Trust
-27-
Instrument, and all expressions like "herein," "hereof" and
"hereunder," shall be deemed to refer to this Trust Instrument as
amended or affected by any such supplemental Trust Instrument.
All expressions like "his", "he" and "him", shall be deemed to
include the feminine and neutral, as well as masculine, genders.
Headings are placed herein for convenience of reference only and
in case of any conflict, the text of this Trust Instrument rather
than the headings, shall control. This Trust Instrument may be
executed in any number of counterparts each of which shall be
deemed an original.
Section 9.7 APPLICABLE LAW. The trust set forth in this instrument is made in
the State of Delaware, and the Trust and this Trust Instrument,
and the rights and obligations of the Trustees and Shareholders
hereunder, are to be governed by and construed and administered
according to the Act and the laws of said State; provided,
however, that there shall not be applicable to the Trust, the
Trustees or this Trust Instrument (a) the provisions of Section
3540 of Title 12 of the Delaware Code or (b) any provisions of
the laws (statutory or common) of the State of Delaware (other
than the Act) pertaining to trusts which relate to or regulate:
(i) the filing with any court or governmental body or agency of
trustee accounts or schedules of trustee fees and charges, (ii)
affirmative requirements to post bonds for trustees, officers,
agents or employees of a trust, (iii) the necessity for obtaining
court or other governmental approval concerning the acquisition,
holding or disposition of real or personal property, (iv) fees or
other sums payable to trustees, officers, agents or employees of
a trust, (v) the allocation of receipts and expenditures to
income or principal, (vi) restrictions or limitations on the
permissible nature, amount or concentration of trust investments
or requirements relating to the titling, storage or other manner
of holding of trust assets, or (vii) the establishment of
fiduciary or other standards or responsibilities or limitations
on the acts or powers of trustees, which are inconsistent with
the limitations or liabilities or authorities and powers of the
Trustees set forth or referenced in this Trust Instrument. The
Trust shall be of the type commonly called a "business trust",
and without limiting the provisions hereof, the Trust may
exercise all powers which are ordinarily exercised by such a
trust under Delaware law. The Trust specifically reserves the
right to exercise any of the powers or privileges afforded to
trusts or actions that may be engaged in by trusts under the Act,
and the absence of a specific reference herein to any such power,
privilege or action shall not imply that the Trust may not
exercise such power or privilege or take such actions.
Section 9.8 AMENDMENTS. Except as specifically provided herein, the Trustees
may, without Shareholder vote, amend or otherwise supplement this
Trust Instrument by making an amendment, a Trust Instrument
supplemental hereto or an amended and restated trust instrument.
Shareholders shall have the right to vote: (i) on any amendment
which would affect their right to vote granted in Section 6.1,
(ii) on any amendment to this Section 9.8, (iii) on any amendment
for which such vote is required by law and (iv) on any amendment
submitted to them by the Trustees. Any amendment required or
permitted to be submitted to Shareholders which, as the Trustees
determine, shall affect the Shareholders of one or more Series or
Classes shall be authorized by vote of the Shareholders of each
Series or Class affected and no vote
-28-
of shareholders of a Series or Class not affected shall be
required. Anything in this Trust Instrument to the contrary
notwithstanding, any amendment to Article VIII hereof shall not
limit the rights to indemnification or insurance provided therein
with respect to action or omission of any persons protected
thereby prior to such amendment.
Section 9.9 FISCAL YEAR. The fiscal year of the Trust shall end on a
specified date as determined from time to time by the Trustees.
Section 9.10 PROVISIONS IN CONFLICT WITH LAW. The provisions of this Trust
Instrument are severable, and if the Trustees shall determine,
with the advice of counsel, that any of such provisions 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 Trust Instrument;
provided, however, that such determination shall not affect any
of the remaining provisions of this Trust Instrument or render
invalid or improper any action taken or omitted prior to such
determination. If any provision of this Trust Instrument shall be
held invalid or unenforceable in any jurisdiction, such
invalidity or unenforceability shall attach only to such
provision in such jurisdiction and shall not in any manner affect
such provisions in any other jurisdiction or any other provision
of this Trust Instrument in any jurisdiction.
Section 9.11 ALLOCATION OF CERTAIN EXPENSES. Each Shareholder will, at the
discretion of the Trustees, indemnify the Trust against all
expenses and losses resulting from indebtedness incurred in
connection with facilitating (i) requests pending receipt of the
collected funds from investments sold on the date of such
Shareholder's redemption request; (ii) redemption requests from
such Shareholder who has also notified the Trust of its intention
to deposit funds in its accounts on the date of said redemption
request; or (iii) the purchase of investments pending receipt of
collected funds from such Shareholder who has notified the Trust
of its intention to deposit funds in its accounts on the date of
the purchase of the investments.
IN WITNESS WHEREOF, the undersigned, being the initial Trustee of the
Trust, has executed this Agreement and Declaration of Trust as of the 29th day
of December, 2003.
By: /s/ Xxxxxxx X. Xxxxx
--------------------------
Xxxxxxx X. Xxxxx, Trustee
-29-
