SUB-ITEM 77Q1(a)
AMENDED AND RESTATED
AGREEMENT AND DECLARATION OF TRUST
OF
TAX-FREE INVESTMENTS TRUST
WHEREAS, THIS AGREEMENT AND DECLARATION OF TRUST of Tax-Free
Investments Trust, dated July 29, 2003, is hereby amended and restated
effective as of September 14, 2005, among Xxx X. Xxxxx, Xxxxx X. Xxxxxx, Xxxxx
X. Xxxxx, Xxxxx X. Xxxxxxxx, Xxxxxx X. Xxxxxx, Xxxxxx X. Xxxx, Xx., Xxxx X.
Xxxxxx, Xxxx Xxxxxxxxxx, Xxxxxx X. Xxxxxx, Xxxxxx X. Xxxxx, Xxxxx Xxxxxx-Xxxxx,
Xxxxx X. Xxxxxxx, Xxxx X. Xxxxxxx, Xxxxx Xxxx and Xxxx X. Xxxxxxxxxx, as the
Trustees, and each person who becomes a Shareholder in accordance with the
terms hereinafter set forth.
NOW, THEREFORE, the Trustees do hereby declare that all money and
property contributed to the trust hereunder shall be held and managed in trust
under this Agreement for the benefit of the Shareholders as herein set forth
below.
ARTICLE I
NAME, DEFINITIONS, PURPOSE AND CERTIFICATE OF TRUST
Section 1.1 Name. The name of the statutory trust continued hereby is
Tax-Free Investments Trust, and the Trustees may transact the Trust's affairs
in that name. The Trust shall constitute a Delaware statutory trust in
accordance with the Delaware Act.
Section 1.2 Definitions. Whenever used herein, unless otherwise
required by the context or specifically provided:
(a) "Affiliated Person," "Company," "Person," and "Principal
Underwriter" shall have the meanings given them in the 1940
Act, as modified by or interpreted by any applicable order or
orders of the Commission or any rules or regulations adopted
or interpretive releases of the Commission thereunder. The
term "Commission" shall have the meaning given it in the 1940
Act;
(b) "Agreement" means this Amended and Restated Agreement and
Declaration of Trust, as it may be amended or amended and
restated from time to time;
(c) "allocable" has the meaning specified in Section 2.5(d);
(d) "allocated" has the meaning specified in Section 2.5(d);
(e) "Bylaws" means the Bylaws referred to in Section 4.1(e), as
from time to time amended;
(f) "Class" means a portion of Shares of a Portfolio of the Trust
established in accordance with the provisions of Section
2.3(b);
(g) "Class Expenses" means expenses incurred by a particular
Class in connection with a shareholder services arrangement
or a distribution plan that is specific to such Class or any
other differing share of expenses or differing fees, in each
case pursuant to a plan adopted by the Trust pursuant to Rule
18f-3 under the 1940 Act, as such plan or Rule may be amended
from time to time;
(h) "Covered Person" means a person who is or was a Trustee,
officer, employee or agent of the Trust, or is or was serving
at the request of the Trustees as a director, trustee,
partner, officer, employee or agent of a corporation, trust,
partnership, joint venture or other enterprise;
(i) The "Delaware Act" refers to the Delaware Statutory Trust
Act, 12 Del. C.ss.3801 et seq., as such Act may be amended
from time to time;
(j) "fund complex" has the meaning specified in Regulation 14A
under the Securities Exchange Act of 1934, as amended from
time to time;
(k) "Governing Instrument" means collectively this Agreement, the
Bylaws, all amendments to this Agreement and the Bylaws, all
written committee and sub-committee charters adopted by the
Trustees, and every resolution of the Trustees or any
committee or sub-committee of the Trustees that by its terms
is incorporated by reference into this Agreement or stated to
constitute part of the Trust's Governing Instrument or that
is incorporated herein by Section 2.3 of this Agreement;
(l) "Majority Shareholder Vote" means "the vote of a majority of
the outstanding voting securities" (as defined in the 0000
Xxx) of the Trust, Portfolio, or Class, as applicable;
(m) "Majority Trustee Vote" means the vote of a majority of the
Trustees;
(n) "New Class A Shares" has the meaning specified in Section
2.6(c);
(o) "New Class B Shares" has the meaning specified in Section
2.6(c);
(p) The "1940 Act" means the Investment Company Act of 1940, as
amended from time to time, and the rules promulgated
thereunder;
(q) "Outstanding Shares" means Shares shown on the books of the
Trust or any Portfolio or the Trust's transfer agent as then
issued and outstanding, and includes Shares of one Portfolio
that the Trust has purchased on behalf of another Portfolio,
but excludes Shares of a Portfolio that the Trust has
redeemed or repurchased;
(r) "Portfolio" means a series of Shares of the Trust within the
meaning of Section 3804(a) of the Delaware Act, established
in accordance with the provisions of Section 2.3(a);
(s) "Proportionate Interest" has the meaning specified in Section
2.5(d);
(t) "Purchasing Portfolio" has the meaning specified in Section
2.10;
(u) "Schedule A" has the meaning specified in Section 2.3(a);
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(v) "Selling Portfolio" has the meaning specified in Section
2.10;
(w) "Shareholder" means a record owner of Outstanding Shares of
the Trust;
(x) "Shares" means, as to a Portfolio or any Class thereof, the
equal proportionate transferable units of beneficial interest
into which the beneficial interest of such Portfolio or such
Class thereof shall be divided and may include fractions of
Shares in 1/1000th of a Share or integral multiples thereof
as well as whole Shares;
(y) The "Trust" means Tax-Free Investments Trust, the Delaware
statutory trust continued hereby, and reference to the Trust,
when applicable to one or more Portfolios, shall refer to
each such Portfolio;
(z) The "Trustees" means the Persons who have signed this
Agreement as trustees so long as they shall continue to serve
as trustees of the Trust in accordance with the terms hereof,
and all other Persons who may from time to time be duly
appointed as Trustee in accordance with the provisions of
Section 3.4, or elected as Trustee by the Shareholders, and
reference herein to a Trustee or to the Trustees shall refer
to such Persons in their capacity as Trustees hereunder; and
(aa) "Trust Property" means any and all property, real or
personal, tangible or intangible, which is owned or held by
or for the account of the Trust or any Portfolio, or by the
Trustees on behalf of the Trust or any Portfolio.
Section 1.3 Purpose. The purpose of the Trust is to conduct, operate
and carry on the business of an open-end management investment company
registered under the 1940 Act through one or more Portfolios investing
primarily in securities and to carry on such other business as the Trustees may
from time to time determine pursuant to their authority under this Agreement.
Section 1.4 Certificate of Trust. The Trust's Certificate of Trust has
been filed in the office of the Secretary of State of the State of Delaware
pursuant to the Delaware Act.
ARTICLE II
BENEFICIAL INTEREST
Section 2.1 Shares of Beneficial Interest. The Trust is authorized (A)
to issue one or more series of beneficial interests within the meaning of
Section 3804(a) of the Delaware Act, which shall constitute the Trust's
Portfolio(s), and (B) to divide the shares of any Portfolio into one or more
separate and distinct Classes. The beneficial interests of the Trust shall be
divided into an unlimited number of Shares, with par value of $0.001 per Share.
All Shares issued hereunder, including without limitation, Shares issued in
connection with a dividend or other distribution 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, in addition
to the then issued and Outstanding Shares, to such party or parties and for
such amount and type of consideration, subject to applicable law, including
cash or securities, at such time or times and on such terms as the Trustees may
deem appropriate, and may in such manner acquire other assets (including the
acquisition of assets subject to, and in connection with, the assumption of
liabilities) and
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businesses. In connection with any issuance of Shares, the Trustees may issue
fractional Shares. The Trustees may from time to time divide or combine the
Shares into a greater or lesser number without thereby changing the
proportionate beneficial interests in the Trust. Contributions to the Trust may
be accepted for, and Shares shall be redeemed as, whole Shares and/or 1/1,000th
of a Share or integral multiples thereof.
Section 2.3 Establishment of Portfolios and Classes.
(a) The Trust shall consist of one or more separate and distinct
Portfolios, each with an unlimited number of Shares unless
otherwise specified. The Trustees hereby establish and
designate the Portfolios listed on Schedule A attached hereto
and made a part hereof ("Schedule A"). Each additional
Portfolio shall be established by the adoption of one or more
resolutions by the Trustees. Each such resolution is hereby
incorporated herein by this reference and made a part of the
Governing Instrument whether or not expressly stated in such
resolution and may be amended by a further resolution, and
shall be effective upon the occurrence of both (i) the date
stated therein (or, if no such date is stated, upon the date
of such adoption) and (ii) the execution of an amendment
either to this Agreement or to Schedule A hereto establishing
and designating such additional Portfolio or Portfolios. The
Shares of each Portfolio shall have the relative rights and
preferences provided for herein and such rights and
preferences as may be designated by the Trustees in any
amendment or modification to the Trust's Governing
Instrument. The Trust shall maintain separate and distinct
records of each Portfolio and shall hold and account for the
assets belonging thereto separately from the other Trust
Property and the assets belonging to any other Portfolio.
Each Share of a Portfolio shall represent an equal beneficial
interest in the net assets belonging to that Portfolio,
except to the extent of Class Expenses and other expenses
separately allocated to Classes thereof (if any Classes have
been established) as permitted herein.
(b) The Trustees may establish one or more Classes of Shares of
any Portfolio, each with an unlimited number of Shares unless
otherwise specified. Each Class so established and designated
shall represent a Proportionate Interest (as defined in
Section 2.5(d)) in the net assets belonging to that Portfolio
and shall have identical voting, dividend, liquidation, and
other rights and be subject to the same terms and conditions,
except that (1) Class Expenses allocated to a Class for which
such expenses were incurred shall be borne solely by that
Class, (2) other expenses, costs, charges, and reserves
allocated to a Class in accordance with Section 2.5(e) may be
borne solely by that Class, provided that the allocation of
such other expenses, costs, charges, and reserves is not
specifically required to be set forth in a plan adopted by
the Trust pursuant to Rule 18f-3 under the Act, (3) dividends
declared and payable to a Class pursuant to Section 7.1 shall
reflect the items separately allocated thereto pursuant to
the preceding clauses, (4) each Class may have separate
rights to convert to another Class, exchange rights, and
similar rights, each as determined by the Trustees, and (5)
subject to Section 2.6(c), each Class may have exclusive
voting rights with respect to matters affecting only that
Class. The Trustees hereby establish for each Portfolio
listed on Schedule A the Classes listed thereon. Each
additional Class for any or all Portfolios shall be
established by the adoption of one or more resolutions by the
Trustees. Each such resolution is hereby incorporated herein
by this reference and made a part of the Governing Instrument
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whether or not expressly stated in such resolution, and shall
be effective upon the occurrence of both (i) the date stated
therein (or, if no such date is stated, upon the date of such
adoption) and (ii) the execution of an amendment to this
Agreement establishing and designating such additional Class
or Classes.
Section 2.4 Actions Affecting Portfolios and Classes. Subject to the
right of Shareholders, if any, to vote pursuant to Section 6.1, the Trustees
shall have full power and authority, in their sole discretion without obtaining
any prior authorization or vote of the Shareholders of any Portfolio, or Class
thereof, to establish and designate and to change in any manner any Portfolio
of Shares, or any Class or Classes thereof; to fix or change such preferences,
voting powers, rights, and privileges of any Portfolio, or Classes thereof, as
the Trustees may from time to time determine, including any change that may
adversely affect a Shareholder; to divide or combine the Shares of any
Portfolio, or Classes thereof, into a greater or lesser number; to classify or
reclassify or convert any issued Shares of any Portfolio, or Classes thereof,
into one or more Portfolios or Classes of Shares of a Portfolio; and to take
such other action with respect to the Shares as the Trustees may deem
desirable. A Portfolio and any Class thereof may issue any number of Shares but
need not issue any Shares. At any time that there are no Outstanding Shares of
any particular Portfolio or Class previously established and designated, the
Trustees may abolish that Portfolio or Class and the establishment and
designation thereof.
Section 2.5 Relative Rights and Preferences. Unless the establishing
resolution or any other resolution adopted pursuant to Section 2.3 otherwise
provides, Shares of each Portfolio or Class thereof established hereunder shall
have the following relative rights and preferences:
(a) Except as set forth in paragraph (e) of this Section 2.5,
each Share of a Portfolio, regardless of Class, shall
represent an equal pro rata interest in the assets belonging
to such Portfolio and shall have identical voting, dividend,
liquidation and other rights, preferences, powers,
restrictions, limitations, qualifications and designations
and terms and conditions with each other Share of such
Portfolio.
(b) Shareholders shall have no preemptive or other right to
subscribe to any additional Shares or other securities issued
by the Trust or the Trustees, whether of the same or other
Portfolio (or Class).
(c) All consideration received by the Trust for the issue or sale
of Shares of a particular Portfolio, 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 Portfolio and may be
referred to herein as "assets belonging to" that Portfolio.
The assets belonging to a particular Portfolio shall belong
to that Portfolio for all purposes, and to no other
Portfolio, subject only to the rights of creditors of that
Portfolio. 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 Portfolio shall be allocated by the Trustees
between and among one or more of the Portfolios in such
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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 Portfolios thereof for
all purposes, and such assets, income, earnings, profits, or
funds, or payments and proceeds with respect thereto shall be
assets belonging to that Portfolio.
(d) Each Class of a Portfolio shall have a proportionate
undivided interest (as determined by or at the direction of,
or pursuant to authority granted by, the Trustees, consistent
with industry practice) ("Proportionate Interest") in the net
assets belonging to that Portfolio. References herein to
assets, expenses, charges, costs, and reserves "allocable" or
"allocated" to a particular Class of a Portfolio shall mean
the aggregate amount of such item(s) of the Portfolio
multiplied by the Class's Proportionate Interest.
(e) A particular Portfolio shall be charged with the liabilities
of that Portfolio, and all expenses, costs, charges and
reserves attributable to any particular Portfolio shall be
borne by such Portfolio; provided that the Trustees may, in
their sole discretion, allocate or authorize the allocation
of particular expenses, costs, charges, and/or reserves of a
Portfolio to fewer than all the Classes thereof. Class
Expenses shall, in all cases, be allocated to the Class for
which such Class Expenses were incurred. Any general
liabilities, expenses, costs, charges or reserves of the
Trust (or any Portfolio) that are not readily identifiable as
chargeable to or bearable by any particular Portfolio (or any
particular Class) shall be allocated and charged by the
Trustees between or among any one or more of the Portfolios
(or Classes) 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
Portfolios (or Classes) for all purposes. Without limitation
of the foregoing provisions of this Section 2.5(e), (i) the
debts, liabilities, obligations and expenses incurred,
contracted for or otherwise existing with respect to a
particular Portfolio shall be enforceable against the assets
of such Portfolio only, and not against the assets of the
Trust generally or assets belonging to any other Portfolio,
and (ii) none of the debts, liabilities, obligations and
expenses incurred, contracted for or otherwise existing with
respect to the Trust generally that have not been allocated
to a specified Portfolio, or with respect to any other
Portfolio, shall be enforceable against the assets of such
specified Portfolio. Notice of this contractual limitation on
inter-Portfolio liabilities is set forth in the Trust's
Certificate of Trust described in Section 1.4, and,
accordingly, the statutory provisions of Section 3804 of the
Delaware Act relating to limitations on inter-Portfolio
liabilities (and the statutory effect under Section 3804 of
setting forth such notice in the Certificate of Trust) are
applicable to the Trust and each Portfolio.
(f) Except as provided for in Section 2.10, shares redeemed or
repurchased by a Portfolio or the Trust shall be deemed to be
canceled.
(g) The Trust may issue Shares in fractional denominations of
1/1000th of a Share or integral multiples thereof to the same
extent as its whole Shares, and Shares in fractional
denominations shall be Shares having proportionately to the
respective fractions represented thereby all the rights of
whole Shares of the same Portfolio (or Class), including
without limitation, the right to vote, the right to receive
dividends and distributions and the right to participate upon
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termination of the Trust or any Portfolio, but excluding the
right to receive a certificate representing fractional
Shares.
All references to Shares in this Agreement shall be deemed to
be shares of any or all Portfolios, or Classes thereof, as the context may
require. All provisions herein relating to the Trust shall apply equally to
each Portfolio of the Trust, and each Class thereof, except as the context
otherwise requires.
Section 2.6 Additional Rights and Preferences of Class B Shares. In
addition to the relative rights and preferences set forth in Section 2.5 and
all other provisions of this Agreement relating to Shares of the Trust
generally, any Class of any Portfolio designated as Class B Shares shall have
the following rights and preferences:
(a) Subject to the provisions of paragraph (c) below, all Class B
Shares other than those purchased through the reinvestment of
dividends and distributions shall automatically convert to
Class A Shares at the end of the month which is eight (8)
years after the date on which a Shareholder's order to
purchase such shares was accepted.
(b) Subject to the provisions of paragraph (c) below, Class B
Shares purchased through the reinvestment of dividends and
distributions paid in respect of Class B Shares will be
considered held in a separate sub-account, and will
automatically convert to Class A Shares in the same
proportion as any Class B Shares (other than those in the
sub-account) convert to Class A Shares. Other than this
conversion feature, the Class B Shares purchased through the
reinvestment of dividends and distributions paid in respect
of Class B Shares shall have all the rights and preferences,
restrictions, limitations as to dividends, qualifications and
terms and conditions of redemption of Class B Shares
generally.
(c) If (1) the Class A Shareholders of a Portfolio approve any
increase in expenses allocated to the Class A Shares of that
Portfolio in connection with (A) a Plan of Distribution
adopted pursuant to Rule 12b-1 under the 1940 Act, (B) a
non-Rule 12b-1 shareholder services plan or (C) any other
plan or arrangement whereby Classes of that Portfolio pay a
different share of other expenses, not including advisory or
custodial fees or other expenses related to the management of
the Trust's assets, then (2) the Class B Shares of that
Portfolio will stop converting to the Class A Shares unless
the Class B Shareholders of that Portfolio, voting
separately, approve the increase in expenses. The Trustees
shall have sole discretion in determining whether such
increase in expenses is submitted to a vote of the Class B
Shareholders. Should such increase in expenses not be
submitted to a vote of the Class B Shareholders or, if
submitted, should the Class B Shareholders fail to approve
such increase in expenses, the Trustees shall take such
action as is necessary to: (1) create a new class of that
Portfolio (the "New Class A Shares") which shall be identical
in all material respects to the Class A Shares of that
Portfolio as they existed prior to the implementation of the
increase in expenses; and (2) ensure that the existing Class
B Shares of that Portfolio will be exchanged or converted
into New Class A Shares no later than the date such Class B
Shares were scheduled to convert to Class A Shares. If deemed
advisable by the Trustees to implement the foregoing, and at
the sole discretion of the Trustees, such action may include
the exchange of all Class B Shares of that Portfolio for a
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new class of that Portfolio (the "New Class B Shares"),
identical in all material respects to the Class B Shares of
that Portfolio except that the New Class B Shares will
automatically convert into the New Class A Shares. Such
exchanges or conversions shall be effected in a manner that
the Trustees reasonably believe will not be subject to
federal taxation.
Section 2.7 Investment in the Trust. Investments may be accepted by
the Trust from such Persons, at such times, on such terms, and for such
consideration, which may consist of cash or tangible or intangible property or
a combination thereof, as the Trustees from time to time may authorize. At the
Trustees' sole discretion, such investments, subject to applicable law, may be
in the form of cash or securities in which the affected Portfolio is authorized
to invest, valued as provided in applicable law. Each such investment shall be
recorded in the individual Shareholder's account in the form of full and
fractional Shares of the Trust, in such Portfolio (or Class) as the Shareholder
shall select.
Section 2.8 Personal Liability of Shareholders. As provided by
applicable law, no Shareholder of the Trust shall be personally liable for the
debts, liabilities, obligations and expenses incurred by, contracted for, or
otherwise existing with respect to, the Trust or any Portfolio (or Class)
thereof. Neither the Trust nor the Trustees, nor any officer, employee, or
agent of the Trust shall have any power to bind personally any Shareholder 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 by way of subscription for any Shares or otherwise. The Shareholders
shall be entitled, to the fullest extent permitted by applicable law, to the
same limitation of personal liability as is extended under the Delaware General
Corporation Law to stockholders of private corporations for profit. Every note,
bond, contract or other undertaking issued by or on behalf of the Trust or the
Trustees relating to the Trust or to any Portfolio shall include a recitation
limiting the obligation represented thereby to the Trust and its assets or to
one or more Portfolios and the assets belonging thereto (but the omission of
such a recitation shall not operate to bind any Shareholder or Trustee of the
Trust or otherwise limit any benefits set forth in the Delaware Act that may be
applicable to such Persons).
Section 2.9 Assent to Agreement. Every Shareholder, by virtue of
having purchased a Share, shall be held to have expressly assented to, and
agreed to be bound by, the terms hereof. The death of a Shareholder during the
continuance of the Trust shall not operate to terminate the same 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
rights of said decedent under the Governing Instrument.
Section 2.10 Purchases of Shares Among Portfolios. The Trust may
purchase, on behalf of any Portfolio (the "Purchasing Portfolio"), Shares of
another Portfolio (the "Selling Portfolio") or any Class thereof. Shares of the
Selling Portfolio so purchased on behalf of the Purchasing Portfolio shall be
Outstanding Shares, and shall have all preferences, voting powers, rights and
privileges established for such Shares.
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
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with such powers of delegation as may be permitted by this Agreement. 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 and all foreign jurisdictions 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 Agreement, the presumption shall be in
favor of a grant of power to the Trustees.
The enumeration of any specific power in this Agreement 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 or other authority.
Section 3.2 Trustees. The number of Trustees shall be such number as
shall be fixed from time to time by a majority of the Trustees; provided,
however, that the number of Trustees shall in no event be less than two (2) nor
more than sixteen (16). The Trustees as of the date hereof are those first
identified above.
Section 3.3 Terms of Office of Trustees. The Trustees shall hold
office during the lifetime of this Trust, and until its termination as herein
provided; except that (A) any Trustee may resign his trusteeship or may retire
by written instrument signed by him and delivered to the other Trustees, which
shall take effect upon such delivery or upon such later date as is specified
therein; (B) any Trustee may be removed at any time by written instrument,
signed by at least two-thirds of the number of Trustees prior to such removal,
specifying the date when such removal shall become effective; (C) any Trustee
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 majority of the other Trustees, specifying the date of
his retirement; (D) a Trustee may be removed at any meeting of the Shareholders
by a vote of the Shareholders owning at least two-thirds of the Outstanding
Shares; and (E) a Trustee shall be retired in accordance with the terms of any
retirement policy adopted by the Trustees and in effect from time to time.
Section 3.4 Vacancies and Appointment of Trustees. In case of the declination
to serve, death, resignation, retirement or removal 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 determination of the other Trustees of such vacancy shall be
conclusive. In the case of an existing vacancy, the remaining Trustees may fill
such vacancy by appointing such other person as they in their discretion shall
see fit, or may leave such vacancy unfilled or may reduce the number of
Trustees to not less than two (2) Trustees. Such appointment shall be evidenced
by a written instrument signed by a majority of the Trustees in office or by
resolution of the Trustees, duly adopted, which shall be recorded in the
minutes of a meeting of the Trustees, whereupon the appointment shall take
effect.
An appointment of a Trustee may be made by the Trustees then
in office in anticipation of a vacancy to occur by reason of retirement,
resignation, or removal of a Trustee, or an increase in number of Trustees
effective at a later date, provided that said appointment shall become
effective only at the time or after the expected vacancy occurs. As soon as any
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Trustee appointed pursuant to this Section 3.4 or elected by the Shareholders
shall have accepted the Trust and agreed in writing to be bound by the terms of
the Agreement, the Trust estate shall vest in the new Trustee or Trustees,
together with the continuing Trustees, without any further act or conveyance,
and he shall be deemed a Trustee hereunder.
Section 3.5 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.
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 Agreement.
Section 3.7 Ownership of Assets of the Trust. The assets of the Trust
and of each Portfolio thereof shall be held separate and apart from any assets
now or hereafter held in any capacity other than as Trustee hereunder by the
Trustees or any successor Trustees. Legal title in all of the assets of the
Trust and the right to conduct any business shall at all times be considered as
vested in the Trustees on behalf of the Trust, except that the Trustees may
cause legal title to any Trust Property to be held by or in the name of the
Trust, or in the name of any Person as nominee. No Shareholder shall be deemed
to have a severable ownership in any individual asset of the Trust, or
belonging to any Portfolio, or allocable to any Class thereof, or any right of
partition or possession thereof, but each Shareholder shall have, except as
otherwise provided for herein, a proportionate undivided beneficial interest in
the Trust or in assets belonging to the Portfolio (or allocable to the Class)
in which the Shareholder holds Shares. The Shares shall be personal property
giving only the rights specifically set forth in this Agreement or the Delaware
Act.
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.
Without limiting the foregoing and subject to any applicable limitation in this
Agreement or the Bylaws of the Trust, the Trustees shall have power and
authority:
(a) To invest and reinvest cash and other property, and to hold
cash or other property uninvested, without in any event being
bound or limited by any present or future law or custom in
regard to investments by Trustees, and to sell, exchange,
lend, pledge, mortgage, hypothecate, write options on and
lease any or all of the assets of the Trust;
(b) To operate as, and to carry on the business of, an investment
company, and to exercise all the powers necessary and
appropriate to the conduct of such operations;
(c) To borrow money and in this connection issue notes or other
evidence of indebtedness; to secure borrowings by mortgaging,
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pledging or otherwise subjecting as security the Trust
Property; to endorse, guarantee, or undertake the performance
of an obligation or engagement of any other Person and to
lend Trust Property;
(d) To provide for the distribution of Shares either through a
principal underwriter in the manner hereafter provided for or
by the Trust itself, or both, or otherwise pursuant to a plan
of distribution of any kind;
(e) To adopt Bylaws not inconsistent with this Agreement
providing for the conduct of the business of the Trust and to
amend and repeal them to the extent that they do not reserve
such right to the Shareholders; such Bylaws shall be deemed
incorporated and included in this Agreement;
(f) To elect and remove such officers and appoint and terminate
such agents as they consider appropriate;
(g) To employ one or more banks, trust companies or companies
that are members of a national securities exchange or such
other domestic or foreign entities as custodians of any
assets of the Trust subject to any conditions set forth in
this Agreement or in the Bylaws;
(h) To retain one or more transfer agents and shareholder
servicing agents;
(i) To set record dates in the manner provided herein or in the
Bylaws;
(j) To delegate such authority as they consider desirable to any
officers of the Trust and to any investment adviser, manager,
administrator, custodian, underwriter or other agent or
independent contractor;
(k) To sell or exchange any or all of the assets of the Trust,
subject to the right of Shareholders, if any, to vote on such
transaction pursuant to Section 6.1;
(l) To vote or give assent, or exercise any rights of ownership,
with respect to stock or other securities or property; and to
execute and deliver proxies and powers of attorney to such
person or persons as the Trustees shall deem proper, granting
to such person or persons such power and discretion with
relation to securities or property as the Trustee shall deem
proper;
(m) To exercise powers and rights of subscription or otherwise
which in any manner arise out of ownership of securities;
(n) To hold any security or property in a form not indicating any
trust, whether in bearer, book entry, unregistered or other
negotiable form; or either in the name of the Trust or of a
Portfolio or a custodian or a nominee or nominees, subject in
either case to proper safeguards according to the usual
practice of Delaware statutory trusts or investment
companies;
(o) To establish separate and distinct Portfolios with separately
defined investment objectives and policies and distinct
investment purposes in accordance with the provisions of
Article II hereof and to establish Classes of such Portfolios
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having relative rights, powers and duties as they may provide
consistent with this Agreement and applicable law;
(p) Subject to the provisions of Section 3804 of the Delaware
Act, to allocate assets, liabilities and expenses of the
Trust to a particular Portfolio or to apportion the same
between or among two or more Portfolios, provided that any
liabilities or expenses incurred by a particular Portfolio
shall be payable solely out of the assets belonging to that
Portfolio as provided for in Article II hereof;
(q) To consent to or participate in any plan for the
reorganization, consolidation or merger of any corporation or
concern, any security of which is held in the Trust; to
consent to any contract, lease, mortgage, purchase, or sale
of property by such corporation or concern, and to pay calls
or subscriptions with respect to any security held in the
Trust;
(r) To compromise, arbitrate, or otherwise adjust claims in favor
of or against the Trust or any matter in controversy
including, but not limited to, claims for taxes;
(s) To declare and pay dividends and make distributions of income
and of capital gains and capital to Shareholders in the
manner hereinafter provided;
(t) To establish, from time to time, a minimum investment for
Shareholders in the Trust or in one or more Portfolios or
Classes, and to require the redemption of the Shares of any
Shareholder whose investment is less than such minimum upon
giving notice to such Shareholder;
(u) To redeem or repurchase Shares as provided for in this
Agreement, upon such terms and conditions as the Trustees
shall establish;
(v) To establish one or more committees or sub-committees, to
delegate any of the powers of the Trustees to said committees
or sub-committees and to adopt a written charter for one or
more of such committees or sub-committees governing its
membership, duties and operations and any other
characteristics as the Trustees may deem proper, each of
which committees and sub-committees may consist of less than
the whole number of Trustees then in office, and may be
empowered to act for and bind the Trustees, the Trust and the
Portfolios, as if the acts of such committee or sub-committee
were the acts of all the Trustees then in office;
(w) To interpret the investment policies, practices or
limitations of any Portfolios;
(x) To establish a registered office and have a registered agent
in the State of Delaware; and
(y) In general, to carry on any other business in connection with
or incidental to any of the foregoing powers, to do
everything necessary, suitable or proper for the
accomplishment of any purpose or the attainment of any object
or the furtherance of any power hereinbefore set forth,
either alone or in association with others, and to do every
other act or thing incidental or appurtenant to or growing
out of or connected with the aforesaid business or purposes,
objects or powers.
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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 Portfolio, and not an
action in an individual capacity.
The Trustees shall not be limited to investing in obligations
maturing before the possible termination of the Trust.
No one dealing with the Trustees shall be under any
obligation to make any inquiry concerning the authority of the Trustees, or to
see to the application of any payments made or property transferred to the
Trustees or upon their order.
Section 4.2 Issuance, Redemption and Repurchase of Shares. The
Trustees shall have the power to issue, sell, repurchase, redeem, retire,
cancel, acquire, hold, resell, reissue, dispose of, and otherwise deal in
Shares and, subject to the provisions set forth in Articles II and VII hereof,
to apply to any such repurchase, redemption, retirement, cancellation or
acquisition of Shares any funds or property of the Trust, or any assets
belonging to the particular Portfolio or any assets allocable to the particular
Class, with respect to which such Shares are issued.
Section 4.3 Action by the Trustees. The Board of Trustees or any
committee or sub-committee thereof shall act by majority vote of those present
at a meeting duly called as set forth in the Bylaws at which a quorum required
by the Bylaws is present. Any action that may be taken by the Board of Trustees
or any committee or sub-committee thereof by majority vote at a meeting duly
called and at which a quorum required by the Bylaws is present, may also be
taken by written consent of at least seventy-five percent (75%) of the Trustees
or members of the committee or sub-committee, as the case may be, without a
meeting, provided that the writing or writings are filed with the minutes of
proceedings of the Board or committee or sub-committee. Written consents or
waivers of the Trustees may be executed in one or more counterparts. Any
written consent or waiver may be provided and delivered to the Trust by any
means by which notice may be given to a Trustee. Subject to the requirements of
this Agreement and the 1940 Act, the Trustees by Majority Trustee Vote may
delegate to any Trustee or Trustees or committee or sub-committee authority to
approve particular matters or take particular actions on behalf of the Trust or
any Portfolio.
Section 4.4 Principal Transactions. 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 investment adviser, distributor, or transfer agent for the Trust or
with any Affiliated Person of such Person; and the Trust may employ any such
Person, or firm or Company in which such Person is an Affiliated Person, as
broker, legal counsel, registrar, investment adviser, distributor,
administrator, transfer agent, dividend disbursing agent, custodian, or in any
capacity upon customary terms, subject in all cases to applicable laws, rules,
and regulations and orders of regulatory authorities.
Section 4.5 Payment of Expenses by the Trust. The Trustees are
authorized to pay or cause to be paid out of the principal or income of the
Trust or any Portfolio, or partly out of the principal and partly out of
income, and to charge or allocate to, between or among such one or more of the
Portfolios (or Classes), as they deem fair, all expenses, fees, charges, taxes
and liabilities incurred or arising in connection with the Trust or Portfolio
(or Class), or in connection with the management thereof, including, but not
limited to, the Trustees' compensation and such
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expenses and charges for the services of the Trust's officers, employees,
investment adviser and manager, administrator, principal underwriter, auditors,
counsel, custodian, transfer agent, Shareholder servicing agent, and such other
agents or independent contractors and such other expenses and charges as the
Trustees may deem necessary or proper to incur.
Section 4.6 Trustee Compensation. The Trustees as such shall be
entitled to reasonable compensation from the Trust. They may fix the amount of
their compensation. Nothing herein shall in any way prevent the employment of
any Trustee for advisory, management, administrative, legal, accounting,
investment banking, underwriting, brokerage, or investment dealer or other
services and the payment for the same by the Trust.
Section 4.7 Independent Trustee. A Trustee who is an "Independent
Trustee," as that term is defined in the Delaware Act, shall be deemed to be
independent and disinterested for all purposes when making any determinations
or taking any action as a Trustee.
ARTICLE V
INVESTMENT ADVISER, PRINCIPAL UNDERWRITER AND
TRANSFER AGENT
Section 5.1 Investment 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 Portfolio whereby the other party or
parties to such contract or contracts shall undertake to furnish the Trustees
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.
The Trustees may authorize 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 among the Trustees, the investment adviser and sub-adviser. Any
references in this Agreement to the investment adviser shall be deemed to
include such sub-advisers, unless the context otherwise requires.
Section 5.2 Other Service Contracts. The Trustees may authorize the
engagement of a principal underwriter, transfer agent, administrator,
custodian, and similar service providers.
Section 5.3 Parties to Contract. Any contract of the character
described in Sections 5.1 and 5.2 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.
Section 5.4 Miscellaneous. The fact that (i) any of the Shareholders,
Trustees or officers of the Trust is a shareholder, director, officer, partner,
trustee, employee, manager, adviser, principal underwriter or distributor or
agent of or for any Company or of or for any parent or affiliate of any
Company, with which an advisory or administration contract, or principal
underwriter's or distributor's contract, or transfer, shareholder servicing,
custodian or other agency contract may have been or may hereafter be made, or
that any such Company, or any parent or affiliate thereof, is a Shareholder or
has an interest in the Trust, or that (ii) any Company with which an advisory
or administration contract or principal underwriter's or distributor's
contract, or transfer, shareholder servicing, custodian, or
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other agency contract may have been or may hereafter be made also has an
advisory or administration contract, or principal underwriter's or
distributor's contract, or transfer, shareholder servicing, custodian or other
agency contract with one or more other companies, or has other business or
interests shall not affect the validity of any such contract or disqualify any
Shareholder, Trustee or officer of the Trust from voting upon or executing the
same or create any liability or accountability to the Trust or its
Shareholders.
ARTICLE VI
SHAREHOLDERS' VOTING POWERS AND MEETING
Section 6.1 Voting Powers. The Shareholders shall have power to vote
only to: (i) elect Trustees, provided that a meeting of Shareholders has been
called for that purpose; (ii) remove Trustees, provided that a meeting of
Shareholders has been called for that purpose; (iii) approve the termination of
the Trust or any Portfolio or Class, provided that the Trustees have called a
meeting of the Shareholders for the purpose of approving any such termination,
unless, as of the date on which the Trustees have determined to so terminate
the Trust or such Portfolio or Class, there are fewer than 100 holders of
record of the Trust or of such terminating Portfolio or Class; (iv) approve the
sale of all or substantially all the assets of the Trust or any Portfolio or
Class, unless the primary purpose of such sale is to change the Trust's
domicile or form of organization or form of statutory trust; (v) approve the
merger or consolidation of the Trust or any Portfolio or Class with and into
another Company or with and into any Portfolio or Class of the Trust, unless
(A) the primary purpose of such merger or consolidation is to change the
Trust's domicile or form of organization or form of statutory trust, or (B)
after giving effect to such merger or consolidation, based on the number of
Outstanding Shares as of a date selected by the Trustees, the Shareholders of
the Trust or such Portfolio or Class will have a majority of the outstanding
shares of the surviving Company or Portfolio or Class thereof, as the case may
be; (vi) approve any amendment to this Article VI, Section 6.1; and (vii)
approve such additional matters as may be required by law or as the Trustees,
in their sole discretion, shall determine.
Until Shares are issued, the Trustees may exercise all rights
of Shareholders and may take any action required or permitted by law, this
Agreement or any of the Bylaws of the Trust to be taken by Shareholders.
On any matter submitted to a vote of the Shareholders, all
Shares shall be voted together, except when required by applicable law or when
the Trustees have determined that the matter affects the interests of one or
more Portfolios (or Classes), then only the Shareholders of all such affected
Portfolios (or Classes) shall be entitled to vote thereon. 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.
The vote necessary to approve any such matter shall be set forth in the Bylaws.
Section 6.2 Additional Voting Powers and Voting Requirements for
Certain Actions. Notwithstanding any other provision of this Agreement, the
Shareholders shall have power to vote to approve any amendment to Article VIII
of this Agreement that would have the effect of reducing the indemnification
provided thereby to Covered Persons or to Shareholders or former Shareholders,
and any repeal or amendment of this sentence, and any such action shall require
the affirmative vote or consent of Shareholders owning at least sixty-six and
two-thirds percent (66 2/3%) of the Outstanding Shares entitled to vote
thereon. In addition, the removal of one or more Trustees by the Shareholders
shall require the affirmative vote or consent of Shareholders owning at least
sixty-six and two-thirds percent (66 2/3%) of the Outstanding Shares entitled
to vote thereon.
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The voting requirements set forth in this Section 6.2 shall
be in addition to, and not in lieu of, any vote or consent of the Shareholders
otherwise required by applicable law (including, without limitation, any
separate vote by Portfolio (or Class) that may be required by the 1940 Act or
by other applicable law) or by this Agreement.
ARTICLE VII
DISTRIBUTIONS AND REDEMPTIONS
Section 7.1 Distributions. The Trustees may from time to time declare
and pay dividends and make other distributions with respect to any Portfolio,
or Class thereof, which may be from income, capital gains or capital. 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, although the Trustees pursuant to Section 4.1(j) may delegate
the authority to set record, declaration, payment and ex-dividend dates,
determine the amount of dividends and distributions and pay such dividends and
distributions. Dividends and other distributions may be paid pursuant to a
standing resolution adopted once or more often as the Trustees determine. All
dividends and other distributions on Shares of a particular Portfolio or Class
shall be distributed pro rata to the Shareholders of that Portfolio or Class,
as the case may be, in proportion to the number of Shares of that Portfolio or
Class they held on the record date established for such payment, provided that
such dividends and other distributions on Shares of a Class shall appropriately
reflect Class Expenses and other expenses allocated to that Class. The Trustees
may adopt and offer to Shareholders such dividend reinvestment plans, cash
distribution payment plans, or similar plans as the Trustees deem appropriate.
Section 7.2 Redemptions. Any holder of record of Shares of a
particular Portfolio, or Class thereof, shall have the right to require the
Trust to redeem his Shares, or any portion thereof, subject to such terms and
conditions as are set forth in the registration statement of the Trust in
effect from time to time. The redemption price may in any case or cases be paid
wholly or partly in kind if the Trustees determine that such payment is
advisable in the interest of the remaining Shareholders of the Portfolio or
Class thereof for which the Shares are being redeemed. Subject to the
foregoing, the fair value, selection and quantity of securities or other
property so paid or delivered as all or part of the redemption price may be
determined by or under authority of the Trustees. In no case shall the Trust be
liable for any delay of any Person in transferring securities selected for
delivery as all or part of any payment in kind.
Section 7.3 Redemption of Shares by Trustees. The Trustees may, at
their option, call for the redemption of the Shares of any Person or may refuse
to transfer or issue Shares to any Person to the extent that the same is
necessary to comply with applicable law or advisable to further the purposes
for which the Trust is formed. To the extent permitted by law, the Trustees may
retain the proceeds of any redemption of Shares required by them for payment of
amounts due and owing by a Shareholder to the Trust or any Portfolio.
Section 7.4 Redemption of De Minimis Accounts. If, at any time when a
request for transfer or redemption of Shares of any Portfolio is received by
the Trust or its agent, the value of the Shares of such Portfolio in a
Shareholder's account is less than Five Hundred Dollars ($500.00), or such
greater amount as the Trustees in their discretion shall have determined in
accordance with Section 4.1(t), after giving effect to such transfer or
redemption and upon giving thirty (30) days' notice to the Shareholder, the
Trust may cause the remaining Shares of such Portfolio in such Shareholder's
account to be redeemed, subject to such terms and conditions as are set forth
in the registration statement of the Trust in effect from time to time.
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ARTICLE VIII
LIMITATION OF LIABILITY AND INDEMNIFICATION
Section 8.1 Limitation of Liability. A Trustee or officer of the
Trust, when acting in such capacity, shall not be personally liable to any
person for any act, omission or obligation of the Trust or any Trustee or
officer of the Trust; provided, however, that nothing contained herein or in
the Delaware 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 his office with the Trust.
Section 8.2 Indemnification of Covered Persons. Every Covered Person
shall be indemnified by the Trust to the fullest extent permitted by the
Delaware Act, the Bylaws and other applicable law.
Section 8.3 Indemnification of Shareholders. In case any Shareholder
or former Shareholder of the Trust shall be held to be personally liable solely
by reason of his being or having been a Shareholder of the Trust or any
Portfolio 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 general successor) shall be entitled, out of
the assets belonging to the applicable Portfolio (or allocable to the
applicable Class), to be held harmless from and indemnified against all loss
and expense arising from such liability in accordance with the Bylaws and
applicable law. The Trust, on behalf of the affected Portfolio (or Class),
shall upon request by the Shareholder, assume the defense of any such claim
made against the Shareholder for any act or obligation of that Portfolio (or
Class).
ARTICLE IX
MISCELLANEOUS
Section 9.1 Trust Not a Partnership; Taxation. It is hereby expressly
declared that a trust and not a partnership is created hereby. No Trustee
hereunder shall have any power to bind personally either the Trust's officers
or any Shareholder. All persons extending credit to, contracting with or having
any claim against the Trust or the Trustees in their capacity as such shall
look only to the assets of the appropriate Portfolio or, until the Trustees
shall have established any separate Portfolio, of the Trust for payment under
such credit, contract or claim; and neither the Shareholders, the Trustees, nor
the Trust's officers nor any of the agents of the Trustees whether past,
present or future, shall be personally liable therefor.
It is intended that the Trust, or each Portfolio if there is
more than one Portfolio, be classified for income tax purposes as an
association taxable as a corporation, and the Trustees shall do all things that
they, in their sole discretion, determine are necessary to achieve that
objective, including (if they so determine), electing such classifications on
Internal Revenue Form 8832. The Trustees, in their sole discretion and without
the vote or consent of the Shareholders, may amend this Agreement to ensure
that this objective is achieved.
Section 9.2 Trustee's Good Faith Action, Expert Advice, No Bond or
Surety. The exercise by the Trustees of their powers and discretion hereunder
in good faith and with reasonable care under the circumstances then prevailing
shall be binding upon everyone interested. Subject to the provisions of Article
VIII and to Section 9.1, the Trustees shall not be liable for errors of
judgment or mistakes of fact or law. The Trustees may take advice of
17
counsel or other experts with respect to the meaning and operation of this
Agreement, and subject to the provisions of Article VIII and Section 9.1, shall
be under no liability for any act or omission in accordance with such advice or
for failing to follow such advice. The Trustees shall not be required to give
any bond as such, nor any surety if a bond is obtained.
Section 9.3 Termination of Trust or Portfolio or Class.
(a) Unless terminated as provided herein, the Trust shall
continue without limitation of time. The Trust may be
terminated at any time by the Trustees by written notice to
the Shareholders, subject to the right of Shareholders, if
any, to vote pursuant to Section 6.1. Any Portfolio or Class
may be terminated at any time by the Trustees by written
notice to the Shareholders of that Portfolio or Class,
subject to the right of Shareholders, if any, to vote
pursuant to Section 6.1.
(b) On termination of the Trust or any Portfolio pursuant to
paragraph (a) above,
(1) the Trust or that Portfolio thereafter shall carry
on no business except for the purpose of winding up
its affairs,
(2) the Trustees shall (i) proceed to wind up the
affairs of the Trust or that Portfolio, and all
powers of the Trustees under this Agreement with
respect thereto shall continue until such affairs
have been wound up, including the powers to fulfill
or discharge the contracts of the Trust or that
Portfolio, (ii) collect its assets or the assets
belonging thereto, (iii) sell, convey, assign,
exchange, or otherwise dispose of all or any part of
those assets to one or more persons at public or
private sale for consideration that may consist in
whole or in part of cash, securities, or other
property of any kind, (iv) discharge or pay its
liabilities, and (v) do all other acts appropriate
to liquidate its business, and
(3) after paying or adequately providing for the payment
of all liabilities, and upon receipt of such
releases, indemnities, and refunding agreements as
they deem necessary for their protection, the
Trustees shall distribute the remaining assets
ratably among the Shareholders of the Trust or that
Portfolio.
(c) On termination of any Class pursuant to paragraph (a) above,
(1) the Trust thereafter shall no longer issue Shares of
that Class,
(2) the Trustees shall do all other acts appropriate to
terminate the Class, and
(3) the Trustees shall distribute ratably among the
Shareholders of that Class, in cash or in kind, an
amount equal to the Proportionate Interest of that
Class in the net assets of the Portfolio (after
taking into account any Class Expenses or other
fees, expenses, or charges allocable thereto), and
in connection with any such distribution in cash the
Trustees are authorized to sell, convey, assign,
exchange or otherwise dispose of such assets of the
Portfolio of which that Class is a part as they deem
necessary.
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(d) On completion of distribution of the remaining assets
pursuant to paragraph (b)(3) above (or the Proportionate
Interest of the Class in the net assets of the Portfolio
pursuant to paragraph (c)(3) above), the Trust or the
affected Portfolio (or Class) shall terminate and the
Trustees and the Trust shall be discharged from all further
liabilities and duties hereunder with respect thereto and the
rights and interests of all parties therein shall be
cancelled and discharged. On termination of the Trust,
following completion of winding up of its business, the
Trustees shall cause a Certificate of Cancellation of the
Trust's Certificate of Trust to be filed in accordance with
the Delaware Act, which Certificate may be signed by any one
Trustee.
Section 9.4 Sale of Assets; Merger and Consolidation. Subject to right
of Shareholders, if any, to vote pursuant to Section 6.1, the Trustees may
cause (i) the Trust or one or more of its Portfolios to the extent consistent
with applicable law to sell all or substantially all of its assets to, or be
merged into or consolidated with, another Portfolio, statutory trust (or series
thereof) or Company (or series thereof), (ii) the Shares of the Trust or any
Portfolio (or Class) to be converted into beneficial interests in another
statutory trust (or series thereof) created pursuant to this Section 9.4, (iii)
the Shares of any Class to be converted into another Class of the same
Portfolio, or (iv) the Shares to be exchanged under or pursuant to any state or
federal statute to the extent permitted by law. In all respects not governed by
statute or applicable law, the Trustees shall have power to prescribe the
procedure necessary or appropriate to accomplish a sale of assets, merger or
consolidation including the power to create one or more separate statutory
trusts to which all or any part of the assets, liabilities, profits or losses
of the Trust may be transferred and to provide for the conversion of Shares of
the Trust or any Portfolio (or Class) into beneficial interests in such
separate statutory trust or trusts (or series or class thereof).
Section 9.5 Filing of Copies, References, Headings. The original or a
copy of this Agreement or any amendment hereto or any supplemental agreement
shall be kept at the office of the Trust where it may be inspected by any
Shareholder. In this Agreement or in any such amendment or supplemental
agreement, references to this Agreement, and all expressions like "herein,"
"hereof," and "hereunder," shall be deemed to refer to this Agreement as
amended or affected by any such supplemental agreement. All expressions like
"his," "he," and "him," shall be deemed to include the feminine and neuter, as
well as masculine, genders. Headings are placed herein for convenience of
reference only and in case of any conflict, the text of this Agreement, rather
than the headings, shall control. This Agreement may be executed in any number
of counterparts each of which shall be deemed an original.
Section 9.6 Governing Law. The Trust and this Agreement, and the
rights, obligations and remedies of the Trustees and Shareholders hereunder,
are to be governed by and construed and administered according to the Delaware
Act and the other laws of the State of Delaware; provided, however, that there
shall not be applicable to the Trust, the Trustees, the Shareholders or this
Trust Agreement (A) the provisions of Section 3540 of Title 12 of the Delaware
Code or (B) any provisions of the laws (statutory or common) of the State of
Delaware (other than the Delaware Act) pertaining to trusts which relate to or
regulate (i) the filing with any court or governmental body or agency of
trustee accounts or schedules of trustee fees and charges, (ii) affirmative
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
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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
indemnification, acts or powers of trustees or other Persons, which are
inconsistent with the limitations of liabilities or authorities and powers of
the Trustees or officers of the Trust set forth or referenced in this
Agreement.
The Trust shall be of the type commonly called a "statutory
trust," and without limiting the provisions hereof, the Trust may exercise all
powers which are ordinarily exercised by such a trust under Delaware law. The
Trust specifically reserves the right to exercise any of the powers or
privileges afforded to trusts or actions that may be engaged in by trusts under
the Delaware Act, and the absence of a specific reference herein to any such
power, privilege or action shall not imply that the Trust may not exercise such
power or privilege or take such actions; provided, however, that the exercise
of any such power, privilege or action shall not otherwise violate applicable
law.
Section 9.7 Amendments. Except as specifically provided in Article VI
hereof, the Trustees may, without any Shareholder vote, amend this Agreement by
making an amendment to this Agreement or to Schedule A, an agreement
supplemental hereto, or an amended and restated trust instrument. Any such
amendment, having been approved by a Majority Trustee Vote, shall become
effective, unless otherwise provided by such Trustees, upon being executed by a
duly authorized officer of the Trust. A certification signed by a duly
authorized officer of the Trust setting forth an amendment to this Agreement
and reciting that it was duly adopted by the Shareholders or by the Trustees as
aforesaid, or a copy of this Agreement, as amended, executed by a majority of
the Trustees, or a duly authorized officer of the Trust, shall be conclusive
evidence of such amendment when lodged among the records of the Trust.
Section 9.8 Provisions in Conflict with Law. The provisions of this
Agreement are severable, and if the Trustees shall determine, with the advice
of counsel, that any of such provisions is in conflict with applicable law, the
conflicting provision shall be deemed never to have constituted a part of this
Agreement; provided, however, that such determination shall not affect any of
the remaining provisions of this Agreement or render invalid or improper any
action taken or omitted prior to such determination. If any provision of this
Agreement 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 Agreement in any jurisdiction.
Section 9.9 Shareholders' Right to Inspect Shareholder List. Except as
may be permitted by Regulation 14A promulgated under the Securities Exchange
Act of 1934, as amended from time to time, no Shareholder shall have the right
to obtain from the Trust a list of the Trust's Shareholders; provided, however,
that one or more Persons who together and for at least six months have been
Shareholders of at least five percent (5%) of the Outstanding Shares of any
Class may present to any officer of the Trust a written request for a list of
its Shareholders, stating that they wish to communicate with other Shareholders
with a view to requesting in writing that the Trustees call a special meeting
of the Shareholders solely for the purpose of removing one or more Trustees.
Within twenty (20) days after such request is made, the Trust shall prepare and
have available on file at its principal office a list verified under oath by
one of its officers or its transfer agent or registrar which sets forth the
name and address of each Shareholder. The rights provided for herein shall not
extend to any Person who is a beneficial owner but not also a record owner of
Shares of the Trust.
20
Section 9.10 Information Regarding the Business and Financial
Condition and Affairs of the Trust. No Shareholder shall have the right to
obtain from the Trust information regarding the business and financial
condition of the Trust or other information regarding the affairs of the Trust;
provided, however, that the Trust may, in its sole discretion, provide such
information to the Shareholders.
21
IN WITNESS WHEREOF, the undersigned, being all of the
Trustees of the Trust, have executed this instrument this 14th day of
September, 2005.
/s/ Xxx X. Xxxxx
----------------
Xxx X. Xxxxx
/s/ Xxxxx X. Xxxxxx
-------------------
Xxxxx X. Xxxxxx
/s/ Xxxxx X. Xxxxx
------------------
Xxxxx X. Xxxxx
/s/ Xxxxx X. Xxxxxxxx
---------------------
Xxxxx X. Xxxxxxxx
/s/ Xxxxxx X. Xxxxxx
--------------------
Xxxxxx X. Xxxxxx
/s/ Xxxxxx X. Xxxx, Xx.
-----------------------
Xxxxxx X. Xxxx, Xx.
/s/ Xxxx X. Xxxxxx
------------------
Xxxx X. Xxxxxx
/s/ Xxxx Xxxxxxxxxx
-------------------
Xxxx Xxxxxxxxxx
/s/ Xxxxxx X. Xxxxxx
--------------------
Xxxxxx X. Xxxxxx
/s/ Xxxxxx X. Xxxxx
-------------------
Xxxxxx X. Xxxxx
/s/ Xxxxx Xxxxxx-Xxxxx
----------------------
Xxxxx Xxxxxx-Xxxxx
/s/ Xxxxx X. Xxxxxxx
--------------------
Xxxxx X. Xxxxxxx
22
/s/ Xxxx X. Xxxxxxx
-------------------
Xxxx X. Xxxxxxx
/s/ Xxxxx Xxxx
--------------
Xxxxx Xxxx
/s/ Xxxx X. Xxxxxxxxxx
----------------------
Xxxx X. Xxxxxxxxxx
23
SCHEDULE A
TAX-FREE INVESTMENTS TRUST
PORTFOLIO AND CLASSES THEREOF
PORTFOLIO CLASSES OF PORTFOLIO
--------- --------------------
Tax-Free Cash Reserve Portfolio Cash Management Class
Corporate Class
Institutional Class
Personal Investment Class
Private Investment Class
Reserve Class
Resource Class
Sweep Class
A-1
