Exhibit (a)(1)
BARCLAYS FOUNDRY INVESTMENT TRUST
Agreement and Declaration of Trust
May 17, 2007
BARCLAYS FOUNDRY INVESTMENT TRUST
Agreement and Declaration of Trust
TABLE OF CONTENTS
Page
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ARTICLE I Name and Definitions........................................... 2
Section 1.01. Name.................................................... 2
Section 1.02. Definitions............................................. 2
ARTICLE II Beneficial Interest........................................... 2
Section 2.01. Shares of Beneficial Ownership Interest................. 2
Section 2.02. Issuance of Shares...................................... 2
Section 2.03. Ownership and Transfer of Shares........................ 2
Section 2.04. Treasury Shares......................................... 2
Section 2.05. Establishment of Series................................. 2
Section 2.06. Investment in the Trust................................. 2
Section 2.07. Assets and Liabilities of Series........................ 2
Section 2.08. No Preemptive Rights.................................... 2
Section 2.09. Personal Liability of Shareholders...................... 2
Section 2.10. Assent to Trust Instrument.............................. 2
ARTICLE III The Trustees................................................. 2
Section 3.01. Management of the Trust................................. 2
Section 3.02. Term of Office of Trustees.............................. 2
Section 3.03. Vacancies and Appointment of Trustees................... 2
Section 3.04. Limitation on Delegation................................ 2
Section 3.05. Number of Trustees...................................... 2
Section 3.06. Effect of Death, Resignation, Etc., of a Trustee........ 2
Section 3.07. Ownership of Assets of the Trust........................ 2
Section 3.08. Compensation............................................ 2
Section 3.09. Series Trustees......................................... 2
ARTICLE IV Powers of the Trustees........................................ 2
Section 4.01. Powers.................................................. 2
Section 4.02. Issuance and Repurchase of Shares....................... 2
Section 4.03. Trustees and Officers as Shareholders................... 2
Section 4.04. Action by the Trustees.................................. 2
Section 4.05. Chairperson............................................. 2
Section 4.06. Principal Transactions.................................. 2
ARTICLE V Expenses of the Trust.......................................... 2
Section 5.01. Payment of Expenses By The Trust........................ 2
ARTICLE VI Contracts with Service Providers.............................. 2
Section 6.01. Investment Advisor...................................... 2
Section 6.02. Principal Underwriter................................... 2
Section 6.03. Transfer Agent.......................................... 2
Section 6.04. Administration Agreement................................ 2
Section 6.05. Service Agreement....................................... 2
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Section 6.06. Parties to Contract....................................... 2
Section 6.07. Provisions and Amendments................................. 2
ARTICLE VII Shareholders' Voting Powers and Meetings....................... 2
Section 7.01. Voting Powers............................................. 2
Section 7.02. Quorum and Required Vote.................................. 2
ARTICLE VIII Custodian..................................................... 2
Section 8.01. Appointment and Duties.................................... 2
Section 8.02. Central Certificate System................................ 2
ARTICLE IX Distributions and Redemptions................................... 2
Section 9.01. Distributions............................................. 2
Section 9.02. Redemptions............................................... 2
Section 9.03. Determination of Net Asset Value.......................... 2
Section 9.04. Suspension of the Right of Redemption..................... 2
Section 9.05. Share Ownership Information............................... 2
ARTICLE X Limitation of Liability and Indemnification...................... 2
Section 10.01. Limitation of Liability.................................. 2
Section 10.02. Indemnification.......................................... 2
Section 10.03. Shareholders............................................. 2
Section 10.04. No Bond Required of Trustees............................. 2
Section 10.05. No Duty of Investigation; Notice in Trust Instruments,
Etc................................................................... 2
Section 10.06. Reliance on Experts, Etc................................. 2
ARTICLE XI Miscellaneous................................................... 2
Section 11.01. Trust Not a Partnership.................................. 2
Section 11.02. Trustee/Officer Action................................... 2
Section 11.03. Termination of Trust..................................... 2
Section 11.04. Merger or Consolidation; Conversion; Reorganization;
Master/Feeder......................................................... 2
Section 11.05. Filing of Copies; References; Headings................... 2
Section 11.06. Applicable Law........................................... 2
Section 11.07. Amendments............................................... 2
Section 11.08. Derivative Actions....................................... 2
Section 11.09. Fiscal Year.............................................. 2
Section 11.10. Provisions in Conflict With Law.......................... 2
Section 11.11. Use of the Names "Barclays" and "LifePath"............... 2
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BARCLAYS FOUNDRY INVESTMENT TRUST
Agreement and Declaration of Trust
THIS AGREEMENT AND DECLARATION OF TRUST ("Trust Instrument") made this
17/th/ day of May, 2007, by each of the undersigned Trustees (as defined below)
whose signature is affixed hereto.
NOW, THEREFORE, the Trustees declare that all money and property contributed
to the Trust hereunder shall be held and managed in trust under this Trust
Instrument as herein set forth below.
ARTICLE I
Name and Definitions
Section 1.01. Name. The name of the trust created hereby is "Barclays
Foundry Investment Trust."
Section 1.02. Definitions. Wherever used herein, unless otherwise required
by the context or specifically provided:
"1940 Act" refers to the Investment Company Act of 1940, as amended from
time to time.
"Affiliated Person" has the meaning given it in the 1940 Act, as modified by
or interpreted by any applicable order or orders of the Commission or any rules
or regulations adopted by or interpretive releases of the Commission thereunder.
"Assignment" has the meaning given it in the 1940 Act, as modified by or
interpreted by any applicable order or orders of the Commission or any rules or
regulations adopted by or interpretive releases of the Commission thereunder.
"By-Laws" means the By-Laws referred to in Article IV, Section 4.01(e)
hereof, as from time to time amended.
"Commission" has the meaning given it in the 1940 Act, as modified by or
interpreted by any applicable order or orders of the Commission or any rules or
regulations adopted by or interpretive releases of the Commission thereunder.
"Delaware Act" means the Delaware Statutory Trust Act Del. Code Xxx. Tit. 12
(S)(S) 3801, et seq.
"Interested Person" has the meaning given to it in the 1940 Act, as modified
by or interpreted by any applicable order or orders of the Commission or any
rules or regulations adopted by or interpretive releases of the Commission
thereunder.
"Majority Shareholder Vote" has the same meaning as the term "vote of a
majority of the outstanding voting securities" is given in the 1940 Act, as
modified by or interpreted by any applicable order or orders of the Commission
or any rules or regulations adopted by or interpretive releases of the
Commission thereunder.
"Net Asset Value" means the net asset value of each Series (as defined
below) of the Trust determined in the manner provided in Article IX,
Section 9.03 hereof.
"Outstanding Shares" means those Shares (as defined below) shown 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.
"Principal Underwriter" has the meaning given to it in the 1940 Act, as
modified by or interpreted by any applicable order or orders of the Commission
or any rules or regulations adopted by or interpretive releases of the
Commission thereunder.
"Series" means a series of Shares of the Trust established in accordance
with the provisions of Article II, Section 2.05 hereof.
"Shareholder" means a record owner of Outstanding Shares of the Trust.
"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.
"Trust" refers to Barclays Foundry Investment Trust, a Delaware statutory
trust, and all Series of Barclays Foundry Investment Trust, and references to
the Trust, when applicable to one or more Series of the Trust, refer to any
such Series.
"Trustee" or "Trustees" means the person or persons who has or have signed
this Trust Instrument, so long as he, she or they 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.
"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.
ARTICLE II
Beneficial Interest
Section 2.01. Shares of Beneficial Ownership Interest. The beneficial
interest in the Trust shall be divided into such transferable Shares of one or
more separate and distinct Series or classes of a Series as the Trustees shall
from time to time create and establish. The number of Shares of each Series,
and each class thereof, authorized hereunder is unlimited. Each Share
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shall have no par value. All Shares issued hereunder, including without
limitation Shares issued in connection with a dividend in Shares or a split or
reverse split of Shares, shall be fully paid and nonassessable.
Section 2.02. 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 and Shares held in the treasury, 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 businesses. In connection with any
issuance of Shares, the Trustees may issue fractional Shares and Shares held in
the treasury. The Trustees from time to time may 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 fractional Shares.
Section 2.03. Ownership and Transfer of Shares. The Trust or a transfer
agent for the Trust shall maintain a register containing the names and
addresses of the Shareholders of each Series and class thereof, the number of
Shares of each Series and class held by such Shareholders, and a record of all
Share transfers. The register shall be conclusive as to the identity of
Shareholders of record and the number of Shares held by them from time to time.
The Trustees may authorize the issuance of certificates representing Shares and
adopt rules governing their use. The Trustees may make rules governing the
transfer of Shares, whether or not represented by certificates. Except as
otherwise provided by the Trustees, Shares shall be transferable on the books
of the Trust only by the record holder thereof or by such holder's duly
authorized agent 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 or the genuineness of each such execution
and authorization and of such other matters as may be required by the Trustees.
Upon such delivery, and subject to any further requirements specified by the
Trustees or contained in the By-Laws, the transfer shall be recorded on the
books of the Trust. Until a transfer is so recorded, the Shareholder of record
of Shares 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 or any officer, employee or agent of the Trust, shall be affected by
any notice of a proposed transfer.
Section 2.04. Treasury Shares. Shares held in the treasury shall, until
reissued pursuant to Section 2.02 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 2.05. Establishment of Series. The Trust created hereby shall
consist of one or more Series and separate and distinct records shall be
maintained by the Trust of each Series and the assets associated with any such
Series shall be held and accounted for separately from the assets of the Trust
or any other Series. 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 of the Trust, to establish and designate and to
change in any manner such Series of Shares or any classes of initial or
additional Series and to fix such preferences, voting powers, rights and
privileges of such Series or classes thereof as the Trustees may from time to
time determine, to
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divide and combine the Shares or any Series or classes thereof into a greater
or lesser number, to classify or reclassify any issued Shares or any Series or
classes thereof into one or more Series or classes of Shares, or to take such
other action with respect to the Shares as the Trustees may deem desirable. The
establishment and designation of any Series shall be effective upon the
adoption of a resolution by a majority of the Trustees setting forth such
establishment and designation and the relative rights and preferences of the
Shares of such Series, whether directly in such resolution or by reference to,
or approval of, another document that sets forth such relative rights and
preferences of the Shares of such Series including, without limitation, any
registration statement of the Trust. A Series may issue any number of Shares
and need not issue shares. At any time that there are no Shares outstanding of
any particular Series previously established and designated, the Trustees may
by a majority vote abolish that Series and the establishment and designation
thereof.
All references to Shares in this Trust Instrument shall be deemed to be
Shares of any or all Series, or classes thereof, as the context may require.
All provisions herein relating to the Trust shall apply equally to each Series
of the Trust, and each class thereof, except as the context otherwise requires.
Each Share of a Series of the Trust shall represent an equal beneficial
interest in the net assets of such Series. Each holder of Shares of a Series
shall be entitled to receive his or her pro rata share of distributions of
income and capital gains, if any, made with respect to such Series. Upon
redemption of any holder's Shares, such holder shall be paid solely out of the
funds and property of such Series of the Trust.
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 Delaware Act, separate Trustees with respect to such Series or class, as
provided in Article III, Section 3.09 hereof.
Section 2.06. Investment in the Trust. The Trustees shall accept investments
in any Series of the Trust 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 Article IX,
Section 9.03 hereof. Investments in a Series shall be credited to each
Shareholder's account in the form of full or fractional Shares at the Net Asset
Value per Share next determined after the investment is received; provided,
however, that the Trustees may, in their sole discretion, (a) fix the Net Asset
Value per Share of the initial capital contribution or (b) impose a sales
charge or other fee upon investments in the Trust in such manner and at such
time as determined by the Trustees. The Trustees shall have the right to refuse
to accept investments in any Series at any time without any cause or reason
therefor whatsoever.
Section 2.07. Assets and Liabilities of Series. All consideration received
by the Trust for the issue or sale of Shares of a particular Series, together
with all assets in which such consideration is invested or reinvested, all
income, earnings, profits, and proceeds thereof, 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
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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. Each such
allocation shall be conclusive and binding upon the Shareholders of all Series
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. The assets belonging to a particular Series shall be so recorded upon
the books of the Trust, and shall be held by the Trustees in trust for the
benefit of the holders of Shares of that Series. The assets belonging to each
particular Series shall be charged with the liabilities of that Series and all
expenses, costs, charges, and reserves attributable to that Series. Any general
liabilities, expenses, costs, charges, or reserves of the Trust which are not
readily identifiable as belonging to a 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.
Without limitation of the foregoing provisions of this Section 2.07, 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 of such Series only, and not against the assets of any other
Series or the Trust generally. Notice of this limitation on inter-Series
liabilities has been set forth in the certificate of trust of the Trust as
filed in the Office of the Secretary of State of the State of Delaware pursuant
to the Delaware Act, and upon the giving of such notice in the certificate of
trust, the statutory provisions of Section 3804 of the Delaware Act relating to
limitations on liabilities among Series (and the statutory effect under
Section 3804 of setting forth such notice in the certificate of trust) became
applicable to the Trust and each Series. Any person extending credit to,
contracting with or having any claim against any Series may look only to the
assets of that Series to satisfy or enforce any debt, liability, obligation or
expense incurred, contracted for or otherwise existing with respect to that
Series. 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.
Section 2.08. No Preemptive Rights. 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 Series.
Section 2.09. Personal Liability of Shareholders. Each Shareholder of the
Trust and of each Series shall not be personally liable for 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. 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 by way of
subscription for any Shares or otherwise. 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 may include a recitation limiting the obligation
represented thereby to the Trust or to one or more Series and its or their
assets (but the omission
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of such a recitation shall not operate to bind any Shareholder or Trustee of
the Trust). Shareholders shall have the same limitation of personal liability
as is extended to shareholders of a private corporation for profit incorporated
in the State of Delaware. Every written obligation of the Trust or any Series
may contain a statement to the effect that such obligation may only be enforced
against the assets of the appropriate Series or all Series; however, the
omission of such statement shall not operate to bind or create personal
liability for any Shareholder or Trustee.
Section 2.10. Assent to Trust Instrument. Every Shareholder, by virtue of
having purchased a Share shall become a Shareholder and shall be held to have
expressly assented and agreed to be bound by the terms hereof.
ARTICLE III
The Trustees
Section 3.01. 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. A Trustee
who with respect to the Trust is not an Interested Person shall be deemed to be
independent and disinterested when making any determinations or taking any
action as a Trustee, whether pursuant to the 1940 Act, the Delaware Act or
otherwise.
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 appointed to fill vacancies pursuant to Section 3.03
of this Article III, the Trustees shall be elected by the Shareholders owning
of record a plurality of the Shares voting at a meeting of Shareholders. Such a
meeting shall be held on a date fixed by the Trustees. In the event that less
than a majority of the Trustees holding office have been elected by
Shareholders, the Trustees then in office will call a Shareholders' meeting for
the election of Trustees.
Section 3.02. Term 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 or her trust by written
instrument signed by him or her and delivered to the Trust, which shall take
effect upon such delivery or upon such later date as is specified therein;
(b) any
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Trustee may be removed at any time by a vote of 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 requests in writing to be retired
or who has died, becomes 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 or her retirement; and (d) a Trustee may be removed at any meeting
of the Shareholders of the Trust by a vote of Shareholders owning at least
two-thirds of the Outstanding Shares.
Section 3.03. Vacancies and Appointment of Trustees. The following events
shall create a vacancy: (a) the declination to serve, death, resignation,
retirement, removal or physical or mental incapacity of a Trustee, (b) a
Trustee's inability to serve for any other reason or (c) an increase in the
number of Trustees. Whenever a vacancy in the Board of Trustees occurs, until
such vacancy is filled, the other Trustees shall have all the powers hereunder.
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 consistent with the limitations under the 1940 Act. 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
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. As soon as any
Trustee appointed pursuant to this Section 3.03 shall have accepted this trust,
or at such date as may be specified in the acceptance whenever made, the trust
estate shall vest in the new Trustee or Trustees, together with the continuing
Trustees, without any further act or conveyance, and the newly appointed
Trustee shall be deemed a Trustee hereunder. The power to appoint a Trustee
pursuant to this Section 3.03 is subject to the provisions of Section 16(a) of
the 1940 Act.
Section 3.04. Limitation on Delegation. No Trustee is empowered to delegate
any duty required to be performed solely by a Trustee under the 1940 Act.
Section 3.05. Number of Trustees. The number of Trustees shall be fixed from
time to time by action of a majority of the Trustees, provided, however, that
the number of Trustees shall in no event be more than fifteen (15) or less than
three (3).
Section 3.06. 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 3.07. Ownership of Assets of the Trust. The assets of the Trust and
of each Series 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. Title to all of the assets of each Series
of the Trust at all times shall be vested in the Trust as a separate legal
entity under the Delaware Act. No Shareholder shall be deemed to have a
severable ownership in any
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individual asset of the Trust or of any Series 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 Series. The Shares shall be personal property giving only the rights
specifically set forth in this Trust Instrument. Subject to the foregoing
provisions of this section, 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 3.08. Compensation. The Trustees as such shall be entitled to
reasonable compensation from the Trust, and they may periodically fix the
amount of such compensation. Nothing herein shall in any way prevent the
employment of any Trustee for advisory, management, legal, accounting,
investment banking or other services and payment for the same by the Trust
Section 3.09. Series Trustees. In the event that the Trustees establishing a
Series or class appoint separate Trustees with respect to such Series or class
("Series Trustees") as contemplated by Article II, Section 2.05, the Series
Trustees shall 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 shall have no power or authority with respect to any other Series or
class. Series Trustees may, but are not required to, serve as Trustees of the
Trust or any other Series or class of the Trust. Any provision of this Trust
Instrument relating to election of Trustees by Shareholders shall only 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
shareholders, 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.
ARTICLE IV
Powers of the Trustees
Section 4.01. 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 not in any way be bound or limited by present or future laws or customs
in regard to trust investments, but 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 this Trust without recourse to any court or other
authority. Subject to any applicable limitation in this Trust Instrument or the
By-Laws of the Trust, the Trustees shall have power and authority:
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(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
subscribe for, invest in, reinvest in, purchase or otherwise acquire, hold,
pledge, sell, assign, transfer, lend, lease, purchase or write options on,
exchange, distribute or otherwise dispose of and deal in and with securities
and other financial instruments or transactions of every nature, kind,
character, type and form, including, without limitation of the generality of
the foregoing, all types of stocks, shares, futures contracts, bonds,
debentures, notes, bills and other negotiable or non-negotiable instruments,
obligations, evidences of interest, certificates of interest, certificates of
participation, certificates, interests, evidences of ownership, guarantees,
warrants, options, or evidences of indebtedness issued or created by or
guaranteed as to principal and interest by any state or local government or any
agency or instrumentality thereof, by the United States Government or any
agency, instrumentality, territory, district or possession thereof, by any
foreign government or any agency, instrumentality, territory, district or
possession thereof, by any corporation organized under the laws of any state,
the United States or any territory or possession thereof or under the laws of
any foreign country, bank certificates of deposit, bank time deposits, bankers'
acceptances, commercial paper, securities issued by investment companies and
unit investment trusts and other pooled investment entities, derivative
contracts and instruments based on indexes, securities, commodities,
currencies, forward foreign currency exchange contracts and other contracts for
the purchase or sale of currencies or any other asset or instrument of economic
value; to pay for the same in cash or by the issue of Shares, including
reacquired Shares, bonds or notes of the Trust or otherwise; and to exercise
any and all rights, powers and privileges of ownership or interest in respect
of any and all such investments of every kind and description, including,
without limitation, the right to consent and otherwise act with respect
thereto, with power to designate one or more persons, firms, associations or
corporations to exercise any of said rights, powers and privileges in respect
of any said instruments; and to sell, exchange, lend, pledge, mortgage,
hypothecate, write options on and lease any or all 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
operations;
(c) To borrow money and in connection with such borrowing 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 or engagement of any other 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;
(f) To elect and remove such officers and appoint and terminate such
agents as they consider appropriate;
9
(g) To employ one or more banks, trust companies or companies that are
members of a national securities exchange or such other entities as the
Commission may permit as custodians of any assets of the Trust subject to any
conditions set forth in this Trust Instrument or in the By-Laws;
(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 as they consider desirable to any
officers of the Trust and to any investment advisor, administrator, manager,
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 provisions of Article XI hereof;
(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
powers of attorney to such person or persons as the Trustee shall deem proper,
granting to such person or persons such power and discretion with relation to
securities or property as the Trustees shall deem proper;
(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 in the name of 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 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 of
such Series having relative rights, powers and duties as they may provide
consistent with applicable law;
(p) Subject to the provisions of the 1940 Act and Section 3804 of the
Delaware Act to allocate assets, liabilities and expenses of the Trust to a
particular Series or class thereof, as applicable, or to apportion the same
between or among two or more Series or classes thereof, provided that any
liabilities or expenses incurred by a particular Series or class thereof shall
be payable solely out of the assets belonging to that Series 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;
10
(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 make distributions of income and of capital gains to Shareholders
in the manner provided herein;
(t) To establish, from time to time, a minimum investment for
Shareholders in the Trust or in one or more Series or class, and to require the
redemption of the Shares of any Shareholders whose investment is less than such
minimum upon giving notice to such Shareholder;
(u) To establish one or more committees, to delegate any of the powers
of the Trustees to said committees and to adopt a committee charter providing
for such responsibilities, membership (including Trustees, officers or other
agents of the Trust therein) and any other characteristics of said committees
as the Trustees may deem proper. Notwithstanding the provisions of this Article
IV, and in addition to such provisions or any other provision of this Trust
Instrument or of the By-Laws, the Trustees may by resolution appoint a
committee consisting of less than the whole number of Trustees then in office,
which committee may be empowered to act for and bind the Trustees and the
Trust, as if the acts of such committee were the acts of all the Trustees then
in office, with respect to the institution, prosecution, dismissal, settlement,
review or investigation of any action, suit or proceeding which shall be
pending or threatened to be brought before any court, administrative agency or
other adjudicatory body;
(v) To interpret the investment policies, practices, or limitations of
any Series;
(w) Notwithstanding any other provision hereof, to invest all or a
portion of the assets of any Series in one or more open-end investment
companies, including investment by means of a transfer of such assets in an
exchange for an interest or interests in such investment company or companies
or by any other method approved by the Trustees;
(x) Whenever no Shares of any Series or class are issued and
outstanding, to exercise with respect to such Series or class all rights of
Shareholders and take any action required by law, this Declaration of Trust or
any By-Laws of the Trust to be taken by Shareholders;
(y) To establish a registered office and have a registered agent in the
state of Delaware; and
(z) 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.
The foregoing clauses shall be construed both as objects and power, 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
11
hereunder shall be deemed an action on behalf of the Trust or the applicable
Series, 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 4.02. Issuance 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 Article II and Article IX, to apply to any such
repurchase, redemption, retirement, cancellation, or acquisition of Shares any
funds or property of the Trust, or the particular Series of the Trust, with
respect to which such Shares are issued.
Section 4.03. Trustees and Officers as Shareholders. Any Trustee, officer,
or agent of the Trust may acquire, own, and dispose of Shares to the same
extent as if he or she 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 he or she is interested,
subject only to the general limitations herein contained as to the sale and
purchase of such Shares; and all subject to any restrictions which may be
contained in the By-Laws.
Section 4.04. Action by the Trustees. The Trustees shall act by majority
vote at a meeting duly called or by written consent of a majority of the
Trustees without a meeting or by telephone meeting provided a quorum of
Trustees participate in any such telephone meeting, unless the 1940 Act, this
Trust Instrument or the By-Laws require a larger vote or unless the 1940 Act
requires that a particular action be taken only at a meeting at which the
Trustees are present in person. At any meeting of the Trustees, three (3) of
the Trustees shall constitute a quorum. Subject to the requirements of the 1940
Act, the Trustees by majority vote may delegate to any one or more of their
number their authority to approve particular matters or take particular actions
on behalf of the Trust.
Section 4.05. Chairperson. The Trustees may, but need not (unless required
by applicable law or regulation), appoint from among their number a
Chairperson, who shall be an officer of the Board, but not an officer of the
Trust. When present, the Chairperson shall preside at the meetings of the
Shareholders and of the Trustees, and shall have such other responsibilities as
prescribed by applicable law or regulation. The Chairperson, as well as any two
(2) other Trustees, may call meetings of the Trustees. The Board may, but need
not, from time to time prescribe to the Chairperson such other responsibilities
in furthering the Board's functions. The Chairperson's role and
responsibilities shall be non-executive and non-operational in nature. It shall
be understood that each Trustee, including the Chairperson, shall have equal
responsibility to act in good faith, in a manner which he or she reasonably
believes to be in the best interest of the Trust.
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Section 4.06. Principal Transactions. Except to the extent prohibited by
applicable law, the Trustees, on behalf of the Trust, may buy any securities
from or sell any securities to, or lend any assets of the Trust to, any
Trustees 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 advisor, distributor, transfer agent or other service provider for
the Trust or with any Interested Person of such person; and the Trust may
employ any such person, or firm or company in which such person is an
Interested Person, as broker, legal counsel, registrar, investment advisor,
distributor, transfer agent, dividend disbursing agent, or custodian, or in any
other capacity upon customary terms.
ARTICLE V
Expenses of the Trust
Section 5.01. Payment of Expenses By The Trust. Subject to the provisions of
Article II, Section 2.07 hereof, the Trust or a particular Series shall pay, or
shall reimburse the Trustees from the assets belonging to all Series or the
appropriate Series for their expenses (or the expenses of a class of such
Series) and disbursements, including, without limitation, fees and expenses of
Trustees, interest expense, taxes, fees and commissions of every kind, expenses
of pricing Trust portfolio securities, expenses of issue, repurchase and
redemption of shares, including expenses attributable to a program of periodic
repurchases or redemptions, expenses of registering and qualifying the Trust
and its Shares under Federal and State laws and regulations or under the laws
of any foreign jurisdiction, charges of third parties, including investment
advisors, managers, custodians, transfer agents, portfolio accounting and/or
pricing agents, and registrars, expenses of preparing and setting up in type
prospectuses and statements of additional information and other related Trust
documents, expenses of printing and distributing prospectuses sent to existing
Shareholders, auditing and legal expenses, reports to Shareholders, expenses of
meetings of Shareholders and proxy solicitations therefor, insurance expenses,
association membership dues and for such non-recurring items as may arise,
including litigation to which the Trust (or a Trustee acting as such) is a
party, and for all losses and liabilities by them incurred in administering the
Trust, and for the payment of such expenses, disbursements, losses and
liabilities the Trustees shall have a lien on the assets belonging to the
appropriate Series, on the assets of each such Series, prior to any rights or
interests of the Shareholders thereto. This section shall not preclude the
Trust from directly paying any of the aforementioned fees and expenses.
ARTICLE VI
Contracts with Service Providers
Section 6.01. Investment Advisor. Subject to applicable requirements of the
1940 Act, as modified by or interpreted by any applicable order of the
Commission or any rules or regulations adopted by or interpretive releases of
the Commission thereunder, 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 Trustees with such
investment advisory or management services upon such terms and conditions, as
the Trustees may in their discretion
13
determine. Notwithstanding any other provision of this Trust Instrument, the
Trustees may authorize any investment advisor (subject to such general or
specific instructions as the Trustees from time to time may 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 advisor (and all
without further action by the Trustees). Any such purchases, sales, and
exchanges shall be deemed to have been authorized by all of the Trustees.
The Trustees may authorize, subject to applicable requirements of the 1940
Act, including those relating to Shareholder approval, the investment advisor
to employ, from time to time, one or more sub-advisors to perform such of the
acts and services of the investment advisor, and upon such terms and
conditions, as may be agreed upon between the investment advisor and
sub-advisor. Any reference in this Trust Instrument to the investment advisor
shall be deemed to include such sub-advisors, unless the context otherwise
requires.
Section 6.02. 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 shall
be on such terms and conditions, if any, as may be prescribed in the By-Laws,
and such further terms and conditions as the Trustees may in their discretion
determine not inconsistent with the provisions of this Article VI, or of the
By-Laws; and such contract may also provide for the repurchase or sale of
Shares by such other party as principal or as agent of the Trust.
Section 6.03. 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 not inconsistent with the provisions of this Trust
Instrument or of the By-Laws.
Section 6.04. Administration Agreement. The Trustees may in their discretion
from time to time enter into an administration agreement or, if the Trustees
establish multiple Series or classes, separate administration agreements with
respect to each Series or class, whereby the other party to such agreement
shall undertake to manage the business affairs of the Trust or of a Series or
class thereof of the Trust and furnish the Trust or a Series or a class thereof
with office facilities, shall be responsible for the ordinary clerical,
bookkeeping and recordkeeping services at such office facilities, and other
facilities and services, if any, and shall assume other administrative
responsibilities for the Trust, all upon such terms and conditions as the
Trustees may in their discretion determine.
Section 6.05. Service Agreement. The Trustees may in their discretion from
time to time enter into service agreements with respect to one or more Series
or classes of Shares whereby the other parties to such Service Agreements will
provide administration and/or support services pursuant to administration plans
and service plans, all upon such terms and conditions as the Trustees in their
discretion may determine.
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Section 6.06. Parties to Contract. Any contract of the character described
in Sections 6.01, 6.02, 6.03, 6.04 and 6.05 of this Article VI or any contract
of the character described in Article VIII 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 such relationship, nor shall any person holding such
relationship be disqualified from voting on or executing the same in his or her
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 VI
or Article VIII hereof or of the By-Laws. The same person (including a firm,
corporation, partnership, trust or association) may be the other party to
contracts entered into pursuant to Sections 6.01, 6.02, 6.03, 6.04 and 6.05 of
this Article VI or pursuant to Article VIII hereof, 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 6.06.
Section 6.07. Provisions and Amendments. Any contract entered into pursuant
to Sections 6.01 or 6.02 of this Article VI shall be consistent with and
subject to the requirements of Section 15 of the 1940 Act or other applicable
law hereafter enacted with respect to its continuance in effect, its
termination, and the method of authorization and approval of such contract or
renewal thereof, and no amendment to any contract, entered into pursuant to
Section 6.01 of this Article VI shall be effective unless assented to in a
manner consistent with the requirements of said Section 15, as modified by any
applicable rule, regulation or order of the Commission.
ARTICLE VII
Shareholders' Voting Powers and Meetings
Section 7.01. Voting Powers. The Shareholders shall have power to vote only
(i) for the election of Trustees as provided in Article III, Section 3.01
hereof, (ii) for the removal of Trustees as provided in Article III,
Section 3.02(d) hereof, (iii) with respect to any investment advisory or
management contract as provided in Article VI, Sections 6.01 and 6.07 hereof to
the extent required by the 1940 Act, and (iv) with respect to such additional
matters relating to the Trust as may be required by law, by this Trust
Instrument, or the By-Laws or any registration of the Trust with the Commission
or any State, or as the Trustees may consider necessary or desirable.
On any matter submitted to a vote of the Shareholders, all Shares shall be
voted separately by individual Series, except: (i) when required by the 1940
Act, Shares shall be voted in the aggregate and not by individual Series; and
(ii) when the Trustees have determined that the matter affects the interests of
more than one Series, then the Shareholders of all such affected Series shall
be entitled to vote thereon in the aggregate and not by individual Series. The
Trustees also may determine that a matter affects only the interests of one or
more classes of a Series, in which case any such matter shall be voted on
separately by such class or classes. As
15
determined by the Trustees without the vote or consent of Shareholders, on any
matter submitted to a vote of Shareholders either (i) 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 or
(ii) each dollar of Net Asset Value (number of Shares owned times Net Asset
Value per Share of such Series or class, as applicable) shall be entitled to
one vote on any matter on which such Shares are entitled to vote and each
fractional dollar amount shall be entitled to a proportionate fractional vote.
Without limiting the power of the Trustees in any way to designate otherwise in
accordance with the preceding sentence, the Trustees hereby establish that each
whole dollar of Net Asset Value shall be entitled to one vote as to any matter
on which the Shares represented thereby are entitled to vote and each
fractional dollar of Net Asset Value be entitled to a proportionate fractional
vote. The Trustees may, in conjunction with the establishment of any further
Series or any classes of Shares, establish conditions under which the several
Series or classes of Shares shall have separate voting rights or no voting
rights. 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 or by any electronic or
telecommunications device or in any other manner, but if a proposal by anyone
other than the officers or Trustees is submitted to a vote of the Shareholders
of any Series or class, or if there is a proxy contest or proxy solicitation or
proposal in opposition to any proposal by the officers or Trustees, Shares may
be voted only in person or by written proxy. The By-Laws may include further
provisions for Shareholders' votes and meetings and related matters. 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. Meetings of shareholders
shall be called and notice thereof and record dates therefor shall be given and
set as provided in the By-Laws.
Section 7.02. Quorum and Required Vote. One-third of Shares entitled to vote
in person or by proxy shall be a quorum for the transaction of business at a
Shareholders' meeting, except that where any provision of law or of this Trust
Instrument permits or requests that holders of any Series shall vote as a
Series (or that holders of a class shall vote as a class), then one-third of
the aggregate number of Shares of that Series (or that class) entitled to vote
shall be necessary to constitute a quorum for the transactions of business by
that Series (or that class). Any lesser number shall be sufficient for
adjournments. Any adjourned session or sessions may be held, within a
reasonable time after the date set for the original meeting, without the
necessity of further notice. Except when a larger vote is required by law or by
any provision of this Trust Instrument of the By-Laws, a majority of the Shares
voted in person or by proxy shall decide any questions and a plurality shall
elect a Trustee, provided that where any provision of law or of this Trust
Instrument permits or requires that the holders of any Series shall vote as a
Series (or that the holders of any class shall vote as a class), then a
majority of the Shares present in person or by proxy of that Series or, if
required by law, a Majority Shareholder Vote of that Series (or class), voted
on the matter in person or by proxy shall decide matter insofar as that Series
(or class) is concerned. The By-Laws may provide that the Shareholders may act
by written consent of the requisite number of Shares required to vote on the
matter, whether on a Trust, Series or class basis.
16
ARTICLE VIII
Custodian
Section 8.01. Appointment and Duties. The Trustees at all times shall employ
an entity satisfying the requirements of the 1940 Act, as custodian with
authority as its agent, but subject to such restrictions, limitations, and
other requirements, if any, as may be contained in the By-Laws of the Trust:
(a) to hold the securities and other assets of the Trust and deliver the
same upon written order or oral order confirmed in writing;
(b) to receive and receipt for any moneys due to the Trust and deposit
the same in its own banking department or elsewhere as the Trustees may direct;
and
(c) to disburse such funds upon orders or vouchers; and
the Trust also may employ such custodian as its agent:
(i) to keep the books and accounts of the Trust or of any Series or
class and furnish clerical and accounting services; and
(ii) to compute, if authorized to do so by the Trustees, the Net Asset
Value of any Series, or class thereof, in accordance with the provisions
hereof; all upon such basis of compensation as may be agreed upon between
the Trustees and the custodian.
The Trustees also may authorize the custodian to employ one or more
sub-custodians from time to time to perform such of the acts and services of
the custodian, and upon such terms and conditions, as may be agreed upon
between the custodian and such sub-custodian and approved by the Trustees,
provided that in every case such sub-custodian shall be a bank, a company that
is a member of a national securities exchange, a trust company or any other
entity satisfying the requirements of the 1940 Act.
Section 8.02. Central Certificate System. Subject to such rules,
regulations, and orders as the Commission may adopt, the Trustees may direct
the custodian to deposit all or any part of the securities owned by the Trust
in a system for the central handling of securities established by a national
securities exchange or a national securities association registered with the
Commission under the Securities Exchange Act of 1934, as amended, or such other
person as may be permitted by the Commission, or otherwise in accordance with
the 1940 Act, pursuant to which system all securities of any particular class
or Series of any issuer deposited within the system are treated as fungible and
may be transferred or pledged by bookkeeping entry without physical delivery of
such securities, provided that all such deposits shall be subject to withdrawal
only upon the order of the Trust or its custodians, sub-custodians or other
agents.
17
ARTICLE IX
Distributions and Redemptions
Section 9.01. Distributions.
(a) The Trustees from time to time may declare and pay dividends or
other distributions with respect to any Series. No dividend or distribution,
including, without limitation, any distribution paid upon termination of the
Trust or of any Series (or class) with respect to, nor any redemption or
repurchase of, the Shares of any Series (or class) shall be effected by the
Trust other than from the assets held with respect to such Series. The Trustees
shall have full discretion 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. 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.
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. 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.
(b) Anything in this Trust Instrument to the contrary notwithstanding,
the Trustees at any time may 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 fixed as provided in paragraph (b) of this
Section 9.01.
Section 9.02. Redemptions. The Trustees may specify conditions, prices, and
places of redemption, may specify binding requirements for the proper form or
forms of requests for redemption and may specify the amount of any deferred
sales charge or other fee to be withheld from redemption proceeds. Payment of
the redemption price may be wholly or partly in securities or other assets at
the value of such securities or assets used in such determination of Net Asset
Value, or may be in cash. Upon redemption, Shares may be reissued from time to
time. The Trustees may require Shareholders to redeem Shares for any reason
under terms set by the Trustees, including, but not limited to, the failure of
a Shareholder to supply a taxpayer identification number if required to do so,
or to have the minimum investment required, or to pay when due for the purchase
of Shares issued to him. 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 Series or class or
any governmental authority. Notwithstanding the foregoing and as provided in
Section 9.04, the Trustees may postpone payment of the redemption price and may
suspend the right of the Shareholders to require any Series or class to redeem
Shares during any period of time when and to the extent permissible under the
1940 Act. All authorized Shares shall be subject to redemption and
18
redeemable in accordance with and pursuant to procedures or methods prescribed
or approved by the Trustees.
Section 9.03. Determination of Net Asset Value. The Trustees shall cause the
Net Asset Value of Shares of each Series or class to be determined from time to
time in a manner consistent with applicable laws and regulations. Subject to
the 1940 Act, the Trustees may delegate the power and duty to determine Net
Asset Value per Share to one or more Trustees or officers of the Trust or to a
Custodian, depository or other agent appointed for such purpose. The Net Asset
Value of Shares shall be determined separately for each Series or class at such
times as may be prescribed by the Trustees. If, for any reason, the net income
of any Series that seeks to maintain a constant Net Asset Value per Share,
determined at any time, is a negative amount, the Trustees shall have the power
with respect to that Series: (i) to offset each Shareholder's pro rata share of
such negative amount from the accrued dividend account of such Shareholder; or
(ii) to reduce the number of Outstanding Shares of such Series by reducing the
number of Shares in the account of each Shareholder by a pro rata portion of
the number of full and fractional Shares which represents the amount of such
excess negative net income; or (iii) to cause to be recorded on the books of
such Series an asset account in the amount of such negative net income
(provided that the same shall thereupon become the property of such Series with
respect to such Series and shall not be paid to any Shareholder), which account
may be reduced by the amount, of dividends declared thereafter upon the
Outstanding Shares of such Series on the day such negative net income is
experienced, until such asset account is reduced to zero; or (iv) to combine
the methods described in clauses (i) and (ii) and (iii) of the sentence; or
(v) to take any other action they deem appropriate, in order to cause (or in
order to assist in causing) the Net Asset Value per Share of such Series to
remain at a constant amount per Outstanding Share immediately after each such
determination and declaration. The Trustees also shall have the power not to
declare a dividend out of net income for the purpose of causing the Net Asset
Value per Share of the Series to be increased. The Trustees shall not be
required to adopt, but at any time may adopt, discontinue, or amend the
practice of maintaining the Net Asset value per Share of the Series at a
constant amount.
Section 9.04. Suspension of the Right of Redemption. The Trustees may
declare a suspension of the right of redemption or postpone the date of payment
as permitted under the 1940 Act. Such suspension shall take effect at such time
as the Trustees shall specify but not later than the close of business on the
business day next following the declaration of suspension, and thereafter there
shall be no right of redemption or payment until the Trustees shall declare the
suspension at an end. In the case of a suspension of the right of redemption, a
Shareholder may either withdraw his or her request for redemption or receive
payment based on the Net Asset Value per Share next determined after the
termination of the suspension.
Section 9.05. Share Ownership Information. Upon demand, the holders of
Shares shall disclose to the Trustees in writing such information with respect
to direct and indirect ownership of Shares as the Trustees deem necessary to
comply with the provisions of the Internal Revenue Code, or to comply with the
requirements of any other governmental authority. Except to the extent required
to be provided, filed or made available by the 1940 Act or other federal
securities laws applicable to the Trust, no Shareholder shall be entitled to a
current list of the names, addresses or other information regarding any other
Shareholder or any other information that, but
19
for the limiting language in this sentence, otherwise may be available to
Shareholders pursuant to Section 3819 of the Delaware Act.
ARTICLE X
Limitation of Liability and Indemnification
Section 10.01. Limitation of Liability. All persons contracting with or
having any claim against the Trust or a particular Series shall look only to
the assets of all Series or such particular Series for payment under such
contract or claim; and neither the Trustees nor, when acting in such capacity,
any of the Trust's officers, employees or agents, whether past, present or
future, shall be personally liable therefor. Written instruments or obligations
on behalf of the Trust or any Series may contain a statement to the foregoing
effect, but the absence of such statement shall not operate to make any Trustee
or officer of the Trust liable thereunder. Provided they have exercised
reasonable care and have acted under the reasonable belief that their actions
are in the best interest of the Trust, the Trustees and officers of the Trust
shall not be responsible or liable for any act or omission or for neglect or
wrongdoing of them or any officer, agent, employee, investment advisor or
independent contractor of the Trust, but nothing contained in this Declaration
or in the Delaware Act shall protect any Trustee or officer of the Trust
against liability to the Trust or to Shareholders to which the Trustee or
officer 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 or her office.
Section 10.02. Indemnification.
(a) Subject to the exceptions and limitations contained in paragraph
(b) below:
(i) every Person who is, or has been, a Trustee or officer of the
Trust (including any individual who serves at its request as director,
officer, partner, trustee or the like of another organization in which it
has any interest as a shareholder, creditor or otherwise) (hereinafter
referred to as a "Covered Person") shall be indemnified by the Trust, or by
one or more Series thereof if the claim arises from his or her conduct with
respect to only such Series (unless the Series was terminated prior to any
such liability or claim being known to the Trustees, in which case such
obligations, to the extent not satisfied out of the assets of a Series, the
obligation shall be an obligation of the Trust), to the fullest extent
permitted by law against liability and against all expenses reasonably
incurred or paid by such Covered Person in connection with any claim,
action, suit, or proceeding in which such Covered Person becomes involved as
a party or otherwise or is threatened to be involved as a party or otherwise
by virtue of being or having been a Trustee or officer and against amounts
paid or incurred by such Covered Person in the settlement thereof; and
(ii) the words "claim," "action," "suit," or "proceeding" shall apply
to all claims, actions, suits, or proceedings (civil, criminal, regulatory
or other, including investigations and appeals), actual or threatened, while
in office or thereafter, and the
20
words "liability" and "expenses" shall include, without limitation,
attorney's fees, costs, judgments, amounts paid in settlement, fines,
penalties, and other liabilities.
(b) No indemnification shall be provided hereunder to a Covered Person:
(i) who shall have been adjudicated by a court or body before which
the proceeding was brought (A) to be liable to the Trust or its Shareholders
by reason of willful misfeasance, bad faith, gross negligence, or reckless
disregard of the duties involved in the conduct of the Covered Person's
office or (B) not to have acted in good faith in the reasonable belief that
his or her action was in the best interest of the Trust; or
(ii) in the event of a settlement or other disposition not involving
a final adjudication as provided in paragraph (b)(i) resulting in a payment
by a Covered Person, unless there has been a determination that such Trustee
or officer did not engage in willful misfeasance, bad faith, gross
negligence, or reckless disregard of the duties involved in the conduct of
his or her office:
(A) by the court or other body approving the settlement or other
disposition;
(B) by at least a majority of those Trustees who neither are
Interested Persons of the Trust nor are parties to the matter based
upon a review of readily-available facts (as opposed to a full
trial-type inquiry); or
(C) by written opinion of independent legal counsel based upon a
review of readily available facts (as opposed to a full trial-type
inquiry).
(c) The rights of indemnification herein provided may be insured against
by policies maintained by the Trust, shall be severable, shall not be exclusive
of or affect any other rights to which any Covered Person may now or hereafter
be entitled, shall continue as to a person who has ceased to be a Covered
Person and shall inure to the benefit of the heirs, executors, and
administrators of such a Covered Person. Nothing contained herein shall affect
any rights to indemnification to which Trust personnel, other than Covered
Persons, and other persons may be entitled by contract or otherwise under law.
(d) To the maximum extent permitted by applicable law, expenses in
connection with the preparation and presentation of a defense to any claim,
action, suit, or proceeding of the character described in paragraph (a) of this
Section 10.02 may be paid by the Trust or Series from time to time prior to
final disposition thereof upon receipt of an undertaking by or on behalf of
such Covered Person that such amount will be repaid by such Covered Person to
the Trust or Series if it ultimately is determined that he or she is not
entitled to indemnification under this Section 10.02; provided, however, that
either (i) such Covered Person shall have provided a surety bond or some other
appropriate security for such undertaking; (ii) the Trust or Series thereof is
insured against losses arising out of any such advance payments, or
(iii) either a majority of the Trustees who are neither Interested Persons of
the Trust nor parties to the matter, or independent legal counsel in a written
opinion, shall have determined, based upon a review of readily-available facts
(as opposed to a trial-type inquiry or full investigation), that there is a
reason to believe that such Covered Person will be entitled to indemnification
under this Section
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10.02. In connection with any determination pursuant to clause (iii) of the
preceding sentence, any Trustee who is not an Interested Person of the Trust
shall be entitled to a rebuttable presumption that he or she has not engaged in
willful misfeasance, bad faith, gross negligence, or reckless disregard of the
duties involved in the conduct of his or her office.
(e) Any repeal or modification of this Section 10.02, or adoption or
modification of any other provision of this Declaration or the By-Laws
inconsistent with this Section, shall be prospective only, to the extent that
such repeal, or modification adoption would, if applied retrospectively,
adversely affect any limitation on the liability of any Covered Person or
indemnification available to any Covered Person with respect to any act or
omission which occurred prior to such repeal, adoption or modification.
Section 10.03. Shareholders. In case any Shareholder or former Shareholder
of any Series shall be held to be personally liable solely by reason of his or
her being or having been a Shareholder of such Series and not because of his or
her acts or omissions or for some other reason, the Shareholder or former
Shareholder (or his or her heirs, executors, administrators, or other legal
representatives, or, in the case of a corporation or other entity, its
corporate or other general successor) shall be entitled out of the assets
belonging to the applicable Series 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 assume, upon request by the Shareholder, the
defense of any claim made against the Shareholder for any act or obligation of
the Series and satisfy any judgment thereon from the assets of the Series.
Section 10.04. No Bond Required of Trustees. No Trustee shall be obligated
to give any bond or other security for the performance of any of his or her
duties hereunder.
Section 10.05. No Duty of Investigation; Notice in Trust Instruments, Etc.
No purchaser, lender, transfer agent or other Person dealing with the Trustees
or any officer, employee or agent of the Trust or a Series thereof shall be
bound to make any inquiry concerning the validity of any transaction purporting
to be made by the Trustees or by said officer, employee or agent or be liable
for the application of money or property paid, loaned, or delivered to or on
the order of the Trustees or of said officer, employee or agent. Every
obligation, contract, instrument, certificate, Share, other security of the
Trust or a Series thereof or undertaking, and every other act or thing
whatsoever executed in connection with the Trust shall be conclusively presumed
to have been executed or done by the executors thereof only in their capacity
as Trustees under this Declaration or in their capacity as officers, employees
or agents of the Trust or a Series thereof. Written obligations, contracts,
instruments, certificates, Shares, other securities of the Trust or a Series
thereof or undertakings made or issued by the Trustees may recite that the same
are executed or made by them not individually, but as Trustees under the
Declaration, and that the obligations of the Trust or a Series thereof under
any such instrument are not binding upon any of the Trustees or Shareholders
individually, but bind only the Trust Property or the Trust Property of the
applicable Series, and may contain any further recital which they may deem
appropriate, but the omission of such recital shall not operate to bind the
Trustees individually. The Trustees shall at all times maintain such insurance
for the protection of the Trust Property or the Trust Property of the
applicable Series, its Shareholders, Trustees, officers, employees and agents
as the Trustees in their sole judgment shall deem advisable.
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Section 10.06. Reliance on Experts, Etc. Subject to Section 11.01, each
Trustee, officer or employee of the Trust or a Series thereof shall, in the
performance of his or her duties, powers and discretions hereunder be fully and
completely justified and protected with regard to any act or any failure to act
resulting from reliance in good faith upon the books of account or other
records of the Trust or a Series thereof, upon an opinion of counsel, or upon
reports made to the Trust or a Series thereof by any of its officers or
employees or by the investment advisor, the administrator, the distributor,
transfer agent, selected dealers, accountants, appraisers or other experts or
consultants selected with reasonable care by the Trustees, officers or
employees of the Trust, regardless of whether such counsel or expert may also
be a Trustee.
ARTICLE XI
Miscellaneous
Section 11.01. Trust Not a Partnership. The Trust was originally created as
a business trust (now known as a statutory trust) pursuant to the Delaware Act.
It was not the intention of the Trustees to create a general partnership,
limited partnership, joint stock association, corporation, bailment, or any
form of legal relationship other than a business trust (now known as a
statutory trust) pursuant to the Delaware Act. 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 shall look only to the assets of the appropriate
Series or, if the Trustees have yet to establish the Series, the Trust for
payment under such credit, contract, or claim; and neither the Shareholders nor
the Trustees, nor any of their agents, whether past, present, or future, shall
be personally liable therefor. Nothing in this Trust Instrument shall protect a
Trustee against any liability to which the Trustee otherwise would 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
hereunder.
Section 11.02. Trustee/Officer Action. The exercise by the Trustees or the
officers of the Trust of their powers and discretions 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 X hereof
and to Section 11.01 of this Article XI, neither the Trustees nor the officers
of the Trust shall be liable for errors of judgment or mistakes of fact or law.
Section 11.03. Termination of Trust.
(a) This Trust shall continue without limitation of time but subject to
the provisions of paragraph (b) of this Section 11.03.
(b) The Trust or any Series or class thereof shall be dissolved:
(i) With respect to the Trust, (x) upon the vote of the holders of
not less than a majority of the Outstanding Shares of the Trust entitled to
vote, or (y) at the discretion of the Trustees either (A) at any time there
are no Outstanding Shares of the Trust, or (B) upon at least thirty
(30) days' prior written notice to the Shareholders of the Trust; or
(ii) With respect to a particular Series or class, (x) upon the vote
of the holders of not less than a majority of the Outstanding Shares of such
Series or class entitled to
23
vote, or (y) at the discretion of the Trustees either (A) at any time there
are no Outstanding Shares of such Series or Class, or (B) upon at least
thirty (30) days' prior written notice to the Shareholders of such Series or
Class; or
(iii) With respect to the Trust (or a particular Series or class),
upon the occurrence of a dissolution or termination event pursuant to any
other provision of this Declaration or applicable law; or
(iv) With respect to any Series or class, upon any event that causes
the dissolution of the Trust.
(c) The Trustees' decision to dissolve the Trust or any Series or class
may be based on, among other things, a determination that the continuation of
the Trust or a Series or a class thereof is not in the best interest of the
Trust or such Series or class, or their respective Shareholders as a result of
such factors or events adversely affecting the ability of the Trust or such
Series or class to conduct its business and operations in an economically
viable manner. Such factors and events may include (but are not limited to) the
inability of the Trust or such Series or class to obtain or maintain its assets
at an appropriate size, changes in laws or regulations governing the Trust or
such Series or class or affecting assets of the type in which the Trust or such
Series or class invests, or economic developments or trends having a
significant adverse impact on the business or operations of the Trust or such
Series or class.
(d) Upon making reasonable provision, in the determination of the
Trustees, for the payment of all liabilities of the Trust or any affected
Series or class thereof, the Trustees shall distribute the remaining proceeds
or assets (as the case may be) of each Series (or class) ratably among the
holders of Shares of that Series or class then outstanding.
(e) Upon completion of the distribution of the remaining proceeds or the
remaining assets as provided in paragraph (b) of this Section 11.03, the Trust
or any affected Series or class thereof shall terminate and the Trustees and
the Trust 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 Series or class shall be canceled and discharged.
Upon termination of the Trust, following completion of winding up of the
Trust's 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 of cancellation may be signed by any one Trustee.
Section 11.04. Merger or Consolidation; Conversion; Reorganization;
Master/Feeder.
(a) Pursuant to an agreement of merger or consolidation, the Trustees,
by vote of a majority of the Trustees, may cause the Trust or any Series to
merge or consolidate with or into one or more Series or one or more statutory
trusts (or series thereof) or other business entities (as defined in
Section 11.04(c) below) formed or organized or existing under the laws of the
State of Delaware or any other state of the United States or any foreign
country or other foreign jurisdiction. Any such merger or consolidation shall
not require the vote of the Shareholders unless such vote is required by the
1940 Act; provided, however, that the Trust shall provide at least 30 days'
prior written notice to the Shareholders of such merger or
24
consolidation. In all respects not governed by the 1940 Act, other applicable
law or the requirements of any securities exchange on which Shares are listed
for trading, the Trustees shall have the power to prescribe additional
procedures necessary or appropriate to accomplish a merger or consolidation,
including the power to create one or more Series or separate statutory trusts
(or series thereof) or other business entities 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 into beneficial interests in such Series
or separate statutory trust or trusts (or series thereof) or other business
entities.
(b) The Trustees, by vote of a majority of the Trustees, may cause
(i) the Trust to convert to any other business entity except to the extent
prohibited by applicable law; (ii) the Shares of the Trust or any Series or
class to be converted into beneficial interests in Series or classes hereof or
of another statutory trust (or series or class thereof) or other business
entity, or (iii) the Shares to be exchanged under or pursuant to any state or
federal statute to the extent permitted by law. Any such entity conversion,
Share conversion or Share exchange shall not require the vote of the
Shareholders unless such vote is required by the 1940 Act; provided, however,
that the Trust shall provide at least 30 days' prior written notice to the
Shareholders of the Trust of any conversion of Shares of the Trust pursuant to
Section 11.04(b)(i) or 11.04(b)(ii) or exchange of Shares of the Trust pursuant
to Section 11.04(b)(iii), and at least 30 days' prior written notice to the
Shareholders of a particular Series or class of any conversion of Shares of
such Series or class pursuant to Section 11.04(b)(ii) or exchange of Shares of
such Series or class pursuant to Section 11.4(b)(iii). In all respects not
governed by the 1940 Act, other applicable law or the requirements of any
securities exchange on which Shares are listed for trading, the Trustees shall
have the power to prescribe additional procedures necessary or appropriate to
accomplish an entity conversion, Share conversion or Share exchange, including
the power to create one or more Series or classes hereof or one or more
separate statutory trusts (or series or classes thereof) or other business
entity to which all or any part of the assets, liabilities, profits or losses
of the Trust or any Series or class may be transferred and to provide for the
conversion of Shares of the Trust or any Series or class into beneficial
interests in such Series, classes or separate trust or trusts (or series or
class thereof) or other business entity.
(c) The Trustees, by vote of a majority of the Trustees, may cause the
Trust to sell, convey and transfer all or substantially all of the assets of
the Trust ("sale of Trust assets") or all or substantially all of the assets
associated with any one or more Series ("sale of such Series' assets"), to
another statutory trust, business trust, trust, partnership, limited
partnership, limited liability company, limited liability partnership,
corporation or other entity or association organized under the law of any
state, or to one or more separate series thereof (each a "business entity"), or
to the Trust to be held as assets associated with one or more Series of the
Trust, in exchange for cash, shares or other securities (including, without
limitation, in the case of a transfer to another Series of the Trust, Shares of
such other Series) with such sale, conveyance and transfer either (i) being
made subject to, or with the assumption by the transferee of, the liabilities
associated with the Trust or the liabilities associated with the Series the
assets of which are so transferred, as applicable, or (ii) not being made
subject to, or not with the assumption of, such liabilities. Any such sale,
conveyance and transfer shall not require the vote of the Shareholders unless
such vote is required by the 1940 Act; provided, however, that the Trust shall
provide at least 30 days' prior written notice to the Shareholders of the Trust
of any such sale of Trust assets, and at least 30 days' prior written notice to
the Shareholders of a particular
25
Series of any sale of such Series' assets. Following such sale of Trust assets,
the Trust shall distribute such cash, shares or other securities ratably among
the Shareholders of the Trust (giving due effect to the assets and liabilities
associated with and any other differences among the various Series the assets
associated with which have been so sold, conveyed and transferred, and due
effect to the differences among the various classes, if any, within each such
Series). Following a sale of such Series' assets, the Trust shall distribute
such cash, shares or other securities ratably among the Shareholders of such
Series (giving due effect to the differences among the various classes, if any,
within such Series). If all of the assets of the Trust have been so sold,
conveyed and transferred, the Trust shall be dissolved; and if all of the
assets of a Series have been so sold, conveyed and transferred, such Series and
the classes thereof, if any, shall be dissolved. In all respects not governed
by the 1940 Act or other applicable law, the Trustees shall have the power to
prescribe additional procedures necessary or appropriate to accomplish such
sale, conveyance and transfer, including the power to create one or more Series
or classes hereof or one or more separate statutory trusts (or series or
classes thereof) or other business entities to which all or any part of the
assets, liabilities, profits or losses of the Trust or such Series or classes
may be transferred and to provide for the conversion of Shares into beneficial
interests in such Series, classes or separate statutory trust or trusts (or
series or classes thereof) or other business entities.
(d) Pursuant to and in accordance with the provisions of Section 3815(f)
of the Delaware Act, and notwithstanding anything to the contrary contained in
this Trust Instrument, an agreement of merger or consolidation approved by the
Trustees in accordance with this Section 11.04 may effect any amendment to this
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.
(e) The Trustees may, by vote of a majority of the Trustees, and without
a Shareholder vote (except to the extent required by the 1940 Act), cause the
Trust or any one or more Series to convert to or from a master/feeder structure
(a structure in which a feeder fund invests all or a portion of its assets in a
master fund, rather than or in addition to making investments in securities
directly) and thereby cause the Trust or such Series to either become feeders
in a master fund, or to become master funds in which other funds are feeders,
or to become a stand-alone fund.
Section 11.05. Filing of Copies; References; Headings. The original or a
copy of this Trust Instrument and the original or a copy 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. A supplemental trust
instrument executed by any one Trustee may be relied upon as a supplement
hereof. 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, and
references to this Trust Instrument, and all expressions such as or similar to
"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 such as or similar to "his," "he," and "him" shall be deemed to
include the feminine and neuter, as well as masculine, genders. Headings are
26
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 11.06. 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 Delaware Act and
the laws of said State; provided, however, that there shall not be applicable
to the trust, the Trust, the Trustee 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 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 and 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
"Delaware 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.
Section 11.07. Amendments.
(a) This Trust Instrument may be amended by a vote of the holders of a
majority of the Shares outstanding and entitled to vote or by any instrument in
writing, without a meeting, signed by a majority of the Trustees and consented
to by the holders of a majority of the Shares outstanding and entitled to vote.
(b) This Trust Instrument may also be amended by a vote of a majority of
the Trustees, without approval or consent of the Shareholders, except that no
amendment can be made by the Trustees to impair any voting or other rights of
shareholders in this Trust Instrument that are prescribed by U.S. federal or
state law. Without limiting the foregoing, the Trustees may amend this Trust
Instrument without the approval or consent of Shareholders (i) to change the
name of the Trust or any Series, (ii) to add to their duties or obligations or
surrender any rights or powers granted to them herein; (iii) to cure any
ambiguity, to correct or supplement any provision herein which may be
inconsistent with any other provision herein or to make any other provisions
with respect to matters or questions arising under this Trust Instrument which
will not be inconsistent with the provisions of this Trust Instrument; and
(iv) to eliminate or modify any provision of this Trust Instrument which
incorporates, memorializes or sets forth an existing
27
requirement imposed by or under (x) any U.S. federal or state statute or any
rule, regulation or interpretation thereof or thereunder or (y) any rule,
regulation, interpretation or guideline of any federal or state agency, now or
hereafter in effect, including without limitation, requirements set forth in
the 1940 Act, to the extent any change in applicable law liberalizes,
eliminates or modifies any such requirements, but the Trustees shall not be
liable for failure to do so.
(c) The Trustees may also amend this Trust Instrument without the
approval or consent of Shareholders (i) if they deem it necessary to conform
this Trust Instrument to the requirements of applicable U.S. federal or state
laws or regulations or the requirements of the regulated investment company
provisions of the Internal Revenue Code of 1986, as amended, (ii) if requested
or required to do so, by any U.S. federal agency or by a state blue sky
commissioner or similar official, but the Trustees shall not be liable for
failing so to do or (iii) if they designate a Series designed to operate as a
money market fund and deem it appropriate to incorporate provisions to
facilitate such Series maintaining a stable net asset value.
(d) Nothing contained in this Trust Instrument shall permit the
amendment of this Trust Instrument to impair the exemption from personal
liability of the Shareholders, Trustees, officers, employees and agents of the
Trust or to permit assessments upon Shareholders.
(e) Notwithstanding anything else herein, any amendment to Article X
hereof shall not limit the rights to indemnification or insurance provided
therein with respect to action or omission of Covered Persons prior to such
amendment.
(f) A certificate signed by a majority of the Trustees setting forth an
amendment and reciting that it was duly adopted by the Trustees or by the
Shareholders as aforesaid or a copy of this Trust Instrument executed by a
majority of the Trustees, shall be conclusive evidence of such amendment when
lodged among the records of the Trust.
Section 11.08. Derivative Actions. In addition to the requirements set forth
in Section 3816 of the Delaware Act, a Shareholder may bring a derivative
action on behalf of the Trust only if the following conditions are met:
(i) Shareholders eligible to bring such derivative action under the
Delaware Act who hold at least 10% of the Outstanding Shares of the Trust,
or 10% of the Outstanding Shares of the Series or class to which such action
relates, shall join in the request for the Trustees to commence such action
provided, however, that this condition shall be excused if a majority of the
Board of Trustees, or a majority of any committee established to consider
the merits of such action, has a personal financial interest in the action
at issue. A Trustee shall not be deemed to have a personal financial
interest in an action or otherwise be disqualified from ruling on a
Shareholder demand by virtue of the fact that such Trustee receives
remuneration from service on the Board of Trustees of the Trust or on the
boards of one or more investment companies with the same or an affiliated
investment advisor or underwriter; and
(ii) The Trustees must be afforded a reasonable amount of time to
consider such shareholder request and to investigate the basis of such
claim. The
28
Trustees shall be entitled to retain counsel or other advisers in
considering the merits of the request and shall require an undertaking by
the Shareholders making such request to reimburse the Trust for the expense
of any such advisers in the event that the Trustees determine not to bring
such action.
Section 11.09. Fiscal Year. The fiscal year of the Trust or a Series shall
end on a specified date as set forth in the By-Laws or by resolution of the
Trustees, provided, however, that the Trustees, without Shareholder approval,
may change the fiscal year of the Trust or any Series.
Section 11.10. 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, with
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 improper, 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 11.11. Use of the Names "Barclays" and "LifePath". The Trustees
expressly agree and acknowledge that the names "Barclays" and "LifePath" are
the sole property of Barclays Global Investors, N.A. ("BGI") or one or more of
its affiliates. BGI has granted to the Trust a non-exclusive license to use
such names as part of the name of the Trust and its Series now and in the
future. The Trustees further expressly agree and acknowledge that the
non-exclusive license granted herein may be terminated by BGI if the Trust
ceases to use Barclays Global Fund Advisors ("BGFA") or one of its affiliates
as investment advisor to each Series or to use other affiliates or successors
of BGFA for such purposes. In such event, the non-exclusive license may be
revoked by BGI and the Trust shall cease using the names "Barclays" and
"LifePath," or any name(s) misleadingly implying a continuing relationship
between the Trust and BGI or any of its affiliates, as part of its name and the
name of any Series unless otherwise consented to by BGI or any successor to its
interests in such name.
The Trustees further understand and agree that so long as BGFA and/or any
future advisory affiliate of BGFA shall continue to serve as the investment
advisor to any Series, other registered open- or closed-end investment
companies ("funds") as may be sponsored or advised by BGFA or its affiliates
shall have the right to adopt and to use the names "Barclays" and/or "LifePath"
in their names and in the names of any series or class of shares of such funds
as shall be permitted by BGI.
[SIGNATURE PAGE FOLLOWS]
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IN WITNESS WHEREOF, each of the undersigned Trustees has hereunto set his or
her hand as of the day and year first above written.
/s/ Xxxx X.X. Xxxxxxxxx
-----------------------------
Xxxx X. X. Xxxxxxxxx, as
Trustee and not individually
/s/ Xxx X. Xxxxxxxxx
-----------------------------
Xxx X. Xxxxxxxxx, as Trustee
and not individually
/s/ Xxx Xxxxx
-----------------------------
Xxx Xxxxx, as Trustee and not
individually
/s/ A. Xxxx Xxxxx
-----------------------------
A. Xxxx Xxxxx, as Trustee and
not individually
/s/ Xxxxx Xxxxxx-Xxxxxx
-----------------------------
Xxxxx Xxxxxx-Xxxxxx, as
Trustee and not individually
BARCLAYS FOUNDRY INVESTMENT TRUST
Agreement and Declaration of Trust
May 17, 2007
30
