FOURTH AMENDED AND RESTATED
AGREEMENT AND DECLARATION OF TRUST
of
Xxxxxxxxxxx ETF Trust
a Delaware Statutory Trust
(Original Agreement and Declaration of Trust was adopted
December 11, 2006;
Amended and Restated Agreement and Declaration of Trust was
adopted June 21, 2007;
Second Amended and Restated Agreement and Declaration of Trust
was adopted October 12, 2007; Third Amended and Restated
Agreement and Declaration of Trust was adopted on December 23,
2016; and fourth Amended and Restated Agreement and Declaration
of Trust was adopted on October 27, 2017.)
TABLE OF CONTENTS
Page
ARTICLE I NAME; OFFICES; REGISTERED AGENT; DEFINITIONS 2
Section 1. Name 2
Section 2. Offices of the Trust 2
Section 3. Registered Agent and Registered Office 2
Section 4. Definitions 2
ARTICLE II PURPOSE OF TRUST 4
ARTICLE III SHARES 8
Section 1. Division of Beneficial Interest. 8
Section 2. Ownership of Shares 9
Section 3. Sale of Shares 9
Section 4. Status of Shares and Limitation of Personal
Liability 10
Section 5. Power of Board of Trustees to Make Tax Status
Election 10
Section 6. Establishment and Designation of Series and
Classes 10
Section 7. Indemnification of Shareholders 14
ARTICLE IV THE BOARD OF TRUSTEES 15
Section 1. Number, Election, Term, Removal and
Resignation. 15
Section 2. Trustee Action by Written Consent Without a
Meeting 15
Section 3. Powers; Other Business Interests; Quorum and
Required Vote. 16
Section 4. Payment of Expenses by the Trust 17
Section 5. Ownership of Trust Property 18
Section 6. Service Contracts. 18
ARTICLE V SHAREHOLDERS' VOTING POWERS AND MEETINGS 19
Section 1. Voting Powers 19
Section 2. Quorum and Required Vote. 19
Section 3. Shareholder Action by Written Consent Without a
Meeting 20
Section 4. Record Dates. 21
Section 5. Additional Provisions 22
ARTICLE VI NET ASSET VALUE; DISTRIBUTIONS;
REDEMPTIONS; TRANSFERS 22
Section 1. Determination of Net Asset Value, Net Income
and Distributions. 22
Section 2. Redemptions at the Option of a Shareholder 24
Section 3. Redemptions at the Option of the Trust 25
Section 4. Transfer of Shares 25
ARTICLE VII LIMITATION OF LIABILITY AND
INDEMNIFICATION OF AGENT 25
Section 1. Limitation of Liability. 25
Section 2. Indemnification. 27
Section 3. Insurance 28
Section 4. Derivative Actions 28
ARTICLE VIII CERTAIN TRANSACTIONS 28
Section 1. Dissolution of Trust or Series 28
Section 2. Merger or Consolidation; Conversion;
Reorganization. 29
Section 3. Master Feeder Structure 31
Section 4. Absence of Appraisal or Dissenters' Rights 31
ARTICLE IX AMENDMENTS 32
Section 1. Amendments Generally 32
ARTICLE X MISCELLANEOUS 32
Section 1. References; Headings; Counterparts 32
Section 2. Applicable Law 32
Section 3. Provisions in Conflict with Law or Regulations. 32
Section 4. Statutory Trust Only 33
FOURTH AMENDED AND RESTATED AGREEMENT AND DECLARATION OF TRUST
OF
Xxxxxxxxxxx ETF Trust
AGREEMENT AND DECLARATION OF TRUST made as of this 27th day
of October, 2017, by the Trustees hereunder, and by the holders
of Shares issued or to be issued by Xxxxxxxxxxx ETF Trust (the
"Trust") hereunder, and (i) incorporates herein and makes a part
of this Fourth Amended and Restated Agreement and Declaration of
Trust the resolutions of the Board of Trustees of the Trust
adopted prior to the date set forth above, pursuant to the
provisions of the original Agreement and Declaration of Trust
dated December 11, 2006, as amended or restated on June 21,
2007, October 12, 2007 and December 23, 2016, (the "Original
Declaration of Trust"), regarding the establishment and
designation of Series and/or Classes of the Shares of the Trust,
and any amendments or modifications to such resolutions adopted
through the date hereof, as of the date of the adoption of each
such resolution, and (ii) amends and restates the Original
Declaration of Trust pursuant to Article IX, Section 1, of such
Original Declaration of Trust, as hereinafter provided.
WITNESSETH:
WHEREAS this Trust has been formed to carry on the business
of an open-end management investment company as defined in the
1940 Act; and
WHEREAS this Trust is authorized to divide its Shares into
two or more Classes, to issue its Shares in separate Series, to
divide Shares of any Series into two or more Classes and to
issue Classes of the Trust or the Series, if any, all in
accordance with the provisions hereinafter set forth; and
WHEREAS the Trustees have agreed to manage all property
coming into their hands as trustees of a Delaware statutory
trust in accordance with the provisions of the Delaware
Statutory Trust Act, as amended from time to time, and the
provisions hereinafter set forth;
NOW, THEREFORE, the Trustees hereby declare that:
(i) the Original Declaration of Trust is amended and
restated in its entirety in the manner hereinafter set forth;
(ii) the Trustees will hold all cash, securities and other
assets that they may from time to time acquire in any manner as
Trustees hereunder IN TRUST and will manage and dispose of the
same upon the following terms and conditions for the benefit of
the holders from time to time of Shares created hereunder as
hereinafter set forth; and
(iii) this Declaration of Trust and the By-Laws shall be
binding in accordance with their terms on every Trustee, by
virtue of having become a Trustee of the Trust, and on every
Shareholder, by virtue of having become a Shareholder of the
Trust, pursuant to the terms of the Original Declaration of
Trust and/or this Declaration of Trust and the By-Laws.
ARTICLE I
NAME; OFFICES; REGISTERED AGENT; DEFINITIONS
Section 1. Name. This Trust shall be known as "Xxxxxxxxxxx ETF
Trust" and the Board of Trustees shall conduct the business of
the Trust under that name, or any other name as it may from time
to time designate.
Section 2. Offices of the Trust. The Board may at any time
establish offices of the Trust at any place or places where the
Trust intends to do business.
Section 3. Registered Agent and Registered Office. The name of
the registered agent of the Trust and the address of the
registered office of the Trust are as set forth in the Trust's
Certificate of Trust.
Section 4. Definitions. Whenever used herein, unless otherwise
required by the context or specifically provided:
(a) "1940 Act" shall mean the Investment Company Act
of 1940 and the rules and regulations thereunder, all as adopted
or amended from time to time;
(b) "Affiliate" shall have the same meaning as
"affiliated person" as such term is defined in the 1940 Act when
used with reference to a specified Person, as defined below;
(c) "Board of Trustees" shall mean the governing body
of the Trust, that is comprised of the number of Trustees of the
Trust fixed from time to time pursuant to Article IV hereof,
having the powers and duties set forth herein;
(d) "By-Laws" shall mean By-Laws of the Trust, as
amended or restated from time to time in accordance with Article
VIII therein. Such By-Laws may contain any provision not
inconsistent with applicable law or this Declaration of Trust,
relating to the governance of the Trust;
(e) "Certificate of Trust" shall mean the certificate
of trust of the Trust filed on December 15, 2006 with the office
of the Secretary of State of the State of Delaware as required
under the Delaware Statutory Trust Act, as such certificate has
been or shall be amended or restated from time to time;
(f) "Class" shall mean each class of Shares of the
Trust or of a Series of the Trust established and designated
under and in accordance with the provisions of Article III
hereof or the corresponding provisions of the Original
Declaration of Trust;
(g) "Code" shall mean the Internal Revenue Code of
1986 and the rules and regulations thereunder, all as adopted or
amended from time to time;
(h) "Commission" shall have the meaning given that
term in the 1940 Act;
(i) "Creation Unit" has the meaning set forth in
Article III, Section 3;
(j) "DSTA" shall mean the Delaware Statutory Trust
Act (12 Del. C. Section 3801, et seq.), as amended from time to time;
(k) "Declaration of Trust" shall mean this Fourth
Amended and Restated Agreement and Declaration of Trust,
including resolutions of the Board of Trustees of the Trust that
have been adopted prior to the date of this document, or that
may be adopted hereafter, regarding the establishment and
designation of Series and/or Classes of Shares of the Trust, and
any amendments or modifications to such resolutions, as of the
date of the adoption of each such resolution;
(l) "General Liabilities" shall have the meaning
given it in Article III, Section 6(b) of this Declaration of
Trust;
(m) "Interested Person" shall have the meaning given
that term in the 1940 Act;
(n) "Investment Adviser" or "Adviser" shall mean a
Person, as defined below, furnishing services to the Trust
pursuant to any investment advisory or investment management
contract described in Article IV, Section 6(a) hereof;
(o) "National Financial Emergency" shall mean the
whole or any part of any period during (i) which an emergency
exists as a result of which disposal by the Trust of securities
or other assets owned by the Trust is not reasonably
practicable; (ii) which it is not reasonably practicable for the
Trust fairly to determine the net asset value of its assets; or
(iii) such other period as the Commission may by order permit
for the protection of investors;
(p) "Person" shall mean a natural person,
partnership, limited partnership, limited liability company,
trust, estate, association, corporation, organization,
custodian, nominee or any other individual or entity in its own
or any representative capacity, in each case, whether domestic
or foreign, and a statutory trust or a foreign statutory or
business trust;
(q) "Principal Underwriter" shall have the meaning
given that term in the 1940 Act;
(r) "Schedule A" has the meaning set forth in Article
III, Section 6;
(s) "Series" shall mean each Series of Shares
established and designated under and in accordance with the
provisions of Article III hereof, or the corresponding
provisions of the Original Declaration of Trust;
(t) "Shares" shall mean the transferable shares of
beneficial interest into which the beneficial interest in the
Trust have been or shall be divided from time to time, and shall
include fractional and whole Shares;
(u) "Shareholder" shall mean a record owner of Shares
pursuant to the By-Laws;
(v) "Trust" shall mean Xxxxxxxxxxx ETF Trust, the
Delaware statutory trust formed pursuant to the Original
Declaration of Trust and by filing of the Certificate of Trust
with the office of the Secretary of State of the State of
Delaware (the Trust was formed under the name The TIGERS Revenue
Trust, which name was changed on December 14, 2007 to
RevenueShares ETF Trust, which name was changed on December 18,
2015 to Xxxxxxxxxxx Revenue Weighted ETF Trust; which name was
changed on October 27, 2017 to Xxxxxxxxxxx ETF Trust);
(w) "Trust Property" shall mean any and all property,
real or personal, tangible or intangible, which is owned or held
by or for the account of the Trust, or one or more of any Series
thereof, including, without limitation, the rights referenced in
Article X, Section 5 hereof; and
(x) "Trustee" or "Trustees" shall mean each Person
who signs this Declaration of Trust as a trustee and all other
Persons who may, from time to time, be duly elected or
appointed, qualified and serving on the Board of Trustees in
accordance with the provisions hereof and the By-Laws, so long
as such signatory or other Person continues in office in
accordance with the terms hereof and the By-Laws. Reference
herein to a Trustee or the Trustees shall refer to such Person
or Persons in such Person's or Persons' capacity as a trustee or
trustees hereunder and under the By-Laws.
ARTICLE II
PURPOSE OF TRUST
The purpose of the Trust is to conduct, operate and carry
on the business of a registered management investment company
registered under the 1940 Act, directly, or if one or more
Series is established hereunder, through one or more Series,
investing primarily in securities, and to exercise all of the
powers, rights and privileges granted to, or conferred upon, a
statutory trust formed under the DSTA, including, without
limitation, the following powers:
(a) To hold, invest and reinvest its funds, and in
connection therewith, to make any changes in the investment of
the assets of the Trust, to hold part or all of its funds in
cash, to hold cash uninvested, to subscribe for, invest in,
reinvest in, purchase or otherwise acquire, own, hold, pledge,
sell, assign, mortgage, transfer, exchange, distribute, write
options on, lend or otherwise deal in or dispose of contracts
for the future acquisition or delivery of fixed income or other
securities, and securities or property of every nature and kind,
including, without limitation, all types of bonds, debentures,
stocks, shares, units of beneficial interest, preferred stocks,
negotiable or non-negotiable instruments, obligations, evidences
of indebtedness, money market instruments, certificates of
deposit or indebtedness, bills, notes, mortgages, commercial
paper, repurchase or reverse repurchase agreements, bankers'
acceptances, finance paper, and any options, certificates,
receipts, warrants, futures contracts or other instruments
representing rights to receive, purchase or subscribe for the
same, or evidencing or representing any other rights or
interests therein or in any property or assets, and other
securities of any kind, as the foregoing are issued, created,
guaranteed, or sponsored by any and all Persons, including,
without limitation, states, territories, and possessions of the
United States and the District of Columbia and any political
subdivision, agency, or instrumentality thereof, any foreign
government or any political subdivision of the U.S. Government
or any foreign government, or any international instrumentality,
or by any bank or savings institution, or by any corporation or
organization organized under the laws of the United States or of
any state, territory, or possession thereof, or by any
corporation or organization organized under any foreign law, or
in "when issued" contracts for any such securities;
(b) To exercise any and all rights, powers and
privileges with reference to or incident to ownership or
interest, use and enjoyment of any of such securities and other
instruments or property of every kind and description,
including, but without limitation, the right, power and
privilege to own, vote, hold, purchase, sell, negotiate, assign,
exchange, lend, transfer, mortgage, hypothecate, lease, pledge
or write options with respect to or otherwise deal with, dispose
of, use, exercise or enjoy any rights, title, interest, powers
or privileges under or with reference to any of such securities
and other instruments or property, the right to consent and
otherwise act with respect thereto, with power to designate one
or more Persons, to exercise any of said rights, powers, and
privileges in respect of any of said instruments, and to do any
and all acts and things for the preservation, protection,
improvement and enhancement in value of any of such securities
and other instruments or property;
(c) To sell, exchange, lend, pledge, mortgage,
hypothecate, lease or write options with respect to or otherwise
deal in any property rights relating to any or all of the assets
of the Trust or any Series, subject to any requirements of the
1940 Act;
(d) To vote or give assent, or exercise any rights of
ownership, with respect to stock or other securities or
property; and to execute and deliver proxies or powers of
attorney to such Person or Persons as the Trustees shall deem
proper, granting to such Person or Persons such power and
discretion with relation to securities or property as the
Trustees shall deem proper;
(e) To exercise powers and right of subscription or
otherwise which in any manner arise out of ownership of
securities and/or other property;
(f) To hold any security or property in a form not
indicating that it is trust property, whether in bearer,
unregistered or other negotiable form, or in its own name or in
the name of a custodian or subcustodian or a nominee or nominees
or otherwise or to authorize the custodian or a subcustodian or
a nominee or nominees to deposit the same in a securities
depository, subject in each case to proper safeguards according
to the usual practice of investment companies or any rules or
regulations applicable thereto;
(g) To consent to, or participate in, any plan for
the reorganization, consolidation or merger of any corporation
or issuer of any security which is held in the Trust; to consent
to any contract, lease, mortgage, purchase or sale of property
by such corporation or issuer; and to pay calls or subscriptions
with respect to any security held in the Trust;
(h) To join with other security holders in acting
through a committee, depositary, voting trustee or otherwise,
and in that connection to deposit any security with, or transfer
any security to, any such committee, depositary or trustee, and
to delegate to them such power and authority with relation to
any security (whether or not so deposited or transferred) as the
Trustees shall deem proper, and to agree to pay, and to pay,
such portion of the expenses and compensation of such committee,
depositary or trustee as the Trustees shall deem proper;
(i) 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;
(j) To enter into joint ventures, general or limited
partnerships and any other combinations or associations;
(k) To endorse or guarantee the payment of any notes
or other obligations of any Person; to make contracts of
guaranty or suretyship, or otherwise assume liability for
payment thereof;
(l) To purchase and pay for entirely out of Trust
Property such insurance as the Board of Trustees may deem
necessary or appropriate for the conduct of the business,
including, without limitation, insurance policies insuring the
assets of the Trust or payment of distributions and principal on
its portfolio investments, and insurance policies insuring the
Shareholders, Trustees, officers, employees, agents, Investment
Advisers, Principal Underwriters, or independent contractors of
the Trust, individually against all claims and liabilities of
every nature arising by reason of holding Shares, holding, being
or having held any such office or position, or by reason of any
action alleged to have been taken or omitted by any such Person
as Trustee, officer, employee, agent, Investment Adviser,
Principal Underwriter, or independent contractor, to the fullest
extent permitted by this Declaration of Trust, the By-Laws and
by applicable law;
(m) To adopt, establish and carry out pension,
profit-sharing, share bonus, share purchase, savings, thrift and
other retirement, incentive and benefit plans, trusts and
provisions, including the purchasing of life insurance and
annuity contracts as a means of providing such retirement and
other benefits, for any or all of the Trustees, officers,
employees and agents of the Trust;
(n) To purchase or otherwise acquire, own, hold,
sell, negotiate, exchange, assign, transfer, mortgage, pledge or
otherwise deal with, dispose of, use, exercise or enjoy,
property of all kinds;
(o) To buy, sell, mortgage, encumber, hold, own,
exchange, rent or otherwise acquire and dispose of, and to
develop, improve, manage, subdivide, and generally to deal and
trade in real property, improved and unimproved, and wheresoever
situated; and to build, erect, construct, alter and maintain
buildings, structures, and other improvements on real property;
(p) To borrow or raise moneys for any of the purposes
of the Trust, and to mortgage or pledge the whole or any part of
the property and franchises of the Trust, real, personal, and
mixed, tangible or intangible, and wheresoever situated;
(q) To enter into, make and perform contracts and
undertakings of every kind for any lawful purpose, without limit
as to amount;
(r) To issue, purchase, sell and transfer, reacquire,
hold, trade and deal in stocks, Shares, bonds, debentures and
other securities, instruments or other property of the Trust,
from time to time, to such extent as the Board of Trustees
shall, consistent with the provisions of this Declaration of
Trust, determine; and to re-acquire and redeem, from time to
time, its Shares or, if any, its bonds, debentures and other
securities;
(s) To engage in and to prosecute, defend,
compromise, abandon, or adjust, by arbitration, or otherwise,
any actions, suits, proceedings, disputes, claims, and demands
relating to the Trust, and out of the assets of the Trust to pay
or to satisfy any debts, claims or expenses incurred in
connection therewith, including those of litigation, and such
power shall include without limitation the power of the Trustees
or any appropriate committee thereof, in the exercise of their
or its good faith business judgment, to dismiss any action,
suit, proceeding, dispute, claim, or demand, derivative or
otherwise, brought by any Person, including a Shareholder in the
Shareholder's own name or the name of the Trust, whether or not
the Trust or any of the Trustees may be named individually
therein or the subject matter arises by reason of business for
or on behalf of the Trust;
(t) To exercise and enjoy, in Delaware and in any
other states, territories, districts and United States
dependencies and in foreign countries, all of the foregoing
powers, rights and privileges, and the enumeration of the
foregoing powers shall not be deemed to exclude any powers,
rights or privileges so granted or conferred; and
(u) In general, to carry on any other business in
connection with or incidental to its trust purposes, to do
everything necessary, suitable or proper for the accomplishment
of such purposes or for 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, its business or purposes, objects or powers.
The Trust shall not be limited to investing in obligations
maturing before the possible dissolution of the Trust or one or
more of its Series. Neither the Trust nor the Board of Trustees
shall be required to obtain any court order to deal with any
assets of the Trust or take any other action hereunder.
The foregoing clauses shall each be construed as purposes,
objects and powers, and it is hereby expressly provided that the
foregoing enumeration of specific purposes, objects and powers
shall not be held to limit or restrict in any manner the powers
of the Trust, and that they are in furtherance of, and in
addition to, and not in limitation of, the general powers
conferred upon the Trust by the DSTA and the other laws of the
State of Delaware or otherwise; nor shall the enumeration of one
thing be deemed to exclude another, although it be of like
nature, not expressed.
ARTICLE III
SHARES
Section 1. Division of Beneficial Interest.
(a) The beneficial interest in the Trust shall be
divided into Shares, each Share with no par value. The number
of Shares in the Trust authorized under the Original Declaration
of Trust and authorized hereunder, and of each Series and Class
as may be established from time to time, is unlimited. The
Board of Trustees may authorize the division of Shares into
separate Classes of Shares and into separate and distinct Series
of Shares and the division of any Series into separate Classes
of Shares in accordance with the 1940 Act. As of the effective
date of this Declaration of Trust, any new Series and Classes
shall be established and designated pursuant to Article III,
Section 6 hereof. If no separate Series or Classes of Series
shall be established, the Shares shall have the rights, powers
and duties provided for herein and in Article III, Section 6
hereof to the extent relevant and not otherwise provided for
herein, and all references to Series and Classes shall be
construed (as the context may require) to refer to the Trust.
(i) The fact that the Trust shall have one or
more established and designated Classes of
the Trust, shall not limit the authority of
the Board of Trustees to establish and
designate additional Classes of the Trust.
The fact that one or more Classes of the
Trust shall have initially been established
and designated without any specific
establishment or designation of a Series
(i.e., that all Shares of the Trust are
initially Shares of one or more Classes)
shall not limit the authority of the Board
of Trustees to later establish and designate
a Series and establish and designate the
Class or Classes of the Trust as Class or
Classes, respectively, of such Series.
(ii) The fact that a Series shall have initially
been established and designated without any
specific establishment or designation of
Classes (i.e., that all Shares of such
Series are initially of a single Class)
shall not limit the authority of the Board
of Trustees to establish and designate
separate Classes of said Series. The fact
that a Series shall have more than one
established and designated Class, shall not
limit the authority of the Board of Trustees
to establish and designate additional
Classes of said Series.
(b) The Board of Trustees shall have the power to
issue authorized, but unissued Shares of beneficial interest of
the Trust, or any Series and Class thereof, from time to time
for such consideration paid wholly or partly in cash, securities
or other property, as may be determined from time to time by the
Board of Trustees, subject to any requirements or limitations of
the 1940 Act. The Board of Trustees, on behalf of the Trust,
may acquire and hold as treasury shares, reissue for such
consideration and on such terms as it may determine, or cancel,
at its discretion from time to time, any Shares reacquired by
the Trust. The Board of Trustees may classify or reclassify any
unissued Shares of beneficial interest or any Shares of
beneficial interest of the Trust or any Series or Class thereof,
that were previously issued and are reacquired, into one or more
Series or Classes that may be established and designated from
time to time. Notwithstanding the foregoing, the Trust and any
Series thereof may acquire, hold, sell and otherwise deal in,
for purposes of investment or otherwise, the Shares of any other
Series of the Trust or Shares of the Trust, and such Shares
shall not be deemed treasury shares or cancelled.
(c) Subject to the provisions of Section 6 of this
Article III, each Share shall entitle the holder to voting
rights as provided in Article V hereof. Shareholders shall have
no preemptive or other right to subscribe for new or additional
authorized, but unissued Shares or other securities issued by
the Trust or any Series thereof. The Board of Trustees may from
time to time divide or combine the Shares of the Trust or any
particular Series thereof into a greater or lesser number of
Shares of the Trust or that Series, respectively. Such division
or combination shall not materially change the proportionate
beneficial interests of the holders of Shares of the Trust or
that Series, as the case may be, in the Trust Property at the
time of such division or combination that is held with respect
to the Trust or that Series, as the case may be.
(d) Any Trustee, officer or other agent of the Trust,
and any organization in which any such Person has an economic or
other interest, may acquire, own, hold and dispose of Shares of
beneficial interest in the Trust or any Series and Class
thereof, whether such Shares are authorized but unissued, or
already outstanding, to the same extent as if such Person were
not a Trustee, officer or other agent of the Trust; and the
Trust or any Series may issue and sell and may purchase such
Shares from any such Person or any such organization, subject to
the limitations, restrictions or other provisions applicable to
the sale or purchase of such Shares herein and the 1940 Act.
Section 2. Ownership of Shares. The ownership of Shares shall
be recorded on the books of the Trust kept by the Trust or by a
transfer or similar agent for the Trust, which books shall be
maintained separately for the Shares of the Trust and each
Series and each Class thereof that has been established and
designated. No certificates certifying the ownership of Shares
shall be issued except as the Board of Trustees may otherwise
determine from time to time. The Board of Trustees may make
such rules not inconsistent with the provisions of the 1940 Act
as it considers appropriate for the issuance of Share
certificates, the transfer of Shares of the Trust and each
Series and Class thereof, if any, and similar matters. The
record books of the Trust as kept by the Trust or any transfer
or similar agent, as the case may be, shall be conclusive as to
who are the Shareholders of the Trust and each Series and Class
thereof and as to the number of Shares of the Trust and each
Series and Class thereof held from time to time by each such
Shareholder.
Section 3. Sale of Shares. Subject to the 1940 Act and
applicable law, the Trust may sell its authorized but unissued
Shares of beneficial interest to such Persons, at such times, on
such terms, and for such consideration as the Board of Trustees
may from time to time authorize. The Shares of any Series, if
the Trustees so determine, shall be issued only in aggregations
of such number of those shares (each, a "Creation Unit") and on
such days as the Trustees determine or as determined pursuant to
procedures or methods the Trustees prescribe or approve from
time to time with respect to such Series. In connection with
the issuance of such Creation Units, the Trustees may change
such transaction fees or other fees as they determine in their
sole discretion and without shareholder approval. A Series will
not issue fractional Creation Units. The Trustees shall have
the unrestricted power to alter the number of shares
constituting a Creation Unit by resolution adopted by them, at
any time. Each sale shall be credited to the individual
purchaser's account in the form of full (and, unless the
shareholder is purchasing a Creation Unit, fractional) Shares of
the Trust or such Series thereof (and Class thereof, if any), as
the purchaser may select, at the net asset value per Share,
subject to Section 22 of the 1940 Act, and the rules and
regulations adopted thereunder; provided, however, that the
Board of Trustees may, in its sole discretion, permit the
Principal Underwriter to impose a sales charge upon any such
sale. Every Shareholder by virtue of having become a
Shareholder shall be deemed to have expressly assented and
agreed to the terms of this Declaration of Trust and to have
become bound as a party hereto.
Section 4. Status of Shares and Limitation of Personal
Liability. Shares shall be deemed to be personal property
giving to Shareholders only the rights provided in this
Declaration of Trust, the By-Laws, and under applicable law.
Ownership of Shares shall not entitle the Shareholder to any
title in or to the whole or any part of the Trust Property or
right to call for a partition or division of the same or for an
accounting, nor shall the ownership of Shares constitute the
Shareholders as partners. Subject to Article VIII, Section 1
hereof, the death, incapacity, dissolution, termination, or
bankruptcy of a Shareholder during the existence of the Trust
and any Series thereof shall not operate to dissolve the Trust
or any such Series, nor entitle the representative of any
deceased, incapacitated, dissolved, terminated or bankrupt
Shareholder to an accounting or to take any action in court or
elsewhere against the Trust, the Trustees or any such Series,
but entitles such representative only to the rights of said
deceased, incapacitated, dissolved, terminated or bankrupt
Shareholder under this Declaration of Trust. Neither the Trust
nor the Trustees, nor any officer, employee or agent of the
Trust, shall have any power to bind personally any Shareholder,
nor, except as specifically provided herein, to call upon any
Shareholder for the payment of any sum of money other than such
as the Shareholder may at any time personally agree to pay.
Each Share, when issued on the terms determined by the Board of
Trustees, shall be fully paid and nonassessable. As provided in
the DSTA, Shareholders shall be entitled to the same limitation
of personal liability as that extended to stockholders of a
private corporation organized for profit under the General
Corporation Law of the State of Delaware.
Section 5. Power of Board of Trustees to Make Tax Status
Election. The Board of Trustees shall have the power, in its
discretion, to make such elections as to the tax status of the
Trust and any Series as may be permitted or required under the
Code, without the vote of any Shareholder.
Section 6. Establishment and Designation of Series and Classes.
The establishment and designation of any Series or Class shall
be effective, without the requirement of Shareholder approval,
upon the adoption of a resolution by not less than a majority of
the then Board of Trustees, which resolution shall set forth
such establishment and designation and may provide, to the
extent permitted by the DSTA, for rights, powers and duties of
such Series or Class (including variations in the relative
rights and preferences as between the different Series and
Classes) otherwise than as provided herein. Each such
resolution shall be incorporated herein by reference upon
adoption, and the resolutions that have been adopted prior to
June 21, 2007 regarding the establishment and designation of
Series and/or Classes of Shares of the Trust pursuant to the
applicable provisions of the Original Declaration of Trust, and
any amendments or modifications to such resolutions through the
date hereof, are hereby incorporated herein as of the date of
their adoption. Any such resolution may be amended by a
further resolution of a majority of the Board of Trustees, and
if Shareholder approval would be required to make such an
amendment to the language set forth in this Declaration of
Trust, such further resolution shall require the same
Shareholder approval that would be necessary to make such
amendment to the language set forth in this Declaration of
Trust. Each such further resolution shall be incorporated
herein by reference upon adoption. Each Series and Class shall
be listed on Schedule A attached hereto ("Schedule A"), which
shall be amended to reflect the addition or termination of any
Series or Class and any officer of the Trust is hereby
authorized to make such amendment; provided that the amendment
of Schedule A shall not be a condition precedent to the
establishment or termination of any Series or Class in
accordance with this Declaration of Trust.
Each Series shall be separate and distinct from any other
Series, separate and distinct records on the books of the Trust
shall be maintained for each Series, and the assets and
liabilities belonging to any such Series shall be held and
accounted for separately from the assets and liabilities of the
Trust or any other Series. Each Class of the Trust shall be
separate and distinct from any other Class of the Trust. Each
Class of a Series shall be separate and distinct from any other
Class of the Series. As appropriate, in a manner determined by
the Board of Trustees, the liabilities belonging to any such
Class shall be held and accounted for separately from the
liabilities of the Trust, the Series or any other Class and
separate and distinct records on the books of the Trust for the
Class shall be maintained for this purpose. Subject to Article
II hereof, each such Series shall operate as a separate and
distinct investment medium, with separately defined investment
objectives and policies.
Shares of each Series (and Class where applicable)
established and designated pursuant to this Section 6, or the
corresponding provisions of the Original Declaration of Trust
shall have the following rights, powers and duties, unless
otherwise provided to the extent permitted by the DSTA, in the
resolution establishing and designating such Series or Class:
(a) Assets Held with Respect to a Particular Series.
All consideration received by the Trust for the issue or sale of
Shares of a particular Series, together with all assets in which
such consideration is invested or reinvested, all income,
earnings, profits, and proceeds thereof from whatever source
derived, including, without limitation, any proceeds derived
from the sale, exchange or liquidation of such assets, and any
funds or payments derived from any reinvestment of such proceeds
in whatever form the same may be, shall irrevocably be held with
respect to that Series for all purposes, subject only to the
rights of creditors with respect to that Series, and shall be so
recorded upon the books of account of the Trust. Such
consideration, assets, income, earnings, profits and proceeds
thereof, from whatever source derived, including, without
limitation, any proceeds derived from the sale, exchange or
liquidation of such assets, and any funds or payments derived
from any reinvestment of such proceeds, in whatever form the
same may be, are herein referred to as "assets held with respect
to" that Series. In the event that there are any assets,
income, earnings, profits and proceeds thereof, funds or
payments which are not readily identifiable as assets held with
respect to any particular Series (collectively "General
Assets"), the Board of Trustees, or an appropriate officer as
determined by the Board of Trustees, shall allocate such General
Assets to, between or among any one or more of the Series in
such manner and on such basis as the Board of Trustees, in its
sole discretion, deems fair and equitable, and any General Asset
so allocated to a particular Series shall be held with respect
to that Series. Each such allocation by or under the direction
of the Board of Trustees shall be conclusive and binding upon
the Shareholders of all Series for all purposes.
(b) Liabilities Held with Respect to a Particular
Series or Class. The assets of the Trust held with respect to a
particular Series shall be charged with the liabilities, debts,
obligations, costs, charges, reserves and expenses of the Trust
incurred, contracted for or otherwise existing with respect to
such Series. Such liabilities, debts, obligations, costs,
charges, reserves and expenses incurred, contracted for or
otherwise existing with respect to a particular Series are
herein referred to as "liabilities held with respect to" that
Series. Any liabilities, debts, obligations, costs, charges,
reserves and expenses of the Trust which are not readily
identifiable as being liabilities held with respect to any
particular Series (collectively "General Liabilities") shall be
allocated by the Board of Trustees, or an appropriate officer as
determined by the Board of Trustees, to and among any one or
more of the Series in such manner and on such basis as the Board
of Trustees in its sole discretion deems fair and equitable.
Each allocation of liabilities, debts, obligations, costs,
charges, reserves and expenses by or under the direction of the
Board of Trustees shall be conclusive and binding upon the
Shareholders of all Series for all purposes. All Persons who
have extended credit that has been allocated to a particular
Series, or who have a claim or contract that has been allocated
to any particular Series, shall look exclusively to the assets
of that particular Series for payment of such credit, claim, or
contract. In the absence of an express contractual agreement so
limiting the claims of such creditors, claimants and contract
providers, each creditor, claimant and contract provider shall
be deemed nevertheless to have impliedly agreed to such
limitation.
Subject to the right of the Board of Trustees in its
discretion to allocate General Liabilities as provided herein,
the debts, liabilities, obligations and expenses incurred,
contracted for or otherwise existing with respect to a
particular Series, whether such Series is now authorized and
existing pursuant to the Original Declaration of Trust, or is
hereafter authorized and existing pursuant to this Declaration
of Trust, shall be enforceable against the assets held with
respect to that Series only, and not against the assets of any
other Series or the Trust generally and none of the debts,
liabilities, obligations and expenses incurred, contracted for
or otherwise existing with respect to the Trust generally or any
other Series thereof shall be enforceable against the assets
held with respect to such Series. Notice of this limitation on
liabilities between and among Series has been set forth in the
Certificate of Trust filed in the Office of the Secretary of
State of the State of Delaware pursuant to the DSTA, and having
given such notice in the Certificate of Trust, the statutory
provisions of Section 3804 of the DSTA relating to limitations
on liabilities between and among Series (and the statutory
effect under Section 3804 of setting forth such notice in the
Certificate of Trust) are applicable to the Trust and each
Series.
Liabilities, debts, obligations, costs, charges, reserves
and expenses related to the distribution of, and other
identified expenses that should or may properly be allocated to,
the Shares of a particular Class may be charged to and borne
solely by such Class. The bearing of expenses solely by a
particular Class of Shares may be appropriately reflected (in a
manner determined by the Board of Trustees) and may affect the
net asset value attributable to, and the dividend, redemption
and liquidation rights of, such Class. Each allocation of
liabilities, debts, obligations, costs, charges, reserves and
expenses by or under the direction of the Board of Trustees
shall be conclusive and binding upon the Shareholders of all
Classes for all purposes. All Persons who have extended credit
that has been allocated to a particular Class, or who have a
claim or contract that has been allocated to any particular
Class, shall look, and may be required by contract to look,
exclusively to that particular Class for payment of such credit,
claim, or contract.
(c) Dividends, Distributions and Redemptions.
Notwithstanding any other provisions of this Declaration of
Trust, including, without limitation, Article VI hereof, no
dividend or distribution including, without limitation, any
distribution paid upon dissolution of the Trust or of any Series
with respect to, nor any redemption of, the Shares of any Series
or Class of such Series shall be effected by the Trust other
than from the assets held with respect to such Series, nor,
except as specifically provided in Section 7 of this Article
III, shall any Shareholder of any particular Series otherwise
have any right or claim against the assets held with respect to
any other Series or the Trust generally except, in the case of a
right or claim against the assets held with respect to any other
Series, to the extent that such Shareholder has such a right or
claim hereunder as a Shareholder of such other Series. The
Board of Trustees shall have full discretion, to the extent not
inconsistent with the 1940 Act, to determine which items shall
be treated as income and which items as capital; and each such
determination and allocation shall be conclusive and binding
upon the Shareholders.
(d) Voting. All Shares of the Trust entitled to vote
on a matter shall vote in the aggregate without differentiation
between the Shares of the separate Series, if any, or separate
Classes, if any; provided that (i) with respect to any matter
that affects only the interests of some but not all Series, then
only the Shares of such affected Series, voting separately,
shall be entitled to vote on the matter, (ii) with respect to
any matter that affects only the interests of some but not all
Classes, then only the Shares of such affected Classes, voting
separately, shall be entitled to vote on the matter; and (iii)
notwithstanding the foregoing, with respect to any matter as to
which the 1940 Act or other applicable law or regulation
requires voting, by Series or by Class, then the Shares of the
Trust shall vote as prescribed in such law or regulation.
(e) Equality. Each Share of any particular Series
shall be equal to each other Share of such Series (subject to
the rights and preferences with respect to separate Classes of
such Series).
(f) Fractions. A fractional Share of a Series shall
carry proportionately all the rights and obligations of a whole
Share of such Series, including rights with respect to voting,
receipt of dividends and distributions, redemption of Shares and
dissolution of the Trust or that Series.
(g) Exchange Privilege. The Board of Trustees shall
have the authority to provide that the holders of Shares of any
Series shall have the right to exchange said Shares for Shares
of one or more other Series in accordance with such requirements
and procedures as may be established by the Board of Trustees,
and in accordance with the 1940 Act.
(h) Combination of Series or Classes.
(i) The Board of Trustees shall have the
authority, without the approval, vote or
consent of the Shareholders of any Series,
unless otherwise required by applicable law,
to combine the assets and liabilities held
with respect to any two or more Series into
assets and liabilities held with respect to a
single Series; provided that upon completion
of such combination of Series, the interest
of each Shareholder, in the combined assets
and liabilities held with respect to the
combined Series shall equal the interest of
each such Shareholder in the aggregate of the
assets and liabilities held with respect to
the Series that were combined.
(ii) The Board of Trustees shall have the
authority, without the approval, vote or
consent of the Shareholders of any Series or
Class, unless otherwise required by
applicable law, to combine, merge or
otherwise consolidate the Shares of two or
more Classes of Shares of a Series with
and/or into a single Class of Shares of such
Series, with such designation, preference,
conversion or other rights, voting powers,
restrictions, limitations as to dividends,
qualifications, terms and conditions of
redemption and other characteristics as the
Trustees may determine; provided, however,
that the Trustees shall provide written
notice to the affected Shareholders of any
such transaction.
(iii) The transactions in (i) and (ii) above may be
effected through share-for-share exchanges,
transfers or sales of assets, Shareholder in-
kind redemptions and purchases, exchange
offers, or any other method approved by the
Trustees.
(i) Dissolution or Termination. Any particular
Series shall be dissolved upon the occurrence of the applicable
dissolution events set forth in Article VIII, Section 1 hereof.
Upon dissolution of a particular Series, the Trustees shall wind
up the affairs of such Series in accordance with Article VIII,
Section 1 hereof and thereafter, rescind the establishment and
designation thereof. The Board of Trustees shall terminate any
particular Class and rescind the establishment and designation
thereof: (i) upon approval by a majority of votes cast at a
meeting of the Shareholders of such Class, provided a quorum of
Shareholders of such Class are present, or by action of the
Shareholders of such Class by written consent without a meeting
pursuant to Article V, Section 3; or (ii) at the discretion of
the Board of Trustees either (A) at any time there are no Shares
outstanding of such Class, or (B) upon prior written notice to
the Shareholders of such Class; provided, however, that upon the
rescission of the establishment and designation of any
particular Series, every Class of such Series shall thereby be
terminated and its establishment and designation rescinded.
Each resolution of the Board of Trustees pursuant to this
Section 6(i) shall be incorporated herein by reference upon
adoption.
Section 7. Indemnification of Shareholders. No shareholder as
such shall be subject to any personal liability whatsoever to
any Person in connection with Trust Property or the acts,
obligations or affairs of the Trust. If any Shareholder or
former Shareholder shall be exposed to liability, charged with
liability, or held personally liable, for any obligations or
liability of the Trust, by reason of a claim or demand relating
exclusively to his or her being or having been a Shareholder of
the Trust or a Shareholder of a particular Series thereof, and
not because of such Shareholder's actions or omissions, such
Shareholder or former Shareholder (or, in the case of a natural
person, his or her heirs, executors, administrators, or other
legal representatives or, in the case of a corporation or other
entity, its corporate or other general successor) shall be
entitled to be held harmless from and indemnified out of the
assets of the Trust or out of the assets of such Series thereof,
as the case may be, against all loss and expense, including
without limitation, attorneys' fees, arising from such claim or
demand; provided, however, such indemnity shall not cover (i)
any taxes due or paid by reason of such Shareholder's ownership
of any Shares and (ii) expenses charged to a Shareholder
pursuant to Article IV, Section 5 hereof.
ARTICLE IV
THE BOARD OF TRUSTEES
Section 1. Number, Election, Term, Removal and Resignation.
(a) In accordance with Section 3801 of the DSTA, each
Trustee shall become a Trustee and be bound by this Declaration
of Trust and the By-Laws when such Person signs this Declaration
of Trust as a trustee and/or is duly elected or appointed,
qualified and serving on the Board of Trustees in accordance
with the provisions hereof and the By-Laws, so long as such
signatory or other Person continues in office in accordance with
the terms hereof.
(b) The number of Trustees constituting the entire
Board of Trustees may be fixed from time to time by the vote of
a majority of the then Board of Trustees; provided, however,
that the number of Trustees shall in no event be less than one
(1) nor more than fifteen (15). The number of Trustees shall
not be reduced so as to shorten the term of any Trustee then in
office.
(c) Each Trustee shall hold office for the lifetime
of the Trust or until such Trustee's earlier death, resignation,
removal, retirement or inability otherwise to serve, or, if
sooner than any of such events, until the next meeting of
Shareholders called for the purpose of electing Trustees or
consent of Shareholders in lieu thereof for the election of
Trustees, and until the election and qualification of his or her
successor.
(d) Any Trustee may be removed, with or without
cause, by the Board of Trustees, by action of a majority of the
Trustees then in office, or by vote of the Shareholders at any
meeting called for that purpose.
(e) Any Trustee may resign at any time by giving
written notice to the secretary of the Trust or to a meeting of
the Board of Trustees. Such resignation shall be effective upon
receipt, unless specified to be effective at some later time.
Section 2. Trustee Action by Written Consent Without a Meeting.
To the extent not inconsistent with the provisions of the 1940
Act, any action that may be taken at any meeting of the Board of
Trustees or any committee thereof may be taken without a meeting
and without prior written notice if a consent or consents in
writing setting forth the action so taken is signed by the
Trustees having not less than the minimum number of votes that
would be necessary to authorize or take that action at a meeting
at which all Trustees on the Board of Trustees or any committee
thereof, as the case may be, were present and voted. Written
consents of the Trustees may be executed in one or more
counterparts. A consent transmitted by electronic transmission
(as defined in Section 3806 of the DSTA) by a Trustee shall be
deemed to be written and signed for purposes of this Section.
All such consents shall be filed with the secretary of the Trust
and shall be maintained in the Trust's records.
Section 3. Powers; Other Business Interests; Quorum and
Required Vote.
(a) Powers. Subject to the provisions of this
Declaration of Trust, the business of the Trust (including every
Series thereof) shall be managed by or under the direction of
the Board of Trustees, and such Board of Trustees shall have all
powers necessary or convenient to carry out that responsibility.
The Board of 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 it may consider necessary or appropriate in
connection with the operation and administration of the Trust
(including every Series thereof). The Board of Trustees shall
not be bound or limited by present or future laws or customs
with regard to investments by trustees or fiduciaries, but,
subject to the other provisions of this Declaration of Trust and
the By-Laws, shall have full authority and absolute power and
control over the assets and the business of the Trust (including
every Series thereof) to the same extent as if the Board of
Trustees was the sole owner of such assets and business in its
own right, including such authority, power and control to do all
acts and things as it, in its sole discretion, shall deem proper
to accomplish the purposes of this Trust. Without limiting the
foregoing, the Board of Trustees may, subject to the requisite
vote for such actions as set forth in this Declaration of Trust
and the By-Laws: (1) adopt By-Laws not inconsistent with
applicable law or this Declaration of Trust; (2) amend, restate
and repeal such By-Laws, subject to and in accordance with the
provisions of such By-Laws; (3) fill vacancies on the Board of
Trustees in accordance with this Declaration of Trust and the
By-Laws; (4) elect and remove such officers and appoint and
terminate such agents as it considers appropriate, in accordance
with this Declaration of Trust and the By-Laws; (5) establish
and terminate one or more committees of the Board of Trustees
pursuant to the By-Laws; (6) place Trust Property in custody as
required by the 1940 Act, employ one or more custodians of the
Trust Property and authorize such custodians to employ sub-
custodians and to place all or any part of such Trust Property
with a custodian or a custodial system meeting the requirements
of the 1940 Act; (7) retain a transfer agent, dividend
disbursing agent, a shareholder servicing agent or
administrative services agent, or any number thereof or any
other service provider as deemed appropriate; (8) provide for
the issuance and distribution of shares of beneficial interest
in the Trust or other securities or financial instruments
directly or through one or more Principal Underwriters or
otherwise; (9) retain one or more Investment Adviser(s); (10)
re-acquire and redeem Shares on behalf of the Trust and transfer
Shares pursuant to applicable law; (11) set record dates for the
determination of Shareholders with respect to various matters,
in the manner provided in Article V, Section 4 of this
Declaration of Trust; (12) declare and pay dividends and
distributions to Shareholders from the Trust Property, in
accordance with this Declaration of Trust and the By-Laws; (13)
establish, designate and redesignate from time to time, in
accordance with the provisions of Article III, Section 6 hereof,
any Series or Class of the Trust or of a Series; (14) hire
personnel as staff for the Board of Trustees or, for those
Trustees who are not Interested Persons of the Trust, the
Investment Adviser, or the Principal Underwriter, set the
compensation to be paid by the Trust to such personnel, exercise
exclusive supervision of such personnel, and remove one or more
of such personnel, at the discretion of the Board of Trustees;
(15) retain special counsel, other experts and/or consultants
for the Board of Trustees, for those Trustees who are not
Interested Persons of the Trust, the Investment Adviser, or the
Principal Underwriter, and/or for one or more of the committees
of the Board of Trustees, set the compensation to be paid by the
Trust to such special counsel, other experts and/or consultants,
and remove one or more of such special counsel, other experts
and/or consultants, at the discretion of the Board of Trustees;
(16) engage in and prosecute, defend, compromise, abandon, or
adjust, by arbitration, or otherwise, any actions, suits,
proceedings, disputes, claims, and demands relating to the
Trust, and out of the assets of the Trust to pay or to satisfy
any debts, claims or expenses incurred in connection therewith,
including those of litigation, and such power shall include,
without limitation, the power of the Trustees, or any
appropriate committee thereof, in the exercise of their or its
good faith business judgment, to dismiss any action, suit,
proceeding, dispute, claim or demand, derivative or otherwise,
brought by any person, including a shareholder in its own name
or in the name of the Trust, whether or not the Trust or any of
the Trustees may be named individually therein or the subject
matter arises by reason of business for or on behalf of the
Trust; and (17) in general delegate such authority as it
considers desirable to any Trustee or officer of the Trust, to
any committee of the Trust, to any agent or employee of the
Trust or to any custodian, transfer, dividend disbursing,
shareholder servicing agent, Principal Underwriter, Investment
Adviser, or other service provider.
The powers of the Board of Trustees set forth in this
Section 3(a) are without prejudice to any other powers of the
Board of Trustees set forth in this Declaration of Trust and the
By-Laws. Any determination as to what is in the best interests
of the Trust or any Series or Class thereof and its Shareholders
made by the Board of Trustees in good faith shall be conclusive.
In construing the provisions of this Declaration of Trust, the
presumption shall be in favor of a grant of power to the Board
of Trustees.
(b) Other Business Interests. The Trustees shall
devote to the affairs of the Trust (including every Series
thereof) such time as may be necessary for the proper
performance of their duties hereunder, but neither the Trustees
nor the officers, directors, shareholders, partners or employees
of the Trustees, if any, shall be expected to devote their full
time to the performance of such duties. The Trustees, or any
Affiliate, shareholder, officer, director, partner or employee
thereof, or any Person owning a legal or beneficial interest
therein, may engage in, or possess an interest in, any business
or venture other than the Trust or any Series thereof, of any
nature and description, independently or with or for the account
of others. None of the Trust, any Series thereof or any
Shareholder shall have the right to participate or share in such
other business or venture or any profit or compensation derived
therefrom.
(c) Quorum and Required Vote. At all meetings of the
Board of Trustees, a majority of the Board of Trustees then in
office shall be present in person in order to constitute a
quorum for the transaction of business. A meeting at which a
quorum is initially present may continue to transact business
notwithstanding the departure of Trustees from the meeting, if
any action taken is approved by at least a majority of the
required quorum for that meeting. Subject to Article III,
Sections 1 and 6 of the By-Laws and except as otherwise provided
herein or required by applicable law, the vote of not less than
a majority of the Trustees present at a meeting at which a
quorum is present shall be the act of the Board of Trustees.
Section 4. Payment of Expenses by the Trust. Subject to the
provisions of Article III, Section 6 hereof, an authorized
officer of the Trust shall pay or cause to be paid out of the
principal or income of the Trust or any particular Series or
Class thereof, or partly out of the principal and partly out of
the income of the Trust or any particular Series or Class
thereof, and charge or allocate the same to, between or among
such one or more of the Series or Classes that may be
established or designated pursuant to Article III, Section 6
hereof, as such officer deems fair, all expenses, fees, charges,
taxes and liabilities incurred by or arising in connection with
the maintenance or operation of the Trust or a particular Series
or Class thereof, or in connection with the management thereof,
including, but not limited to, the Trustees' compensation and
such expenses, fees, charges, taxes and liabilities associated
with the services of the Trust's officers, employees, Investment
Adviser(s), Principal Underwriter, auditors, counsel, custodian,
sub-custodian, transfer agent, dividend disbursing agent,
shareholder servicing agent, and such other agents or
independent contractors and such other expenses, fees, charges,
taxes and liabilities as the Board of Trustees may deem
necessary or proper to incur.
Section 5. Ownership of Trust Property. Legal title to all of
the Trust Property shall at all times be vested in the Trust,
except that the Board of Trustees shall have the power to cause
legal title to any Trust Property to be held by or in the name
of any Person as nominee, on such terms as the Board of Trustees
may determine, in accordance with applicable law.
Section 6. Service Contracts.
(a) Subject to this Declaration of Trust, the By-Laws
and the 1940 Act, the Board of Trustees may, at any time and
from time to time, contract for exclusive or nonexclusive
investment advisory or investment management services for the
Trust or for any Series thereof with any corporation, trust,
association or other organization, including any Affiliate; and
any such contract may contain such other terms as the Board of
Trustees may determine, including without limitation, delegation
of authority to the Investment Adviser to determine from time to
time without prior consultation with the Board of Trustees what
securities and other instruments or property shall be purchased
or otherwise acquired, owned, held, invested or reinvested in,
sold, exchanged, transferred, mortgaged, pledged, assigned,
negotiated, or otherwise dealt with or disposed of, and what
portion, if any, of the Trust Property shall be held uninvested
and to make changes in the Trust's or a particular Series'
investments, or to engage in such other activities, including
administrative services, as may specifically be delegated to
such party.
(b) The Board of Trustees may also, at any time and
from time to time, contract with any Person, including any
Affiliate, appointing it or them as the exclusive or
nonexclusive placement agent, distributor or Principal
Underwriter for the Shares of beneficial interest of the Trust
or one or more of the Series or Classes thereof, or for other
securities or financial instruments to be issued by the Trust,
or appointing it or them to act as the administrator, fund
accountant or accounting agent, custodian, transfer agent,
dividend disbursing agent and/or shareholder servicing agent for
the Trust or one or more of the Series or Classes thereof.
(c) The Board of Trustees is further empowered, at
any time and from time to time, to contract with any Persons,
including any Affiliates, to provide such other services to the
Trust or one or more of its Series, as the Board of Trustees
determines to be in the best interests of the Trust, such Series
and its Shareholders.
(d) The Trustees, on behalf of the Trust or any
Series or Class, may enter into one or more contracts for
processing Creation Units.
(e) None of the following facts or circumstances
shall affect the validity of any of the contracts provided for
in this Article IV, Section 6, or disqualify any Shareholder,
Trustee, employee or officer of the Trust from voting upon or
executing the same, or create any liability or accountability to
the Trust, any Series thereof or the Shareholders, provided that
the establishment of and performance of each such contract is
permissible under the 1940 Act, and provided further that such
Person is authorized to vote upon such contract under the 1940
Act:
(i) the fact that any of the Shareholders,
Trustees, employees or officers of the Trust
is a shareholder, director, officer,
partner, trustee, employee, manager,
Adviser, placement agent, Principal
Underwriter, distributor, or Affiliate or
agent of or for any Person, or for any
parent or Affiliate of any Person, with
which any type of service contract provided
for in this Article IV, Section 6 may have
been or may hereafter be made, or that any
such Person, or any parent or Affiliate
thereof, is a Shareholder or has an interest
in the Trust, or
(ii) the fact that any Person with which any type
of service contract provided for in this
Article IV, Section 6 may have been or may
hereafter be made also has such a service
contract with one or more other Persons, or
has other business or interests.
(f) Every contract referred to in this Section 6 is
required to comply with this Declaration of Trust, the By-Laws,
the 1940 Act, other applicable law and any stipulation by
resolution of the Board of Trustees.
ARTICLE V
SHAREHOLDERS' VOTING POWERS AND MEETINGS
Section 1. Voting Powers. Subject to the provisions of Article
III, Section 6 hereof, the Shareholders shall have the power to
vote only (i) on such matters required by this Declaration of
Trust, the By-Laws, the 1940 Act, other applicable law and any
registration statement of the Trust filed with the Commission,
the registration of which is effective; and (ii) on such other
matters as the Board of Trustees may consider necessary or
desirable. Subject to Article III hereof, the Shareholder of
record (as of the record date established pursuant to Section 4
of this Article V) of each Share shall be entitled to one vote
for each full Share, and a fractional vote for each fractional
Share. Shareholders shall not be entitled to cumulative voting
in the election of Trustees or on any other matter.
Section 2. Quorum and Required Vote.
(a) Forty percent (40%) of the outstanding Shares
entitled to vote at a Shareholders' meeting, which are present
in person or represented by proxy, shall constitute a quorum at
the Shareholders' meeting, except when a larger quorum is
required by this Declaration of Trust, the By-Laws, applicable
law or the requirements of any securities exchange on which
Shares are listed for trading, in which case such quorum shall
comply with such requirements. When a separate vote by one or
more Series or Classes is required, forty percent (40%) of the
outstanding Shares of each such Series or Class entitled to vote
at a Shareholders' meeting of such Series or Class, which are
present in person or represented by proxy, shall constitute a
quorum at the Shareholders' meeting of such Series or Class,
except when a larger quorum is required by this Declaration of
Trust, the By-Laws, applicable law or the requirements of any
securities exchange on which Shares of such Series or Class are
listed for trading, in which case such quorum shall comply with
such requirements.
(b) Subject to the provisions of Article III, Section
6(d), when a quorum is present at any meeting, a majority of the
votes cast shall decide any questions and a plurality shall
elect a Trustee, except when a larger vote is required by any
provision of this Declaration of Trust or the By-Laws or by
applicable law. Pursuant to Article III, Section 6(d) hereof,
where a separate vote by Series and, if applicable, by Class is
required, the preceding sentence shall apply to such separate
votes by Series and Classes.
(c) Abstentions and broker non-votes will be treated
as votes present at a Shareholders' meeting; abstentions and
broker non-votes will not be treated as votes cast at such
meeting. Abstentions and broker non-votes, therefore (i) will
be included for purposes of determining whether a quorum is
present; and (ii) will have no effect on proposals that require
a plurality for approval, or on proposals requiring an
affirmative vote of a majority of votes cast for approval.
Section 3. Shareholder Action by Written Consent Without a
Meeting. Any action which may be taken at any meeting of
Shareholders may be taken without a meeting if a consent or
consents in writing setting forth the action so taken is or are
signed by the holders of a majority of the Shares entitled to
vote on such action (or such different proportion thereof as
shall be required by law, the Declaration of Trust or the By-
Laws for approval of such action) and is or are received by the
secretary of the Trust either: (i) by the date set by resolution
of the Board of Trustees for the shareholder vote on such
action; or (ii) if no date is set by resolution of the Board,
within 30 days after the record date for such action as
determined by reference to Article V, Section 4(b) hereof. The
written consent for any such action may be executed in one or
more counterparts, each of which shall be deemed an original,
and all of which when taken together shall constitute one and
the same instrument. A consent transmitted by electronic
transmission (as defined in the DSTA) by a Shareholder or by a
Person or Persons authorized to act for a Shareholder shall be
deemed to be written and signed for purposes of this Section.
All such consents shall be filed with the secretary of the Trust
and shall be maintained in the Trust's records. Any Shareholder
that has given a written consent or the Shareholder's
proxyholder or a personal representative of the Shareholder or
its respective proxyholder may revoke the consent by a writing
received by the secretary of the Trust either: (i) before the
date set by resolution of the Board of Trustees for the
shareholder vote on such action; or (ii) if no date is set by
resolution of the Board, within 30 days after the record date
for such action as determined by reference to Article V, Section
4(b) hereof.
Section 4. Record Dates.
(a) For purposes of determining the Shareholders
entitled to notice of, and to vote at, any meeting of
Shareholders, the Board of Trustees may fix a record date, which
record date shall not precede the date upon which the resolution
fixing the record date is adopted by the Board of Trustees, and
which record date shall not be more than one hundred and twenty
(120) days nor less than ten (10) days before the date of any
such meeting. A determination of Shareholders of record
entitled to notice of or to vote at a meeting of Shareholders
shall apply to any adjournment of the meeting; provided,
however, that the Board of Trustees may fix a new record date
for the adjourned meeting and shall fix a new record date for
any meeting that is adjourned for more than sixty (60) days from
the date set for the original meeting. For purposes of
determining the Shareholders entitled to vote on any action
without a meeting, the Board of Trustees may fix a record date,
which record date shall not precede the date upon which the
resolution fixing the record date is adopted by the Board of
Trustees, and which record date shall not be more than thirty
(30) days after the date upon which the resolution fixing the
record date is adopted by the Board of Trustees.
(b) If the Board of Trustees does not so fix a record
date:
(i) the record date for determining Shareholders
entitled to notice of, and to vote at, a
meeting of Shareholders shall be at the
close of business on the day next preceding
the day on which notice is given or, if
notice is waived, at the close of business
on the day next preceding the day on which
the meeting is held.
(ii) the record date for determining Shareholders
entitled to vote on any action by consent in
writing without a meeting of Shareholders,
(1) when no prior action by the Board of
Trustees has been taken, shall be the day on
which the first signed written consent
setting forth the action taken is delivered
to the Trust, or (2) when prior action of
the Board of Trustees has been taken, shall
be at the close of business on the day on
which the Board of Trustees adopts the
resolution taking such prior action.
(c) For the purpose of determining the Shareholders
of the Trust or any Series or Class thereof who are entitled to
receive payment of any dividend or of any other distribution of
assets of the Trust or any Series or Class thereof (other than
in connection with a dissolution of the Trust or a Series, a
merger, consolidation, conversion, reorganization, or any other
transactions, in each case that is governed by Article VIII of
the Declaration of Trust), the Board of Trustees may:
(i) from time to time fix a record date, which
record date shall not precede the date upon
which the resolution fixing the record date
is adopted, and which record date shall not
be more than sixty (60) days before the date
for the payment of such dividend and/or such
other distribution;
(ii) adopt standing resolutions fixing record
dates and related payment dates at periodic
intervals of any duration for the payment of
such dividend and/or such other
distribution; and/or
(iii) delegate to an appropriate officer or
officers of the Trust the determination of
such periodic record and/or payments dates
with respect to such dividend and/or such
other distribution.
Nothing in this Section shall be construed as precluding the
Board of Trustees from setting different record dates for
different Series or Classes.
Section 5. Additional Provisions. The By-Laws may include
further provisions for Shareholders' votes, meetings and related
matters.
ARTICLE VI
NET ASSET VALUE; DISTRIBUTIONS;
REDEMPTIONS; TRANSFERS
Section 1. Determination of Net Asset Value, Net Income and
Distributions.
(a) Subject to Article III, Section 6 hereof, the
Board of Trustees shall have the power to determine from time to
time the offering price for authorized, but unissued, Shares of
beneficial interest of the Trust or any Series or Class thereof,
respectively, that shall yield to the Trust or such Series or
Class not less than the net asset value thereof, in addition to
any amount of applicable sales charge to be paid to the
Principal Underwriter or the selling broker or dealer in
connection with the sale of such Shares, at which price the
Shares of the Trust or such Series or Class, respectively, shall
be offered for sale, subject to any other requirements or
limitations of the 1940 Act.
(b) Subject to Article III, Section 6 hereof, the
Board of Trustees may, subject to the 1940 Act, prescribe and
shall set forth in the By-Laws, this Declaration of Trust or in
a resolution of the Board of Trustees such bases and time for
determining the net asset value per Share of the Trust or any
Series or Class thereof, or net income attributable to the
Shares of the Trust or any Series or Class thereof or the
declaration and payment of dividends and distributions on the
Shares of the Trust or any Series or Class thereof, as it may
deem necessary or desirable, and such dividends and
distributions may vary between the Classes to reflect differing
allocations of the expenses of the Trust between such Classes to
such extent and for such purposes as the Trustees may deem
appropriate.
(c) The Shareholders of the Trust or any Series or
Class, if any, shall be entitled to receive dividends and
distributions, when, if and as declared by the Board of Trustees
with respect thereto, provided that with respect to Classes,
such dividends and distributions shall comply with the 1940 Act.
The right of Shareholders to receive dividends or other
distributions on Shares of any Class may be set forth in a plan
adopted by the Board of Trustees and amended from time to time
pursuant to the 1940 Act. No Share shall have any priority or
preference over any other Share of the Trust with respect to
dividends or distributions paid in the ordinary course of
business or distributions upon dissolution of the Trust made
pursuant to Article VIII, Section 1 hereof; provided however,
that
(i) if the Shares of the Trust are divided into
Series thereof, no Share of a particular
Series shall have any priority or preference
over any other Share of the same Series with
respect to dividends or distributions paid
in the ordinary course of business or
distributions upon dissolution of the Trust
or of such Series made pursuant to Article
VIII, Section 1 hereof;
(ii) if the Shares of the Trust are divided into
Classes thereof, no Share of a particular
Class shall have any priority or preference
over any other Share of the same Class with
respect to dividends or distributions paid
in the ordinary course of business or
distributions upon dissolution of the Trust
made pursuant to Article VIII, Section 1
hereof; and
(iii) if the Shares of a Series are divided into
Classes thereof, no Share of a particular
Class of such Series shall have any priority
or preference over any other Share of the
same Class of such Series with respect to
dividends or distributions paid in the
ordinary course of business or distributions
upon dissolution of such Series made
pursuant to Article VIII, Section 1 hereof.
All dividends and distributions shall be made ratably among all
Shareholders of the Trust, a particular Class of the Trust, a
particular Series, or a particular Class of a Series from the
Trust Property held with respect to the Trust, such Series or
such Class, respectively, according to the number of Shares of
the Trust, such Series or such Class held of record by such
Shareholders on the record date for any dividend or
distribution; provided however, that
(iv) if the Shares of the Trust are divided into
Series thereof, all dividends and
distributions from the Trust Property and,
if applicable, held with respect to such
Series, shall be distributed to each Series
thereof according to the net asset value
computed for such Series and within such
particular Series, shall be distributed
ratably to the Shareholders of such Series
according to the number of Shares of such
Series held of record by such Shareholders
on the record date for any dividend or
distribution; and
(v) if the Shares of the Trust or of a Series
are divided into Classes thereof, all
dividends and distributions from the Trust
Property and, if applicable, held with
respect to the Trust or such Series, shall
be distributed to each Class thereof
according to the net asset value computed
for such Class and within such particular
Class, shall be distributed ratably to the
Shareholders of such Class according to the
number of Shares of such Class held of
record by such Shareholders on the record
date for any dividend or distribution.
Dividends and distributions may be paid in cash, in kind or in
Shares.
(d) Before payment of any dividend there may be set
aside out of any funds of the Trust, or the applicable Series
thereof, available for dividends such sum or sums as the Board
of Trustees may from time to time, in its absolute discretion,
think proper as a reserve fund to meet contingencies, or for
equalizing dividends, or for repairing or maintaining any
property of the Trust, or any Series thereof, or for such other
lawful purpose as the Board of Trustees shall deem to be in the
best interests of the Trust, or the applicable Series, as the
case may be, and the Board of Trustees may abolish any such
reserve in the manner in which the reserve was created.
Section 2. Redemptions at the Option of a Shareholder. Unless
otherwise provided in the prospectus of the Trust relating to
the Shares, as such prospectus may be amended from time to time:
(a) The Trust shall purchase such Shares as are
offered by any Shareholder for redemption upon the presentation
of a proper instrument of transfer together with a request
directed to the Trust or a Person designated by the Trust that
the Trust purchase such Shares and/or in accordance with such
other procedures for redemption as the Board of Trustees may
from time to time authorize. If certificates have been issued
to a Shareholder, any request for redemption by such Shareholder
must be accompanied by surrender of any outstanding certificate
or certificates for such Shares in form for transfer, together
with such proof of the authenticity of signatures as may
reasonably be required on such Shares and accompanied by proper
stock transfer stamps, if applicable. The Shares of any Series,
if the Trustees so determine, shall be redeemable only in such
Creation Unit aggregations and on such days as the Trustees
determine or as determined pursuant to procedures or methods the
Trustees prescribe or approve from time to time with respect to
such Series. Each holder of a Creation Unit, on request to the
Trust in accordance with procedures the Trustees establish,
shall be entitled to require the Trust to redeem all or any
number of such holder's Shares standing in the holder's name on
the Trust's books (but only in full Creation Units in the case
of any Series as to which the Trustees have determined that its
Shares shall be redeemable only in full Creation Units), at a
redemption price per share equal to an amount determined by the
Trustees in accordance with applicable laws.
(b) The Trust shall pay for such Shares the net asset
value thereof (excluding any applicable redemption fee or sales
load), in accordance with this Declaration of Trust, the By-
Laws, the 1940 Act and other applicable law. Payments for
Shares so redeemed by the Trust shall be made in cash, except
payment for such Shares may, at the option of the Board of
Trustees, or such officer or officers as it may duly authorize
in its complete discretion, be made in kind or partially in cash
and partially in kind. In case of any payment in kind, the
Board of Trustees, or its authorized officers, shall have
absolute discretion as to what security or securities of the
Trust or the applicable Series shall be distributed in kind and
the amount of the same; and the securities shall be valued for
purposes of distribution at the value at which they were
appraised in computing the then current net asset value of the
Shares, provided that any Shareholder who cannot legally acquire
securities so distributed in kind shall receive cash to the
extent permitted by the 1940 Act. Shareholders shall bear the
expenses of in-kind transactions, including, but not limited to,
transfer agency fees, custodian fees and costs of disposition of
such securities.
(c) Payment by the Trust for such redemption of
Shares shall be made by the Trust to the Shareholder within
seven days after the date on which the redemption request is
received in proper form and/or such other procedures authorized
by the Board of Trustees are complied with; provided, however,
that if payment shall be made other than exclusively in cash,
any securities to be delivered as part of such payment shall be
delivered as promptly as any necessary transfers of such
securities on the books of the several corporations whose
securities are to be delivered practicably can be made, which
may not necessarily occur within such seven-day period. In no
case shall the Trust be liable for any delay of any corporation
or other Person in transferring securities selected for delivery
as all or part of any payment in kind.
(d) The obligations of the Trust set forth in this
Section 2 are subject to the provision that such obligations may
be suspended or postponed by the Board of Trustees (1) during
any time the New York Stock Exchange (the "Exchange") is closed
for other than weekends or holidays; (2) if permitted by the
rules of the Commission, during periods when trading on the
Exchange is restricted; or (3) during any National Financial
Emergency. The Board of Trustees may, in its discretion,
declare that the suspension relating to a National Financial
Emergency shall terminate, as the case may be, on the first
business day on which the Exchange shall have reopened or the
period specified above shall have expired (as to which, in the
absence of an official ruling by the Commission, the
determination of the Board of Trustees shall be conclusive).
(e) The right of any Shareholder of the Trust or any
Series or Class thereof to receive dividends or other
distributions on Shares redeemed and all other rights of such
Shareholder with respect to the Shares so redeemed, except the
right of such Shareholder to receive payment for such Shares,
shall cease at the time the purchase price of such Shares shall
have been fixed, as provided above.
Section 3. Redemptions at the Option of the Trust. At the
option of the Board of Trustees the Trust may, from time to
time, without the vote of the Shareholders, but subject to the
1940 Act, redeem Shares or authorize the closing of any
Shareholder account, subject to such conditions as may be
established from time to time by the Board of Trustees.
Section 4. Transfer of Shares. Shares shall be transferable in
accordance with the provisions of the By-Laws.
ARTICLE VII
LIMITATION OF LIABILITY
AND INDEMNIFICATION OF AGENT
Section 1. Limitation of Liability.
(a) For the purpose of this Article, "Agent" means
any Person who is or was a Trustee, officer, employee or other
agent of the Trust or is or was serving at the request of the
Trust as a trustee, director, officer, employee or other agent
of another foreign or domestic corporation, partnership, joint
venture, trust or other enterprise; "Proceeding" means any
threatened, pending or completed action or proceeding, whether
civil, criminal, administrative or investigative; and "Expenses"
include without limitation attorneys' fees and any expenses of
establishing a right to indemnification under this Article.
(b) An Agent shall be liable to the Trust and to any
Shareholder for any act or omission that constitutes a bad faith
violation of the implied contractual covenant of good faith and
fair dealing, for such Agent's own willful misfeasance, bad
faith, gross negligence or reckless disregard of the duties
involved in the conduct of such Agent (such conduct referred to
herein as "Disqualifying Conduct"), and for nothing else.
(c) Subject to subsection (b) of this Section 1 and
to the fullest extent that limitations on the liability of
Agents are permitted by the DSTA, the Agents shall not be
responsible or liable in any event for any act or omission of
any other Agent of the Trust or any Investment Adviser or
Principal Underwriter of the Trust.
(d) No Agent, when acting in its respective capacity
as such, shall be personally liable to any Person, other than
the Trust or a Shareholder to the extent provided in subsections
(b) and (c) of this Section 1, for any act, omission or
obligation of the Trust or any Trustee thereof.
(e) Each Trustee, officer and employee of the Trust
shall, in the performance of his or her duties, be fully and
completely justified and protected with regard to any act or any
failure to act resulting from reliance in good faith upon the
books of account or other records of the Trust, upon an opinion
of counsel, or upon reports made to the Trust by any of its
officers or employees or by the Investment Adviser, the
Principal Underwriter, any other 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. The officers and Trustees may obtain the advice
of counsel or other experts with respect to the meaning and
operation of this Declaration of Trust, the By-Laws, applicable
law and their respective duties as officers or Trustees. No
such officer or Trustee shall be liable for any act or omission
in accordance with such advice, records and/or reports and no
inference concerning liability shall arise from a failure to
follow such advice, records and/or reports. The officers and
Trustees shall not be required to give any bond hereunder, nor
any surety if a bond is required by applicable law.
(f) The failure to make timely collection of
dividends or interest, or to take timely action with respect to
entitlements, on the Trust's securities issued in emerging
countries, shall not be deemed to be negligence or other fault
on the part of any Agent, and no Agent shall have any liability
for such failure or for any loss or damage resulting from the
imposition by any government of exchange control restrictions
which might affect the liquidity of the Trust's assets or from
any war or political act of any foreign government to which such
assets might be exposed, except, in the case of a Trustee or
officer, for liability resulting from such Trustee's or
officer's Disqualifying Conduct.
(g) The limitation on liability contained in this
Article applies to events occurring at the time a Person serves
as an Agent whether or not such Person is an Agent at the time
of any Proceeding in which liability is asserted.
(h) No amendment or repeal of this Article shall
adversely affect any right or protection of an Agent that exists
at the time of such amendment or repeal.
Section 2. Indemnification.
(a) Indemnification by Trust. The Trust shall
indemnify, out of Trust Property, to the fullest extent
permitted under applicable law, any Person who was or is a party
or is threatened to be made a party to any Proceeding by reason
of the fact that such Person is or was an Agent of the Trust,
against Expenses, judgments, fines, settlements and other
amounts actually and reasonably incurred in connection with such
Proceeding if such Person acted in good faith or in the case of
a criminal proceeding, had no reasonable cause to believe the
conduct of such Person was unlawful. The termination of any
Proceeding by judgment, order, settlement, conviction or plea of
nolo contendere or its equivalent shall not of itself create a
presumption that the Person did not act in good faith or that
the Person had reasonable cause to believe that the Person's
conduct was unlawful.
(b) Exclusion of Indemnification. Notwithstanding
any provision to the contrary contained herein, there shall be
no right to indemnification for any liability arising by reason
of the Agent's Disqualifying Conduct. In respect of any claim,
issue or matter as to which that Person shall have been adjudged
to be liable in the performance of that Person's duty to the
Trust or the Shareholders, indemnification shall be made only to
the extent that the court in which that action was brought shall
determine, upon application or otherwise, that in view of all
the circumstances of the case, that Person was not liable by
reason of that Person's Disqualifying Conduct.
(c) Required Approval. Any indemnification under
this Article shall be made by the Trust if authorized in the
specific case on a determination that indemnification of the
Agent is proper in the circumstances by (i) a final decision on
the merits by a court or other body before whom the proceeding
was brought that the Agent was not liable by reason of
Disqualifying Conduct (including, but not limited to, dismissal
of either a court action or an administrative proceeding against
the Agent for insufficiency of evidence of any Disqualifying
Conduct) or, (ii) in the absence of such a decision, a
reasonable determination, based upon a review of the facts, that
the Agent was not liable by reason of Disqualifying Conduct, by
(1) the vote of a majority of a quorum of the Trustees who are
not (x) "interested persons" of the Trust as defined in Section
2(a)(19) of the 1940 Act, (y) parties to the proceeding, or (z)
parties who have any economic or other interest in connection
with such specific case (the "disinterested, non-party
Trustees"); or (2) by independent legal counsel in a written
opinion.
(d) Advancement of Expenses. Expenses incurred by an
Agent in defending any Proceeding may be advanced by the Trust
before the final disposition of the Proceeding on receipt of an
undertaking by or on behalf of the Agent to repay the amount of
the advance if it shall be determined ultimately that the Agent
is not entitled to be indemnified as authorized in this Article;
provided, that at least one of the following conditions for the
advancement of expenses is met: (i) the Agent shall provide a
security for his undertaking, (ii) the Trust shall be insured
against losses arising by reason of any lawful advances, or
(iii) a majority of a quorum of the disinterested, non-party
Trustees of the Trust, or an independent legal counsel in a
written opinion, shall determine, based on a review of readily
available facts (as opposed to a full trial-type inquiry), that
there is reason to believe that the Agent ultimately will be
found entitled to indemnification.
(e) Other Contractual Rights. Nothing contained in
this Article shall affect any right to indemnification to which
Persons other than Trustees and officers of the Trust or any
subsidiary thereof may be entitled by contract or otherwise.
(f) Fiduciaries of Employee Benefit Plan. This
Article does not apply to any Proceeding against any trustee,
investment manager or other fiduciary of an employee benefit
plan in that Person's capacity as such, even though that Person
may also be an Agent of the Trust as defined in Section 1 of
this Article. Nothing contained in this Article shall limit any
right to indemnification to which such a trustee, investment
manager, or other fiduciary may be entitled by contract or
otherwise which shall be enforceable to the extent permitted by
applicable law other than this Article.
Section 3. Insurance. To the fullest extent permitted by
applicable law, the Board of Trustees shall have the authority
to purchase with Trust Property, insurance for liability and for
all Expenses reasonably incurred or paid or expected to be paid
by an Agent in connection with any Proceeding in which such
Agent becomes involved by virtue of such Agent's actions, or
omissions to act, in its capacity or former capacity with the
Trust, whether or not the Trust would have the power to
indemnify such Agent against such liability.
Section 4. Derivative Actions. Subject to the requirements set
forth in Section 3816 of the DSTA, a Shareholder or Shareholders
may bring a derivative action on behalf of the Trust only if the
Shareholder or Shareholders first make a pre-suit demand upon
the Board of Trustees to bring the subject action unless an
effort to cause the Board of Trustees to bring such action is
excused. A demand on the Board of Trustees shall only 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 material personal financial interest in the action at
issue. A Trustee shall not be deemed to have a material
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 his or her
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 adviser or underwriter.
ARTICLE VIII
CERTAIN TRANSACTIONS
Section 1. Dissolution of Trust or Series. The Trust and each
Series shall have perpetual existence, except that the Trust (or
a particular Series) shall be dissolved:
(a) With respect to the Trust, (i) upon the vote of
the holders of not less than a majority of the Shares of the
Trust cast, or (ii) at the discretion of the Board of Trustees
either (A) at any time there are no Shares outstanding of the
Trust, or (B) upon prior written notice to the Shareholders of
the Trust; or
(b) With respect to a particular Series, (i) upon the
vote of the holders of not less than a majority of the Shares of
such Series cast, or (ii) at the discretion of the Board of
Trustees either (A) at any time there are no Shares outstanding
of such Series, or (B) upon prior written notice to the
Shareholders of such Series; or
(c) With respect to the Trust (or a particular
Series), upon the occurrence of a dissolution or termination
event pursuant to any other provision of this Declaration of
Trust (including Article VIII, Section 2) or the DSTA; or
(d) With respect to any Series, upon any event that
causes the dissolution of the Trust.
Upon dissolution of the Trust (or a particular Series, as
the case may be), the Board of Trustees shall (in accordance
with Section 3808 of the DSTA) pay or make reasonable provision
to pay all claims and obligations of the Trust and/or each
Series (or the particular Series, as the case may be), including
all contingent, conditional or unmatured claims and obligations
known to the Trust, and all claims and obligations which are
known to the Trust, but for which the identity of the claimant
is unknown. If there are sufficient assets held with respect to
the Trust and/or each Series of the Trust (or the particular
Series, as the case may be), such claims and obligations shall
be paid in full and any such provisions for payment shall be
made in full. If there are insufficient assets held with
respect to the Trust and/or each Series of the Trust (or the
particular Series, as the case may be), such claims and
obligations shall be paid or provided for according to their
priority and, among claims and obligations of equal priority,
ratably to the extent of assets available therefor. Any
remaining assets (including, without limitation, cash,
securities or any combination thereof) held with respect to the
Trust and/or each Series of the Trust (or the particular Series,
as the case may be) shall be distributed to the Shareholders of
the Trust and/or each Series of the Trust (or the particular
Series, as the case may be) ratably according to the number of
Shares of the Trust and/or such Series thereof (or the
particular Series, as the case may be) held of record by the
several Shareholders on the date for such dissolution
distribution; provided, however, that if the Shares of the Trust
or a Series are divided into Classes thereof, any remaining
assets (including, without limitation, cash, securities or any
combination thereof) held with respect to the Trust or such
Series, as applicable, shall be distributed to each Class of the
Trust or such Series according to the net asset value computed
for such Class and within such particular Class, shall be
distributed ratably to the Shareholders of such Class according
to the number of Shares of such Class held of record by the
several Shareholders on the date for such dissolution
distribution. Upon the winding up of the Trust in accordance
with Section 3808 of the DSTA and its termination, any one (1)
Trustee shall execute, and cause to be filed, a certificate of
cancellation, with the office of the Secretary of State of the
State of Delaware in accordance with the provisions of Section
3810 of the DSTA.
Section 2. Merger or Consolidation; Conversion; Reorganization.
(a) Merger or Consolidation. Pursuant to an
agreement of merger or consolidation, the Board of Trustees, by
vote of a majority of the Trustees, may cause the Trust to merge
or consolidate with or into one or more statutory trusts or
"other business entities" (as defined in Section 3801 of the
DSTA) 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 Board of Trustees shall provide at least thirty (30)
days' prior written notice to the Shareholders of such merger or
consolidation. By reference to Section 3815(f) of the DSTA, any
agreement of merger or consolidation approved in accordance with
this Section 2(a) may, without a Shareholder vote, unless
required by the 1940 Act, the requirements of any securities
exchange on which Shares are listed for trading or any other
provision of this Declaration of Trust or the By-Laws, effect
any amendment to this Declaration of Trust or the By-Laws or
effect the adoption of a new governing instrument if the Trust
is the surviving or resulting statutory trust in the merger or
consolidation, which amendment or new governing instrument shall
be effective at the effective time or date of the merger or
consolidation. In all respects not governed by the DSTA, the
1940 Act, other applicable law or the requirements of any
securities exchange on which Shares are listed for trading, the
Board of 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
separate statutory trusts to which all or any part of the
assets, liabilities, profits or losses of the Trust may be
transferred and to provide for the conversion of Shares into
beneficial interests in such separate statutory trust or trusts.
Upon completion of the merger or consolidation, if the Trust is
the surviving or resulting statutory trust, any one (1) Trustee
shall execute, and cause to be filed, a certificate of merger or
consolidation in accordance with Section 3815 of the DSTA.
(b) Conversion. The Board of Trustees, by vote of a
majority of the Trustees, may cause (i) the Trust to convert to
an "other business entity" (as defined in Section 3801 of the
DSTA) formed or organized under the laws of the State of
Delaware as permitted pursuant to Section 3821 of the DSTA; (ii)
the Shares of the Trust or any Series to be converted into
beneficial interests in another statutory trust (or series
thereof) created pursuant to this Section 2 of this Article
VIII, or (iii) the Shares to be exchanged under or pursuant to
any state or federal statute to the extent permitted by law.
Any such statutory 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 Board of Trustees shall provide at least thirty (30) days'
prior written notice to the Shareholders of the Trust of any
conversion of Shares of the Trust pursuant to Subsections (b)(i)
or (b)(ii) of this Section 2 or exchange of Shares of the Trust
pursuant to Subsection (b)(iii) of this Section 2, and at least
thirty (30) days' prior written notice to the Shareholders of a
particular Series of any conversion of Shares of such Series
pursuant to Subsection (b)(ii) of this Section 2 or exchange of
Shares of such Series pursuant to Subsection (b)(iii) of this
Section 2. In all respects not governed by the DSTA, the 1940
Act, other applicable law or the requirements of any securities
exchange on which Shares are listed for trading, the Board of
Trustees shall have the power to prescribe additional procedures
necessary or appropriate to accomplish a statutory conversion,
Share conversion or Share exchange, including the power to
create one or more separate statutory trusts to which all or any
part of the assets, liabilities, profits or losses of the Trust
may be transferred and to provide for the conversion of Shares
of the Trust or any Series thereof into beneficial interests in
such separate statutory trust or trusts (or series thereof).
(c) Reorganization. The Board of 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 trust, statutory trust,
partnership, limited partnership, limited liability company,
corporation or other association organized under the laws of any
state, or to one or more separate series thereof, or to the
Trust to be held as assets associated with one or more other
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 (a) 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 (b) 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 Board of Trustees shall provide at
least thirty (30) days' prior written notice to the Shareholders
of the Trust of any such sale of Trust assets, and at least
thirty (30) days prior written notice to the Shareholders of a
particular Series of any sale of such Series' assets. Following
such sale of Trust assets, the Board of Trustees 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 within each such Series).
Following a sale of such Series' assets, the Board of Trustees
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 within each 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 shall be dissolved. In all
respects not governed by the DSTA, the 1940 Act or other
applicable law, the Board of 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 separate statutory trusts to which
all or any part of the assets, liabilities, profits or losses of
the Trust may be transferred and to provide for the conversion
of Shares into beneficial interests in such separate statutory
trust or trusts.
Section 3. Master Feeder Structure. If permitted by the 1940
Act, the Board of Trustees, by vote of a majority of the
Trustees, and without a Shareholder vote, may cause the Trust or
any one or more Series to convert to a master feeder structure
(a structure in which a feeder fund invests all of its assets in
a master fund, rather than making investments in securities
directly) and thereby cause existing Series of the Trust to
either become feeders in a master fund, or to become master
funds in which other funds are feeders.
Section 4. Absence of Appraisal or Dissenters' Rights. No
Shareholder shall be entitled, as a matter of right, to relief
as a dissenting Shareholder in respect of any proposal or action
involving the Trust or any Series or any Class thereof.
ARTICLE IX
AMENDMENTS
Section 1. Amendments Generally. This Declaration of Trust may
be restated and/or amended at any time by an instrument in
writing signed by not less than a majority of the Board of
Trustees and, to the extent required by this Declaration of
Trust, the 1940 Act or the requirements of any securities
exchange on which Shares are listed for trading, by approval of
such amendment by the Shareholders in accordance with Article
III, Section 6 hereof and Article V hereof. Any such
restatement and/or amendment hereto shall be effective
immediately upon execution and approval or upon such future date
and time as may be stated therein. The Certificate of Trust
shall be restated and/or amended at any time by the Board of
Trustees, without Shareholder approval, to correct any
inaccuracy contained therein. Any such restatement and/or
amendment of the Certificate of Trust shall be executed by at
least one (1) Trustee and shall be effective immediately upon
its filing with the office of the Secretary of State of the
State of Delaware or upon such future date as may be stated
therein.
ARTICLE X
MISCELLANEOUS
Section 1. References; Headings; Counterparts. In this
Declaration of Trust and in any restatement hereof and/or
amendment hereto, references to this instrument, and all
expressions of similar effect to "herein," "hereof and
"hereunder," shall be deemed to refer to this instrument as so
restated and/or amended. Headings are placed herein for
convenience of reference only and shall not be taken as a part
hereof or control or affect the meaning, construction or effect
of this instrument. Whenever the singular number is used
herein, the same shall include the plural; and the neuter,
masculine and feminine genders shall include each other, as
applicable. Any references herein to specific sections of the
DSTA, the Code or the 1940 Act shall refer to such sections as
amended from time to time or any successor sections thereof.
This instrument may be executed in any number of counterparts,
each of which shall be deemed an original.
Section 2. Applicable Law. This Declaration of Trust is
created under and is to be governed by and construed and
administered according to the laws of the State of Delaware and
the applicable provisions of the 1940 Act and the Code. The
Trust shall be a Delaware statutory trust pursuant to the DSTA,
and without limiting the provisions hereof, the Trust may
exercise all powers which are ordinarily exercised by such a
statutory trust.
Section 3. Provisions in Conflict with Law or Regulations.
(a) The provisions of this Declaration of Trust are
severable, and if the Board of Trustees shall determine, with
the advice of counsel, that any of such provisions is in
conflict with the 1940 Act, the Code, the DSTA, or with other
applicable laws and regulations, the conflicting provision shall
be deemed not to have constituted a part of this Declaration of
Trust from the time when such provisions became inconsistent
with such laws or regulations; provided, however, that such
determination shall not affect any of the remaining provisions
of this Declaration of Trust or render invalid or improper any
action taken or omitted prior to such determination.
(b) If any provision of this Declaration of Trust
shall be held invalid or unenforceable in any jurisdiction, such
invalidity or unenforceability shall attach only to such
provision in such jurisdiction and shall not in any manner
affect such provision in any other jurisdiction or any other
provision of this Declaration of Trust in any jurisdiction.
Section 4. Statutory Trust Only. It is the intention of the
Trustees to create hereby a statutory trust pursuant to the
DSTA, and thereby to create the relationship of trustee and
beneficial owners within the meaning of the DSTA between,
respectively, the Trustees and each Shareholder. It is not the
intention of the Trustees to create a general or limited
partnership, limited liability company, joint stock association,
corporation, bailment, or any form of legal relationship other
than a statutory trust pursuant to the DSTA. Nothing in this
Declaration of Trust shall be construed to make the
Shareholders, either by themselves or with the Trustees,
partners or members of a joint stock association.
IN WITNESS WHEREOF, the Trustees named below do hereby make
and enter into this Fourth Amended and Restated Declaration of
Trust as of the date first written above. This instrument may
be signed in one or more counterparts.
/s/ Xxxxxx X. Xxxxxx
Xxxxxx X. Xxxxxx, Chairman of
the Board of Trustees
/s/ Xxxxxx X. Xxxxxxx
Xxxxxx X. Xxxxxxx, Trustee
Xxx X. Xxxxxx, Trustee
/s/ Xxxxxxx. X. Xxxxxxx
Xxxxxxx X. Xxxxxxx, Trustee
/s/ Xxxxxxx X. Xxxxxxxx
Xxxxxxx X. Xxxxxxxx, Trustee
/s/ Xxxxxxxx X. Xxxxxx
Xxxxxxxx X. Xxxxxx, Trustee
/s/ F. Xxxxxxx Xxxxxxxx, Jr.
F. Xxxxxxx Xxxxxxxx, Jr., Trustee
/s/ Xxxxx X. Xxxxxxx
Xxxxx X. Xxxxxxx, Trustee
/s./ Xxxxx X. Xxxxxx
Xxxxx X. Xxxxxx, Trustee
/s/ Xxxxxx X. Xxxxxxxxx
Xxxxxx X. Xxxxxxxxx, Trustee
Schedule A
to
Fourth Amended and Restated Declaration of Trust
of
Xxxxxxxxxxx ETF Trust
(dated as of 10/27/17)
Xxxxxxxxxxx Large Cap Revenue ETF
Xxxxxxxxxxx Mid Cap Revenue ETF
Xxxxxxxxxxx Small Cap Revenue ETF
Xxxxxxxxxxx Financials Sector Revenue ETF
Xxxxxxxxxxx Ultra Dividend Revenue ETF
Xxxxxxxxxxx ESG Revenue ETF
Xxxxxxxxxxx Global ESG Revenue ETF
Xxxxxxxxxxx Emerging Markets Revenue ETF
Xxxxxxxxxxx Global Revenue ETF
Xxxxxxxxxxx International Revenue ETF
Xxxxxxxxxxx Xxxxxxx 1000 Dynamic Factor ETF
Xxxxxxxxxxx Xxxxxxx 2000 Dynamic Factor ETF
Xxxxxxxxxxx Xxxxxxx 1000 Low Volatility Factor ETF
Xxxxxxxxxxx Xxxxxxx 1000 Momentum Factor ETF
Xxxxxxxxxxx Xxxxxxx 1000 Quality Factor ETF
Xxxxxxxxxxx Xxxxxxx 1000 Size Factor ETF
Xxxxxxxxxxx Xxxxxxx 1000 Value Factor ETF
Xxxxxxxxxxx Xxxxxxx 1000 Yield Factor ETF
Xxxxxxxxxxx Consumer Discretionary Sector Revenue ETF
Xxxxxxxxxxx Consumer Staples Sector Revenue ETF
Xxxxxxxxxxx Energy Sector Revenue ETF
Xxxxxxxxxxx Health Care Sector Revenue ETF
Xxxxxxxxxxx Industrials Sector Revenue ETF
Xxxxxxxxxxx Information Technology Sector Revenue ETF
Xxxxxxxxxxx Materials Sector Revenue ETF
Xxxxxxxxxxx Utilities Sector Revenue ETF
