BARON CAPITAL FUNDS TRUST
____________________________________________
AGREEMENT AND DECLARATION OF TRUST
____________________________________________
TABLE OF CONTENTS
ARTICLE I
The Trust
1.1 Name . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
1.2 Definitions . . . . . . . . . . . . . . . . . . . . . . . . . . 2
ARTICLE II
Trustees
2.1 Number and Qualification . . . . . . . . . . . . . . . . . . . 4
2.2 Term and Election . . . . . . . . . . . . . . . . . . . . . . . 4
2.3 Resignation and Removal . . . . . . . . . . . . . . . . . . . . 4
2.4 Vacancies . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
2.5 Meetings and Action without Meetings . . . . . . . . . . . . . 5
2.6 Committees . . . . . . . . . . . . . . . . . . . . . . . . . . 6
2.7 Officers . . . . . . . . . . . . . . . . . . . . . . . . . . . 7
ARTICLE III
Powers and Duties of Trustees
3.1 General . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7
3.2 Investments . . . . . . . . . . . . . . . . . . . . . . . . . . 7
3.3 Legal Title . . . . . . . . . . . . . . . . . . . . . . . . . . 8
3.4 Issuance and Repurchase of Shares . . . . . . . . . . . . . . . 9
3.5 Service Liabilities . . . . . . . . . . . . . . . . . . . . . . 9
3.6 Delegation; Committees . . . . . . . . . . . . . . . . . . . . 9
3.7 Collection and Payment . . . . . . . . . . . . . . . . . . . . 10
3.8 Expenses . . . . . . . . . . . . . . . . . . . . . . . . . . . 10
3.9 By-Laws . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11
3.10 Miscellaneous Powers . . . . . . . . . . . . . . . . . . . . . 11
3.11 Further Powers . . . . . . . . . . . . . . . . . . . . . . . . 11
3.12 Parties to Contract . . . . . . . . . . . . . . . . . . . . . . 12
ARTICLE IV
Limitations of Liability
and Indemnification
4.1 No Personal Liability of Shareholders, Trustees,
Etc. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12
4.2 Mandatory Indemnification . . . . . . . . . . . . . . . . . . . 13
4.3 No Bond Required of Trustees . . . . . . . . . . . . . . . . . 15
4.4 No Duty of Investigation; Notice in Trust
Instruments, etc. . . . . . . . . . . . . . . . . . . . . . . 15
4.5 Reliance on Experts, etc. . . . . . . . . . . . . . . . . . . 16
4.6 Indemnification of Shareholders . . . . . . . . . . . . . . . . 16
ARTICLE V
Shares of Beneficial Interest
5.1 Beneficial Interest . . . . . . . . . . . . . . . . . . . . . . 17
5.2 Series Designation . . . . . . . . . . . . . . . . . . . . . . 17
5.3 Class Designation . . . . . . . . . . . . . . . . . . . . . . . 17
5.4 Description of Shares . . . . . . . . . . . . . . . . . . . . . 18
5.5 Rights of Shareholders . . . . . . . . . . . . . . . . . . . . 20
5.6 Trust Only . . . . . . . . . . . . . . . . . . . . . . . . . . 21
5.7 Issuance of Shares . . . . . . . . . . . . . . . . . . . . . . 22
5.8 Register of Shares . . . . . . . . . . . . . . . . . . . . . . 22
5.9 Transfer Agent and Registrar . . . . . . . . . . . . . . . . . 23
5.10 Transfer of Shares . . . . . . . . . . . . . . . . . . . . . . 23
5.11 Notices . . . . . . . . . . . . . . . . . . . . . . . . . . . . 24
ARTICLE VI
Redemption
6.1 Redemptions . . . . . . . . . . . . . . . . . . . . . . . . . . 24
6.2 Disclosure of Holding . . . . . . . . . . . . . . . . . . . . . 25
6.3 Redemptions at Option of Trust . . . . . . . . . . . . . . . . 25
ARTICLE VII
Determination of Net Asset Value
Net Income and Distributions
7.1 Net Asset Value . . . . . . . . . . . . . . . . . . . . . . . . 25
7.2 Distributions to Shareholders . . . . . . . . . . . . . . . . . 26
7.3 Constant Net Asse Value; Reduction of Outstanding
Shares . . . . . . . . . . . . . . . . . . . . . . . . . . . . 26
7.4 Power to Modify Foregoing Procedures . . . . . . . . . . . . . 27
ARTICLE VIII
Shareholders
8.1 Meetings of Shareholders . . . . . . . . . . . . . . . . . . . 28
8.2 Voting . . . . . . . . . . . . . . . . . . . . . . . . . . . . 28
8.3 Notice of Meeting and Record Date . . . . . . . . . . . . . . . 28
8.4 Quorum and Required Vote . . . . . . . . . . . . . . . . . . . 29
8.5 Proxies, etc. . . . . . . . . . . . . . . . . . . . . . . . . 29
8.6 Inspection of Records . . . . . . . . . . . . . . . . . . . . . 30
8.7 Shareholder Action by Written Consent . . . . . . . . . . . . . 30
ARTICLE IX
Duration: Termination of Trust;
Amendment; Mergers, Etc.
9.1 Duration . . . . . . . . . . . . . . . . . . . . . . . . . . . 31
9.2 Termination . . . . . . . . . . . . . . . . . . . . . . . . . . 31
9.3 Amendment Procedure . . . . . . . . . . . . . . . . . . . . . . 32
9.4 Xxxxxx, Consolidation and Sale of Assets . . . . . . . . . . . 33
9.5 Incorporation . . . . . . . . . . . . . . . . . . . . . . . . . 34
ARTICLE X
Miscellaneous
10.1 Filing . . . . . . . . . . . . . . . . . . . . . . . . . . . . 34
10.2 Resident Agent . . . . . . . . . . . . . . . . . . . . . . . . 35
10.3 Governing Law . . . . . . . . . . . . . . . . . . . . . . . . . 35
10.4 Counterparts . . . . . . . . . . . . . . . . . . . . . . . . . 35
10.5 Reliance by Third Parties . . . . . . . . . . . . . . . . . . . 35
10.6 Provisions in Conflict with Law or Regulation . . . . . . . . . 36
BARON CAPITAL FUNDS TRUST
AGREEMENT AND DECLARATION OF TRUST
AGREEMENT AND DECLARATION OF TRUST made on the 20TH day of
November, 1997, by the Trustees hereunder, and by the holders of shares of
beneficial interest issued hereunder as hereinafter provided.
WHEREAS, this Trust has been formed to carry on business as set
forth more particularly hereinafter;
WHEREAS, this Trust is authorized to issue its shares of
beneficial interest in separate series and classes of each such series,
each separate series to be a sub-trust hereunder, all in accordance with
the provisions hereinafter set forth;
WHEREAS, the Trustees have agreed to manage all property coming
into their hands as Trustees of a Delaware business trust in accordance
with the provisions hereinafter set forth; and
WHEREAS, the parties hereto intend that the Trust created by this
Declaration shall constitute a business trust under the Delaware Business
Trust Statute and that this Declaration shall constitute the governing
instrument of such business trust.
NOW, THEREFORE, the Trustees hereby declare that they will hold
all cash, securities, and other assets which they may from time to time
acquire in any manner as Trustees hereunder IN TRUST to manage and dispose
of the same upon the following terms and conditions for the benefit of the
holders from time to time of shares of beneficial interest in this Trust or
sub-trusts created hereunder as hereinafter set forth.
ARTICLE I
The Trust
1.1 Name. This Trust shall be known as the Baron Capital Funds
Trust and the Trustees shall conduct the business of the Trust under that
name or any other name or names as they may from time to time determine.
1.2 Definitions. As used in this Declaration, the following
terms shall have the following meanings:
The terms "Affiliated Person", "Assignment", "Commission",
"Interested Person" and "Principal Underwriter" shall have the meanings
given them in the 1940 Act.
"By-Laws" shall mean the By-Laws of the Trust as amended from
time to time by the Trustees.
"Class" shall mean a portion of Shares of the Trust or a Series
of the Trust established in accordance with Section 6.3 hereof.
"Code" shall mean the Internal Revenue Code of 1986, and the
regulations promulgated thereunder, as amended from time to time.
"Declaration" shall mean this Agreement and Declaration of Trust,
as amended from time to time.
"Delaware Business Trust Statute" shall mean the provisions of
the Delaware Business Trust Act, 12 Del. C. section3801, et. seq., as
amended from time to time.
"Fundamental Policies" shall mean the investment policies and
restrictions as set forth from time to time in any Prospectus of the Trust
or any Series and designated as fundamental policies therein as they may be
awarded in accordance with the requirements of 1940 Act.
"Majority Shareholder Vote" shall mean a vote of a majority of
the outstanding voting securities (as such term is defined in the 1940 Act)
of the Trust, any Series of the Trust or any Class thereof, as applicable.
"Person" shall mean and include natural persons, corporations,
partnerships, trusts, limited liability companies, associations, joint
ventures and other entities, whether or not legal entities, and governments
and agencies and political subdivisions thereof.
"Prospectus" shall mean the Prospectus of the Trust, any Series
of the Trust or any Class thereof as in effect from time to time.
"Series" shall mean the separate sub-trusts that may be
established and designated as series pursuant to Section 6.2 hereof or any
one of such sub-trusts.
"Shareholders" shall mean as of any particular time the holders
of record of Outstanding Shares of the Trust, any Series of the Trust or of
any Class thereof, as applicable, at such time.
"Shares" shall mean the transferable units of interest into which
the beneficial interest in the Trust or in a Series of the Trust shall be
divided from time to time and includes fractions of Shares as well as whole
Shares, which Shares may be divided into Classes. All references to Shares
shall be deemed to be Shares of any or all Series or Classes as the context
may require. Outstanding Shares means those Shares shown from time to time
on the books of the Trust or its Transfer Agent as then issued and
outstanding, but shall not include Shares which have been redeemed or
repurchased by the Trust for any Series or Class and which are at the time
held in the Treasury of the Trust for any Series or Class.
"Trust" shall mean the trust established by this Declaration, as
amended from time to time, inclusive of each such amendment and every sub-
trust established as a Series hereunder.
"Trustees" shall mean the signatories to this Declaration, so
long as they shall continue in office in accordance with the terms hereof,
and all other persons who at the time in question have been duly elected or
appointed and have qualified as trustees in accordance with the provisions
hereof and are then in office.
"Trust Property" shall mean as of any particular time any and all
property, real or personal, tangible or intangible, which at such time is
owned or held by or for the account of the Trust, any Series thereof or the
Trustees in such capacity.
The "1940 Act" refers to the Investment Company Act of 1940 and
the rules and regulations promulgated thereunder and exemptions granted
therefrom, as amended from time to time.
ARTICLE II
Trustees
2.1 Number and Qualification. Prior to a public offering of
Shares, there may be a sole Trustee and thereafter, the number of Trustees
shall be no less than one or more than fifteen, provided, however, that the
number of Trustees may be increased or decreased by a written instrument
signed by a majority of the Trustees then in office. No reduction in the
number of Trustees shall have the effect of removing any Trustee from
office prior to the expiration of his term. An individual nominated as a
Trustee shall be at least 21 years of age and not older than 70 years of
age at the time of appointment or election and not under legal disability.
Trustees need not own Shares or reside in any particular jurisdiction and
may succeed themselves in office.
2.2 Term and Election. Each person who becomes a Trustee shall
serve until death, resignation, removal, adjudication of incompetency or
failure to be elected a successor Trustee at any meeting of Shareholders at
which one or more Trustees are being elected. Election of Trustees at a
meeting of Shareholders shall be by the affirmative vote of the holders of
a plurality of the Shares of the Trust present in person or by proxy. Each
individual elected or appointed as a Trustee of the Trust shall by such
election or appointment also be elected or appointed, as the case may be,
as a Trustee of each Series of the Trust then in existence. By
participating in the affairs of the Trust, each Trustee shall have agreed
to be bound by the terms of this Declaration.
2.3 Resignation and Removal. Any Trustee may resign his trust
(without need for prior or subsequent accounting) by an instrument in
writing signed by him and delivered or mailed to the other Trustees, the
President or the Secretary and such resignation shall be effective upon
such delivery, or at a later date according to the terms of the instrument.
Any of the Trustees may be removed (provided the aggregate number of
Trustees after such removal shall not be less than the minimum number
required by Section 2.1 hereof) with or without cause by the action of
two-thirds of the remaining Trustees or the holders of a majority of the
Shares. Upon the resignation or removal of a Trustee, or such person
otherwise ceasing to be a Trustee, such person or his legal representative
shall execute and deliver such documents as the remaining Trustees shall
require for the purpose of conveying to the Trust or the remaining Trustees
any Trust Property held in the name of the resigning or removed Trustee.
2.4 Vacancies. Whenever a vacancy in the Board of Trustees
shall occur, including by reason of an increase in the numbers of Trustees,
the remaining Trustees may fill such vacancy by appointing an individual
having the qualifications described in this Article by a written instrument
signed by a majority of the Trustees then in office, or may leave such
vacancy unfilled or may reduce the number of Trustees (provided the
aggregate number of Trustees after such reduction shall not be less than
the minimum number required by Section 2.1 hereof) or such vacancy may be
filled by election at a meeting of Shareholders. No vacancy shall operate
to annul this Declaration or to revoke any existing agency created pursuant
to the terms of this Declaration. Whenever a vacancy in the number of
Trustees shall occur, until such vacancy is filled as provided herein, the
Trustees in office, regardless of their number, shall have all the powers
granted to the Trustees and shall discharge all the duties imposed upon the
Trustees by this Declaration.
2.5 Meetings and Action without Meetings. Meetings of the
Trustees shall be held from time to time upon the call of the Chairman, if
any, the President, the Secretary or by any one of the Trustees. Regular
meetings of the Trustees may be held without call or notice at a time and
place fixed by the By-Laws or by resolution of the Trustees. Notice of any
other meeting shall be mailed to each Trustee not less than 48 hours before
the meeting or otherwise actually delivered orally or in writing by
registered or certified first-class mail, or by telex, telecopy or similar
means of same day delivery to each Trustee not less than 24 hours before
the meeting, but may be waived in writing by any Trustee either before or
after such meeting. The attendance of a Trustee at a meeting shall
constitute a waiver of notice of such meeting except where a Trustee
attends a meeting for the express purpose of objecting to the transaction
of any business on the ground that the meeting has not been lawfully called
or convened. A quorum for all meetings of the Trustees shall be a majority
of the Trustees. Unless provided otherwise in this Declaration of Trust,
any action of the Trustees may be taken at a meeting by vote of a majority
of the Trustees present (a quorum being present) or without a meeting by
written consent of a majority of the Trustees.
Any committee of the Trustees may act with or without a meeting.
A quorum for all meetings of any such committee shall be a majority of the
members thereof. Unless provided otherwise in this Declaration, any action
of any such committee may be taken at a meeting by vote of a majority of
the members present (a quorum being present) or without a meeting by
written consent of a majority of the members.
With respect to actions of the Trustees and any committee of the
Trustees, Trustees who are Interested Persons in any action to be taken may
be counted for quorum purposes under this Section and shall be entitled to
vote to the extent not prohibited by the 1940 Act.
All or any one or more Trustees may participate in a meeting of
the Trustees or any committee thereof by means of a conference telephone or
similar communications equipment by means of which all persons
participating in the meeting can hear each other; participation in a
meeting pursuant to any such communications system shall constitute
presence in person at such meeting.
2.6 Committees. The Trustees may designate, and appoint and
remove with or without cause the members of, one or more committees having
all or such lesser portion of the powers of the Trustees as the Trustees
shall determine and consisting of such number of the Trustees as the
Trustees shall determine.
2.7 Officers. The Trustees shall elect a President, a Secretary
and a Treasurer, who shall serve at the pleasure of the Trustees or until
their successors are elected. The Trustees may elect or appoint or may
authorize the President to appoint such other officers or agents with such
powers as the Trustees may deem to be advisable. The President, Secretary
and Treasurer may, but need not, be a Trustee.
ARTICLE III
Powers and Duties of Trustees
3.1 General. The Trustees shall owe to the Trust and its
Shareholders the same fiduciary duties as are owed by directors of
corporations to such corporations and their stockholders under the general
corporation law of the State of Delaware and shall not have any of the
duties or be subject to any of the requirements, qualifications or
obligations applicable to trustees under the laws of the State of Delaware.
The Trustees shall have exclusive and absolute control over the Trust
Property and over the business of the Trust or any Series thereof to the
same extent as if the Trustees were the sole owners of the Trust Property
and business in their own right, but with such powers of delegation as may
be permitted by this Declaration. The Trustees may perform such acts as in
their sole discretion are proper for conducting the business of the Trust
or any Series thereof. The enumeration of any specific power herein shall
not be construed as limiting the aforesaid power. Such powers of the
Trustees may be exercised without order of or resort to any court.
3.2 Investments. The Trustees shall have power, subject to the
Fundamental Policies in effect from time to time with respect to the Trust
or a Series of the Trust, to:
(a) manage, conduct, operate and carry on the business of
an investment company and exercise all power necessary and appropriate to
conduct such operations;
(b) subscribe for, invest in, reinvest in, purchase or
otherwise acquire, hold, pledge, sell, assign, transfer, exchange,
distribute or otherwise deal in or dispose of any and all sorts of
property, tangible or intangible, including but not limited to securities
of any type whatsoever, whether equity or non-equity, of any issuer,
evidences of indebtedness of any person, commodities and any other rights,
interests, instruments or property of any sort and to exercise any and all
rights, powers and privileges of ownership or interest in respect of any
and all such investments of every kind and description, including, without
limitation, the right to consent and otherwise act with respect thereto,
with power to designate one or more Persons to exercise any of said rights,
powers and privileges in respect of any of said investments. The Trustees
shall not be limited by any law limiting the investments which may be made
by fiduciaries.
(c) To enter into, amend and terminate investment advisory,
administrative, custodial, transfer agent, dividend paying agent,
shareholders service, distribution service and other agreements and
arrangements of any type whatsoever.
(d) In general to carry on any other business in connection
with or incidental to any of the foregoing powers, to do everything
necessary, suitable or proper for the accomplishment of any purpose or the
attainment of any object or the furtherance of any power hereinbefore set
forth, either alone or in association with others, and to do every other
act or thing incidental or appurtenant to or growing out of or connected
with the aforesaid business or purposes, objects or powers.
3.3 Legal Title. Legal title to all the Trust Property shall be
vested in the name of the Trust or any Series thereof, in the Trustees as
joint tenants, in one or more of the Trustees or in the name of any other
Person as nominee, custodian or pledgee, on such terms as the Trustees may
determine, provided that the interest of the Trust or any Series thereof
therein is appropriately protected.
Any right, title and interest of any Trustee in any Trust
Property shall vest automatically in each person who may hereafter become a
successor Trustee upon his due election or appointment and qualification.
Upon the ceasing of any person to be a Trustee for any reason, such person
shall automatically cease to have any right, title or interest in any of
the Trust Property, and any right, title and interest of such Trustee in
any Trust Property shall vest automatically in the remaining Trustees.
Such vesting and cessation of title shall be effective whether or not
conveyancing documents have been executed and delivered.
3.4 Issuance and Repurchase of Shares. The Trustees shall have
the power to issue, sell, repurchase, redeem, retire, cancel, acquire,
hold, resell, reissue, dispose of, transfer, and otherwise deal in, Shares,
including Shares in fractional denominations, shall have the power to
establish from time to time in accordance with the provisions of Section
6.3 hereof two or more Classes representing interests in the Trust or a
Series thereof and, subject to the more detailed provisions set forth in
Articles VIII and IX, to apply to any such repurchase, redemption,
retirement, cancellation or acquisition of Shares any funds or property of
the applicable Class or Series of the Trust, whether capital or surplus or
otherwise, to the full extent now or hereafter permitted by the laws of the
State of Delaware.
3.5 Service Liabilities. Subject to the Fundamental Policies in
effect from time to time with respect to the Trust or a particular Series,
the Trustees shall have the power to incur liabilities, borrow money or
otherwise obtain credit or utilize leverage to the maximum extent permitted
by law and to secure the same by mortgaging, pledging or otherwise
subjecting as security any of the assets of the Trust or any Series
thereof, and to endorse, guarantee, or undertake the performance of any
obligation, contract or engagement of any other person, firm, association
or corporation; provided, however, that the assets of any particular Series
shall not be used as security for any credit extended to one or more other
Series.
3.6 Delegation. The Trustees shall have power, consistent with
their continuing exclusive authority over the management of the Trust and
the Trust Property, to delegate from time to time to such of their number
or to officers, employees or agents of the Trust the doing of such things
and the execution of such instruments either in the name of the Trust or
the names of the Trustees or otherwise as the Trustees may deem necessary,
useful or incidental in connection with the business of the Trust.
3.7 Collection and Payment. The Trustees shall have power to
collect all property due to the Trust or any Series of the Trust or any
Class thereof; to pay all claims, including taxes, against the Trust
Property, the Trust or any Series of the Trust or any Class thereof, the
Trustees or any officer, employee or agent of the Trust; to prosecute,
defend, compromise or abandon any claims relating to the Trust Property,
the Trust or any Series of the Trust or any Class thereof, or the Trustees
or any officer, employee or agent of the Trust; to foreclose any security
interest securing any obligations, by virtue of which any property is owed
to the Trust or any Series of the Trust or any Class thereof; and to enter
into releases, agreements and other instruments. The Shareholders shall
have no power to vote as to whether or not a court action, legal proceeding
or claim should or should not be brought or maintained derivatively or as a
class action on behalf of the Trust or the Shareholders.
3.8 Expenses. The Trustees shall have power to incur and pay
out of the assets or income of the Trust or any Series of the Trust or any
Class thereof, any expenses which in the opinion of the Trustees are
necessary or incidental to carry out any of the purposes of this
Declaration, and the business of the Trust or any Series of the Trust or
any Class thereof, and to pay reasonable compensation from the funds of the
Trust to themselves as Trustees. The Trustees shall fix the compensation
of all officers, employees and Trustees. The Trustees may pay themselves
such compensation for special services, including legal, underwriting,
syndicating and brokerage services, as they in good faith may deem
reasonable and reimbursement for expenses reasonably incurred by themselves
on behalf of the Trust. The Trustees shall have the power, as frequently
as they may determine, to cause each Shareholder, or each Shareholder of
any particular Series or Class thereof, to pay directly, in advance or
arrears, for charges of distribution, of the custodian or transfer agent,
Shareholder servicing or similar agent of such Series or Class, a pro rata
amount as defined from time to time by the Trustees, by setting off such
charges due from such Shareholder from declared but unpaid dividends owed
such Shareholder and/or by reducing the number of shares in the account of
such Shareholder by that number of full and/or fractional Shares which
represents the outstanding amount of such charges due from such
Shareholder.
3.9 By-Laws. The Trustees may adopt and from time to time amend
or repeal By-Laws for the conduct of the business of the Trust.
3.10 Miscellaneous Powers. The Trustees shall have the power
to: (a) employ or contract with such Persons as the Trustees may deem
desirable for the transaction of the business of the Trust or any Series
thereof; (b) enter into joint ventures, partnerships and any other
combinations or associations; (c) purchase, and pay for out of Trust
Property, insurance policies insuring the Shareholders, Trustees, officers,
employees, agents, investment advisors, distributors, selected dealers or
independent contractors of the Trust or any Series thereof against all
claims arising by reason of holding any such position or by reason of any
action taken or omitted by any such Person in such capacity, whether or not
the Trust would have the power to indemnify such Person against such
liability; (d) establish pension, profit-sharing, share purchase, and other
retirement, incentive and benefit plans for any Trustees, officers,
employees and agents of the Trust; (e) make donations, irrespective of
benefit to the Trust, for charitable, religious, educational, scientific,
civic or similar purposes; (f) to the extent permitted by law, indemnify
any Person with whom the Trust or any Series thereof has dealings,
including without limiting any advisor, administrator, manager, distributor
or selected dealer, to such extent as the Trustees shall determine; (g)
guarantee indebtedness or contractual obligations of others; (h) determine
and change the fiscal year of the Trust and the method in which its
accounts shall be kept; and (i) adopt a seal for the Trust but the absence
of such seal shall not impair the validity of any instrument executed by or
on behalf of the Trust.
3.11 Further Powers. The Trustees shall have power to conduct
the business of the Trust or any Series of the Trust or any Class thereof
and carry on its operations in any and all of its branches and maintain
offices both within and without the State of Delaware, in any and all
states of the United States of America, in the District of Columbia, and in
any and all commonwealths, territories, dependencies, colonies,
possessions, agencies or instrumentalities of the United States of America
and of foreign governments, and to do all such other things and execute all
such instruments as they deem necessary, proper or desirable in order to
promote the interests of the Trust or any Series of the Trust or any Class
thereof although such things are not herein specifically mentioned. Any
determination as to what is in the interests of the Trust or any Series of
the Trust or any Class thereof made by the Trustees in good faith shall be
conclusive. In construing the provisions of this Declaration, the
presumption shall be in favor of a grant of power to the Trustees. The
Trustees will not be required to obtain any court order to deal with the
Trust Property.
3.12 Parties to Contract. Any agreement of the Trust may be
entered into with any Person, although one or more of the Trustees,
officers or employees of the Trust may be an officer, director, trustee,
shareholder, or member of such other party to the agreement or may have a
direct or indirect financial or other interest in such agreement, and no
such agreement shall be invalidated or rendered voidable by reason of the
existence of any such relationship or interest, nor shall any Person
holding such relationship or interest be liable merely by reason of such
relationship for any loss or expense to the Trust or any Series of the
Trust or any Class thereof under or by reason of said agreement or
accountable for any profit realized directly or indirectly therefrom,
provided that the agreement when entered into was reasonable and fair.
ARTICLE IV
Limitations of Liability
and Indemnification
4.1 No Personal Liability of Shareholders, Trustees, Etc. The
Shareholders shall be entitled to the same limitation of personal liability
extended to stockholders of private corporations for profit organized under
the general corporation law of the State of Delaware pursuant to Section
3803 of the Delaware Business Trust Statute or any successor, but in no
event shall this liability be increased. No Trustee, officer, employee or
agent of the Trust shall be subject to any personal liability whatsoever to
any Person in connection with Trust Property or the affairs of the Trust,
save only that arising from bad faith, willful misfeasance, gross
negligence or reckless disregard of his duties with respect to such Person;
and all Persons shall look solely to the Trust Property, or to the Property
of one or more specific Series of the Trust if the claim arises from the
conduct of such Trustee, officer, employee or agent with respect to only
such Series for satisfaction of claims of any nature arising in connection
with the affairs of the Trust; provided, however, that the foregoing
exculpation and limitation shall not constitute a waiver by the Trust or
any Shareholder of any rights which may not be waived under applicable law.
4.2 Mandatory Indemnification. To the maximum extent permitted
by law, the Trust shall indemnify from the assets of the Trust or the
respective Series thereof in question each of its Trustees, officers,
employees, agents, associates and controlling persons and the partners,
officers, employers and agents thereof (including persons who serve at its
request as directors, officers, partners, trustees or the like of another
organization) and any person controlling such person against all
liabilities and expenses (including amounts paid in satisfaction of
judgments, in compromise, as fines and penalties, and as counsel fees)
reasonably incurred by him in connection with the defense or disposition of
any action, suit or other proceeding, whether civil or criminal, before any
court or administrative or investigative body, in which he may be involved
or with which he may be threatened, while in office or thereafter, by
reason of his being or having been such a trustee, officer, employee or
agent, except with respect to any matter as to which he shall have been
adjudicated not to have acted in good faith in the reasonable belief that
his action was in the best interest of the Trust or the respective Series
of the Trust or Class thereof and furthermore, in the case of any criminal
proceeding, he had no reasonable cause to believe that the conduct was
unlawful, provided that:
(1) no indemnitee shall be indemnified hereunder against any
liability to the Trust or any Series of the Trust or the Shareholders of
the Trust by reason of willful misfeasance, bad faith, gross negligence or
reckless disregard of the duties involved in the conduct of his position;
(2) as to any matter disposed of by settlement or a compromise
payment by such indemnitee, pursuant to a consent decree or otherwise, no
indemnification either for said payment or for any other expenses shall be
provided unless there has been a determination that such compromise is in
the best interests of the Trust or the respective Series of the Trust or
Class thereof and that such indemnitee appears to have acted in good faith
in the reasonable belief that his action was in the best interests of the
Trust or the respective Series of the Trust or Class thereof and did not
engage in willful misfeasance, bad faith, gross negligence or reckless
disregard of the duties involved in the conduct of his position; and
(3) with respect to any action, suit or other proceeding
voluntarily prosecuted by any indemnitee as plaintiff, indemnification
shall be mandatory only if the prosecution of such action, suit or other
proceeding by such indemnitee was authorized by a majority of the Trustees.
All determinations that the applicable standards of conduct have been met
for indemnification hereunder, or that advance payments in connection with
the expense of defending any action shall be authorized, shall be made (a)
by a final decision on the merits by a court or other body before whom the
proceeding was brought that such indemnitee is not liable by reason of
disabling conduct or, (b) in the absence of such a decision, by (i) a
majority vote of a quorum consisting of Trustees who are neither Interested
Persons of the Trust nor parties to the proceeding ("disinterested
non-party Trustees"), or (ii) if such a quorum is not obtainable or even,
if obtainable, if a majority vote of such quorum so directs, independent
legal counsel in a written opinion. All determinations that advance
payments in connection with the expense of defending any proceeding shall
be authorized and shall be made in accordance with clause (b) above.
The rights accruing to any indemnitee under these provisions
shall not exclude any other right to which he may be lawfully entitled.
The Trustees may make advance payments in connection with the expense of
defending any action with respect to which indemnification might be sought
under this Section, provided that the Trustees shall receive a written
affirmation of the indemnified indemnitee's good faith belief that the
standard of conduct necessary for indemnification has been met and a
written undertaking to reimburse the Trust or the respective Series of the
Trust in the event it is subsequently determined that he is not entitled to
such indemnification and provided further that the Trustees determine that
the facts then known to them would not preclude indemnification. In
addition, at least one of the following conditions must be met:
(a) the indemnitee shall provide a security for his
undertaking,
(b) the Trust or the respective Series thereof, as
applicable, shall be insured against losses arising by reason of any lawful
advances, or
(c) a majority of a quorum of the disinterested non-party
Trustees 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
indemnitee ultimately will be found entitled to indemnification.
4.3 No Bond Required of Trustees. No Trustee shall, as such, be
obligated to give any bond or other security for the performance of any of
his duties hereunder.
4.4 No Duty of Investigation; Notice in Trust Instruments, etc.
No purchaser, lender, transfer agent or other person dealing with the
Trustees or with any officer, employee or agent of the Trust or any Series
of the Trust or Class thereof shall be bound to make any inquiry concerning
the validity of any transaction purporting to be made by the Trustees or by
said officer, employee or agent or be liable for the application of money
or property paid, loaned, or delivered to or on the order of the Trustees
or of said officer, employee or agent. Every obligation, contract,
undertaking, instrument, certificate, Share, other security of the Trust or
any Series of the Trust or any Class thereof, and every other act or thing
whatsoever executed in connection with the Trust or any Series of the Trust
or Class thereof shall be conclusively taken to have been executed or done
by the executors thereof only in their capacity as Trustees under this
Declaration or in their capacity as officers, employees or agents of the
Trust.
4.5 Reliance on Experts, etc. Each Trustee and officer or
employee of the Trust or any Series of the Trust shall, in the performance
of his 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 or any Series of the
Trust or Class thereof, upon an opinion of counsel, or upon reports made to
the Trust or any Series thereof by any of the Trust's officers or employees
or by any advisor, administrator, manager, distributor, selected dealer,
accountant, appraiser or other expert or consultant 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.
4.6 Indemnification of Shareholders. If any Shareholder or
former Shareholder of the Trust or any Series of the Trust or any Class
thereof shall be held personally liable solely by reason of his being or
having been a Shareholder and not because of his acts or omissions or for
some other reason, the Shareholder or former Shareholder (or his heirs,
executors, administrators or other legal representatives or in the case of
any entity, its general successor) shall be entitled out of the assets
belonging to the applicable Series to be held harmless from and indemnified
to the maximum extent permitted by law against all loss and expense arising
from such liability. The Trust, on behalf of the affected Series, shall,
upon request by such Shareholder, assume the defense of any claim made
against such Shareholder for any act or obligation of the Series and
satisfy any judgment thereon from the assets of the Series.
ARTICLE V
Shares of Beneficial Interest
5.1 Beneficial Interest. The interest of the beneficiaries
hereunder shall be divided into an unlimited number of transferable shares
of beneficial interest. All Shares issued in accordance with the terms
hereof, including, without limitation, Shares issued in connection with a
dividend in Shares or a split of Shares, shall be fully paid and, except as
provided in the last sentence of Section 3.8, nonassessable when the
consideration determined by the Trustees (if any) therefor shall have been
received by the Trust.
5.2 Series Designation. The Trustees, in their discretion from
time to time, may authorize the division of Shares into two or more Series,
each Series relating to a separate portfolio of investments and each of
which Series shall be a separate and distinct subtrust of the Trust. Each
Series so established hereunder shall be deemed to be a separate trust
under the provisions of Delaware law. The Trustees shall have exclusive
power without the requirement of Shareholder approval to establish and
designate such separate and distinct Series and to fix and determine the
relative rights and preferences as between the different Series. The
establishment and designation of any Series shall be effective upon the
approval by the Trustees of an instrument setting forth the establishment
and designation of such Series. Such instrument shall also set forth any
rights and preferences of such Series which are in addition to the rights
and preferences of Shares set forth in this Declaration. At any time that
there are no Shares outstanding of any particular Series previously
established and designated, the Trustees may by an instrument approved by
them abolish or alter that Series and the establishment and designation
thereof. Each instrument referred to in this paragraph shall have the
status of an amendment to this Declaration.
5.3 Class Designation. The Trustees, in their discretion from
time to time, may authorize the division of Shares of any Series into two
or more Classes of Shares all the assets of which shall be commingled with
the other classes of such Series. The Trustees shall have exclusive power
without the requirement of Shareholder approval to establish and designate
such separate and distinct Classes and to fix and determine the relative
rights, terms, conditions and expenses applicable to each Class of Shares
to the maximum extent permitted by law. At any time that there are no
Shares outstanding of any particular Class previously established and
designated, the Trustees may abolish or alter that Class and the
establishment and designation thereof.
5.4 Description of Shares. If the Trustees shall create
sub-trusts and divide the Shares into one or more Series or create Classes
of Shares, the following provisions shall be applicable:
(a) Number of Shares. The number of Shares of each Series
or Class that may be issued shall be unlimited. The Trustees may classify
or reclassify any unissued Shares or any Shares previously issued and
reacquired of any Series or Class into one or more Series or Classes that
may be established and designated from time to time. The Trustees may hold
as treasury Shares (of the same or some other Series or Class), reissue for
such consideration and on such terms as they may determine, or cancel any
Shares of any Series or Class reacquired by the Trust at their discretion
from time to time.
(b) Investment of Property. The power of the Trustees to
invest and reinvest the Trust Property of each Series that may be
established shall be governed by Section 3.2 of this Declaration.
(c) Allocation of Assets. All consideration received by
the Trust for the issue or sale of Shares of a particular Series or Class
thereof, together with all assets in which such consideration is invested
or reinvested, all income, earnings, profits, and proceeds thereof,
including any proceeds derived from the sale, exchange or liquidation of
such assets, and any funds or payment derived from any reinvestment of such
proceeds in whatever form the same may be, shall be held by the Trustees
and Trust for the benefit of the Shareholders of such Series or Class and,
subject to the rights of creditors of such Series or Class only, shall
irrevocably belong to that Series for all purposes, and shall be so
recorded upon the books of account of the Trust. In the event that there
are any assets, income, earnings, profits, and proceeds thereof, funds or
payments which are not readily identifiable as belonging to any particular
Series or Class, the Trustees shall allocate them among any one or more of
the Series or Classes established and designated from time to time in such
manner and on such basis as they, in their sole discretion, deem fair and
equitable, and anything so allocated to a Series shall belong to such
Series or Class. Each such allocation by the Trustees shall be conclusive
and binding upon the Shareholders of all Series and Classes for all
purposes.
(d) Allocation of Expenses. The assets belonging to each
particular Series or attributable to each particular Class shall be charged
with the liabilities of the Trust in respect of that Series or Class and
all expenses, costs, charges and reserves attributable to that Series or
Class, and any general liabilities, expenses, costs, charges or reserves of
the Trust which are not readily identifiable as belonging to any particular
Series or attributable to any particular Class shall be allocated and
charged by the Trustees to and among any one or more of the Series or
Classes established and designated from time to time in such manner and on
such basis as the Trustees in their sole discretion deem fair and
equitable; provided that any incremental expenses allocated to one or more
Classes of a Series on a basis other than the relative net asset values of
the respective Classes of such Series shall be allocated in a manner
consistent with the 1940 Act. Each allocation of liabilities, expenses,
costs, charges and reserves by the Trustees shall be conclusive and binding
upon the Shareholders of all Series and Classes for all purposes. The
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. Under no circumstances shall
the assets allocated or belonging to a particular Series or attributable to
a particular Class be charged with any liabilities attributable to another
Series or Class. Any creditor may look only to the assets of the
particular Series or Class with respect to which such person is a creditor
for satisfaction of such creditor's debt.
(e) Dividends. The power of the Trustees to pay dividends
and make distributions with respect to any one or more Series or Classes
shall be governed by Section 9.2. Dividends and distributions on Shares of
a particular Series may be paid with such frequency as the Trustees may
determine, which may be daily or otherwise, pursuant to a standing
resolution or resolutions adopted only once or with such frequency as the
Trustees may determine, to the holders of Shares of that Series, from such
of the income and capital gains, accrued or realized, from the assets
belonging to that Series, as the Trustees may determine, after providing
for actual and accrued liabilities belonging to that Series. All dividends
and distributions on each Class of a Series shall be distributed pro rata
to the holders of Shares of that Class in proportion to the number of
Shares of that Class held by such holders at the date and time of record
established for the payment of such dividends or distributions, and such
dividends and distributions need not be pro rata with respect to dividends
and distributions paid to Shares of any other Class of such Series.
Dividends and distributions shall be paid with respect to Shares of a given
Class only out of lawfully available assets attributable to such Class.
Consistent with Section 3.6, the Trustees may (as is the case with any
other power of the Trustees) delegate any or all of their powers under this
Section 6.4(e) and Section 9.2.
5.5 Rights of Shareholders. The Shares shall be personal
property giving only the rights in this Declaration specifically set forth.
The ownership of the Trust Property of every description and the right to
conduct any business herein before described are vested exclusively in the
Trustees, and the Shareholders shall have no interest therein other than
the beneficial interest conferred by their Shares with respect to a
particular Series or Class, and they shall have no right to call for any
partition or division of any property, profits, rights or interests of the
Trust nor can they be called upon to share or assume any losses of the
Trust or, subject to the right of the Trustees to charge certain expenses
directly to Shareholders, as provided in the last sentence of Section 3.8,
suffer an assessment of any kind by virtue of their ownership of Shares.
The Shares shall not entitle the holder to preference, preemptive,
appraisal, conversion or exchange rights (except as specified in this
Section 6.5). Notwithstanding anything to the contrary contained herein:
(i) Shares of any Class denominated as being
convertible automatically, and without any action or choice
on the part of the holder thereof or Shares of any Class
denominated as being convertible based on an election of the
holder thereof, into Shares (or fractions thereof) of any
other Class pursuant to such terms, conditions and
restrictions as may be established by the Trustees and set
forth from time to time in the applicable Prospectus shall
be convertible on such terms as are described in such
Prospectus.
(ii) The number of Shares into which each such
convertible Share shall convert pursuant to the foregoing
paragraph shall equal the number (including for this purpose
fractions of a Share) obtained by dividing the net asset
value per share of the convertible Share for purposes of
sales and redemptions thereof on the date of such conversion
(the "Conversion Date") by the net asset value per share of
the Class of Shares being converted into for purposes of
sales and redemptions thereof on the conversion date.
(iii) On the conversion date, those Shares which are
converted into Shares of another Class shall cease to accrue
dividends and will no longer be deemed outstanding and the
rights of the holders thereof (except the right to receive
dividends declared prior to the conversion date but unpaid
as of the conversion date) will cease. Certificates
representing Shares resulting from conversion may be issued
pursuant to such terms and conditions as may be established
from time to time by the Trustees.
5.6 Trust Only. It is the intention of the Trustees to create
only the relationship of Trustee and beneficiary between the Trustees and
each Shareholder from time to time. It is not the intention of the
Trustees to create a general partnership, limited partnership, joint stock
association, corporation, bailment or any form of legal relationship other
than a trust. Nothing in this Declaration shall be construed to make the
Shareholders, either by themselves or with the Trustees, partners or
members of a joint stock association.
5.7 Issuance of Shares. The Trustees, in their discretion, may
from time to time without vote of the Shareholders issue Shares with
respect to any Series or Class that may have been established pursuant to
Section 6.2, or Section 6.3 in addition to the then issued and outstanding
Shares and Shares held in the treasury, to such Person or Persons and for
such amount and type of consideration, including cash or property, at such
time or times, and on such terms as the Trustees may determine, and may in
such manner acquire other assets (including the acquisition of assets
subject to, and in connection with the assumption of, liabilities) and
businesses. The Trustees may from time to time divide or combine the
Shares of any Series or Class into a greater or lesser number without
thereby changing the proportionate beneficial interest in such Series or
Class. Issuances and redemptions of Shares may be made in whole Shares
and/or any fractions or multiples thereof as the Trustees may determine.
5.8 Register of Shares. A register shall be kept at the Trust
or any duly appointed transfer agent which shall contain the names and
addresses of the Shareholders and the number of Shares held by them
respectively and a record of all transfers thereof. Separate registers
shall be established and maintained for each Series of the Trust and each
Class thereof. Each such register shall be conclusive as to who are the
holders of the Shares of the applicable Series and Class thereof and who
shall be entitled to receive dividends or distributions or otherwise to
exercise or enjoy the rights of Shareholders. No Shareholder shall be
entitled to receive payment of any dividend or distribution, nor to have
notice given to him as herein provided, until he has given his address to a
transfer agent or such other officer or agent of the Trustees as shall keep
the register for entry thereon. It is not contemplated that certificates
will be issued for the Shares; however, the Trustees, in their discretion,
may authorize the issuance of share certificates and promulgate appropriate
fees therefore and rules and regulations as to their use.
5.9 Transfer Agent and Registrar. The Trustees shall have power
to employ a transfer agent or transfer agents, and a registrar or
registrars, with respect to the Shares of the various Series and Classes
thereof. The transfer agent or transfer agents may keep the applicable
register and record therein the original issues and transfers, if any, of
the said Shares of the applicable Series and Classes thereof. Any such
transfer agent and registrars shall perform the duties usually performed by
transfer agents and registrars of certificates of stock in a corporation,
as modified by the Trustees.
5.10 Transfer of Shares. Shares shall be transferable on the
records of the Trust only by the record holder thereof or by his agent
xxxxxxx xxxx authorized in writing, upon delivery to the Trustees or a
transfer agent of the Trust of a duly executed instrument of transfer,
together with such evidence of the genuineness of each such execution and
authorization and of other matters as may reasonably be required. Upon
such delivery the transfer shall be recorded on the applicable register of
the Trust. Until such record is made, the Shareholder of record shall be
deemed to be the holder of such Shares for all purposes hereof and neither
the Trustees nor any transfer agent or registrar nor any officer, employee
or agent of the Trust shall be affected by any notice of the proposed
transfer. The Trustees may subject any Shares to such restrictions on
transfer as they may deem necessary or appropriate.
Any person becoming entitled to any Shares in consequence of the
death, bankruptcy, or incompetence of any Shareholder, or otherwise by
operation of law, shall be recorded on the applicable register of Shares as
the holder of such Shares upon production of the proper evidence thereof to
the Trustees or a transfer agent of the Trust, but until such record is
made, the Shareholder of record shall be deemed to be the holder of such
for all purposes hereof, and neither the Trustees nor any transfer agent or
registrar nor any officer or agent of the Trust shall be affected by any
notice of such death, bankruptcy or incompetence, or other operation of
law.
5.11 Notices. Any and all notices to which any Shareholder
hereunder may be entitled and any and all communications shall be deemed
duly served or given if mailed, postage prepaid, addressed to any
Shareholder of record at his last known address as recorded on the
applicable register of the Trust.
ARTICLE VI
Redemption
6.1 Redemptions. All outstanding Shares of any Series or Class
may be redeemed at the option of the holders thereof, upon and subject to
the terms and conditions provided in this Article VIII. The Trust shall,
upon application by any Shareholder or pursuant to authorization from any
Shareholder of a particular Series or Class, redeem or repurchase from such
Shareholder outstanding Shares of such Series or Class for an amount per
share determined by the application of a formula adopted for such purpose
by the Trustees with respect to such Series (which formula shall be
consistent with the 1940 Act); provided that (a) such amount per share
shall not exceed the cash equivalent of the proportionate interest of each
share in the assets of the Series or Class of the Trust at the time of the
repurchase or redemption and (b) if so authorized by the Trustees, the
Trust may, at any time and from time to time, charge fees for effecting
such redemption, at such rates as the Trustees may establish, as and to the
extent permitted under the 1940 Act, and may, at any time and from time to
time, pursuant to such Act, suspend such right of redemption. The
procedures for effecting redemption shall be as set forth in the Prospectus
with respect to the applicable Series from time to time. The proceeds of
the redemption of Shares shall be paid in cash or property (tangible or
intangible) or any combination thereof in the sole discretion of the
Trustees. The proceeds of the redemption of Shares subject to a contingent
deferred sales charge (including fractional shares) shall be reduced by the
amount of any applicable contingent deferred sales charge payable on such
redemption with respect to the respective Class of such Shares as set forth
in the applicable Prospectus (to the extent consistent with the 1940 Act)
or such other charges, fees or expenses as may be applicable thereto.
6.2 Disclosure of Holding. The holders of Shares or other
securities of the Trust shall upon demand disclose to the Trustees in
writing such information with respect to direct and indirect ownership of
Shares or other securities of the Trust as the Trustees deem necessary to
comply with applicable law.
6.3 Redemptions at Option of Trust. The Trustees shall have the
power to redeem shares of any Series or Class at a redemption price
determined in accordance with Section 8.1, (i) if at any time the total
investment in such account does not have a value of at least such minimum
amount as may be specified in the Prospectus for such Series or Class from
time to time, (ii) as provided by Section 3.8, or (iii) to the extent a
Shareholder owns Shares equal to or in excess of a percentage of Shares of
the Trust or any Series determined from time to time by the Trustees and
specified in the applicable Prospectus. In the event the Trustees
determine to exercise their power to redeem Shares provided in this Section
8.3(i), the Shareholder shall be notified that the value of his account is
less than the applicable minimum amount and shall be allowed 30 days to
make an appropriate investment before redemption is processed.
ARTICLE VII
Determination of Net Asset Value
Net Income and Distributions
7.1 Net Asset Value. The net asset value of each outstanding
Share of each Series and Class of the Trust shall be determined at such
time or times on such days as the Trustees may determine, in accordance
with the 1940 Act, with respect to each Series and Class. The method of
determination of net asset value shall be determined by the Trustees and
shall be as set forth in the Prospectus with respect to the applicable
Series or Class. As is the case with all powers of the Trustees, the power
to make the net asset value calculations for any Series or Class may be
delegated by the Trustees to such person or persons as the Trustees may
determine. The Trustees may suspend the determination of net asset value
to the extent permitted by the 1940 Act.
7.2 Distributions to Shareholders.
(a) In the event a Series has outstanding only one Class of
Shares, the Trustees shall from time to time distribute ratably among the
Shareholders of such Series such proportion of the net profits, surplus
(including paid-in surplus), capital, or assets with respect to such Series
as they may deem proper. Such distribution may be made in cash or property
(including without limitation any type of obligations of the Trust or any
assets thereof) or any combination thereof, and the Trustees may distribute
ratably among the Shareholders of any Series additional Shares of such
Series in such manner, at such times, and on such terms as the Trustees may
deem proper.
(b) In the event the Trust or a Series has outstanding more
than one Class of Shares, the Trustees shall from time to time distribute
ratably among each Class of Shareholders of such Series such proportion of
the net profits, surplus (including paid-in surplus), capital or assets
attributable to such Class held by the Trustees as they may deem proper,
and the Trustees may distribute ratably among the Shareholders of each such
Class additional Shares of such Class in such manner, at such times, and on
such terms as the Trustees may deem proper. Such distributions to one
Class need not be ratable with respect to distributions to Shares of any
other Class of the Trust or any Series.
(c) Distributions pursuant to this Section 9.2 may be among
the Shareholders of record at the time of declaring a distribution or among
the Shareholders of record at such later date as the Trustees shall
determine and specify at the time of declaration.
(d) The Trustees may always retain from the assets of the
Trust or any Series or Class such amount as they may deem necessary to pay
the debts or expenses of the Trust or to meet obligations of the Trust, or
as they otherwise may deem desirable to use in the conduct of its affairs
or to retain for future requirements or extensions of the business.
7.3 Constant Net Asset Value; Reduction of Outstanding Shares.
If, for any reason, the net income attributable to any Series or Class of
the Trust determined at any time is a negative amount and the Trustees wish
to maintain the net asset value per Share of such Series or Class at a
targeted amount, the Trustees shall have the power with respect to such
Series (i) to offset each Shareholder's pro rata share of such negative
amount from the accrued dividend account of such Shareholder, or (ii) to
reduce the number of Outstanding Shares of such Series by reducing the
number of Shares in the account of such Shareholder by that number of full
and fractional Shares which represents the amount of such excess negative
net income or (iii) to cause to be recorded on the books of the Trust an
asset account in the amount of such negative net income, which account may
be reduced by the amount (provided that the same shall thereupon become the
property of the Trust with respect to such Series or Class and shall not be
paid to any Shareholder) of dividends declared upon the Outstanding Shares
of such Series with respect to the day such negative net income is
experienced, until such asset account is reduced to zero; or (iv) to
combine the methods described in clauses (i) and (ii) and (iii) of this
sentence, in order to cause the net asset value per Share of such Series to
remain at a targeted amount per Outstanding Share immediately after each
such determination and declaration. The Trustees shall also have the power
to fail to declare a dividend out of net income for the purpose of causing
the net asset value per share to be increased to a targeted amount. The
Trustee shall also have the power to fail to declare a dividend out of net
income for the purpose of causing the net asset value per share to be
increased to a targeted amount.
7.4 Power to Modify Foregoing Procedures. Notwithstanding any
of the foregoing provisions of this Article IX, the Trustees may prescribe,
in their absolute discretion except as may be required by the 1940 Act,
such other bases and times for determining the per share asset value of any
of the Trust's Shares or net income, or the declaration and payment of
dividends and distributions as they may deem necessary or desirable for any
reason, including to enable the Trust to comply with any provision of the
1940 Act or of any securities association registered under the Securities
Exchange Act of 1934.
ARTICLE VIII
Shareholders
8.1 Meetings of Shareholders. The Trust shall not be required
to hold annual meetings of the Trust or any Series or Class of the
Shareholders. A Special Meeting of Shareholders may be called at any time
by the President or the Secretary at the request in writing or by the
Trustees and shall be called by any Trustee for any proper purpose upon
written request of Shareholders of the Trust or such Series or Class
holding in the aggregate not less than 51% of the Outstanding Shares of the
Trust, Series or Class as the case may be, such request specifying the
purpose or purposes for which such meeting is to be called. Any
shareholder meeting, including a Special Meeting, shall be held within or
without the State of Delaware on such day and at such time as the Trustees
shall designate. Notwithstanding the foregoing, the Trustees shall call a
Special Meeting to the extent required by the 1940 Act or any undertaking
by Trust to the U.S. Securities and Exchange Commission.
8.2 Voting. Shareholders of the Trust or any Series or Class
thereof shall have no power to vote on any matter except matters on which a
vote of such Shareholders is required by applicable law, this Declaration
or resolution of the Trustees. Any matter required to be submitted to
Shareholders and affecting one or more Series or Classes of such Series
differently from another Series or Class of such Series shall require
separate approval by the required vote of Shareholders of each affected
Series or Class; provided, however, that except to the extent required by
the 1940 Act, there shall be no separate Series or Class votes on the
election or removal of Trustees, the selection of auditors for the Trust,
approval of any agreement or contract entered into by the Trust or any
action to liquidate or dissolve the Trust. Shareholders of a particular
Series or Class shall not be entitled to vote on any matter that affects
only one or more other Series or Classes. There shall be no cumulative
voting in the election or removal of Trustees.
8.3 Notice of Meeting and Record Date. Notice of all meetings
of Shareholders, stating the time, place and purposes of the meeting, shall
be given by the Trustees by mail to each Shareholder of record entitled to
vote thereat at his registered address, mailed at least 10 days before the
meeting. Only the business stated in the notice of the meeting shall be
considered at such meeting. Any adjourned meeting may be held as adjourned
one or more times without further notice not later than 130 days after the
record date thereof. For the purposes of determining the Shareholders who
are entitled to notice of and to vote at any meeting the Trustees may,
without closing the transfer books, fix a date not more than 90 days prior
to the date of convening such meeting of Shareholders as a record date for
the determination of the Persons to be treated as Shareholders of record
for such purposes.
8.4 Quorum and Required Vote.
(a) The holders of one-third of the Outstanding Shares of
the Trust eligible to vote present in person or by proxy shall constitute a
quorum at any meeting of the Shareholders for purposes of conducting a vote
of Shareholders of the Trust on such matter. The holders of one-third of
the Outstanding Shares of the applicable Series or Class eligible to vote
present in person or by proxy shall constitute a quorum at any meeting of
Shareholders for purposes of conducting a separate vote of Shareholders of
such Series or Class on such matter.
(b) Subject to any provision of applicable law, this
Declaration or resolution of the Trustees specifying a greater or lesser
vote requirement for the transaction of any item of business at any meeting
of Shareholders, (i) the affirmative vote of a majority of the Shares
present in person or represented by proxy and entitled to vote on the
subject matter shall be required to approve such matter and (ii) where a
separate vote of any Series is also required on any matter, the affirmative
vote of a majority of the Shares of such Series present in person or
represented by proxy at the meeting shall be required to approve such
matter.
8.5 Proxies, etc. At any meeting of Shareholders, the Shares of
any holder of Shares entitled to vote thereat may be voted as provided in
any valid and unrevoked proxy, provided that no proxy shall be voted at any
meeting unless it shall have been placed on file with the Secretary, or
with such other officer or agent of the Trust as the Secretary may direct,
for verification prior to the time at which such vote shall be taken.
Pursuant to a resolution of a majority of the Trustees, proxies may be
solicited in the name of one or more Trustees or one or more of the
officers or employees of the Trust. Only Shareholders of record shall be
entitled to vote. Each full Share shall be entitled to one vote and each
fractional Shares shall be entitled to a vote of the fraction represented
thereby. When any Share is held jointly by several persons, any one of
them may vote at any meeting in person or by proxy in respect of such
Share, but if more than one of them shall be present at such meeting in
person or by proxy, and such joint owners or their proxies so present
disagree as to any vote to be cast, such vote shall not be received in
respect of such Share. A proxy purporting to be executed by or on behalf
of a Shareholder shall be deemed valid unless challenged at or prior to its
exercise, and the burden of proving invalidity shall rest on the
challenger. A facsimile or electronic form of proxy shall be valid and any
Person may execute a proxy on behalf of another Person on written or oral
instructions from such other Person. If the holder of any such Share is a
minor or a person of unsound mind, and subject to guardianship or to the
legal control of any other person as regards the charge or management of
such Share, he may vote by his guardian or such other person appointed or
having such control, and such vote may be given in person or by proxy.
8.6 Inspection of Records. The records of the Trust shall be
open to inspection by Shareholders to the same extent as is permitted
shareholders of a Delaware business corporation.
8.7 Shareholder Action by Written Consent. Any action which may
be taken by Shareholders by vote may be taken without a meeting if the
holders entitled to vote thereon of the proportion of Shares required for
approval of such action at a meeting of Shareholders pursuant to Section
10.4 consent to the action in writing and the written consents are filed
with the records of the meetings of Shareholders. Such consent shall be
treated for all purposes as a vote taken at a meeting of Shareholders.
ARTICLE IX
Duration: Termination of Trust;
Amendment; Mergers, Etc.
9.1 Duration. Subject to possible termination in accordance
with the provisions of Section 11.2 hereof, the Trust created hereby shall
have perpetual existence.
9.2 Termination.
(a) The Trust may be terminated, after the Trustees have
approved a resolution therefor, upon approval by a majority of the Shares
outstanding on the record date therefor voting as one Class. Any Series
may be terminated, after the Trustees have approved a resolution therefor,
upon approval by a majority of the Shares of such Series outstanding on the
record date therefor and its Classes, all voting as one Class. Any Class
may be terminated, after the Trustees have approved a resolution therefor,
by vote of a majority of the Shares of that Class outstanding on the record
date therefor. Upon the termination of the Trust or any Series:
(i) The Trust or such Series or Class shall carry
on no business except for the purpose of winding up its affairs.
(ii) The Trustees shall proceed to wind up the
affairs of the Trust or such Series or Class and all of the
powers of the Trustees under this Declaration shall continue
until the affairs of the Trust or such Series or Class shall have
been wound up, including the power to fulfill or discharge the
applicable contracts of the Trust, collect its assets, sell,
convey, assign, exchange, transfer or otherwise dispose of all or
any part of the remaining Trust Property to one or more persons
at public or private sale for consideration which may consist in
whole or in part in cash, securities or other property of any
kind, discharge or pay its liabilities, and do all other acts
appropriate to liquidate its business; provided that any sale,
conveyance, assignment, exchange, transfer or other disposition
of all or substantially all the Trust Property of the Trust or
any Series shall require approval of the principal terms of the
transaction and the nature and amount of the consideration by
Shareholders.
(iii) After paying or adequately providing for
the payment of all applicable liabilities, and upon receipt of
such releases, indemnities and refunding agreements, as they deem
necessary for their protection, the Trustees may distribute the
remaining Trust Property of any Series or Class, in cash or in
kind or partly each, among the Shareholders of such Series or
Class according to their respective rights.
(b) After termination of the Trust or any Series or Class
and distribution to the Shareholders as herein provided, a majority of the
Trustees shall execute and lodge among the records of the Trust an
instrument in writing setting forth the fact of such termination. Upon
termination of the Trust, the Trustees shall thereupon be discharged from
all further liabilities and duties hereunder, and the rights and interests
of all Shareholders shall thereupon cease. Upon termination of any Series
or Class, the Trustees shall thereunder be discharged from all further
liabilities and duties with respect to such Series or Class, and the rights
and interests of all Shareholders of such Series or Class shall thereupon
cease.
9.3 Amendment Procedure.
(a) This Declaration may be amended, after approval of an
instrument reflecting such amendment by the Trustees without any vote by
Shareholders of the Trust except as required by law. Without limiting the
foregoing authority, the matters with respect to which the Trustees may
amend this Declaration without any vote of Shareholders including to divide
the Trust into one or more Series or additional Series, to divide the
Shares of any Series into one or more Classes or additional Classes, to
change the name of the Trust or any Series or Class thereof, to make any
change that does not adversely affect the relative rights or preferences of
any Series or Class or, as they may deem necessary, to conform this
Declaration to the requirements of the 1940 Act or any other applicable
federal laws or regulations or the requirements of the regulated investment
company provisions of the Code, but the Trustees shall not be liable for
failing to do so.
(b) No amendment may be made under Section 11.3(a) above,
which would change any rights with respect to any Shares of the Trust or
any Series or Class thereof by reducing the amount payable thereon upon
liquidation of the Trust or by diminishing or eliminating any voting rights
pertaining thereto, except with the vote of the holders of a majority of
the Outstanding Shares of the Trust or such Series or Class, as applicable.
Nothing contained in this Declaration shall permit the amendment of this
Declaration to impair the exemption from personal liability of the
Shareholders, Trustees, officers, employees and agents of the Trust or to
permit assessments upon Shareholders other than as provided by Section 3.8.
(c) An amendment duly adopted by the requisite vote of the
Trustees and, if required, the Shareholders as aforesaid, shall become
effective at the time of such adoption or at such other time as may be
designated by the Trustees or Shareholders, as the case may be. A
certification in recordable form signed by one or more of Trustees setting
forth an amendment and reciting that it was duly adopted by the Trustees
and, if required, the Shareholders as aforesaid, or a copy of the
Declaration, as amended, in recordable form, and executed by one or more
Trustees, shall be conclusive evidence of such amendment when lodged among
the records of the Trust or at such other time designated by the Trustees.
9.4 Merger, Consolidation and Sale of Assets. The Trust or, any
Series or Class may merge or consolidate with any other corporation,
association, trust or other organization or may sell, lease or exchange all
or substantially all of the Trust Property or the portion thereof
applicable to such Series or Class, including good will, upon such terms
and conditions and for such consideration when and as authorized by the
Trustees and any such merger, consolidation, sale, lease or exchange shall
be determined for all purposes to have been accomplished under and pursuant
to the statutes of the State of Delaware.
9.5 Incorporation. The Trustees may cause to be organized or
assist in organizing a corporation or corporations under the laws of any
jurisdiction or any other trust, partnership, association or other
organization to take over all of the Trust Property or to carry on any
business in which the Trust shall directly or indirectly have any interest,
and to sell, convey and transfer the Trust Property to any such
corporation, trust, limited liability company, association or organization
in exchange for the shares or securities thereof, or otherwise, and to lend
money to, subscribe for the shares or securities of, and enter into any
contracts with any such corporation, trust, limited liability company,
partnership, association or organization, or any corporation, partnership,
trust, limited liability company, association or organization in which the
Trust holds or is about to acquire shares or any other interests. The
Trustees may also cause a merger or consolidation between the Trust or any
successor thereto and any such corporation, trust, limited liability
company, partnership, association or other organization if and to the
extent permitted by law, as provided under the law then in effect. Nothing
contained herein shall be construed as requiring approval of Shareholders
for the Trustees to organize or assist in organizing one or more
corporations, trusts, limited liability companies, partnerships,
associations or other organizations and selling, conveying or transferring
a portion of the Trust Property to such organizations or entities.
ARTICLE X
Miscellaneous
10.1 Filing. Neither this Declaration nor any amendment hereto
shall be required to be filed in the office of the Secretary of the State
of Delaware or in any other place. A restated Declaration, containing the
original Declaration and all amendments theretofore made and in effect, may
be approved by the Trustees and executed from time to time by one or more
of the Trustees and shall, upon filing with the books and records of the
Trust, be conclusive evidence of all amendments contained therein and may
thereafter be referred to in lieu of the original Declaration and the
various amendments thereto. The Trust shall file a certificate of trust in
the office of the Secretary of State of Delaware as set forth in
section3810 of the Delaware Business Trust Statute.
10.2 Resident Agent. The Trust shall maintain a resident agent
in the State of Delaware, which agent shall initially be Wilmington Trust
Company, Wilmington Trust Center, Xxxxxx Square North, Wilmington, Delaware
19890. The Trustees may designate a successor resident agent, provided,
however, that such appointment shall not become effective until written
notice thereof is delivered to the office of the Secretary of the State.
10.3 Governing Law. This Declaration is executed by a majority
of the Trustees and with reference to the rights of all parties and the
validity and construction of every provision hereof shall be subject to and
construed according to laws of the State of Delaware
10.4 Counterparts. This Declaration may be simultaneously
executed in several counterparts, each of which shall be deemed to be an
original, and such counterparts, together, shall constitute one and the
same instrument, which shall be sufficiently evidenced by any such original
counterpart.
10.5 Reliance by Third Parties. Any certificate executed by an
individual who, according to the records of the Trust, or of any recording
office in which this Declaration may be recorded, appears to be a Trustee
hereunder, certifying to: (a) the number or identity of Trustees or
Shareholders, (b) the name of the Trust or any Series thereof, (c) the
establishment of any Series, (d) the due authorization of the execution of
any instrument or writing, (e) the form of any vote passed at a meeting of
Trustees or Shareholders, (f) the fact that the number of Trustees or
Shareholders present at any meeting or executing any written instrument
satisfies the requirements of this Declaration, (g) the form of any By Laws
adopted by or the identity of any officers elected by the Trustees, or (h)
the existence of any fact or facts which in any manner relate to the
affairs of the Trust or any Series, shall be conclusive evidence as to the
matters so certified in favor of any person dealing with the Trustees and
their successors.
10.6 Provisions in Conflict with Law or Regulation.
(a) The provisions of this Declaration are severable, and
if the Trustees shall determine, with the advice of counsel, that any of
such provisions is in conflict with the 1940 Act, the regulated investment
company provisions of the Code or with other applicable laws and
regulations, the conflicting provision shall be deemed never to have
constituted a part of this Declaration; provided, however, that such
determination shall not affect any of the remaining provisions of this
Declaration or render invalid or improper any action taken or omitted prior
to such determination.
(b) If any provision of this Declaration shall be held
invalid or unenforceable in any jurisdiction, such invalidity or
unenforceability shall attach only to such provision in such jurisdiction
and shall not in any manner affect such provision in any other jurisdiction
or any other provision of this Declaration in any jurisdiction.
IN WITNESS WHEREOF, the undersigned have caused these presents to
be executed as of the day and year first above written.
By: ________________________________
Name: Xxxxx X. Xxxxxxxxx
Title: Trustee
