EXHIBIT 99.a
EXHIBIT 23(a)2(b)
DECLARATION OF TRUST
AEGON/TRANSAMERICA SERIES TRUST
AGREEMENT AND
DECLARATION OF TRUST
DATED APRIL 21, 2005
AGREEMENT AND
DECLARATION OF TRUST
OF AEGON/TRANSAMERICA SERIES TRUST
THIS AGREEMENT AND DECLARATION OF TRUST is made and entered into as of the date
set forth below by the Trustees named hereunder for the purpose of forming a
Delaware statutory trust in accordance with the provisions hereinafter set
forth.
NOW, THEREFORE, the Initial Trustees hereby directs that the Certificate of
Trust be filed with the Office of the Secretary of State of the State of
Delaware, and the Initial Trustees do hereby declare that the Trustees will hold
in trust all cash, securities and other assets that the Trust now possesses or
may hereafter acquire from time to time in any manner and manage and dispose of
the same upon the following terms and conditions for the benefit of the holders
of Shares in the Trust.
ARTICLE I
NAME AND DEFINITIONS
SECTION 1.1. NAME. The name of the Trust is "AEGON/Transamerica Series Trust,"
and as far as may be practicable the Trustees shall conduct the business and
activities of the Trust created hereby and execute all documents and take all
actions under that name or any other name they may from time to time determine,
which name (and the word "Trust" whenever used in the Declaration, except where
the context requires otherwise) shall refer to the Trustees in their capacity as
Trustees, and not individually or personally and shall not refer to the
officers, agents, employees or shareholders of the Trust created hereby or of
such Trustees.
SECTION 1.2. DEFINITIONS. Wherever they are used herein, the following terms
have the following meanings:
"Affiliated Person" shall have the meaning set forth in Section 2(a)(3) of the
1940 Act.
"By-Laws" shall mean the By-Laws, if any, adopted pursuant to Section 2.9
hereof, as from time to time amended.
"Class" shall mean the Class of Shares of a Series of the Trust established in
accordance with the provisions of Article V hereof.
"Commission" shall mean the Securities and Exchange Commission.
"Custodian" shall mean any Person other than the Trustees who has custody of any
Trust Property as required by Section 17(f) of the 1940 Act.
"Declaration" shall mean this Declaration of Trust as amended from time to time.
"Delaware Act" means the Delaware Statutory Trust Act, 12 Del. C. Section 3801
et seq., as amended from time to time.
"Distributor" shall have the meaning set forth in Section 3.1 hereof.
"Initial Trustee" shall mean the person or persons who have signed this
Declaration of Trust.
"Interested Person" shall have the meaning set forth in Section 2(a)(19) of the
1940 Act.
"Investment Adviser" shall have the meaning set forth in Section 3.2 hereof.
"Investment Sub-Adviser" shall have the meaning set forth in Section 3.2 hereof.
"Majority Shareholder Vote" shall mean the vote of a majority of the outstanding
voting securities, as defined in Section 2(a)(42) of the 1940 Act.
"1940 Act" shall mean the Investment Company Act of 1940, as amended from time
to time.
"Person" shall mean an individual, a company, a corporation, partnership, trust
or association, a joint venture, an organization, a business, a firm or other
entity, whether or not a legal entity, or a country, state, municipality or
other political subdivision or any governmental agency or instrumentality.
"Principal Underwriter" shall have the meaning set forth in Section 2(a)(29) of
the 0000 Xxx.
"Series" shall mean the Series of Shares of the Trust established in accordance
with the provisions of Article V hereof.
"Shareholder" shall mean a record owner of Shares.
"Shares" shall mean the units of interest into which the beneficial interest of
each Series or Class thereof shall be divided from time to time and includes
fractions of Shares as well as whole Shares (all of the units of interest of a
Series or of a single Class may be referred to as "shares" as the context may
require).
"Transfer Agent" shall mean any Person other than the Trustees who maintains the
Shareholder records of the Trust, such as the list of Shareholders, the number
of Shares credited to each account, and the like.
"Trust" shall mean the Delaware statutory trust (the "AEGON/Transamerica Series
Trust") established by this Declaration of Trust, as amended from time to time.
"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 the Trustees.
"Trustees" shall mean the individuals who have signed this Declaration of Trust,
so long as they shall continue in office in accordance with the terms hereof,
and all other individuals who may from time to time be duly elected or
appointed, qualified and serving as Trustees in accordance with the provisions
of Article II hereof, and reference herein to a Trustee or the Trustees shall
refer to such person or persons in his or her capacity or their capacities as
Trustees hereunder.
ARTICLE II
TRUSTEES
SECTION 2.1. POWERS. The Trustees, subject only to the specific limitations
contained in this Declaration, shall have exclusive and absolute power, control
and authority over the Trust Property and over the business of the Trust to the
same extent as if the Trustees were the sole owners of the Trust Property and
business in their own right, including such power, control and authority to do
all such acts and things as in their sole judgment and discretion are necessary,
incidental, convenient or desirable for the carrying out of or conducting of the
business of the Trust or in order to promote the interests of the Trust, but
with such powers of delegation as may be permitted by this Declaration. The
enumeration of any specific power, control or authority herein shall not be
construed as limiting the aforesaid power, control and authority or any other
specific power, control, or authority. The Trustees shall have power to conduct
and carry on the offices and to exercise any or all of its trust powers and
rights, in the State of Delaware, in the State of Florida, in any other states,
territories, districts, colonies and dependencies of the United States and in
any foreign countries. In construing the provisions of this Declaration, the
presumption shall be in favor of a grant of power to the Trustees. Such power of
the Trustees may be exercised without order of or resort to any court.
Without limiting the foregoing, the Trustees shall have the power:
(a) to operate as and to carry on the business of an investment company,
and to exercise all the powers necessary and appropriate to the conduct of
such operations.
(b) to subscribe for and to invest and reinvest funds in, and hold for
investment, the securities (including by not limited to bonds, debentures,
time notes, certificates of deposit, commercial paper, bankers'
acceptances and all other evidences of indebtedness and shares, stock,
subscription rights, warrants, profit-sharing interests or participations
and all other contracts for or evidences of equity interests) of any
Person and to hold cash uninvested.
(c) to acquire (by purchase, subscription or otherwise), to trade in and
deal in, to sell or otherwise dispose of, to enter into repurchase
agreements and firm commitment agreements with respect to, and to lend and
to pledge any such securities.
(d) to acquire (by purchase, subscription or otherwise), to trade in and
deal in, to sell or
otherwise dispose of, options or futures.
(e) to exercise all rights, powers and privileges of ownership or interest in
all securities included in the Trust Property, including the right to vote, give
assent, execute and deliver proxies or powers of attorney to such person or
persons as the Trustees shall deem proper and otherwise act with respect thereto
and to do all acts for the preservation, protection, improvement and enhancement
in value of all such securities and to delegate, assign, waive or otherwise
dispose of any such rights, powers or privileges.
(f) to exercise powers and rights of subscription or otherwise which in any
manner arise out of the Trust's ownership of securities.
(g) to declare (from interest, dividends or other income received or accrued,
from accruals of original issue or other discounts on obligations held, from
capital or other profits whether realized or unrealized and from any other
lawful sources) dividends and distributions on the Shares and to credit the same
to the account of Shareholders, or at the election of the Trustees to accrue
income to the account of Shareholders, on such dates (which may be as frequently
as every day) as the Trustees may determine. Such dividends, distributions or
accruals shall be payable in cash, property or Shares at such intervals as the
Trustees may determine at any time in advance of such payment, whether or not
the amount of such dividend, distribution or accrual can at the time of
declaration or accrual be determined or must be calculated subsequent to
declaration or accrual and prior to payment by reference to amounts or other
factors not yet determined at the time of declaration or accrual (including but
not limited to the amount of a dividend or distribution to be determined by
reference to what is sufficient to enable the Trust to qualify as a regulated
investment company under the United States Internal Revenue Code or to avoid
liability for Federal income tax).
The power granted by this Subsection (g) shall include, without limitation, and
if otherwise lawful, the power (A) to declare dividends or distributions or to
accrue income to the account of Shareholders by means of a formula or other
similar method of determination whether or not the amount of such dividend or
distribution can be calculated at the time of such declaration; (B) to establish
record or payment dates for dividends or distributions on any basis, including
the power to establish a number of record or payment dates subsequent to the
declaration of any dividend or distribution; (C) to establish the same payment
date for any number of dividends or distributions declared prior to such date;
(D) to provide for payment of dividends or distributions declared and as yet
unpaid, or unpaid accrued income, to Shareholders redeeming Shares prior to the
payment advance for conditions under which any dividend or distribution may be
payable in Shares to all or less than all of the Shareholders.
(h) to acquire (by purchase, lease or otherwise) and to hold, use, maintain,
develop and dispose of (by sale, lease or otherwise) any property, real, or
personal and any interest therein.
(i) to borrow money, and in this connection to issue notes or other evidences of
indebtedness; to secure borrowings by mortgaging, pledging or otherwise
subjecting to security interests the Trust Property; and to lend Trust Property.
(j) to aid by further investment any Person, if any obligation of or interest in
such Person is included in the Trust Property or if the Trustees have any direct
or indirect interest in the affairs of such Person; to do anything designed to
preserve, protect, improve or enhance the value of such obligation or interest;
and to endorse or guarantee or become surety on any or all of the contracts,
stock, bonds, notes, debentures and other obligations of any such Person; and to
mortgage the Trust Property or any part thereof to secure any of or all such
obligations.
(k) to promote or aid the incorporation of any organization or enterprise under
the law of any country, state, municipality or other political subdivision, and
to cause the same to be dissolved, wound up, liquidated, merged or consolidated.
(l) to enter into joint ventures, general or limited partnerships and any other
combinations or associations.
(m) to purchase and pay for entirely out of Trust Property insurance policies
insuring the Shareholders, Trustees, officers, employees and agents of the
Trust, the Investment Adviser, the Distributor and dealers or independent
contractors of the Trust against all claims and liabilities of every nature
arising by reason of holding or having held any such position or by reason of
any action taken or omitted by such Person in such capacity, whether or not
constituting negligence, to the extent the Trust would have the power, under
provisions or applicable law, to indemnify such Person against such liability.
(n) to establish and carry out pension, profit-sharing, share purchase, share
bonus, savings, thrift and other retirement, incentive and benefit plans for any
Trustees, officers, employees or agents of the Trust.
(o) to the extent permitted by law and determined by the Trustees, to indemnify
any Person with whom the Trust has dealings, including, without limitation, the
Shareholders, the Trustees, the officers, employees and agents of the Trust, the
Investment Adviser, the Distributor, the Transfer Agent, the Custodian and
dealers.
(p) to incur and pay any charges, taxes and expenses which in the opinion of the
Trustees are necessary or incidental to or proper for carrying out any of the
purposes of this Declaration, and to pay from the funds of the Trust Property to
themselves as Trustees reasonable compensation and reimbursement for expenses.
(q) to prosecute or abandon and 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.
(r) to foreclose any security interest securing any obligations owed to
the Trust.
(s) to exercise the right to consent, and to enter into releases,
agreements and other instruments, including, but not limited to, the right
to consent or participate in any plan for the reorganization,
consolidation or merger of any corporation or issuer any security of which
is or was held by the Trust; to consent to any contract, lease, mortgage,
purchase or sale of such property by said corporation or issuer, and to
pay calls or subscriptions with respect to securities held by the Trust.
(t) to employ or contract with such Persons as the Trustees may deem
desirable for the transaction of the business of the Trust.
(u) to determine and change the fiscal year of the Trust and the method in
which its accounts shall be kept.
(v) to adopt a seal for the Trust, but the absence of such seal shall not
impair the validity of any instrument executed on behalf of the Trust.
(w) to take such actions as are authorized or required to be taken by the
Trustees pursuant to other provisions of this Declaration.
(x) in general to carry on any other business in connection with or
incidental to any of the objectives and purposes of the Trust, to do
everything necessary, suitable or proper for the accomplishment of any
purpose or the attainment of any object or the furtherance of any power
herein set forth, either alone or in association with others, and to take
any action incidental or appurtenant to or growing out of or connected
with the business, purposes, objects or powers of the Trustees.
(y) to establish separate and distinct Series with separately defined
investment objectives and policies and distinct investment purposes in
accordance with the provisions of Article V hereof.
(z) to allocate assets, liabilities and expenses of the Trust to a
particular Series and liabilities and expenses to a particular Class
thereof, or to apportion the same among two or more Series or Classes, as
applicable, provided that any liabilities or expenses incurred by a
particular Series or Class shall be payable solely by that Series or Class
as provided for in Article V hereof.
(aa) to establish a registered office and have a registered agent in the
state of Delaware.
(bb) subject to the 1940 Act, to engage in any other lawful act or
activity in which a statutory trust organized under the Delaware Act may
engage.
The foregoing clauses shall be construed both as objects and as powers, and the
foregoing enumeration of specific powers shall not be held to limit or restrict
in any manner the general
powers of the Trustees.
The Trustees shall not be limited by any law now or hereafter in effect limiting
the investments which may be made or retained by fiduciaries, but they shall
have full power and authority to make any and all investment within the
limitation of this Declaration that they, in their sole and absolute discretion,
shall determine, and without liability for loss even though such investments do
not or may not produce income or are of a character or in an amount not
considered proper for the investment of Trust funds.
SECTION 2.2. LEGAL TITLE. Legal title to all the Trust Property shall as far as
may be practicable be vested in the name of the Trust, which name shall refer to
the Trustees in their capacity as Trustees, and not individually or personally,
and shall not refer to the officers, agents, employees or Shareholders of the
Trust or of the Trustees, provided that the Trustees shall have power to cause
legal title to any Trust Property to be held by or in the name of one or more of
the Trustees with suitable reference to their trustee status, or in the name of
the Trust, or in a form not indicating any trust, whether in bearer,
unregistered or other negotiable form, or in the name of a custodian or
sub-custodian or a nominee or nominees or otherwise. The right, title and
interest of the Trustees in the Trust Property shall vest automatically in each
Person who may hereafter become a Trustee. Upon the termination of the term of
office of a Trustee, whether upon such Trustee's resignation or removal, or upon
the due election and qualification of his successor or upon the occurrence of
any of the events specified in the first sentence of Section 2.6 hereof or
otherwise, such Trustee shall automatically cease to have any right, title or
interest in any of the Trust Property, and the right, title and interest of such
Trustee in the 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.
SECTION 2.3. NUMBER OF TRUSTEES; TERM OF OFFICE. After the initial election of
Trustees, the number of Trustees shall be ten, which number may be increased or
decreased from time to time by a written instrument signed by a majority of the
Trustees, provided that the number of Trustees shall not be fewer than two nor
more than fifteen (15). The initial Trustees named in Section 2.4 hereof and
each Trustee elected (whenever such election occurs) shall hold office until his
successor is elected and qualified or until the earlier occurrence of any of the
events specified in the first sentence of Section 2.6 hereof.
SECTION 2.4. ELECTION OF TRUSTEES. The Initial Trustees shall be: Xxxxx X.
Xxxxx, Xxxxxxx X. Xxxxxx; Xxxxxxx X. Xxxxxxx, Xx.; Xxxxxxxx X. Xxxxx, Xx.;
Xxxxxx Xxxxxxxx; Xxxxx X. Xxxxx; Xxxxxx X. Case; Xxx X. Xxxx; Xxxx X. Xxxxxxxx;
and Xxxxxx X. X'Xxxxx. Trustees may succeed themselves in office. Trustees may
be elected at a Shareholders' meeting. At such a Shareholders' meeting, Trustees
shall be elected by a plurality of the votes validly cast. In the event that
less than the majority of the Trustees holding office have been elected by the
Shareholders, to the extent required by the 1940 Act, the Trustees then in
office shall call a Shareholder meeting for the election of Trustees. Trustees
need not own Shares.
SECTION 2.5. 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 to the
Chairman of the Board, or the Secretary or any Assistant Secretary, and such
resignation shall be effective upon such delivery, or at any later date
specified in the instrument. Any of the Trustees may be removed (provided the
aggregate number of Trustees after such removal shall not be less than two) with
cause by the affirmative vote of two-thirds of the remaining Trustees. Any
Trustee may be removed at any meeting of Shareholders by a majority vote of the
outstanding voting securities of the Trust, as defined in the 1940 Act.
SECTION 2.6. VACANCIES. The term of office of a Trustee shall terminate and a
vacancy shall occur in the event of the death, retirement, resignation or
removal (whether pursuant to Section 2.5 hereof or otherwise), bankruptcy,
adjudicated incompetence or other incapacity to perform the duties of the office
of a Trustee. A vacancy shall also occur upon an increase in the number of
Trustees in accordance with Section 2.3 hereof. No vacancy shall operate to
annul this Declaration or to revoke any existing agency created pursuant to the
terms of the Declaration. In the case of an existing vacancy, including a
vacancy existing by reason of an increase in the authorized number of Trustees,
the remaining Trustees shall fill such vacancy by the appointment of such
individual as they in their sole and absolute discretion shall see fit, made by
a written instrument signed by a majority of the Trustees then in office,
provided that immediately after filling any such vacancy (except during the
period preceding the initial meeting of Shareholders) at least two-thirds of the
Trustees then holding office shall have been elected to such office by the
Shareholders. In the event that at any time, other than the time preceding the
first Shareholders' meeting, less than a majority of the Trustees holding office
at that time were elected by the Shareholders, a meeting of the Shareholders
shall be held promptly and in any event within sixty (60) days (unless the
Commission shall by order extend such period) for the purpose of electing
Trustees to fill any existing vacancies. No such appointment or election shall
become effective, however, until the person named shall have accepted in writing
such appointment or election and agreed in writing to be bound by the terms of
this Declaration. Whenever a vacancy in the number of Trustees shall occur,
until such vacancy is filled as provided in this Section 2.6, 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 the
Declaration.
SECTION 2.7. COMMITTEES; DELEGATION. The Trustees shall have the power to
appoint from their own number, and terminate, any one or more committees
consisting of two or more Trustees, including an executive committee which may
exercise some or all of the power and authority of the Trustees as the Trustees
may determine (including but not limited to the power to determine net asset
value and net income), subject to any limitations contained in the By-Laws, and
in general to delegate from time to time to one or more of their number or to
officers, employees or agents of the Trust such power and authority and 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
expedient, provided that no committee shall have the power:
(a) to change the principal office of the Trust;
(b) to amend the By-Laws;
(c) to issue Shares;
(d) to elect or remove from office any Trustee or the Chairman of the
Board, the President, the Treasurer or the Secretary of the Trust;
(e) to increase or decrease the number of Trustees;
(f) to declare a dividend or other distribution on the Shares;
(g) to authorize the repurchase of Shares; or
(h) to authorize any merger, consolidation or sale, lease or exchange of
all or substantially all of the Trust Property.
SECTION 2.8. ACTION WITHOUT A MEETING; PARTICIPATION BY CONFERENCE TELEPHONE.
Unless the 1940 Act requires that a particular action must be taken only at a
meeting of Trustees, any action required or permitted to be taken at any meeting
of the Trustees (or of any committee of the Trustees) may be taken without a
meeting if written consent thereto are signed by all Trustees then in office (or
by all members of such committee) and such written consents are filed with the
records of the meetings. Trustees may participate in a meeting of the Trustees
(or of any committee of the Trustees) by means of a conference telephone or
similar communications equipment if all individuals participating can hear each
other at the same time. Participation in a meeting by these means shall
constitute presence in person at the meeting.
SECTION 2.9. BY-LAWS. The Trustees may adopt By-Laws not inconsistent with this
Declaration or law to provide for the conduct of the business of the Trust, and
may amend or repeal such By-Laws.
SECTION 2.10. NO BOND REQUIRED. No Trustee shall be obligated to give any bond
or other security for the performance of any of his duties hereunder.
SECTION 2.11. RELIANCE ON EXPERTS, ETC. Each Trustee, officer, agent and
employee of the Trust shall, in the performance of his duties, be fully and
completely justified and protected in relying in good faith upon the books of
account or other records of the Trust, or upon reports made to the Trustees (a)
by any of the officers or employees of the Trust, (b) by the Investment Adviser,
the Investment Sub-Adviser, the Distributor, the Custodian or the Transfer
Agent, or (c) by any accountants, selected dealers or appraisers or other
agents, experts or consultants selected with reasonable care by the Trustees,
regardless of whether such agent, expert or consultant may also be a Trustee.
The Trustees, officers, agents and employees of the Trust may take advice of
counsel with respect to the meaning and operation of this Declaration, and shall
be under no liability for any act or omission in accordance with such advice or
for failing to follow such advice. The exercise by the Trustees of their powers
and discretion hereunder and the construction in good faith by the Trustees of
the meaning or effect of any provision of this Declaration shall be binding upon
everyone interested. A Trustee, officer, agent or employee shall be liable for
his own willful misfeasance, bad faith, gross negligence or reckless disregard
of the duties involved in the conduct of his office, and for nothing else, and
shall not be liable for errors
of judgment or mistakes of fact or law.
ARTICLE III
CONTRACTS
SECTION 3.1. DISTRIBUTION CONTRACT. The Trustees may from time to time enter
into a distribution contract with another Person (the "Distributor") providing
for the sale of Shares, pursuant to which the Trustees may agree to sell the
Shares to the Distributor or appoint the Distributor their sales agent for the
Shares. Such contract may provide that the Distributor may enter into contracts
with other Persons to sell the Shares on behalf of the Distributor and the
Trust. Such contract may also provide for the repurchase of Shares by the
Distributor as agent of the Trustees and shall contain such terms and
conditions, if any, as may be prescribed in the By-Laws and such further terms
and conditions not inconsistent with the provisions of this Article III or of
the By-Laws as the Trustees may in their discretion determine.
SECTION 3.2. ADVISORY OR MANAGEMENT CONTRACT. Subject to such requirements and
restrictions as may be set forth under applicable federal or state law and in
the By-Laws, including, without limitation, on the date hereof the requirements
of Section 15 of the 1940 Act, or any successor provision, the Trustees may from
time to time enter into investment advisory or management contracts with other
Persons ("Investment Advisers") pursuant to which such Investment Advisers shall
agree to furnish to the Trustees management, investment advisory, statistical
and research facilities and services with respect to the Trust or any Series
thereof, such contract to contain such other terms and conditions, if any, as
may be prescribed in the By-Laws and such further terms and conditions not
inconsistent with the provisions of this Article III, the By-Laws or applicable
law as the Trustees may in their discretion determine, including the grant of
authority to the Investment Adviser to determine what securities shall be
purchased or sold by the Trust and what portion of its assets shall be
uninvested and to implement its determinations by making changes in the Trust's
investments. Such contracts may also provide for the Trust and such Investment
Advisers to enter into contracts with Persons ("Investment Sub-Advisers"),
pursuant to which management, investment advisory, statistical and research
facilities may be supplied to the Trust or any Series thereof and the Investment
Adviser.
SECTION 3.3. OTHER SERVICE AGREEMENTS. The Trustees are also empowered, at any
time and from time to time, to contract with any corporations, trusts
associations or other organizations, appointing it or them the custodian,
transfer agent or Shareholder servicing agent for the Trust or one or more of
its Series. Every such contract shall comply with such requirements and
restrictions as may be set forth under applicable federal or state law and in
the By-Laws or stipulated by resolution of the Trustees. The Trustees are
empowered, at any time and from time to time, to retain sub-agents (foreign or
domestic) in connection with any service provider to the Trust or one or more of
its Series. Subject to applicable law, the Trustees are further empowered, at
any time and from time to time, to contract with any entity to provide such
other services, including without limitation, accounting and pricing services,
to the Trust or one or more Series, as the Trustees determine to be in the beset
interests of the Trust and the applicable Series.
SECTION 3.4. AFFILIATIONS OF TRUSTEES OR OFFICERS, ETC. The fact that any
Shareholder, Trustee, officer, agent or employee of the Trust is a shareholder,
member, director, officer, partner, trustee, employee, manager, adviser or
distributor of or for any Person of or for any parent or affiliate of any Person
with which an investment advisory or management contract, principal underwriter
or distributor contract or custodian, transfer agent, disbursing agent or
similar agency contract may have been or may hereafter be made, or that any such
Person, or any parent or affiliate thereof, is a Shareholder of or has any other
interest in the Trust, or that any such Person also has any one or more similar
contracts with one or more other such Persons, or has other businesses or
interests, shall not affect the validity of any such contract made or that may
hereafter be made with the Trustees or disqualify any Shareholder, Trustee,
officer, agent or employee of the Trust from voting upon or executing the same
or create any liability or accountability to the Trustees, the Trust, any Series
or the Shareholders.
ARTICLE IV
LIMITATION OF LIABILITY; INDEMNIFICATION
SECTION 4.1. NO PERSONAL LIABILITY OF SHAREHOLDERS, TRUSTEES, ETC. No
Shareholder shall be subject to any personal liability whatsoever in connection
with Trust Property or the acts, debts, liabilities, expenses, obligations or
affairs of the Trust or a particular Series. All Persons extending credit to,
contracting with or having any claim against the Trust or a particular Series
shall look only to the assets of the Trust or such Series for payment under such
credit, contract or claim, and neither the Shareholders nor the Trustees, nor
any of the Trust's officers, employees or agents, whether past, present or
future, nor any other Series shall be personally liable therefor. The Trustees
shall not be responsible or liable in any event for any neglect or wrong doing
of any officer, employee or agent (including, without limitation, the Investment
Adviser, any Investment Sub-Adviser, the Distributor, the Custodian and the
Transfer Agent) of the Trust, nor shall any Trustee be responsible or liable for
the act or omission of any other Trustee. Nothing in this Declaration shall,
however, protect any Trustee, officer, employee or agent of the Trust against
any liability to which such Person would otherwise be subject by reason of
willful misfeasance, bad faith, gross negligence or reckless disregard of the
duties involved in the conduct of his or her office.
SECTION 4.2. EXECUTION OF DOCUMENTS; NOTICE; APPARENT AUTHORITY. Every note,
bond, contract, instrument, certificate or undertaking and every other act or
thing whatsoever executed or done by or on behalf of the Trust, any Series or
the Trustees or any of them in connection with the Trust shall be conclusively
deemed to have been executed or done only in or with respect to their or his or
her capacity as Trustees or Trustee, and such Trustees or Trustee shall not be
personally liable thereon. Every note, bond, contract, instrument, certificate
or undertaking made or issued by the Trustees or by any officers or officer
shall give notice that this Declaration of Trust is on file with the Secretary
of State of the State of Delaware and shall recite that the obligations of such
instruments are binding only upon the assets and property of the Trust or the
particular Series in question, but the omission thereof shall not operate to
bind any Trustees, Shareholders or officers, employees and agents of the Trust
individually. No purchaser, lender, Transfer Agent or other Person dealing with
the Trustees or any officer, employee or agent of the
Trust shall be bound to make any inquiry concerning the validity of any
transaction purporting to be made by the Trustees or by such officer, employee
or agent or make inquiry concerning or be liable for the application of money or
property paid, loaned or delivered to or on the order of the Trustees or of such
officer, employee or agent.
SECTION 4.3. INDEMNIFICATION OF TRUSTEES, OFFICERS, ETC. The Trust shall
indemnify each of its Trustees, officers, employees and agents (including any
individual who serves at its request as director, officer, partner, trustee or
the like of another organization in which it has any interest as a shareholder,
creditor or otherwise) against all liabilities and expenses, including but not
limited to amounts paid in satisfaction of judgments, in compromise or as fines
and penalties, and counsel fees reasonably incurred by him or her in connection
with the defense or disposition of any action, suit or other proceeding, whether
civil or criminal, before any court or administrative or legislative body in
which he or she may be or may have been involved as a party or otherwise or with
which he or she may be or may have been threatened, while acting as Trustee or
as an officer, employee or agent of the Trust or the Trustees, as the case may
be, or thereafter, by reason of his or her being or having been such a Trustee,
officer, employee or agent, except with respect to any matter as to which he or
she shall have been adjudicated not to have acted in good faith in the
reasonable belief that his or her action was in the best interests of the Trust,
provided that no individual shall be indemnified hereunder against any liability
to the Trust or the Shareholders by reason of willful misfeasance, bad faith,
gross negligence or reckless disregard of the duties involved in the conduct of
his or her office. If a Trustee is designated a "financial expert" in the
Trust's regulatory filings under the 1940 Act, such Trustee shall not be subject
to a heightened standard of care in discharging such duties and
responsibilities. The Trustees may make advance payments out of the assets
belonging to the applicable Series in connection with the expense of defending
any action with respect to which indemnification might be sought under this
Section 4.3, provided that the indemnified Trustee, officer, employee or agent
shall have given a written undertaking to reimburse the applicable Series in the
event it is subsequently determined that he or she is not entitled to such
indemnification. The rights accruing to any Trustee, officer, employee or agent
under these provisions shall not exclude any other right to which he or she may
be lawfully entitled and shall inure to the benefit of his or her heirs,
executors, administrators or other legal representatives.
SECTION 4.4. INDEMNIFICATION OF SHAREHOLDERS. In case any Shareholder or former
Shareholder of any Series of the Trust shall be held personally liable solely by
reason of his or her being or having been a Shareholder and not because of acts
or omission or for some other reason, the Shareholder or former Shareholder (or
his or her heirs, executors, administrators or other legal representative or in
the case of a corporation or other entity, its corporate or other general
successor) shall be entitled out of the assets belonging to the applicable
Series of the Trust to be held harmless from and indemnified against all loss
and expense, including legal expenses reasonably incurred, arising from such
liability. The rights accruing to a Shareholder under this Section 4.4 shall not
exclude any other right to which such Shareholder may be lawfully entitled, nor
shall anything contained herein restrict the right of the Trust to indemnify or
reimburse a Shareholder in any appropriate situation even though not
specifically provided herein out of the assets belonging to the applicable
Series of the Trust.
SECTION 4.5. INSURANCE. The Trustees shall be entitled and empowered to the
fullest extent permitted by law to purchase with Trust assets insurance for
liability and for all expenses reasonably incurred or paid or expected to be
paid by a Trustee, officer, employee or agent of the Trust in connection with
any claim, action, suit or proceeding in which he or she becomes involved by
virtue of his or her capacity or former capacity with the Trust.
ARTICLE V
SHARES OF BENEFICIAL INTEREST
SECTION 5.1. BENEFICIAL INTEREST. The interest of the beneficiaries hereunder
shall be divided into transferable Shares of one or more distinct Series or
Classes thereof, without par value. The number of shares of beneficial interest
authorized hereunder is unlimited.
SECTION 5.2. RIGHTS OF SHAREHOLDERS. Shares shall be deemed to be personal
property giving only the rights provided in this Declaration. Every Shareholder
by virtue of having become a Shareholder shall be held to have expressly
assented and agreed to the terms hereof and to have become a party hereto. The
ownership of the Trust Property 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, and they shall have no right to call for any partition or division
of any property, profits, rights or interest of the Trust nor can they be called
upon to share or assume any losses of the Trust or suffer an assessment of any
kind by virtue of their ownership of Shares. The death of a Shareholder during
the continuance of the Trust shall not operate to terminate the same nor to
entitle the legal representative of such Shareholder to an accounting or to take
any action in any court or otherwise against other Shareholders or the Trustees
or the Trust Property, but only to the rights of such Shareholder hereunder. The
Shares shall not entitle the holder to preference, preemptive, appraisal,
conversion or exchange rights.
SECTION 5.3. TRUST ONLY. The Trust shall be a Delaware statutory trust. It is
the intention of the Trustees to create only the relationship of the 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 statutory trust pursuant to the Delaware Act. 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.
SECTION 5.4. ISSUANCE OF SHARES.
SECTION 5.4.1. GENERAL. The Trustees may from time to time without vote of the
Shareholders issue and sell or cause to be issued and sold Shares, except that
only Shares previously contracted to be sold may be issued during any period
when the right of redemption is suspended pursuant to the provision of Section
6.6 hereof. The Trustees shall have full power and authority without obtaining
prior authorization or vote of the Shareholders to classify or reclassify any
unissued Shares into one or more Series or Classes of Shares, to abolish any one
or more Series or Classes of Shares or to divide the Shares of any Series into
Classes. If the Shares of a Series are divided into Classes, each such Class
shall represent interests in the assets of a Series and have identical voting,
dividend, liquidation and other rights and the same terms and conditions, except
that expenses allocated to that Class of a Series may be borne solely by such
Class as shall be determined by the Trustees and a Class of a Series may have
exclusive voting rights with respect to matters affecting only that Class. All
such Shares, when issued in accordance with the terms of
this Section 5.4, shall be fully paid and nonassessable.
SECTION 5.4.2. PRICE. No Shares shall be issued or sold by the Trustees for less
than an amount which would result in the proceeds to the applicable Series,
before taxes and other expenses payable by the Trust in connection with such
transaction, of at least the net asset value per share of the applicable Series
or Class next determined as set forth in Article VII hereof after receipt of a
purchase order for such Shares. For this purpose, the time of receipt of an
order shall be the time it is first received in proper form at such office or
agency as may be designated for the purpose.
SECTION 5.4.3. ON MERGER OR CONSOLIDATION. In connection with the acquisition of
assets (including the acquisition of assets subject to, and in connection with
the assumption of, liabilities), businesses or stock of another Person, the
Trustees may issue or cause to be issued Shares of a Series and accept in
payment therefor, in lieu of cash, such assets or businesses at their market
value (as determined by the Trustees) or such stock at the market value (as
determined by the Trustees) of the assets held by such other Person, either with
or without adjustment for contingent costs or liabilities provided that the
funds of the applicable Series are permitted by law to be invested in such
assets, businesses or stock.
SECTION 5.4.4. FRACTIONAL SHARES. The Trustees may issue and sell fractions of
Shares, to two decimal places, having pro rata all the rights of full Shares,
including, without limitation, the right to vote and to receive dividends and
distributions.
SECTION 5.5. SERIES OR CLASS.
SECTION 5.5.1. ESTABLISHMENT OF SERIES OR CLASS. The establishment of any Series
or Class shall be effective upon adoption of a resolution by a majority of the
then Trustees setting forth such establishment and designation and the relative
rights and preferences of the Shares of such Series or Class thereof. At any
time that there are no Shares outstanding of any particular Series or Class
previously established and designated, the Trustees may by majority vote abolish
that Series or Class and the establishment and designation thereof.
SECTION 5.5.2. ASSETS AND LIABILITIES OF SERIES. All consideration received by
the Trust for the issue or sale of Shares of a particular Series, together with
all assets in which such consideration is invested or reinvested, all income,
earnings, profits, and proceeds thereof, including any proceeds derived from the
sale, exchange or liquidation of such assets, and any funds or payments derived
from any reinvestment of such proceeds in whatever form the same may be, shall
be referred to as "assets belonging to" that Series. In addition, any assets,
income, earnings, profits, and proceeds thereof, funds, or payments which are
not readily identifiable as belonging to any particular Series shall be
allocated by the Trustees between and among one or more of the Series in such
manner as they, in their sole discretion, deem fair and equitable. Each such
allocation shall be conclusive and binding upon the Shareholders of all Series
for all purposes, and shall be referred to as assets belonging to that Series.
The assets belonging to a particular Series shall be so recorded upon the books
of the Trust, and shall be held by the Trustees in Trust for the benefit of the
holders of Shares of the Series. The assets belonging to each particular Series
shall be charged with the
liabilities of the Series and all expenses, costs, charges and reserves
attributable to that Series, except that expenses allocated solely to a
particular Class shall be borne by that Class. Any general liabilities,
expenses, costs, charges or reserves of the Trust or Series which are not
readily identifiable as belonging to any particular Series or Class shall be
allocated and charged by the Trustees between or among any one or more of the
Series or Classes in such manner as the Trustees in their sole discretion deem
fair and equitable. Each such allocation shall be conclusive and binding upon
the Shareholders of all Series or Classes for all purposes. Any creditor of any
Series may look only to the assets of that Series to satisfy such creditor's
debt.
SECTION 5.6. REGISTER OF SHARES. A register shall be kept at the principal
office of the Trust or an office of the Transfer Agent which shall contain the
name and addresses of the Shareholders and the number of Shares held by them
respectively and a record of all transfers thereof. Such register shall be
conclusive as to who are the holders of the Shares 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 or in the
By-Laws provided, until he has given his address to the Transfer Agent or such
other officer or agent of the Trust as shall keep the said register for entry
thereon.
SECTION 5.7. SHARE CERTIFICATES. The ownership of Shares shall be recorded on
the books of the Trust or a transfer or similar agent for the Trust, which books
shall be maintained separately for the Shares of each Series or Class. No
certificates certifying the ownership of Shares shall be issued except as the
Trustees may otherwise determine from time to time. The Trustees may make such
rules as they consider appropriate for the issuance of Share certificates, the
transfer of Shares of each Series or Class 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 the identity of the Shareholders of each
Series or Class and as to the number of Shares of each Series or Class held,
from time to time, by each Shareholder.
SECTION 5.8. TRANSFER OF SHARES. Shares shall be transferable on the records of
the Trust upon delivery to the Trust or the Transfer Agent or Agents of
appropriate evidence of assignment, transfer, succession or authority to
transfer accompanied by any certificate or certificates representing such shares
previously issued the transferor. Upon such delivery the transfers shall be
recorded on the register of the Trust. Until such record is made, the Trustees,
the Transfer Agent, and the officers, employees and agents of the Trust shall
not be entitled or required to treat the assignee or transferee of any share as
the absolute owner thereof for any purpose, and accordingly shall not be bound
to recognize any legal, equitable or other claim or interest in such Share on
the part of any Person, other than the holder of record, whether or not any of
them shall have express or other notice of such claim or interest.
SECTION 5.9. VOTING POWERS. The Shareholders shall have power to vote only: (a)
for the election or removal of Trustees as provided in Section 2.4 and 2.6
hereof; and (b) with respect to such additional matters relating to the Trust as
may be required by this Declaration or the By-Laws or by reason of the
registration of the Trust or the Shares with the Commission or any State or by
an applicable law or any regulation or order of the Commission or any State or
as the Trustees may consider necessary or desirable. On any matter submitted to
a vote of the Shareholders, all Shares
shall be voted by individual Series, except (i) when required by the 1940 Act,
Shares shall be voted in the aggregate and not by individual Series and (ii)
when the Trustees have determined that the matter affects only the interests of
one or more Series or one or more Classes, then only the Shareholders of such
Series or Class shall be entitled to vote thereon. Each whole Share shall be
entitled to one vote as to any matter on which Shareholders are entitled to vote
and each fractional Share shall be entitled to a proportionate fractional vote.
There shall be no cumulative voting in the election of Trustees. Shares may be
voted in person or by Proxy. Until Shares are issued, the Trustees may exercise
all rights of Shareholders and may take any action required by law, the By-Laws
or this Declaration to be taken by Shareholders. The By-Laws may include further
provisions for Shareholders' votes and related matters.
SECTION 5.10. QUORUM AND REQUIRED VOTE. Except when a larger quorum is required
by applicable law, by the By-Laws or by this Declaration of Trust, (i)
thirty-three and one-third percent (33 1/3%) of the Shares entitled to vote
shall constitute a quorum at a Shareholders meeting and (ii) when any one or
more Series or Class is to vote as a single class separate from any other
Shares, thirty-three and one-third percent (33 1/3%) of the Shares of each
Series or Class entitled to vote shall constitute a quorum at a Shareholders
meeting of the Series or Class. Except when a larger vote is required by any
provision of this Declaration of Trust or the By-Laws or by applicable law, when
a quorum is present at any meeting, a majority of the Shares voted shall decide
any questions and a plurality of the Shares voted shall elect a Trustee,
provided that where any provision of law or of this Declaration of Trust
requires that the holders of any Series shall vote as a Series (or that holders
of a Class shall vote as a Class), then a majority of the Shares of that Series
or Class voting on the matter (or a plurality with respect to the election of a
Trustee) shall decide that matter insofar as that Series or Class is concerned.
SECTION 5.11. MEETINGS OF SHAREHOLDERS. Meetings of the Shareholders of any
Series or Class thereof may be called at any time by the Chairman of the Board,
the President or any Vice President of the Trust, or by a majority of the
Trustees for the purpose of taking action upon any matter requiring the vote or
authority of such Shareholders as herein provided or upon any other matters
deemed to be necessary or desirable. A meeting of Shareholders of any Series or
Class thereof may also be called at any time upon the written request of a
holder or the holders of not less than 10% of all of the Shares entitled to be
voted at such meeting, provided that the Shareholder or Shareholders requesting
such meeting shall have paid to the Trust the reasonably estimated cost of
preparing and mailing the notice thereof, which the Secretary shall determine
and specify to such Shareholder or Shareholders.
SECTION 5.12. ACTION WITHOUT A MEETING. Any action which may be taken by
Shareholders may be taken without a meeting if such proportion of Shareholders
as is required to vote for approval of the matter by law, the Declaration or the
By-Laws consents to the action in writing and the written consents are filed
with the records of Shareholders' meetings. Such consents shall be treated for
all purposes as a vote taken at a Shareholders' meeting.
ARTICLE VI
REDEMPTION AND REPURCHASE OF SHARES
SECTION 6.1. REDEMPTION OF SHARES. The Trustees shall redeem Shares of a
particular Series or Class thereof, subject to the conditions and at the price
determined as herein set forth, upon proper application of the record holder
thereof at such office or agency as may be designated from time to time for that
purpose by the Trustees. The Trustees shall have power to determine from time to
time the form and the other accompanying documents which shall be necessary to
constitute a proper application for redemption.
SECTION 6.2. PRICE. Such Shares shall be redeemed for an amount not exceeding
the net asset value of Shares of the applicable Series or Class thereof next
determined as set forth in Article VII hereof after receipt of a proper
application for redemption.
SECTION 6.3. PAYMENT. Payment for such Shares redeemed shall be made to the
Shareholders of record within seven (7) days after the date upon which proper
application is received, subject to the Trustees or their designated agent being
satisfied that the purchase price of such Shares has been collected and to the
provisions of Section 6.4 hereof. Such payment shall be made in cash or other
assets of the applicable Series or both, as the Trustees shall prescribe. For
the purposes of such payment for Shares redeemed, the value of assets delivered
shall be determined as set forth in Article VII hereof as of the same time as of
which the per share net asset value of such Shares is determined. In no case
shall the Trust be liable for any delay of any corporation or other Person in
transferring securities for delivery as all or part of any payment in-kind.
SECTION 6.4. EFFECT OF SUSPENSION OF RIGHT OF REDEMPTION. If, pursuant to
Section 6.6 hereof, the Trustees shall declare a suspension of the right of
redemption of Shares of a particular Series or Class thereof, the rights of
Shareholders (including those who shall have applied for redemption pursuant to
Section 6.2 hereof but who shall not yet have received payment) to have such
Shares redeemed and paid for by the applicable Series shall be suspended until
the time specified in Section 6.6. Any record holder who shall have his
redemption right so suspended may, during the period of such suspension, by
appropriate written notice of revocation at the office or agency where
application was made, revoke any application for redemption not honored. The
redemption price of Shares for which redemption applications have not been
revoked shall not exceed the net asset value of such Shares next determined as
set forth in Article VII hereof after the termination of such suspension, and
payment shall be made within seven (7) days after the date upon which the
application was made plus the period after such application during which the
determination of net asset value was suspended.
SECTION 6.5. REPURCHASE BY AGREEMENT. A Series may repurchase Shares directly,
or through the Distributor or another agent designated for the purpose, by
agreement with the owner thereof at a price not exceeding the net asset value
per Share of such Series or the applicable Class thereof next determined as set
forth in Article VII hereof after the time when the contract of purchase is
made.
SECTION 6.6. SUSPENSION OF RIGHT OF REDEMPTION. The Trustees may with respect to
the Series or Class thereof declare a suspension of the right of redemption or
postpone the date of payment or redemption for the whole or any part of any
period (a) during which the New York Stock
Exchange is closed, other than customary weekend and holiday closings, (b)
during which trading on the New York Stock Exchange is restricted, (c) during
which an emergency exists as a result of which disposal by the Trustees of
securities owned by them is not reasonably practicable or it is not reasonably
practicable for the Trustees fairly to determine the value of the net assets of
such Series or Class thereof, or (d) during which the Commission may for the
protection of security holders of such Series or Class thereof by order permit
suspension of the right of redemption or postponement of the date of payment or
redemption. Such suspension shall take effect at such time as the Trustees shall
specify, which shall not be later than the close of business on the business day
next following the declaration, and thereafter there shall be no determination
of net asset value until the Trustees shall declare the suspension at an end,
except that the suspension shall terminate in any event on the first day on
which (i) the condition giving rise to the suspension shall have ceased to exist
and (ii) no other condition exists under which suspension is authorized under
this Section 6.6. Each declaration by the Trustees pursuant to this Section 6.6
shall be consistent with such applicable rules and regulations, if any, relating
to the subject matter thereof as shall have been promulgated by the Commission
or any other governmental body having jurisdiction over the Trust and as shall
be in effect at the time. To the extent not inconsistent with such rules and
regulations, the determination of the Trustees shall be conclusive.
SECTION 6.7. INVOLUNTARY REDEMPTION OF SHARES; DISCLOSURE OF HOLDING.
(a) If the Trustees shall, at any time and in good faith, be of the
opinion that direct or indirect ownership of Shares or other securities of
a particular Series or Class thereof has or may become concentrated in any
person to an extent which would disqualify a Series as a regulated
investment company under the United States Internal Revenue Code, then the
Trustees shall have the power by lot or other means deemed equitable by
them:
(i) to call for redemption a number, or principal amount, of Shares
sufficient in the opinion of the Trustees to maintain or bring the
direct or indirect ownership of Shares into conformity with the
requirements for such qualification; and
(ii) to refuse to transfer or issue Shares to any Person whose
acquisition of the Shares in question would in the opinion of the
Trustees result in such disqualification.
Any redemption pursuant to this Section 6.7(a) shall be effected at
a redemption price determined in accordance with Section 6.2 hereof.
(b) The holders of Shares shall upon request disclose to the Trustees in
writing such information with respect to direct and indirect ownership of
Shares as the Trustees deem necessary to comply with the provisions of the
United States Internal Revenue Code, or to comply with the requirements of
any other taxing authority.
(c) Subject to the requirements of the 1940 Act, the Board of Trustees may
cause the Trust to redeem, at the price and in the manner provided in this
Article VI, Shares of any Series or Class held by any person (i) if such
person is no longer qualified to hold such Shares in accordance with such
qualification as may be established by the Trustees, (ii) if
the net asset value of such Shares is below the minimum investment amount
which is set forth in the Registration Statement of the Trust or (iii) if
otherwise deemed by the Trustees to be in the best interest of the Trust
or that particular Series or Class as a whole.
ARTICLE VII
DETERMINATION OF NET ASSET VALUE; DISTRIBUTIONS
SECTION 7.1. DETERMINATION OF NET ASSET VALUE, NET INCOME AND DISTRIBUTIONS.
Subject to applicable law and Section 5.5 hereof, the Trustees, in their
absolute discretion, may prescribe and shall set forth in the Registration
Statement of the Trust as filed with the Commission such bases and time or times
for determining the net asset value of the Shares of any Series or Class, the
net income attributable to the Shares of any Series or Class, or the declaration
and payment of dividends and distributions on the Shares of any Series or Class,
as they may deem necessary or desirable from time to time.
SECTION 7.2. DISTRIBUTIONS TO SHAREHOLDERS. Without limiting the powers of the
Trustees under Subsection (g) of Section 2.1 hereof, the Trustees may at any
time and from time to time, as they may determine, allocate or distribute to
Shareholders of a particular Series such income and capital gains, accrued or
realized, as the Trustees may determine, after providing for actual, accrued or
estimated expenses and liabilities (including such reserves as the Trustees may
establish) determined in accordance with generally accepted accounting
practices. The Trustees shall have full discretion to determine which items
shall be treated as income and which items as capital and their determination
shall be binding upon the Shareholders. Such distributions shall be made in cash
or property belonging to the applicable Series or in Shares of the applicable
Series or Class thereof or any combination thereof as determined by the
Trustees. Any such distribution paid in Shares shall be paid at the net asset
value thereof. The Trustees may adopt and offer to Shareholders such dividend
reinvestment plans, cash dividend payout plans or related plans as the Trustees
shall deem appropriate. Inasmuch as the computation of net income and gains for
Federal income tax purposes may vary from the computation thereof on the books
of the Trust, the above provisions shall be interpreted to give the Trustees the
power in their discretion to allocate or distribute for any fiscal years as
ordinary dividends and as capital gains distributions, respectively, additional
amounts sufficient to enable the Trust to avoid or reduce liability for taxes.
ARTICLE VIII
CUSTODIAN
SECTION 8.1. APPOINTMENT AND DUTIES. Subject to the 1940 Act and such rules,
regulations and orders as the Commission may adopt, the Trustees shall employ a
bank or trust company having a capital, surplus and undivided profits of at
least $2,000,000 as custodian with authority as the agent of the Trust, but
subject to such restrictions, limitations and other requirements, if any, as may
be contained in the By-Laws of the Trust:
(a) to hold the securities owned by the Trust and deliver the same upon
written order;
(b) to receive and receipt for any moneys due to the Trust and deposit the
same in its own banking department or elsewhere as the Trustees may
direct; and
(c) to disburse such funds upon orders or vouchers.
The Trustees may also authorize such custodian as the agent of the Trust (x) to
keep the books and accounts of the Trust and of each Series and Class and
furnish clerical and accounting services and (y) to compute the net income and
the value of the net assets of each Series and Class.
The acts and services of the custodian shall be performed upon such basis of
compensation as may be agreed upon by the Trustees and the custodian. If so
directed by a Majority Shareholder Vote, the custodian shall deliver and pay
over all property of the Trust held by it as specified in such vote.
The Trustees also authorize the custodian to employ one or more sub-custodians
from time to time to perform such of the acts and services of the custodian and
upon such terms and conditions, as may be agreed upon between the custodian and
such sub-custodian and approved by the Trustees, provided that in every case
such sub-custodian shall be a bank or trust company organized under the laws of
the United States or one of the states thereof and having capital, surplus and
undivided profits of at least $2,000,000.
SECTION 8.2. ACTION UPON TERMINATION OF CUSTODIAN AGREEMENT. Upon termination of
a custodian agreement or inability of any custodian to continue agreement or
inability of any custodian to continue to serve, the Trustees shall promptly
appoint a successor custodian, but in the event that no successor custodian can
be found who has the required qualifications and is willing to serve, the
Trustees shall call as promptly as possible a special Shareholders' meeting to
determine whether the Trust shall function without a custodian or shall be
liquidated. If so directed by vote of the holders of a majority of the Shares
outstanding and entitled to vote, the custodian shall deliver and pay over all
Trust Property held by it as specified in such vote.
SECTION 8.3. CENTRAL CERTIFICATE SYSTEM, ETC. Subject to such rules, regulations
and order as the Commission may adopt, the Trustees may direct the custodian to
deposit all or any part of the securities owned by the Trust in a system for the
central handling of securities established by a national securities exchange or
a national securities association registered with the Commission under the
Securities Exchange Act of 1934, or such other person as may be permitted by the
Commission, or otherwise in accordance with 1940 Act, pursuant to which system
all securities of any particular class or series of any issuer deposited within
the system are treated as fungible and may be transferred or pledged by
bookkeeping entry without physical delivery of such securities, provided that
all such deposits shall be subject to withdrawal only upon the order of the
Trust.
SECTION 8.4. ACCEPTANCE OF RECEIPTS IN LIEU OF CERTIFICATES. Subject to such
rules, regulations and orders as the Commission may adopt, the Trustees may
direct the custodian to accept written
receipts or other written evidences indicating purchases of securities held in
book-entry for in the Federal Reserve System in accordance with regulations
promulgated by the Board of Governors of the Federal Reserve System and the
local Federal Reserve Banks in lieu of receipt of certificates representing such
securities.
ARTICLE IX
DURATION; TERMINATION OF TRUST;
AMENDMENT; MERGERS; OFFICES, ETC.
SECTION 9.1. DURATION AND TERMINATION.
(a) Unless terminated as provided herein, the Trust shall continue without
limitation of time. The Trust may be terminated at any time by the
affirmative vote of a majority of the Shares of each Series entitled to
vote, voting separately by Series, or by the Trustees by written notice to
the Shareholders. Any Series may be dissolved at any time by vote of a
majority of the Shares of such Series entitled to vote, or by the Trustees
by written notice to the Shareholders of such Series. Upon the termination
of the Trust:
(i) The Trust or any affected Series 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 any affected Series and all of the powers of the Trustees under
this Declaration shall continue until the affairs of the Trust or
any affected Series shall have been wound up, including the power to
fulfill or discharge the contracts of the Trust or any affected
Series, collect its assets, sell, convey, assign, exchange, transfer
or otherwise dispose of all or any part of the remaining Trust
Property or property of the affected Series to one or more persons
at public or private sale for consideration which may consist in
whole or in part of cash, securities or other property of any kind,
discharge or pay its liabilities, and do all other acts appropriate
to liquidate its business.
(iii) After paying or adequately providing for the payment of all
liabilities, and upon receipt of such releases, indemnities and
refunding agreements as they deem necessary for their protection,
the Trustees may distribute the remaining Trust Property or property
belonging to the affected Series, in cash or in kind or partly each,
among the Shareholders according to their respective rights.
(b) After termination of the Trust or any Series and distribution to the
Shareholders as herein provided, the Trustees and the Trust shall
thereupon be discharged from all further liabilities and duties hereunder
with respect to the Series affected, and the rights and interests of all
Shareholders of the Series affected shall thereupon cease.
(c) Upon termination of the Trust, following completion of winding up of
its business, the Trustees shall cause a certificate of cancellation of
the Trust's Certificate of Trust to be
filed in accordance with the Delaware Act, which certificate of
cancellation may be signed by any one Trustee.
SECTION 9.2. AMENDMENT PROCEDURE. Except as specifically provided in this
section, the Trustees may, without shareholder vote, restate, amend or otherwise
supplement this Declaration of Trust. Shareholders shall have the right to vote
(i) on any amendment that would affect their right to vote granted in Section
5.9 hereof, (ii) on any amendment to this section, (iii) on any amendment that
may be required to be approved by Shareholders by applicable law or by the
Trust's Registration Statement filed with the Commission, and (iv) on any
amendment submitted to them by the Trustees. Any amendment required or permitted
to be submitted to the Shareholders that, as the Trustees determine, shall
affect the Shareholders of one or more Series or Class shall be authorized by a
vote of the Shareholders of each Series or Class affected and no vote of
Shareholders of a Series or Class not affected shall be required.
Notwithstanding anything else herein, no amendment hereof shall limit the rights
of insurance provide by Section 4.5 with respect to acts or omissions of Persons
covered thereby prior to such amendment nor shall any such amendment limit the
rights to indemnification referenced in Article IV hereof. The Trustees may,
without Shareholder vote, restate, amend or otherwise supplement the Certificate
of Trust as they deem necessary or desirable.
SECTION 9.3. MERGER, CONSOLIDATION AND SALE OF ASSETS.
(a) Notwithstanding anything else herein, the Trustees may, without any
Shareholder approval or vote unless such approval or vote is required by
applicable law, in order to change the form or jurisdiction of
organization of the Trust or for any other purpose (i) cause the trust to
merge or consolidate with or into one or more trusts (or series thereof to
the extent permitted by law), partnerships, associations, corporations or
other business entities (including trusts, partnerships, associations,
corporations or other business entities created by the Trustees to
accomplish such merger or consolidation), (ii) cause the Shares to be
exchanged under or pursuant to any state or federal statute to the extent
permitted by law or (iii) cause the Trust to reorganize under the laws of
any state or other political subdivision of the United States, if such
action is determined by the Trustee to be in the best interests of the
Trust. Any agreement of merger or consolidation or exchange or certificate
of merger may be signed by a majority of the Trustees and facsimile
signatures conveyed by electronic or telecommunication means shall be
valid.
(b) Pursuant to and in accordance with the provisions of Section 3815(f)
of the Delaware Act, and notwithstanding anything to the contrary
contained in this Declaration of Trust, an agreement of merger or
consolidation approved by the Trustees in accordance with this Section may
effect any amendment to the governing instrument of the Trust or effect
the adoption of a new trust instrument of the trust if the Trust is the
surviving or resulting trust in the merger or consolidation.
(c) The Trustees may, without any Shareholder approval or vote unless such
approval or vote is required by applicable law, create one or more
statutory trusts to which all or any
part of the assets, liabilities, profits or losses of the Trust or any
Series or Class thereof may be transferred and may provide for the
conversion of Shares in the Trust or any Series or Class thereof into
beneficial interests in any such newly created trust or trusts or any
series or classes thereof.
(d) Notwithstanding anything else herein, the Trustees may, without
Shareholder approval (unless required by the 1940 Act), invest all or a
portion of the Trust Property of any Series, or dispose of all or a
portion of the Trust Property of any Series, and invest the proceeds of
such disposition in interests issued by one or more investment companies
registered under the 1940 Act. Any such other investment company may (but
need not) be a trust (formed under the laws of the State if Delaware or
any other state or jurisdiction) (or series thereof) which is classified
as a partnership for federal income tax purposes. Notwithstanding anything
else herein, the Trustees may, without Shareholder approval unless such
approval is required by the 1940 Act, cause a Series that is organized in
the master/feeder fund structure to withdraw or redeem its Trust Property
from the master fund and cause such Series to invest its Trust Property
directly in securities and other financial instruments or in another
master fund.
ARTICLE X
REPORTS TO SHAREHOLDERS
The Trustees shall at least semi-annually submit to the Shareholders of a
particular Series a written financial report of the transactions of the Trust
with respect to that Series, including financial statements which shall at least
annually be accompanied by a report thereon of independent public accountants.
ARTICLE XI
MISCELLANEOUS
SECTION 11.1. FILING. The original or a copy of this instrument and of each
restatement and/or amendment hereto shall be kept at the office of the Trust.
Anyone dealing with the Trust may rely on a certificate by an officer of the
Trust as to whether or not any such restatements and/or amendments have been
made and as to matters in connection with the Trust hereunder; and, with the
same effect as if it were the original, may rely on a copy certified by an
officer of the Trust to be a copy of this instrument or of any such restatements
and/or amendments.
SECTION 11.2. GOVERNING LAW.
(a) The Trust is created under, and this Declaration of Trust is to be
governed by, and construed and enforced in accordance with, the laws of
the State of Delaware. The Trust shall be of the type commonly called a
statutory trust, and without limiting the provisions hereof, the Trust
specifically reserves the right to exercise any of the powers or
privileges afforded to statutory trusts or actions that may be engaged in
by statutory trusts under the
Delaware Act, and the absence of a specific reference herein to any such
power, privilege or action shall not imply that the Trust may not exercise
such power or privilege or take such actions
(b) Notwithstanding the first sentence of Section 11.2(a), there shall not
be applicable to the Trust, the Trustees or this Declaration of Trust (x)
the provisions of section 3540 of Title 12 of the Delaware Code or (y) any
provisions of the laws (statutory or common) of the State of Delaware
(other than the Delaware Act) pertaining to trusts that relate to or
regulate (i) the filing with any court or governmental body or agency of
trustee accounts or schedules of trustee fees and charges, (ii)
affirmative requirements to post bonds for trustees, officers, agents, or
employees of a trust, (iii) the necessity for obtaining a court or other
governmental approval concerning the acquisition, holding or disposition
of real or personal property, (iv) fees or other sums applicable to
trustees, officers, agents or employees of a trust, (v) the allocation of
receipts and expenditures to income or principal, concentration of trust
investments or requirements relating to the titling, storage or other
manner of holding of trust assets, or (vii) the establishment of fiduciary
or other standards or responsibilities or limitations on the acts or
powers of trustees that are inconsistent with the limitations or
liabilities or authorities and powers of the Trustees set forth or
referenced in this Declaration of Trust.
SECTION 11.3. 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.
SECTION 11.4. RELIANCE BY THIRD PARTIES. Any certificate executed by an
individual who, according to the record of the Trust, appears to be a Trustee
hereunder, certifying to: (a) the number or identity of Trustees or
Shareholders, (b) the due authorization of the execution of any instrument or
writing, (c) the form of any vote passed at a meeting of Trustees or
Shareholders, (d) the fact that the number of Trustees or Shareholders present
at any meeting or executing any written instrument satisfies the requirements of
this Declaration, (e) the form of any By-Laws adopted by or the identity of any
officers elected by the Trustees or (f) the existence of any fact or facts which
in any manner relate to the affairs of the Trust, shall be conclusive evidence
as to the matter so certified in favor of any Person dealing with the Trustees
and their successors.
SECTION 11.5. PROVISIONS IN CONFLICT WITH LAW OR REGULATIONS.
(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 requirements of the 1940 Act, would be inconsistent
with any of the conditions necessary for qualification of the Trust as a
regulated investment company under the United States Internal Revenue Code
or is inconsistent with other applicable laws and regulations, such
provision shall be deemed never to have constituted a part of this
Declaration, provided that such determination shall not affect any of the
remaining provisions of the 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.
SECTION 11.6 DERIVATIVE ACTIONS. In addition to the requirements set forth in
Section 3816 of the Delaware Act, a Shareholder may bring a derivative action on
behalf of the Trust only if the following conditions are met:
(a) The Shareholder or Shareholders must make a per-suit demand upon the
Trustees to bring the subject action unless an effort to cause the
Trustees to bring such action is not likely to succeed. For purposes of
this Section 11.6(a), a demand on the Trustees shall only be deemed not
likely to succeed and therefore excused if a majority of the Board of
Trustees, or a majority of any committee established to consider the
merits of such action, has a personal financial interest in the
transaction at issue, and a Trustee shall not be deemed interested in a
transaction or otherwise disqualified from ruling on the merits of a
Shareholder demand by virtue of the fact that such Trustee receives
remuneration for his or her service on the Board of Trustees of the Trust
or on the boards of one or more Trusts that are under common management
with or otherwise affiliated with the Trust.
(b) Unless a demand is not required under paragraph (a) of this Section
11.6, Shareholders eligible to bring such derivative action under the
Delaware Act who hold at least 10% of the outstanding Shares of the Trust,
or 10% of the outstanding Shares of the Series or Class to which such
action relates, shall join in the request for the Trustees to commence
such action.
(c) Unless a demand is not required under paragraph (a) of this Section
11.6, the Trustees must be afforded a reasonable amount of time to
consider such Shareholder request and to investigate the basis of such
claim. The Trustees shall be entitled to retain counsel or other advisors
in considering the merits of the request and shall require an undertaking
by the Shareholders making such request to reimburse the Trust for the
expense of any such advisors in the event that the Trustees determine not
to bring such action.
For purposes of this Section 11.6, the Board of Trustees may designate a
committee of one Trustee to consider a Shareholder demand if necessary to create
a committee with a majority of Trustees who do not have a personal financial
interest in the transaction at issue.
SECTION 11.7. SECTION HEADINGS; INTERPRETATION. Section headings in this
Declaration are for convenience of reference only, and shall not limit or
otherwise affect the meaning hereof. References in this Declaration to "this
Declaration" shall be deemed to refer to this Declaration as from time to time
amended, and all expressions such as "hereof", "herein" and "hereunder" shall be
deemed to refer to this Declaration and not exclusively to the article or
section in which such words appear.
IN WITNESS WHEREOF, the undersigned have executed this instrument this 21st day
of April, 2005.
----------------------------
Xxxx X. Xxxxxx, Attorney in Fact for
Xxxxx X. Xxxxx, Trustee
Xxxxx X. Xxxxx, Trustee
Xxxxxx X. X'Xxxxx, Trustee
Xxxxxxx X. Xxxxxx, Trustee
Xxxxxxx X. Xxxxxxx, Xx., Trustee
Xxxxxxx X. Xxxxx, Xx., Trustee
Xxxxxx Xxxxxxxx, Trustee
Xxxxxx X. Case, Trustee
Xxx X. Xxxx, Trustee
Xxxx X. Xxxxxxxx, Trustee