AGREEMENT AND DECLARATION OF TRUST
OF
OLD MUTUAL ADVISOR FUNDS
This Agreement and Declaration of Trust of Old Mutual Advisor Funds,
dated as of May 27, 2004, is among ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇ and ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇▇, as
the Trustees, and each Person who becomes a Shareholder in accordance with the
terms hereinafter set forth.
Now, therefore, the Trustees do hereby declare that all money and
property contributed to the Trust hereunder shall be held and managed in trust
under this Agreement for the benefit of the Shareholders as herein set forth
below.
ARTICLE I
NAME, DEFINITIONS, PURPOSE AND CERTIFICATE OF TRUST
Section 1.1 Name. The name of the statutory trust established hereby is
Old Mutual Advisor Funds, and the Trustees may transact the Trust's affairs in
that name. The Trust is a statutory trust created under the laws of the State of
Delaware and existing subject to the Delaware Act.
Section 1.2 Definitions. Whenever used herein, unless otherwise
required by the context or specifically provided:
(a) "Affiliated Person" has the meaning specified in Section
2(a)(3) of the 1940 Act, as modified by or interpreted by any
applicable order or orders of the Commission or any rules or
regulations adopted or interpretive releases of the Commission
or its staff thereunder;
(b) "Agreement" means this Agreement and Declaration of Trust, as
it may be amended from time to time;
(c) "allocable" and "allocated" have the meanings specified in
Section 2.5(d);
(d) "By-Laws" means the by-laws referred to in Section 4.1(e), as
from time to time amended;
(e) "Class" means a portion of Shares of a Portfolio of the Trust
established in accordance with the provisions of Section
2.3(b);
(f) "Class Expenses" means expenses incurred by a particular Class
in connection with a shareholder services arrangement or a
distribution plan that is specific to such Class or any other
differing share of expenses or differing fees, in each case
pursuant to a plan adopted by the Trust pursuant to Rule 18f-3
under the 1940 Act, as such plan or Rule may be amended from
time to time;
(g) "Commission" means the U.S. Securities and Exchange
Commission;
(h) "Company" has the meaning specified in Section 2(a)(8) of the
1940 Act, as modified by or interpreted by any applicable
order or orders of the Commission or any rules or regulations
adopted or interpretive releases of the Commission or its
staff thereunder;
(i) "Covered Person" means a Person who is or was a Trustee,
officer, employee or agent of the Trust, or is or was serving
at the request of the Trustees as a director, trustee,
partner, officer, employee or agent of a corporation, trust,
partnership, joint venture or other enterprise;
(j) The "Delaware Act" refers to the Delaware Statutory Trust Act,
12 Del. C.ss.3801 et seq., as such Act -- --- may be amended
from time to time;
(k) "fund complex" has the meaning specified in Regulation 14A
under the Securities Exchange Act of 1934, as amended from
time to time;
(l) "Governing Instrument" means collectively this Agreement, the
By-Laws, all amendments to this Agreement and the By-Laws and
every resolution of the Trustees or any committee of the
Trustees that by its terms is incorporated by reference into
this Agreement or stated to constitute part of the Trust's
Governing Instrument or that is incorporated herein by Section
2.3 of this Agreement;
(m) "Majority Shareholder Vote" means "the vote of a majority of
the outstanding voting securities" (as defined in the ▇▇▇▇
▇▇▇) of the Trust, Portfolio, or Class, as applicable;
(n) "Majority Trustee Vote" means the vote of a majority of the
Trustees;
(o) The "1940 Act" means the Investment Company Act of 1940, as
amended from time to time;
(p) "Outstanding Shares" means Shares shown on the books of the
Trust or its transfer agent as then issued and outstanding,
and includes Shares of one Portfolio that the Trust has
purchased on behalf of another Portfolio, but excludes Shares
of a Portfolio that the Trust has redeemed or repurchased;
(q) "Person" has the meaning specified in Section 2(a)(28) of the
1940 Act, as modified by or interpreted by any applicable
order or orders of the Commission or any rules or regulations
adopted or interpretive releases of the Commission or its
staff thereunder;
(r) "Portfolio" means a series of Shares of the Trust within the
meaning of Section 3806(b) of the Delaware Act, established in
accordance with the provisions of Section 2.3(a);
(s) "Principal Underwriter" has the meaning specified in Section
2(a)(29) of the 1940 Act, as modified by or interpreted by any
applicable order or orders of the Commission or any rules or
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regulations adopted or interpretive releases of the Commission
or its staff thereunder;
(t) "Proportionate Interest" has the meaning specified in Section
2.5(d);
(u) "Purchasing Portfolio" has the meaning specified in Section
2.9;
(v) "Schedule A" has the meaning specified in Section 2.3(a);
(w) "Selling Portfolio" has the meaning specified in Section 2.9;
(x) "Shareholder" means a record owner of Outstanding Shares of
the Trust;
(y) "Shares" (each, a "Share") means, as to a Portfolio or any
Class thereof, the equal proportionate transferable units of
beneficial interest into which the beneficial interest of such
Portfolio or such Class thereof shall be divided and may
include fractions of Shares in 1/1000th of a Share or integral
multiples thereof as well as whole Shares;
(z) The "Trust" means Old Mutual Advisor Funds, the Delaware
statutory trust established hereby, and reference to the
Trust, when applicable to one or more Portfolios, shall refer
to each such Portfolio;
(aa) The "Trustees" means the Persons who have signed this
Agreement as trustees so long as they shall continue to serve
as trustees of the Trust in accordance with the terms hereof,
and all other Persons who may from time to time be duly
appointed as Trustee in accordance with the provisions of
Section 3.4, or elected as Trustee by the Shareholders, and
reference herein to a Trustee or to the Trustees shall refer
to such Persons in their capacity as Trustees hereunder; and
(bb) "Trust Property" means any and all property, real or personal,
tangible or intangible, which is owned or held by or for the
account of the Trust or any Portfolio, or by the Trustees on
behalf of the Trust or any Portfolio.
Section 1.3 Purpose. The purpose of the Trust is to conduct, operate
and carry on the business of an open-end management investment company
registered under the 1940 Act through one or more Portfolios investing primarily
in securities, and to carry on such other business as the Trustees may from time
to time determine pursuant to their authority under this Agreement.
Section 1.4 Certificate of Trust. Immediately upon the execution of
this Agreement, the Trustees shall file a Certificate of Trust with respect to
the Trust in the Office of the Secretary of State of the State of Delaware
pursuant to the Delaware Act. From time to time, the Trustees shall cause such
Certificate of Trust to be amended to reflect changes in the composition of the
Board of Trustees.
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ARTICLE II
BENEFICIAL INTEREST
Section 2.1 Shares of Beneficial Interest. The beneficial interest in
the Trust shall be divided into an unlimited number of Shares, with par value of
$0.001 per Share. The Trustees may, from time to time, (a) authorize the
division of the Shares into one or more series, each of which constitutes a
Portfolio, and (b) may further authorize the division of the Shares of any
Portfolio into one or more separate and distinct Classes. All Shares issued
hereunder, including Shares issued in connection with a dividend or other
distribution in Shares or a split or reverse split of Shares, shall be fully
paid and nonassessable.
Section 2.2 Issuance of Shares. The Trustees in their discretion may,
from time to time, without vote of the Shareholders, issue Shares, in addition
to the then Outstanding Shares, to such party or parties and for such amount and
type of consideration, subject to applicable law, including cash or securities,
at such time or times and on such terms as the Trustees may deem appropriate,
and may in such manner acquire other assets (including the acquisition of assets
subject to, and in connection with, the assumption of liabilities) and
businesses. In connection with any issuance of Shares, the Trustees may issue
fractional Shares. The Trustees may from time to time divide or combine the
Shares into a greater or lesser number without thereby changing the
proportionate beneficial interests in the Trust. Contributions to the Trust may
be accepted for, and Shares shall be redeemed as, whole Shares and/or 1/1000th
of a Share or integral multiples thereof.
Section 2.3 Establishment of Portfolios and Classes.
(a) The Trust shall consist of one or more separate and distinct
Portfolios, each with an unlimited number of Shares unless
otherwise specified. The Trustees shall from time to time
establish and designate such Portfolios as shall be listed on
Schedule A attached hereto and made a part hereof ("Schedule
A"). Each Portfolio shall be established by the adoption of
one or more resolutions by the Trustees. Each such resolution
is hereby incorporated herein by this reference and made a
part of the Trust's Governing Instrument whether or not
expressly stated in such resolution, and shall be effective
upon the occurrence of both (i) the date stated therein (or,
if no such date is stated, upon the date of such adoption) and
(ii) the execution of an amendment either to this Agreement or
to Schedule A hereto establishing and designating such initial
or additional Portfolio or Portfolios. The Shares of each
Portfolio shall have the relative rights and preferences
provided for herein and such rights and preferences as may be
designated by the Trustees in any amendment or modification to
the Trust's Governing Instrument. The Trust shall maintain
separate and distinct records of each Portfolio and shall hold
and account for the assets belonging thereto separately from
the other Trust Property and the assets belonging to any other
Portfolio. Each Share of a Portfolio shall represent an equal
beneficial interest in the net assets belonging to that
Portfolio, except to the extent of Class Expenses and other
expenses separately allocated to Classes thereof (if any
Classes have been established) as permitted herein.
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(b) The Trustees may establish one or more Classes of Shares of
any Portfolio, each with an unlimited number of Shares unless
otherwise specified. Each Class so established and designated
shall represent a Proportionate Interest (as defined in
Section 2.5(d)) in the net assets belonging to that Portfolio
and shall have identical voting, dividend, liquidation, and
other rights and be subject to the same terms and conditions,
except that (i) Class Expenses allocated to a Class for which
such expenses were incurred shall be borne solely by that
Class, (ii) other expenses, costs, charges, and reserves
allocated to a Class in accordance with Section 2.5(e) may be
borne solely by that Class, (iii) dividends declared and
payable or other distributions made to a Class pursuant to
Section 7.1 shall reflect the items separately allocated
thereto pursuant to the preceding clauses, (iv) each Class may
have separate rights to convert to another Class, exchange
rights, and similar rights, each as determined by the
Trustees, and (v) each Class may have exclusive voting rights
with respect to matters affecting only that Class. The
Trustees hereby establish for each Portfolio listed on
Schedule A the Classes listed thereon. Each additional Class
for any or all Portfolios shall be established by the adoption
of one or more resolutions by the Trustees, each of which is
hereby incorporated herein by this reference and made part of
the Governing Instrument, whether or not expressly stated in
such resolution, and shall be effective upon the occurrence of
both (x) the date stated therein (or, if no such date is
stated, upon the date of such adoption) and (y) the execution
of an amendment to this Agreement establishing and designating
such additional Class or Classes.
Section 2.4 Actions Affecting Portfolios and Classes. Subject to the
right of Shareholders, if any, to vote pursuant to Section 6.1, the Trustees
shall have full power and authority, in their sole discretion without obtaining
any prior authorization or vote of the Shareholders of any Portfolio, or Class
thereof, to establish and designate and to change in any manner any Portfolio of
Shares, or any Class or Classes thereof; to fix or change such preferences,
voting powers, rights, and privileges of any Portfolio, or any Class or Classes
thereof, as the Trustees may from time to time determine, including any change
that may adversely affect a Shareholder; to divide or combine the Shares of any
Portfolio, or any Class or Classes thereof, into a greater or lesser number; to
classify or reclassify or convert any issued Shares of any Portfolio, or any
Class or Classes thereof, into one or more Portfolios or Classes of Shares of a
Portfolio; and to take such other action with respect to the Shares as the
Trustees may deem desirable. A Portfolio and any Class thereof may issue any
number of Shares but need not issue any Shares. At any time that there are no
Outstanding Shares of any particular Portfolio or Class previously established
and designated, the Trustees may abolish that Portfolio or Class and the
establishment and designation thereof.
Section 2.5 Relative Rights and Preferences. Unless the establishing
resolution or any other resolution adopted pursuant to Section 2.3 otherwise
provides, Shares of each Portfolio or Class thereof established hereunder shall
have the following relative rights and preferences:
(a) Except as set forth in paragraph (e) of this Section 2.5, each
Share of a Portfolio, regardless of Class, shall represent an
equal pro rata interest in the assets belonging to such
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Portfolio and shall have identical voting, dividend,
liquidation and other rights, preferences, powers,
restrictions, limitations, qualifications and designations and
terms and conditions with each other Share of such Portfolio.
(b) Shareholders shall have no preemptive or other right to
subscribe to any additional Shares or other securities issued
by the Trust or the Trustees, whether of the same or other
Portfolio or Class.
(c) All consideration received by the Trust for the issue or sale
of Shares of a particular Portfolio, together with all assets
in which such consideration is invested or reinvested, all
income, earnings, profits, and proceeds thereof, including any
proceeds derived from the sale, exchange, or liquidation of
such assets, and any funds or payments derived from any
reinvestment of such proceeds in whatever form the same may
be, shall be held and accounted for separately from the other
assets of the Trust and of every other Portfolio and may be
referred to herein as "assets belonging to" that Portfolio.
The assets belonging to a particular Portfolio shall belong to
that Portfolio for all purposes, and to no other Portfolio,
subject only to the rights of creditors of that Portfolio. In
addition, any assets, income, earnings, profits or funds, or
payments and proceeds with respect thereto, which are not
readily identifiable as belonging to any particular Portfolio
shall be allocated by the Trustees between and among one or
more of the Portfolios in such manner as the Trustees, in
their sole discretion, deem fair and equitable. Each such
allocation shall be conclusive and binding upon the
Shareholders of all Portfolios thereof for all purposes, and
such assets, income, earnings, profits, or funds, or payments
and proceeds with respect thereto shall be assets belonging to
that Portfolio.
(d) Each Class of a Portfolio shall have a proportionate undivided
interest (as determined by or at the direction of, or pursuant
to authority granted by, the Trustees, consistent with
industry practice) ("Proportionate Interest") in the net
assets belonging to that Portfolio. References herein to
assets, expenses, charges, costs, and reserves "allocable" or
"allocated" to a particular Class of a Portfolio shall mean
the aggregate amount of such item(s) of the Portfolio
multiplied by the Class's Proportionate Interest.
(e) A particular Portfolio shall be charged with the liabilities
of that Portfolio, and all expenses, costs, charges and
reserves attributable to any particular Portfolio shall be
borne by such Portfolio; provided that the Trustees may, in
their sole discretion, allocate or authorize the allocation of
particular expenses, costs, charges, and/or reserves of a
Portfolio to fewer than all the Classes thereof. Class
Expenses shall, in all cases, be allocated to the Class for
which such Class Expenses were incurred. Any general
liabilities, expenses, costs, charges or reserves of the Trust
(or any Portfolio) that are not readily identifiable as
chargeable to or bearable by any particular Portfolio (or any
particular Class) shall be allocated and charged by the
Trustees between or among any one or more of the Portfolios
(or Classes) in such manner as the Trustees in their sole
discretion deem fair and equitable. Each such allocation shall
be conclusive and binding upon the Shareholders of all
Portfolios (or Classes) for all purposes. Without limitation
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of the foregoing provisions of this Section 2.5(e), (i) the
debts, liabilities, obligations and expenses incurred,
contracted for or otherwise existing with respect to a
particular Portfolio shall be enforceable against the assets
of such Portfolio only, and not against the assets of the
Trust generally or assets belonging to any other Portfolio,
and (ii) none of the debts, liabilities, obligations and
expenses incurred, contracted for or otherwise existing with
respect to the Trust generally that have not been allocated to
a specified Portfolio, or with respect to any other Portfolio,
shall be enforceable against the assets of such specified
Portfolio. Notice of this contractual limitation on
inter-Portfolio liabilities shall be set forth in the Trust's
Certificate of Trust described in Section 1.4, and upon the
giving of such notice in the Certificate of Trust, the
statutory provisions of Section 3804 of the Delaware Act
relating to limitations on inter-Portfolio liabilities (and
the statutory effect under Section 3804 of setting forth such
notice in the Certificate of Trust) shall become applicable to
the Trust and each Portfolio.
(f) Except as provided for in Section 2.9, shares redeemed or
repurchased by a Portfolio or the Trust shall be deemed to be
canceled.
(g) The Trust may issue Shares in fractional denominations of
1/1000th of a Share or integral multiples thereof to the same
extent as its whole Shares, and Shares in fractional
denominations shall be Shares having proportionately to the
respective fractions represented thereby all the rights of
whole Shares of the same Portfolio (or Class), including the
right to vote, the right to receive dividends and other
distributions and the right to participate upon termination of
the Trust or any Portfolio, but excluding the right to receive
a certificate representing fractional Shares.
All references to Shares in this Agreement shall be deemed to
be shares of any or all Portfolios, or any Class or Classes thereof, as the
context may require. All provisions herein relating to the Trust shall apply
equally to each Portfolio of the Trust, and each Class thereof, except as the
context otherwise requires.
Section 2.6 Investment in the Trust. Investments may be accepted by the
Trust from such Persons, at such times, on such terms, and for such
consideration, which may consist of cash or tangible or intangible property or a
combination thereof, as the Trustees from time to time may authorize. At the
Trustees' sole discretion, such investments, subject to applicable law, may be
in the form of cash or securities in which the affected Portfolio is authorized
to invest, valued as provided in applicable law. Each such investment shall be
recorded in the individual Shareholder's account in the form of full and
fractional Shares of the Trust, in such Portfolio (or Class) as the Shareholder
shall select.
Section 2.7 Personal Liability of Shareholders. As provided by
applicable law, no Shareholder of the Trust shall be personally liable for the
debts, liabilities, obligations and expenses incurred by, contracted for, or
otherwise existing with respect to, the Trust or any Portfolio (or Class)
thereof. Neither the Trust nor the Trustees, nor any officer, employee, or agent
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of the Trust shall have any power to bind personally any Shareholder or to call
upon any Shareholder for the payment of any sum of money or assessment
whatsoever, other than such as the Shareholder may at any time personally agree
to pay by way of subscription for any Shares or otherwise. The Shareholders
shall be entitled, to the fullest extent permitted by applicable law, to the
same limitation of personal liability as is extended under the Delaware General
Corporation Law to stockholders of private corporations for profit. Every note,
bond, contract or other undertaking issued by or on behalf of the Trust or the
Trustees relating to the Trust or to any Portfolio shall include a recitation
limiting the obligation represented thereby to the Trust and its assets or to
one or more Portfolios and the assets belonging thereto (but the omission of
such a recitation shall not operate to bind any Shareholder or Trustee of the
Trust or otherwise limit any benefits set forth in the Delaware Act that may be
applicable to such Persons).
Section 2.8 Assent to Agreement. Every Shareholder, by virtue of having
purchased a Share, shall be held to have expressly assented to, and agreed to be
bound by, the terms hereof. The death of a Shareholder during the continuance of
the Trust shall not operate to terminate the same nor entitle the representative
of any deceased Shareholder to an accounting or to take any action in court or
elsewhere against the Trust or the Trustees, but only to rights of said decedent
under the Governing Instrument.
Section 2.9 Purchases of Shares Among Portfolios. The Trust may
purchase, on behalf of any Portfolio (the "Purchasing Portfolio"), Shares of
another Portfolio (the "Selling Portfolio") or any Class thereof. Shares of the
Selling Portfolio so purchased on behalf of the Purchasing Portfolio shall be
Outstanding Shares, and shall have all preferences, voting powers, rights and
privileges established for such Shares.
ARTICLE III
THE TRUSTEES
Section 3.1 Management of the Trust. The business and affairs of the
Trust shall be managed by or under the direction of its Trustees, collectively
referred to as the Board of Trustees. The Trustees shall have exclusive and
absolute control over the Trust Property and over the business of the Trust to
the same extent as if the Trustees were the sole owners of the Trust Property
and business in their own right, but with such powers of delegation as may be
permitted by this Agreement. The Trustees shall have power to conduct the
business of the Trust and carry on its operations in any and all of its branches
and maintain offices both within and without the State of Delaware, in any and
all states of the United States of America, in the District of Columbia, in any
and all commonwealths, territories, dependencies, colonies, or possessions of
the United States of America, and in any and all foreign jurisdictions and to do
all such other things and execute all such instruments as they deem necessary,
proper or desirable in order to promote the interests of the Trust although such
things are not herein specifically mentioned. Any determination as to what is in
the interests of the Trust made by the Trustees in good faith shall be
conclusive. In construing the provisions of this Agreement, the presumption
shall be in favor of a grant of power to the Trustees.
The enumeration of any specific power in this Agreement shall
not be construed as limiting the aforesaid power. The powers of the Trustees may
be exercised without order of or resort to any court or other authority.
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Section 3.2 Trustees. The number of Trustees shall be such number as
shall be fixed from time to time by a majority of the Trustees; PROVIDED,
HOWEVER, that the number of Trustees shall in no event be less than two nor more
than 15. The initial Trustees are those first identified above.
Section 3.3 Terms of Office of Trustees. The Trustees shall hold office
during the lifetime of this Trust, and until its termination as herein provided;
except that (a) any Trustee may resign his or her trusteeship or may retire by
written instrument signed by him or her and delivered to the other Trustees,
which shall take effect upon such delivery or upon such later date as is
specified therein; (b) any Trustee may be removed at any time by written
instrument, signed by at least two-thirds of the number of Trustees prior to
such removal, specifying the date when such removal shall become effective; (c)
any Trustee who has become physically or mentally incapacitated by reason of
disease or otherwise, or is otherwise unable to serve, may be retired by written
instrument signed by a majority of the other Trustees, specifying the date of
his or her retirement; (d) any Trustee who has died shall be terminated upon the
date of death; (e) a Trustee may be removed at any meeting of the Shareholders
by a vote of the Shareholders owning at least two-thirds of the Outstanding
Shares; and (f) a Trustee shall retire in accordance with any applicable
retirement policies of the Trust, if any, as may be set forth in the By-Laws.
Section 3.4 Vacancies and Appointment of Trustees. In case of the
declination to serve, death, resignation, retirement or removal of a Trustee, or
a Trustee is otherwise unable to serve, or an increase in the number of
Trustees, a vacancy shall occur. Whenever a vacancy in the Board of Trustees
shall occur, until such vacancy is filled, the other Trustees shall have all the
powers hereunder and the certification of the other Trustees of such vacancy
shall be conclusive. In the case of an existing vacancy, the remaining Trustees
may fill such vacancy by appointing such other person as they in their
discretion shall see fit, or may leave such vacancy unfilled or may reduce the
number of Trustees to not less than two Trustees. Such appointment shall be
evidenced by a written instrument signed by a majority of the Trustees in office
or by resolution of the Trustees, duly adopted, which shall be recorded in the
minutes of a meeting of the Trustees, whereupon the appointment shall take
effect.
An appointment of a Trustee may be made by the Trustees then
in office in anticipation of a vacancy to occur by reason of retirement,
resignation, or removal of a Trustee, or an increase in number of Trustees
effective at a later date, provided that said appointment shall become effective
only at the time or after the expected vacancy occurs. As soon as any Trustee
appointed pursuant to this Section 3.4 or elected by the Shareholders shall have
accepted the Trust and agreed in writing to be bound by the terms of the
Agreement, the Trust estate shall vest in the new Trustee or Trustees, together
with the continuing Trustees, without any further act or conveyance, and he or
she shall be deemed a Trustee hereunder.
Section 3.5 Effect of Death, Resignation, etc. of a Trustee. The
declination to serve, death, resignation, retirement, removal, incapacity, or
inability of the Trustees, or any one of them, shall not operate to terminate
the Trust or to revoke any existing agency created pursuant to the terms of this
Agreement.
Section 3.6 Ownership of Assets of the Trust. The assets of the Trust
and of each Portfolio thereof shall be held separate and apart from any assets
now or hereafter held in any capacity, other than as Trustee hereunder, by the
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Trustees or any successor Trustees. Legal title in all of the assets of the
Trust and the right to conduct any business shall at all times be considered as
vested in the Trustees on behalf of the Trust, except that the Trustees may
cause legal title to any Trust Property to be held by, or in the name of the
Trust, or in the name of any Person as nominee. No Shareholder shall be deemed
to have a severable ownership in any individual asset of the Trust, or belonging
to any Portfolio, or allocable to any Class thereof, or any right of partition
or possession thereof, but each Shareholder shall have, except as otherwise
provided for herein, a proportionate undivided beneficial interest in the Trust
or in assets belonging to the Portfolio (or allocable to the Class) in which the
Shareholder holds Shares. The Shares shall be personal property giving only the
rights specifically set forth in this Agreement or the Delaware Act.
Section 3.7 Outside Businesses; Transactions with Affiliates. Any
Trustee, or Affiliated Person of such Trustee or of the Trust, may engage in or
possess an interest in other business ventures or investments of any nature or
description, whether presently existing or hereafter created, independently or
with others, including ones in competition with the Trust, with no obligation to
offer to the Trust the right to participate therein, and the Trust shall have no
rights by virtue of this Agreement in and to such business or investment or the
income or profits derived from any of them, and the pursuit of any such business
or investment shall not be deemed wrongful or improper. The Trust may transact
business with any Trustee or any Affiliated Person of such Trustee unless
prohibited by applicable provisions of the 1940 Act.
ARTICLE IV
POWERS OF THE TRUSTEES
Section 4.1 Powers. The Trustees in all instances shall act as
principals, and are and shall be free from the control of the Shareholders. The
Trustees shall have full power and authority to do any and all acts and to make
and execute any and all contracts and instruments that they may consider
necessary or appropriate in connection with the management of the Trust. Without
limiting the foregoing and subject to any applicable limitation in this
Agreement or the By-Laws of the Trust, the Trustees shall have power and
authority:
(a) To invest and reinvest cash and other property, and to hold
cash or other property uninvested, without in any event being
bound or limited by any present or future law or custom in
regard to investments by Trustees, and to sell, exchange,
lend, pledge, mortgage, hypothecate, write options on and
lease any or all of the assets of the Trust;
(b) To operate as, and to carry on the business of, an investment
company, and to exercise all the powers necessary and
appropriate to the conduct of such operations;
(c) To borrow money and in this connection issue notes or other
evidence of indebtedness; to secure borrowings by mortgaging,
pledging or otherwise subjecting as security the Trust
Property; to endorse, guarantee, or undertake the performance
of an obligation or engagement of any other Person and to lend
Trust Property;
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(d) To provide for the distribution of Shares either through a
Principal Underwriter in the manner hereafter provided for or
by the Trust itself, or both, or otherwise pursuant to a plan
of distribution of any kind;
(e) To adopt By-Laws not inconsistent with this Agreement
providing for the conduct of the business of the Trust and to
amend and repeal them to the extent that they do not reserve
such right to the Shareholders; such By-Laws shall be deemed
incorporated and included in this Agreement;
(f) To elect and remove such officers and appoint and terminate
such agents as they consider appropriate;
(g) To employ one or more banks, trust companies or companies that
are members of a national securities exchange or such other
domestic or foreign entities as custodians of any assets of
the Trust subject to any conditions set forth in this
Agreement or in the By-Laws;
(h) To retain one or more transfer agents and shareholder
servicing agents;
(i) To set record dates in the manner provided herein or in the
By-Laws;
(j) To delegate such authority as they consider desirable to any
officers of the Trust and to any investment adviser, manager,
administrator, custodian, underwriter or other agent or
independent contractor;
(k) To sell or exchange any or all of the assets of the Trust,
subject to the right of Shareholders, if any, to vote on such
transaction pursuant to Section 6.1;
(l) To vote or give assent, or exercise any rights of ownership,
with respect to stock or other securities or property; and to
execute and deliver proxies and powers of attorney to such
Person or Persons as the Trustees shall deem proper, granting
to such Person or Persons such power and discretion with
relation to securities or property as the Trustee shall deem
proper;
(m) To exercise powers and rights of subscription or otherwise
which in any manner arise out of ownership of securities;
(n) To hold any security or property in a form not indicating any
trust, whether in bearer, book entry, unregistered or other
negotiable form; or either in the name of the Trust or of a
Portfolio or a custodian or a nominee or nominees, subject in
either case to proper safeguards according to the usual
practice of Delaware statutory trusts or investment companies
registered under the 1940 Act;
(o) To establish separate and distinct Portfolios with separately
defined investment objectives and policies and distinct
investment purposes in accordance with the provisions of
Article II hereof and to establish Classes of such Portfolios
having relative rights, powers and duties as they may provide
consistent with this Agreement and applicable law;
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(p) Subject to the provisions of Section 3804 of the Delaware Act,
to allocate assets, liabilities and expenses of the Trust to a
particular Portfolio or to apportion the same between or among
two or more Portfolios, provided that any liabilities or
expenses incurred by a particular Portfolio shall be payable
solely out of the assets belonging to that Portfolio as
provided for in Article II hereof;
(q) To consent to or participate in any plan for the
reorganization, consolidation or merger of any corporation or
concern, any security of which is held in the Trust; to
consent to any contract, lease, mortgage, purchase, or sale of
property by such corporation or concern, and to pay calls or
subscriptions with respect to any security held in the Trust;
(r) To compromise, arbitrate, or otherwise adjust claims in favor
of or against the Trust or any matter in controversy including
claims for taxes;
(s) To declare and pay dividends and make distributions of income
and of capital gains and capital to Shareholders in the manner
hereinafter provided;
(t) To establish, from time to time, a minimum investment for
Shareholders in the Trust or in one or more Portfolios or
Classes, and to require the redemption of the Shares of any
Shareholder whose investment is less than such minimum upon
giving notice to such Shareholder;
(u) To redeem or repurchase Shares as provided for in this
Agreement upon such terms and conditions as the Trustee shall
establish;
(v) To establish one or more committees, to delegate any of the
powers of the Trustees to said committees and to adopt a
committee charter providing for such responsibilities,
membership (including Trustees, officers or other agents of
the Trust therein) and any other characteristics of said
committees as the Trustees may deem proper, each of which
committees may consist of less than the whole number of
Trustees then in office, and may be empowered to act for and
bind the Trustees and the Trust, as if the acts of such
committee were the acts of all the Trustees then in office;
(w) To interpret the investment policies, practices or limitations
of any Portfolios;
(x) To establish a registered office and have a registered agent
in the State of Delaware; and
(y) In general, to carry on any other business in connection with
or incidental to any of the foregoing powers, to do everything
necessary, suitable or proper for the accomplishment of any
purpose or the attainment of any object or the furtherance of
any power hereinbefore set forth, either alone or in
association with others, and to do every other act or thing
incidental or appurtenant to or growing out of or connected
with the aforesaid business or purposes, objects or powers.
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The foregoing clauses shall be construed both as objects and
powers, and the foregoing enumeration of specific powers shall not be held to
limit or restrict in any manner the general powers of the Trustees. Any action
by one or more of the Trustees in their capacity as such hereunder shall be
deemed an action on behalf of the Trust or the applicable Portfolio, and not an
action in an individual capacity.
The Trustees shall not be limited to investing in obligations
maturing before the possible termination of the Trust.
No one dealing with the Trustees shall be under any obligation
to make any inquiry concerning the authority of the Trustees, or to see to the
application of any payments made or property transferred to the Trustees or upon
their order.
Section 4.2 Issuance, Redemption and Repurchase of Shares. The Trustees
shall have the power to issue, sell, repurchase, redeem, retire, cancel,
acquire, hold, resell, reissue, dispose of, and otherwise deal in Shares and,
subject to the provisions set forth in Articles II and VII hereof, to apply to
any such repurchase, redemption, retirement, cancellation or acquisition of
Shares any funds or property of the Trust, or any assets belonging to the
particular Portfolio or any assets allocable to the particular Class, with
respect to which such Shares are issued.
Section 4.3 Action by the Trustees. The Board of Trustees or any
committee thereof shall act by majority vote of those present at a meeting duly
called (including a meeting by telephonic or other electronic means, unless the
1940 Act requires that a particular action be taken only at a meeting of the
Trustees in person) at which a quorum required by the By-Laws is present. Any
action that may be taken by the Board of Trustees or any committee thereof by
majority vote at a meeting duly called and at which a quorum required by the
By-Laws is present, may also be taken by consent in writing or by electronic
transmission of at least 75% of the Trustees or members of the committee, as the
case may be, without a meeting, provided that the writing or writings and
electronic transmission or transmissions, as the case may be, are filed with the
minutes of proceedings of the Board or committee. Consents or waivers in writing
or by electronic transmission of the Trustees may be executed or effected in one
or more counterparts. Any consent or waiver in writing or by electronic
transmission may be provided and delivered to the Trust by any means by which
notice may be given to a Trustee. Subject to the requirements of this Agreement
and the 1940 Act, the Trustees by Majority Trustee Vote may delegate to any
Trustee or Trustees authority to approve particular matters or take particular
actions on behalf of the Trust. For purposes hereof, the term "electronic
transmission" means any form of communication, not directly involving the
physical transmission of paper, that creates a record that may be retained,
retrieved, and reviewed by a recipient thereof, and that may be directly
reproduced in paper form by such a recipient through an automated process, or as
otherwise provided under the Delaware Act.
Section 4.4 Principal Transactions. The Trustees may, on behalf of the
Trust, buy any securities from or sell any securities to, or lend any assets of
the Trust to any Trustee or officer of the Trust or any firm of which any such
Trustee or officer is a member acting as principal, or have any such dealings
with any investment adviser, distributor, administrator or transfer agent for
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the Trust or with any Affiliated Person of such Person; and the Trust may employ
any such Person, or firm or Company in which such Person is an Affiliated
Person, as broker, legal counsel, registrar, investment adviser, distributor,
administrator, transfer agent, dividend disbursing agent, custodian, or in any
capacity upon customary terms, subject in all cases to applicable laws, rules,
and regulations and orders of regulatory authorities.
Section 4.5 Payment of Expenses by the Trust. The Trustees are
authorized to pay or cause to be paid out of the principal or income of the
Trust or any Portfolio, or partly out of the principal and partly out of income,
and to charge or allocate to, between or among such one or more of the
Portfolios (or Classes), as they deem fair, all expenses, fees, charges, taxes
and liabilities incurred or arising in connection with the Trust or Portfolio
(or Class), or in connection with the management thereof, including the
Trustees' compensation and such expenses and charges for the services of the
Trust's officers, employees, investment adviser and manager, administrator,
Principal Underwriter, auditors, counsel, custodian, transfer agent, Shareholder
servicing agent, and such other agents or independent contractors and such other
expenses and charges as the Trustees may deem necessary or proper to incur.
Section 4.6 Trustee Compensation. The Trustees, as such, shall be
entitled to reasonable compensation from the Trust. They may fix the amount of
their compensation. Nothing herein shall in any way prevent the employment of
any Trustee for advisory, management, administrative, legal, accounting,
investment banking, underwriting, brokerage, or investment dealer or other
services and the payment for the same by the Trust.
Section 4.7 Independent or Disinterested Trustee. A Trustee who is not
an "interested person" (as that term is defined under the 1940 Act or any rules
or interpretation thereunder) of the Trust shall be deemed to be independent and
disinterested under the Delaware Act and other applicable Delaware law when
making any determinations or taking any action as a Trustee. Service by a person
as a trustee or a director of one or more trusts, corporations or other entities
of a fund complex shall not be considered in determining whether a trustee is
independent or disinterested under the Delaware Act and other applicable
Delaware law.
ARTICLE V
INVESTMENT ADVISER, PRINCIPAL UNDERWRITER AND
TRANSFER AGENT
Section 5.1 Investment Adviser. The Trustees may in their discretion,
from time to time, enter into an investment advisory or management contract or
contracts with respect to the Trust or any Portfolio whereby the other party or
parties to such contract or contracts shall undertake to furnish the Trustees
with such management, investment advisory, statistical and research facilities
and services and such other facilities and services, if any, and all upon such
terms and conditions, as the Trustees may in their discretion determine.
The Trustees may authorize the investment adviser to employ,
from time to time, one or more sub-advisers to perform such of the acts and
services of the investment adviser, and upon such terms and conditions, as may
be agreed upon among the Trustees, the investment adviser and sub-adviser. Any
references in this Agreement to the investment adviser shall be deemed to
include such sub-advisers, unless the context otherwise requires.
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Section 5.2 Other Service Contracts. The Trustees may authorize the
engagement of a Principal Underwriter, transfer agent, administrator, custodian,
and similar service providers.
Section 5.3 Parties to Contract. Any contract of the character
described in Sections 5.1 and 5.2 may be entered into with any Company, although
one or more of the Trustees or officers of the Trust may be an officer,
director, trustee, shareholder, or member of such other party to the contract.
Section 5.4 Miscellaneous. The fact that (a) any of the Shareholders,
Trustees or officers of the Trust is a shareholder, director, officer, partner,
trustee, employee, manager, adviser, Principal Underwriter or distributor or
agent of or for any Company or of or for any parent or affiliate of any Company,
with which an advisory or administration contract, or Principal Underwriter's or
distributor's contract, or transfer, shareholder servicing, custodian or other
agency contract may have been or may hereafter be made, or that any such
Company, or any parent or affiliate thereof, is a Shareholder or has an interest
in the Trust, or that (b) any Company with which an advisory or administration
contract or Principal Underwriter's or distributor's contract, or transfer,
shareholder servicing, custodian, or other agency contract may have been or may
hereafter be made also has an advisory or administration contract, or Principal
Underwriter's or distributor's contract, or transfer, shareholder servicing,
custodian or other agency contract with one or more other companies, or has
other business or interests, shall not affect the validity of any such contract
or disqualify any Shareholder, Trustee or officer of the Trust from voting upon
or executing the same or create any liability or accountability to the Trust or
its Shareholders.
ARTICLE VI
SHAREHOLDERS' VOTING POWERS AND MEETING
Section 6.1 Voting Powers. The Shareholders shall have power to vote
only to: (a) elect Trustees, provided that a meeting of Shareholders has been
called for that purpose; (b) remove Trustees, provided that a meeting of
Shareholders has been called for that purpose; (c) approve the termination of
the Trust or any Portfolio or Class, provided that the Trustees have called a
meeting of the Shareholders for the purpose of approving any such termination,
unless, as of the date on which the Trustees have determined to so terminate the
Trust or such Portfolio or Class, there are fewer than 100 holders of record of
the Trust or of such terminating Portfolio or Class; (d) approve the sale of all
or substantially all the assets of the Trust or any Portfolio or Class, unless
the primary purpose of such sale is to change the Trust's domicile or form of
organization or form of statutory trust; (e) approve the merger or consolidation
of the Trust or any Portfolio or Class with and into another Company or with and
into any Portfolio or Class of the Trust, unless (i) the primary purpose of such
merger or consolidation is to change the Trust's domicile or form of
organization or form of statutory trust, or (ii) after giving effect to such
merger or consolidation, based on the number of Outstanding Shares as of a date
selected by the Trustees, the Shareholders of the Trust or such Portfolio or
Class will have a majority of the outstanding shares of the surviving Company or
Portfolio or Class thereof, as the case may be; (f) approve any amendment to
this Section 6.1; and (g) approve such additional matters as may be required by
law or as the Trustees, in their sole discretion, shall determine.
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Until Shares are issued, the Trustees may exercise all rights
of Shareholders and may take any action required or permitted by law, this
Agreement or any of the By-Laws of the Trust to be taken by Shareholders.
On any matter submitted to a vote of the Shareholders, all
Shares shall be voted together, except when required by applicable law or when
the Trustees have determined that the matter affects the interests of one or
more Portfolios (or Classes), then only the Shareholders of all such affected
Portfolios (or Classes) shall be entitled to vote thereon. Each whole Share
shall be entitled to one vote as to any matter on which it is entitled to vote,
and each fractional Share shall be entitled to a proportionate fractional vote.
All Shares shall be voted in the aggregate and not by Class; PROVIDED, HOWEVER,
that to the extent Portfolio or Class voting is required by the 1940 Act, or
otherwise directed by the Trustees, as to any such matter, Shares shall be voted
by individual Portfolio or Class. No holder of Shares of any Portfolio or Class
shall be entitled to vote on any acquisition of assets of another Company with
and into the Trust if the consideration for such acquisition consists solely of
the Shares of another Portfolio or Class of the Trust. The vote necessary to
approve any such matter shall be set forth in the By-Laws.
Section 6.2 Additional Voting Powers and Voting Requirements For
Certain Actions. Notwithstanding any other provision of this Agreement, the
Shareholders shall have power to vote to approve any amendment to Article VIII
of this Agreement that would have the effect of reducing the indemnification
provided thereby to Covered Persons or to Shareholders or former Shareholders,
and any repeal or amendment of this sentence, and any such action shall require
the affirmative vote or consent of Shareholders owning at least 66 2/3% of the
Outstanding Shares entitled to vote thereon; PROVIDED, HOWEVER, that any such
amendment or repeal shall be prospective in nature only and neither any
amendment to or repeal of certain provisions of Article VIII nor the adoption of
any provision of this Agreement inconsistent with Article VIII shall eliminate
or reduce the effect of Article VIII in respect of any matter occurring, or any
cause of action, suit or claim that would accrue or arise, prior to such
amendment, repeal or adoption of an inconsistent provision. In addition, the
removal of one or more Trustees by the Shareholders shall require the
affirmative vote or consent of Shareholders owning at least 66 2/3% of the
Outstanding Shares entitled to vote thereon.
The voting requirements set forth in this Section 6.2 shall be
in addition to, and not in lieu of, any vote or consent of the Shareholders
otherwise required by applicable law (including any separate vote by Portfolio
(or Class) that may be required by the 1940 Act or by other applicable law) or
by this Agreement.
ARTICLE VII
DISTRIBUTIONS AND REDEMPTIONS
Section 7.1 Distributions. The Trustees may from time to time declare
and pay dividends and make other distributions with respect to any Portfolio, or
Class thereof, which may be from income, capital gains or capital. The amount of
such dividends or distributions and the payment of them and whether they are in
cash or any other Trust Property shall be wholly in the discretion of the
Trustees. Dividends and other distributions may be paid pursuant to a standing
resolution adopted once or more often as the Trustees determine. All dividends
and other distributions on Shares of a particular Portfolio or Class shall be
16
distributed pro rata to the Shareholders of that Portfolio or Class, as the case
may be, in proportion to the number of Shares of that Portfolio or Class they
held on the record date established for such payment, provided that such
dividends and other distributions on Shares of a Class shall appropriately
reflect Class Expenses and other expenses allocated to that Class. The Trustees
may adopt and offer to Shareholders such dividend reinvestment plans, cash
distribution payment plans, or similar plans as the Trustees deem appropriate.
Section 7.2 Redemptions. Any holder of record of Shares of a particular
Portfolio, or Class thereof, shall have the right to require the Trust to redeem
such holder's Shares, or any portion thereof, subject to such terms and
conditions as are set forth in the registration statement of the Trust in effect
from time to time. The redemption price may in any case or cases be paid wholly
or partly in kind if the Trustees determine that such payment is advisable in
the interest of the remaining Shareholders of the Portfolio or Class thereof for
which the Shares are being redeemed. Subject to the foregoing, the fair value,
selection and quantity of securities or other property so paid or delivered as
all or part of the redemption price may be determined by or under authority of
the Trustees. In no case shall the Trust be liable for any delay of any Person
in transferring securities selected for delivery as all or part of any payment
in kind.
Section 7.3 Redemption of Shares by Trustees. The Trustees may, at
their option, call for the redemption of the Shares of any Person or may refuse
to transfer or issue Shares to any Person to the extent that the same is
necessary to comply with applicable law or advisable to further the purposes for
which the Trust is formed. To the extent permitted by law, the Trustees may
retain the proceeds of any redemption of Shares required by them for payment of
amounts due and owing by a Shareholder to the Trust or any Portfolio.
Section 7.4 Redemption of De Minimis Accounts. If, at any time when a
request for transfer or redemption of Shares of any Portfolio is received by the
Trust or its agent, the value of the Shares of such Portfolio in a Shareholder's
account is less than $1,000.00, or such greater amount as the Trustees in their
discretion shall have determined in accordance with Section 4.1(t), after giving
effect to such transfer or redemption and upon giving 30 days' notice to the
Shareholder, the Trust may cause the remaining Shares of such Portfolio in such
Shareholder's account to be redeemed, subject to such terms and conditions as
are set forth in the registration statement of the Trust in effect from time to
time.
ARTICLE VIII
LIMITATION OF LIABILITY AND INDEMNIFICATION
Section 8.1 Limitation of Liability. A Trustee or officer, when acting
in such capacity, shall not be personally liable to any Person for any act,
omission or obligation of the Trust or any Trustee or officer; PROVIDED,
HOWEVER, that nothing contained herein or in the Delaware Act shall protect any
Trustee or officer against any liability to the Trust or to Shareholders to
which he would otherwise be subject by reason of willful misfeasance, bad faith,
gross negligence or reckless disregard of the duties involved in the conduct of
his office with the Trust.
17
Section 8.2 Indemnification of Covered Persons. Every Covered Person
shall be indemnified by the Trust to the fullest extent permitted by the
Delaware Act, the By-Laws and other applicable law.
Section 8.3 Indemnification of Shareholders. In case any Shareholder or
former Shareholder of the Trust shall be held to be personally liable solely by
reason of such Person being or having been a Shareholder of the Trust or any
Portfolio or Class and not because of such Person's acts or omissions or for
some other reason, the Shareholder or former Shareholder (or such Person's
heirs, executors, administrators or other legal representatives, or, in the case
of a corporation or other Company, its corporate or general successor) shall be
entitled, out of the assets belonging to the applicable Portfolio (or allocable
to the applicable Class), to be held harmless from and indemnified against all
loss and expense arising from such liability in accordance with the By-Laws and
applicable law. The Trust, on behalf of the affected Portfolio (or Class), shall
upon request by the Shareholder, assume the defense of any such claim made
against the Shareholder for any act or obligation of that Portfolio (or Class).
ARTICLE IX
MISCELLANEOUS
Section 9.1 Trust Not a Partnership; Taxation. It is hereby expressly
declared that a trust and not a partnership is created hereby. No Trustee
hereunder shall have any power to bind personally either the Trust's officers or
any Shareholder. All Persons extending credit to, contracting with or having any
claim against the Trust or the Trustees shall look only to the assets of the
appropriate Portfolio or, until the Trustees shall have established any separate
Portfolio, of the Trust for payment under such credit, contract or claim; and
neither the Shareholders, the Trustees, nor the Trust's officers nor any of the
agents of the Trustees whether past, present or future, shall be personally
liable therefor.
It is intended that the Trust, or each Portfolio if there is
more than one Portfolio, be classified for income tax purposes as an association
taxable as a corporation, and the Trustees shall do all things that they, in
their sole discretion, determine are necessary to achieve that objective,
including (if they so determine) electing such classifications on Internal
Revenue Form 8832. The Trustees, in their sole discretion and without the vote
or consent of the Shareholders, may amend this Agreement to ensure that this
objective is achieved.
Section 9.2 Trustee's Good Faith Action, Expert Advice, No Bond or
Surety. The exercise by the Trustees of their powers and discretion hereunder in
good faith and with reasonable care under the circumstances then prevailing
shall be binding upon everyone interested. Subject to the provisions of Article
VIII and to Section 9.1, the Trustees shall not be liable for errors of judgment
or mistakes of fact or law. The Trustees may take advice of counsel or other
experts with respect to the meaning and operation of this Agreement, and subject
to the provisions of Article VIII and Section 9.1, shall be under no liability
for any act or omission in accordance with such advice or for failing to follow
such advice. The Trustees shall not be required to give any bond as such, nor
any surety if a bond is obtained.
Section 9.3 Termination of Trust or Portfolio or Class.
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(a) Unless terminated as provided herein, the Trust shall continue
without limitation of time. The Trust may be terminated at any
time by the Trustees by written notice to the Shareholders,
subject to the right of Shareholders, if any, to vote pursuant
to Section 6.1. Any Portfolio or Class may be terminated at
any time by the Trustees by written notice to the Shareholders
of that Portfolio or Class, subject to the right of
Shareholders, if any, to vote pursuant to Section 6.1.
(b) On termination of the Trust or any Portfolio pursuant to
paragraph (a) above,
(i) the Trust or that Portfolio thereafter shall carry on
no business except for the purpose of winding up its
affairs,
(ii) the Trustees shall (A) proceed to wind up the affairs
of the Trust or that Portfolio, and all powers of the
Trustees under this Agreement with respect thereto
shall continue until such affairs have been wound up,
including the powers to fulfill or discharge the
contracts of the Trust or that Portfolio, (B) collect
its assets or the assets belonging thereto, (C) sell,
convey, assign, exchange, or otherwise dispose of all
or any part of those assets to one or more Persons at
public or private sale for consideration that may
consist in whole or in part of cash, securities, or
other property of any kind, (D) discharge or pay its
liabilities, and (E) do all other acts appropriate to
liquidate its business, and
(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 shall distribute the remaining assets
ratably among the Shareholders of the Trust or that
Portfolio.
(c) On termination of any Class pursuant to paragraph (a) above,
(i) the Trust thereafter shall no longer issue Shares of
that Class,
(ii) the Trustees shall do all other acts appropriate to
terminate the Class, and
(iii) the Trustees shall distribute ratably among the
Shareholders of that Class, in cash or in kind, an
amount equal to the Proportionate Interest of that
Class in the net assets of the Portfolio (after
taking into account any Class Expenses or other fees,
expenses, or charges allocable thereto), and in
connection with any such distribution in cash the
Trustees are authorized to sell, convey, assign,
exchange or otherwise dispose of such assets of the
Portfolio of which that Class is a part as they deem
necessary.
(d) On completion of distribution of the remaining assets pursuant
to paragraph (b)(3) above (or the Proportionate Interest of
the Class in the net assets of the Portfolio pursuant to
paragraph (c)(3) above), the Trust or the affected Portfolio
(or Class) shall terminate and the Trustees and the Trust
shall be discharged from all further liabilities and duties
19
hereunder with respect thereto and the rights and interests of
all parties therein shall be cancelled and discharged. On
termination of the Trust, following completion of winding up
of its business, the Trustees shall cause a Certificate of
Cancellation of the Trust's Certificate of Trust to be filed
in accordance with the Delaware Act, which Certificate may be
signed by any one Trustee.
Section 9.4 Sale of Assets; Merger and Consolidation. Subject to
applicable Federal and state law and except as otherwise provided in Section 9.5
below, the Trust or any Portfolio (or Class) may merge or consolidate with any
other Company or may sell, lease, or exchange all or a portion of the Trust
property or Trust property allocated or belonging to such Portfolio (or Class),
including its good will, upon such terms and conditions and for such
consideration when and as authorized by the Trustees, without the vote or
consent of Shareholders. Such transactions may be effected through
share-for-share exchanges, transfers or sale of assets, shareholder in-kind
redemptions and purchases, exchange offers, or any other method approved by the
Trustees.
Section 9.5 Incorporation; Reorganization. Subject to applicable
Federal and state law, the Trustees may without the vote or consent of
Shareholders cause to be organized or assist in organizing a corporation under
the laws of any jurisdiction or any other Company to take over all or a portion
of the Trust property or all or a portion of the Trust property allocated or
belonging to such Portfolio (or Class) 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 or the Trust property allocated or belonging to such
Portfolio (or Class) to any such Company 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 Company, or any
Company in which the Trust or such Portfolio holds or is about to acquire shares
or any other interest. Subject to applicable Federal and state law, the Trustees
may also cause a merger or consolidation between the Trust or any successor
thereto or any Portfolio (or Class) and any such Company. Nothing contained
herein shall be construed as requiring approval of Shareholders for the Trustees
to organize or assist in organizing one or more Companies and selling,
conveying, or transferring the Trust property or a portion of the Trust property
to such organization or entities; PROVIDED, HOWEVER, that the Trustees shall
provide written notice to the affected Shareholders of any transaction whereby,
pursuant to this Section 9.5, the Trust or any Portfolio (or Class) sells,
conveys, or transfers all or a portion of its assets to another entity or merges
or consolidates with another entity. Such transactions may be effected through
share-for-share exchanges, transfers or sale of assets, shareholder in-kind
redemptions and purchases, exchange offers, or any other method approved by the
Trustees.
Section 9.6 Filing of Copies, References, Headings. The original or a
copy of this Agreement or any amendment hereto or any supplemental agreement
shall be kept at the office of the Trust where it may be inspected by any
Shareholder. In this Agreement or in any such amendment or supplemental
agreement, references to this Agreement, and all expressions like "herein,"
"hereof," and "hereunder," shall be deemed to refer to this Agreement as amended
or affected by any such supplemental agreement. Descriptive headings of the
several sections of this Agreement are inserted for convenience only and will
not control or affect the meaning or construction of any of the provisions
hereof. All words used in this Agreement will be construed to be of such gender
or number as the circumstances require. Unless otherwise expressly provided, the
20
word "including" does not limit the preceding words or terms. This Agreement may
be executed in any number of counterparts each of which shall be deemed an
original.
Section 9.7 Governing Law. The Trust and this Agreement, and the
rights, obligations and remedies of the Trustees and Shareholders hereunder, are
to be governed by and construed and administered according to the Delaware Act
and the other laws of the State of Delaware; PROVIDED, HOWEVER, that there shall
not be applicable to the Trust, the Trustees, the Shareholders or this Agreement
(a) the provisions of Section 3540 of Title 12 of the Delaware Code or (b) any
provisions of the laws (statutory or common) of the State of Delaware (other
than the Delaware Act) pertaining to trusts which relate to or regulate (i) the
filing with any court or governmental body or agency of trustee accounts or
schedules of trustee fees and charges, (ii) affirmative requirements to post
bonds for trustees, officers, agents or employees of a trust, (iii) the
necessity for obtaining court or other governmental approval concerning the
acquisition, holding or disposition of real or personal property, (iv) fees or
other sums payable to trustees, officers, agents or employees of a trust, (v)
the allocation of receipts and expenditures to income or principal, (vi)
restrictions or limitations on the permissible nature, amount or concentration
of trust investments or requirements relating to the titling, storage or other
manner of holding of trust assets, or (vii) the establishment of fiduciary or
other standards or responsibilities or limitations on the indemnification, acts
or powers of trustees or other Persons, which are inconsistent with the
limitations of liabilities or authorities and powers of the Trustees or officers
of the Trust set forth or referenced in this Agreement.
The Trust shall be of the type commonly called a "statutory
trust," and without limiting the provisions hereof, the Trust may exercise all
powers which are ordinarily exercised by such a trust under Delaware law. The
Trust specifically reserves the right to exercise any of the powers or
privileges afforded to trusts or actions that may be engaged in by trusts under
the Delaware Act, and the absence of a specific reference herein to any such
power, privilege or action shall not imply that the Trust may not exercise such
power or privilege or take such actions; PROVIDED, HOWEVER, that the exercise of
any such power, privilege or action shall not otherwise violate applicable law.
Section 9.8 Amendments. Except as specifically provided in Section 6.1,
the Trustees may, without any Shareholder vote, amend this Agreement by making
an amendment to this Agreement or to Schedule A, an agreement supplemental
hereto, or an amended and restated trust instrument. Any such amendment, having
been approved by a Majority Trustee Vote, shall become effective, unless
otherwise provided by such Trustees, upon being executed by a duly authorized
officer of the Trust. A certification signed by a duly authorized officer of the
Trust setting forth an amendment to this Agreement and reciting that it was duly
adopted by the Shareholders or by the Trustees as aforesaid, or a copy of this
Agreement, as amended, executed by a majority of the Trustees, or a duly
authorized officer of the Trust, shall be conclusive evidence of such amendment
when lodged among the records of the Trust.
Section 9.9 Provisions in Conflict with Law. The provisions of this
Agreement are severable, and if the Trustees shall determine, with the advice of
counsel, that any of such provisions is in conflict with applicable law the
conflicting provision shall be deemed never to have constituted a part of this
Agreement; PROVIDED, HOWEVER, that such determination shall not affect any of
the remaining provisions of this Agreement or render invalid or improper any
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action taken or omitted prior to such determination. If any provision of this
Agreement shall be held invalid or unenforceable in any jurisdiction, such
invalidity or unenforceability shall attach only to such provision in such
jurisdiction and shall not in any manner affect such provisions in any other
jurisdiction or any other provision of this Agreement in any jurisdiction.
Section 9.10 Shareholders' Right to Inspect Shareholder List. One or
more Persons who together and for at least six months have been Shareholders of
at least 5% of the Outstanding Shares of any Class may present to any officer or
resident agent of the Trust a written request for a list of the Shareholders of
such Class. Within 20 days after such request is made, the Trust shall prepare
and have available on file at its principal office a list for each Class subject
of the request, verified under oath by one of its officers or its transfer agent
or registrar, which sets forth the name and address of each Shareholder and the
number of Shares held of the Class. The rights provided for herein shall not
extend to any Person who is a beneficial owner but not also a record owner of
Shares of the Trust.
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IN WITNESS WHEREOF, the undersigned, being all of the Trustees of the
Trust, have executed this instrument this 27 day of May, 2004.
/s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
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▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
/s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇▇
-----------------------
▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇▇
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SCHEDULE A
OLD MUTUAL ADVISOR FUNDS
PORTFOLIOS AND CLASSES THEREOF
CLASSES OF
PORTFOLIO EACH PORTFOLIO
----------------------------------------------------- --------------
OM Asset Allocation Conservative Portfolio Class A
Class C
Class I
OM Asset Allocation Balanced Portfolio Class A
Class C
Class I
OM Asset Allocation Moderate Portfolio Class A
Class C
Class I
OM Asset Allocation Growth Portfolio Class A
Class C
Class I
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