EX-99(a)(1)
AGREEMENT AND DECLARATION OF TRUST
of
J&B Funds
a Delaware Business Trust
TABLE OF CONTENTS
Page
ARTICLE I. Name and Definitions 2
Section 1. Name 2
Section 2. Registered Agent and Registered Office;
Principal Place of Business 2
(a) Registered Agent and Registered Office 2
(b) Principal Place of Business 2
Section 3. Definitions 2
(a) "1940 Act" 2
(b) "Affiliate" 2
(c) "Board of Trustees" 2
(d) "By-Laws" 2
(e) "Certificate of Trust" 2
(f) "Code" 2
(g) "Commission" 3
(h) "DBTA" 3
(i) "Declaration of Trust" 3
(j) "General Liabilities" 3
(k) "Interested Person" 3
(l) "Investment Adviser" or "Adviser" 3
(m) "National Financial Emergency" 3
(n) "Person" 3
(o) "Principal Underwriter" 3
(p) "Series" 3
(q) "Shares" 3
(r) "Shareholder" 4
(s) "Trust" 4
(t) "Trust Property" 4
(u) "Trustee" or "Trustees" 4
ARTICLE II. Purpose of Trust 4
ARTICLE III. Shares 8
Section 1. Division of Beneficial Interest 8
Section 2. Ownership of Shares 9
Section 3. Investments in the Trust 10
Section 4. Status of Shares and Limitation of Personal
Liability 10
Section 5. Power of Board of Trustees to Change
Provisions Relating to Shares 10
Section 6. Establishment and Designation of Series 11
(a) Assets Held with Respect to a Particular
Series 12
(b) Liabilities Held with Respect to a Particular
Series 12
(c) Dividends, Distributions, Redemptions and
▇▇▇▇▇▇▇▇▇▇▇ ▇▇
(▇) Voting 13
(e) Equality 14
(f) Fractions 14
(g) Exchange Privilege 14
(h) Combination of Series 14
(i) Elimination of Series 14
Section 7. Indemnification of Shareholders 14
ARTICLE IV. The Board of Trustees 15
Section 1. Number, Election and Tenure 15
Section 2. Effect of Death, Resignation, Removal, etc.
of a Trustee 16
Section 3. Powers 16
Section 4. Payment of Expenses by the Trust 18
Section 5. Payment of Expenses by Shareholders 18
Section 6. Ownership of Trust Property 18
Section 7. Service Contracts 18
ARTICLE V. Shareholders' Voting Powers and Meetings 20
Section 1. Voting Powers 20
Section 2. Meetings 20
Section 3. Quorum and Required Vote 21
Section 4. Shareholder Action by Written Consent
without a Meeting 21
Section 5. Record Dates 21
Section 6. Additional Provisions 22
ARTICLE VI. Net Asset Value, Distributions and Redemptions 22
Section 1. Determination of Net Asset Value, Net
Income and Distributions 22
Section 2. Redemptions at the Option of a Shareholder 23
Section 3. Redemptions at the Option of the Trust 24
ARTICLE VII. Compensation and Limitation of Liability of
Officers and Trustees 25
Section 1. Compensation 25
Section 2. Indemnification and Limitation of Liability 25
Section 3. Officers and Trustees' Good Faith Action,
Expert Advice, No Bond or Surety 26
Section 4. Insurance 26
ARTICLE VIII. Miscellaneous 26
Section 1. Liability of Third Persons Dealing with
Trustees 26
Section 2. Dissolution of Trust or Series 26
Section 3. Merger and Consolidation; Conversion 27
(a) Merger and Consolidation. 27
(b) Conversion 27
Section 4. Reorganization 28
Section 5. Amendments 29
Section 6. Filing of Copies, References, Headings 29
Section 7. Applicable Law 29
Section 8. Provisions in Conflict with Law or
Regulations 30
Section 9. Business Trust Only 30
Section 10. Use of the Names "J&B" and "▇▇▇▇▇ &
Babson" 30
AGREEMENT AND DECLARATION OF TRUST
OF
J&B FUNDS
AGREEMENT AND DECLARATION OF TRUST made this 4th day of
August, 2000, by the Trustees hereunder, and by the holders of
shares of beneficial interest to be issued hereunder as
hereinafter provided. This Agreement and Declaration of Trust
shall be effective upon the filing of the Certificate of Trust in
the office of the Secretary of State of the State of Delaware.
W I T N E S S E T H:
WHEREAS this Trust has been formed to carry on the business
of an investment company; and
WHEREAS this Trust is authorized to issue its shares of
beneficial interest in separate Series, and to issue classes of
Shares of any Series or divide Shares of any Series into two or
more classes, all in accordance with the provisions hereinafter
set forth; and
WHEREAS the Trustees have agreed to manage all property
coming into their hands as trustees of a Delaware business trust
in accordance with the provisions of the Delaware Business Trust
Act (12 Del. C. 3801, et seq.), as from time to time amended and
including any successor statute of similar import (the "DBTA"),
and the provisions hereinafter set forth.
NOW, THEREFORE, the Trustees hereby declare that they will
hold all cash, securities and other assets which they may from
time to time acquire in any manner as Trustees hereunder IN TRUST
to manage and dispose of the same upon the following terms and
conditions for the benefit of the holders from time to time of
shares of beneficial interest in this Trust and the Series
created hereunder as hereinafter set forth.
ARTICLE I.
Name and Definitions
Section 1. Name. This trust shall be known as "J&B Funds"
and the Trustees shall conduct the business of the Trust under
that name, or any other name as they may from time to time
determine.
Section 2. Registered Agent and Registered Office;
Principal Place of Business.
(a) Registered Agent and Registered Office. The name of
the registered agent of the Trust and the address of the
registered office of the Trust are as set forth on the
Certificate of Trust.
(b) Principal Place of Business. The principal place of
business of the Trust is BMA Tower, ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇
▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇ or such other location within or outside of
the State of Delaware as the Board of Trustees may determine from
time to time.
Section 3. Definitions. Whenever used herein, unless
otherwise required by the context or specifically provided:
(a) "1940 Act" shall mean the Investment Company Act of
1940 and the rules and regulations thereunder, all as adopted or
amended from time to time;
(b) "Affiliate" shall have the meaning given to it in
Section 2(a)(3) of the 1940 Act when used with reference to a
specified Person.
(c) "Board of Trustees" shall mean the governing body of
the Trust, which is comprised of the Trustees of the Trust;
(d) "By-Laws" shall mean the By-Laws of the Trust, as
amended from time to time in accordance with Article X of the By-
Laws, and incorporated herein by reference;
(e) "Certificate of Trust" shall mean the certificate of
trust filed with the Office of the Secretary of State of the
State of Delaware as required under the DBTA to form the Trust;
(f) "Code" shall mean the Internal Revenue Code of 1986, as
amended, and the rules and regulations thereunder;
(g) "Commission" shall have the meaning given it in Section
2(a)(7) of the 1940 Act;
(h) "DBTA" shall mean the Delaware Business Trust Act, (12
Del. C. 3801, et seq.), as amended from time to time;
(i) "Declaration of Trust" shall mean this Agreement and
Declaration of Trust, as amended or restated from time to time;
(j) "General Liabilities" shall have the meaning given it
in Article III, Section 6(b) of this Declaration Trust;
(k) "Interested Person" shall have the meaning given it in
Section 2(a)(19) of the 1940 Act;
(l) "Investment Adviser" or "Adviser" shall mean a party
furnishing services to the Trust pursuant to any contract
described in Article IV, Section 7(a) hereof;
(m) "National Financial Emergency" shall mean the whole or
any part of any period set forth in Section 22(e) of the 1940
Act. The Board of Trustees may, in its discretion, declare that
the suspension relating to a national financial emergency shall
terminate, as the case may be, on the first business day on which
the New York Stock Exchange shall have reopened or the period
specified in Section 22(e) of the 1940 Act shall have expired (as
to which, in the absence of an official ruling by the Commission,
the determination of the Board of Trustees shall be conclusive);
(n) "Person" shall include a natural person, partnership,
limited partnership, trust, estate, association, corporation,
custodian, nominee or any other individual or entity in its own
or any representative capacity;
(o) "Principal Underwriter" shall have the meaning given to
it in Section 2(a)(29) of the 1940 Act;
(p) "Series" shall refer to each Series of Shares
established and designated under or in accordance with the
provisions of Article III and shall mean an entity such as that
described in Section 18(f)(2) of the 1940 Act, and subject to
Rule 18f-2 thereunder;
(q) "Shares" shall mean the outstanding shares of
beneficial interest into which the beneficial interest in the
Trust shall be divided from time to time, and shall include
fractional and whole shares;
(r) "Shareholder" shall mean a record owner of Shares;
(s) "Trust" shall refer to the Delaware business trust
established by this Declaration of Trust, as amended from time to
time;
(t) "Trust Property" shall mean any and all property, real
or personal, tangible or intangible, which is owned or held by or
for the account of the Trust or one or more of any Series,
including, without limitation, the rights referenced in Article
VIII, Section 2 hereof;
(u) "Trustee" or "Trustees" shall refer to each signatory
to this Declaration of Trust as a trustee, so long as such
signatory continues in office in accordance with the terms
hereof, and all other Persons who may, from time to time, be duly
elected or appointed, qualified and serving on the Board of
Trustees in accordance with the provisions hereof. Reference
herein to a Trustee or the Trustees shall refer to such Person or
Persons in their capacity as Trustees hereunder.
ARTICLE II.
Purpose of Trust
The purpose of the Trust is to conduct, operate and carry on
the business of a registered management investment company
registered under the 1940 Act through one or more Series
investing primarily in securities and, in addition to any
authority given by law, to exercise all of the powers and to do
any and all of the things as fully and to the same extent as any
private corporation organized for profit under the general
corporation law of the State of Delaware, now or hereafter in
force, including, without limitation, the following powers:
(a) To invest and reinvest cash, to hold cash uninvested,
and to subscribe for, invest in, reinvest in, purchase or
otherwise acquire, own, hold, pledge, sell, assign, mortgage,
transfer, exchange, distribute, write options on, lend or
otherwise deal in or dispose of contracts for the future
acquisition or delivery of fixed income or other securities, and
securities or property of every nature and kind, including,
without limitation, all types of bonds, debentures, stocks,
preferred stocks, negotiable or non-negotiable instruments,
obligations, evidences of indebtedness, certificates of deposit
or indebtedness, commercial paper, repurchase agreements,
bankers' acceptances, and other securities of any kind, issued,
created, guaranteed, or sponsored by any and all Persons,
including, without limitation, states, territories, and
possessions of the United States and the District of Columbia and
any political subdivision, agency, or instrumentality thereof,
any foreign government or any political subdivision of the U.S.
Government or any foreign government, or any international
instrumentality, or by any bank or savings institution, or by any
corporation or organization organized under the laws of the
United States or of any state, territory, or possession thereof,
or by any corporation or organization organized under any foreign
law, or in "when issued" contracts for any such securities, to
change the investments of the assets of the Trust;
(b) To exercise any and all rights, powers and privileges
with reference to or incident to ownership or interest, use and
enjoyment of any of such securities and other instruments or
property of every kind and description, including, but without
limitation, the right, power and privilege to own, vote, hold,
purchase, sell, negotiate, assign, exchange, lend, transfer,
mortgage, hypothecate, lease, pledge or write options with
respect to or otherwise deal with, dispose of, use, exercise or
enjoy any rights, title, interest, powers or privileges under or
with reference to any of such securities and other instruments or
property, the right to consent and otherwise act with respect
thereto, with power to designate one or more Persons, to exercise
any of said rights, powers, and privileges in respect of any of
said instruments, and to do any and all acts and things for the
preservation, protection, improvement and enhancement in value of
any of such securities and other instruments or property;
(c) To sell, exchange, lend, pledge, mortgage, hypothecate,
lease or write options with respect to or otherwise deal in any
property rights relating to any or all of the assets of the Trust
or any Series, subject to any requirements of the 1940 Act;
(d) To vote or give assent, or exercise any rights of
ownership, with respect to stock or other securities or property;
and to execute and deliver proxies or powers of attorney to such
person or persons as the Trustees shall deem proper, granting to
such person or persons such power and discretion with relation to
securities or property as the Trustees shall deem proper;
(e) To exercise powers and right of subscription or
otherwise which in any manner arise out of ownership of
securities;
(f) To hold any security or property in a form not
indicating that it is trust property, whether in bearer,
unregistered or other negotiable form, or in its own name or in
the name of a custodian or subcustodian or a nominee or nominees
or otherwise or to authorize the custodian or a subcustodian or a
nominee or nominees to deposit the same in a securities
depository, subject in each case to proper safeguards according
to the usual practice of investment companies or any rules or
regulations applicable thereto;
(g) To consent to, or participate in, any plan for the
reorganization, consolidation or merger of any corporation or
issuer of any security which is held in the Trust; to consent to
any contract, lease, mortgage, purchase or sale of property by
such corporation or issuer; and to pay calls or subscriptions
with respect to any security held in the Trust;
(h) To join with other security holders in acting through a
committee, depositary, voting trustee or otherwise, and in that
connection to deposit any security with, or transfer any security
to, any such committee, depositary or trustee, and to delegate to
them such power and authority with relation to any security
(whether or not so deposited or transferred) as the Trustees
shall deem proper, and to agree to pay, and to pay, such portion
of the expenses and compensation of such committee, depositary or
trustee as the Trustees shall deem proper;
(i) To compromise, arbitrate or otherwise adjust claims in
favor of or against the Trust or any matter in controversy,
including but not limited to claims for taxes;
(j) To enter into joint ventures, general or limited
partnerships and any other combinations or associations;
(k) To endorse or guarantee the payment of any notes or
other obligations of any Person; to make contracts of guaranty or
suretyship, or otherwise assume liability for payment thereof;
(l) To purchase and pay for entirely out of Trust Property
such insurance as the Trustees may deem necessary or appropriate
for the conduct of the business, including, without limitation,
insurance policies insuring the assets of the Trust or payment of
distributions and principal on its portfolio investments, and
insurance policies insuring the Shareholders, Trustees, officers,
employees, agents, Investment Advisers, Principal Underwriters,
or independent contractors of the Trust, individually against all
claims and liabilities of every nature arising by reason of
holding Shares, holding, being or having held any such office or
position, or by reason of any action alleged to have been taken
or omitted by any such Person as Trustee, officer, employee,
agent, Investment Adviser, Principal Underwriter, or independent
contractor, to the fullest extent permitted by this Declaration
of Trust, the By-laws and by applicable law; and
(m) To adopt, establish and carry out pension, profit-
sharing, share bonus, share purchase, savings, thrift and other
retirement, incentive and benefit plans, trusts and provisions,
including the purchasing of life insurance and annuity contracts
as a means of providing such retirement and other benefits, for
any or all of the Trustees, officers, employees and agents of the
Trust.
(n) To purchase or otherwise acquire, own, hold, sell,
negotiate, exchange, assign, transfer, mortgage, pledge or
otherwise deal with, dispose of, use, exercise or enjoy, property
of all kinds.
(o) To buy, sell, mortgage, encumber, hold, own, exchange,
rent or otherwise acquire and dispose of, and to develop,
improve, manage, subdivide, and generally to deal and trade in
real property, improved and unimproved, and wheresoever situated;
and to build, erect, construct, alter and maintain buildings,
structures, and other improvements on real property.
(p) To borrow or raise moneys for any of the purposes of
the Trust, and to mortgage or pledge the whole or any part of the
property and franchises of the Trust, real, personal, and mixed,
tangible or intangible, and wheresoever situated.
(q) To enter into, make and perform contracts and
undertakings of every kind for any lawful purpose, without limit
as to amount.
(r) To issue, purchase, sell and transfer, reacquire, hold,
trade and deal in Shares, bonds, debentures and other securities,
instruments or other property of the Trust, from time to time, to
such extent as the Board of Trustees shall, consistent with the
provisions of this Declaration of Trust, determine; and to
repurchase, re-acquire and redeem, from time to time, its Shares
or, if any, its bonds, debentures and other securities.
The Trust shall not be limited to investing in obligations
maturing before the possible dissolution of the Trust or one or
more of its Series. The Trust shall not in any way be bound or
limited by any present or future law or custom in regard to
investment by fiduciaries. Neither the Trust nor the Trustees
shall be required to obtain any court order to deal with any
assets of the Trust or take any other action hereunder.
The foregoing clauses shall each be construed as purposes,
objects and powers, and it is hereby expressly provided that the
foregoing enumeration of specific purposes, objects and powers
shall not be held to limit or restrict in any manner the powers
of the Trust, and that they are in furtherance of, and in
addition to, and not in limitation of, the general powers
conferred upon the Trust by the DBTA and the other laws of the
State of Delaware or otherwise; nor shall the enumeration of one
thing be deemed to exclude another, although it be of like
nature, not expressed.
ARTICLE III.
Shares
Section 1. Division of Beneficial Interest. The beneficial
interest in the Trust shall at all times be divided into Shares,
all without par value. The number of Shares authorized hereunder
is unlimited. The Board of Trustees may authorize the division
of Shares into separate and distinct Series and the division of
any Series into separate classes of Shares. The different Series
and classes shall be established and designated, and the
variations in the relative rights and preferences as between the
different Series and classes shall be fixed and determined by the
Board of Trustees without the requirement of Shareholder
approval. If no separate Series or classes shall be established,
the Shares shall have the rights and preferences provided for
herein and in Article III, Section 6 hereof to the extent
relevant and not otherwise provided for herein, and all
references to Series and classes shall be construed (as the
context may require) to refer to the Trust. The fact that a
Series shall have initially been established and designated
without any specific establishment or designation of classes
(i.e., that all Shares of such Series are initially of a single
class) shall not limit the authority of the Board of Trustees to
establish and designate separate classes of said Series. The
fact that a Series shall have more than one established and
designated class, shall not limit the authority of the Board of
Trustees to establish and designate additional classes of said
Series, or to establish and designate separate classes of the
previously established and designated classes.
The Board of Trustees shall have the power to issue Shares
of the Trust, or any Series or class thereof, from time to time
for such consideration (but not less than the net asset value
thereof) and in such form as may be fixed from time to time
pursuant to the direction of the Board of Trustees.
The Board of Trustees may hold as treasury shares, reissue
for such consideration and on such terms as they may determine,
or cancel, at their discretion from time to time, any Shares of
any Series reacquired by the Trust. The Board of Trustees may
classify or reclassify any unissued Shares or any Shares
previously issued and reacquired of any Series or class into one
or more Series or classes that may be established and designated
from time to time. Notwithstanding the foregoing, the Trust and
any Series thereof may acquire, hold, sell and otherwise deal in,
for purposes of investment or otherwise, the Shares of any other
Series of the Trust or Shares of the Trust, and such Shares shall
not be deemed treasury shares or cancelled.
Subject to the provisions of Section 6 of this Article III,
each Share shall have voting rights as provided in Article V
hereof, and the Shareholders of any Series shall be entitled to
receive dividends and distributions, when, if and as declared
with respect thereto in the manner provided in Article IV,
Section 3 hereof. No Share shall have any priority or preference
over any other Share of the same Series or class with respect to
dividends or distributions paid in the ordinary course of
business or distributions upon dissolution of the Trust or of
such Series or class made pursuant to Article VIII, Section 2
hereof. All dividends and distributions shall be made ratably
among all Shareholders of a particular class of Series from the
Trust Property held with respect to such Series according to the
number of Shares of such class of such Series held of record by
such Shareholders on the record date for any dividend or
distribution. Shareholders shall have no preemptive or other
right to subscribe to new or additional Shares or other
securities issued by the Trust or any Series. The Trustees may
from time to time divide or combine the Shares of any particular
Series into a greater or lesser number of Shares of that Series.
Such division or combination may not materially change the
proportionate beneficial interests of the Shares of that Series
in the Trust Property held with respect to that Series or
materially affect the rights of Shares of any other Series.
Any Trustee, officer or other agent of the Trust, and any
organization in which any such Person is interested, may acquire,
own, hold and dispose of Shares of the Trust to the same extent
as if such Person were not a Trustee, officer or other agent of
the Trust; and the Trust may issue and sell or cause to be issued
and sold and may purchase Shares from any such Person or any such
organization subject only to the general limitations,
restrictions or other provisions applicable to the sale or
purchase of such Shares generally.
Section 2. Ownership of Shares. The ownership of Shares
shall be recorded on the books of the Trust kept by the Trust or
by a transfer or similar agent for the Trust, which books shall
be maintained separately for the Shares of each Series and class
thereof that has been established and designated. No
certificates certifying the ownership of Shares shall be issued
except as the Board of Trustees may otherwise determine from time
to time. The Board of Trustees may make such rules not
inconsistent with the provisions of the 1940 Act as 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 who
are the Shareholders of each Series or class thereof and as to
the number of Shares of each Series or class thereof held from
time to time by each such Shareholder.
Section 3. Investments in the Trust. Investments may be
accepted by the Trust from such Persons, at such times, on such
terms, and for such consideration as the Board of Trustees may,
from time to time, authorize. Each investment shall be credited
to the individual Shareholder's account in the form of full and
fractional Shares of the Trust, in such Series or class as the
purchaser may select, at the net asset value per Share next
determined for such Series or class after receipt of the
investment; provided, however, that the Principal Underwriter
may, pursuant to its agreement with the Trust, impose a sales
charge upon investments in the Trust.
Section 4. Status of Shares and Limitation of Personal
Liability. Shares shall be deemed to be personal property giving
to Shareholders only the rights provided in this Declaration of
Trust and under applicable law. 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 death of a Shareholder during the existence of
the Trust shall not operate to dissolve the Trust or any Series,
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 or any Series, but entitles such
representative only to the rights of said deceased Shareholder
under this Declaration of Trust. Ownership of Shares shall not
entitle the Shareholder to any title in or to the whole or any
part of the Trust Property or right to call for a partition or
division of the same or for an accounting, nor shall the
ownership of Shares constitute the Shareholders as partners.
Neither the Trust nor the Trustees, nor any officer, employee or
agent of the Trust, shall have any power to bind personally any
Shareholder, nor, except as specifically provided herein, to call
upon any Shareholder for the payment of any sum of money or
assessment whatsoever other than such as the Shareholder may at
any time personally agree to pay. All Shares when issued on the
terms determined by the Board of Trustees shall be fully paid and
nonassessable. As provided in the DBTA, Shareholders of the
Trust shall be entitled to the same limitation of personal
liability extended to stockholders of a private corporation
organized for profit under the general corporation law of the
State of Delaware.
Section 5. Power of Board of Trustees to Change Provisions
Relating to Shares. Notwithstanding any other provisions of this
Declaration of Trust and without limiting the power of the Board
of Trustees to amend this Declaration of Trust or the Certificate
of Trust as provided elsewhere herein, the Board of Trustees
shall have the power to amend this Declaration of Trust, or the
Certificate of Trust, at any time and from time to time, in such
manner as the Board of Trustees may determine in its sole
discretion, without the need for Shareholder action, so as to add
to, delete, replace or otherwise modify any provisions relating
to the Shares contained in this Declaration of Trust, provided
that before adopting any such amendment without Shareholder
approval, the Board of Trustees shall determine that it is
consistent with the fair and equitable treatment of all
Shareholders and that Shareholder approval is not otherwise
required by the 1940 Act or other applicable law. If Shares have
been issued, Shareholder approval shall be required to adopt any
amendments to this Declaration of Trust which would adversely
affect to a material degree the rights and preferences of the
Shares of any Series or class already issued; provided, however,
that in the event that the Board of Trustees determines that the
Trust shall no longer be operated as an investment company in
accordance with the provisions of the 1940 Act, the Board of
Trustees may adopt such amendments to this Declaration of Trust
to delete those terms the Board of Trustees identifies as being
required by the 1940 Act.
Subject to the foregoing Paragraph, the Board of Trustees
may amend the Declaration of Trust to amend any of the provisions
set forth in paragraphs (a) through (i) of Section 6 of this
Article III.
The Board of Trustees shall have the power, in its
discretion, to make such elections as to the tax status of the
Trust as may be permitted or required under the Code as presently
in effect or as amended, without the vote of any Shareholder.
Section 6. Establishment and Designation of Series. The
establishment and designation of any Series or class of Shares
shall be effective upon the resolution by a majority of the then
Board of Trustees, adopting a resolution which sets forth such
establishment and designation and the relative rights and
preferences of such Series or class. Each such resolution shall
be incorporated herein by reference upon adoption.
Each Series shall be separate and distinct from any other
Series and shall maintain separate and distinct records on the
books of the Trust, and the assets and liabilities belonging to
any such Series shall be held and accounted for separately from
the assets and liabilities of the Trust or any other Series.
Shares of each Series or class established pursuant to this
Section 6, unless otherwise provided in the resolution
establishing such Series, shall have the following relative
rights and preferences:
(a) Assets Held with Respect to a Particular Series. All
consideration received by the Trust for the issue or sale of
Shares of a particular Series, together with all assets in which
such consideration is invested or reinvested, all income,
earnings, profits, and proceeds thereof from whatever source
derived, including, without limitation, any proceeds derived from
the sale, exchange or liquidation of such assets, and any funds
or payments derived from any reinvestment of such proceeds in
whatever form the same may be, shall irrevocably be held with
respect to that Series for all purposes, subject only to the
rights of creditors with respect to that Series, and shall be so
recorded upon the books of account of the Trust. Such
consideration, assets, income, earnings, profits and proceeds
thereof, from whatever source derived, including, without
limitation, any proceeds derived from the sale, exchange or
liquidation of such assets, and any funds or payments derived
from any reinvestment of such proceeds, in whatever form the same
may be, are herein referred to as "assets held with respect to"
that Series. In the event that there are any assets, income,
earnings, profits and proceeds thereof, funds or payments which
are not readily identifiable as assets held with respect to any
particular Series (collectively "General Assets"), the Board of
Trustees shall allocate such General Assets to, between or among
any one or more of the Series in such manner and on such basis as
the Board of Trustees, in its sole discretion, deems fair and
equitable, and any General Asset so allocated to a particular
Series shall be held with respect to that Series. Each such
allocation by the Board of Trustees shall be conclusive and
binding upon the Shareholders of all Series for all purposes.
(b) Liabilities Held with Respect to a Particular Series.
The assets of the Trust held with respect to each particular
Series shall be charged against the liabilities of the Trust held
with respect to that Series and all expenses, costs, charges and
reserves attributable to that Series, and any liabilities,
expenses, costs, charges and reserves of the Trust which are not
readily identifiable as being held with respect to any particular
Series (collectively "General Liabilities") shall be allocated
and charged by the Board of Trustees to and among any one or more
of the Series in such manner and on such basis as the Board of
Trustees in its sole discretion deems fair and equitable. The
liabilities, expenses, costs, charges, and reserves so charged to
a Series are herein referred to as "liabilities held with respect
to" that Series. Each allocation of liabilities, expenses,
costs, charges and reserves by the Board of Trustees shall be
conclusive and binding upon the Shareholders of all Series for
all purposes. All Persons who have extended credit which has
been allocated to a particular Series, or who have a claim or
contract which has been allocated to any particular Series, shall
look, and shall be required by contract to look exclusively, to
the assets of that particular Series for payment of such credit,
claim, or contract. In the absence of an express contractual
agreement so limiting the claims of such creditors, claimants and
contract providers, each creditor, claimant and contract provider
will be deemed nevertheless to have impliedly agreed to such
limitation unless an express provision to the contrary has been
incorporated in the written contract or other document
establishing the claimant relationship.
Subject to the right of the Board of Trustees in its
discretion to allocate General Liabilities as provided herein,
the debts, liabilities, obligations and expenses incurred,
contracted for or otherwise existing with respect to a particular
Series, whether such Series is now authorized and existing
pursuant to this Declaration of Trust or is hereafter authorized
and existing pursuant to this Declaration of Trust, shall be
enforceable against the assets held with respect to that Series
only, and not against the assets of any other Series or the Trust
generally and none of the debts, liabilities, obligations and
expenses incurred, contracted for or otherwise existing with
respect to the Trust generally or any other Series thereof shall
be enforceable against the assets held with respect to such
Series. Notice of this limitation on liabilities between and
among Series shall be set forth in the Certificate of Trust of
the Trust (whether originally or by amendment) as filed or to be
filed in the Office of the Secretary of State of the State of
Delaware pursuant to the DBTA, and upon the giving of such notice
in the Certificate of Trust, the statutory provisions of Section
3804 of the DBTA relating to limitations on liabilities between
and among Series (and the statutory effect under Section 3804 of
setting forth such notice in the Certificate of Trust) shall
become applicable to the Trust and each Series.
(c) Dividends, Distributions, Redemptions and Repurchases.
Notwithstanding any other provisions of this Declaration of
Trust, including, without limitation, Article VI, no dividend or
distribution including, without limitation, any distribution paid
upon dissolution of the Trust or of any Series with respect to,
nor any redemption or repurchase of, the Shares of any Series or
class shall be effected by the Trust other than from the assets
held with respect to such Series, nor, except as specifically
provided in Section 7 of this Article III, shall any Shareholder
of any particular Series otherwise have any right or claim
against the assets held with respect to any other Series or the
Trust generally except to the extent that such Shareholder has
such a right or claim hereunder as a Shareholder of such other
Series. The Board of Trustees shall have full discretion, to the
extent not inconsistent with the 1940 Act, to determine which
items shall be treated as income and which items as capital; and
each such determination and allocation shall be conclusive and
binding upon the Shareholders.
(d) Voting. All Shares of the Trust entitled to vote on a
matter shall vote on the matter, separately by Series and, if
applicable, by class, subject to: (1) where the 1940 Act requires
all Shares of the Trust to be voted in the aggregate without
differentiation between the separate Series or classes, then all
of the Trust's Shares shall vote in the aggregate; and (2) if any
matter affects only the interests of some but not all Series or
classes, then only the Shareholders of such affected Series or
classes shall be entitled to vote on the matter.
(e) Equality. All Shares of each particular Series shall
represent an equal proportionate undivided beneficial interest in
the assets held with respect to that Series (subject to the
liabilities held with respect to that Series and such rights and
preferences as may have been established and designated with
respect to classes of Shares within such Series), and each Share
of any particular Series shall be equal to each other Share of
that Series (subject to the rights and preferences with respect
to separate classes of such Series).
(f) Fractions. Any fractional Share of a Series shall
carry proportionately all the rights and obligations of a whole
Share of that Series, including rights with respect to voting,
receipt of dividends and distributions, redemption of Shares and
dissolution of the Trust or that Series.
(g) Exchange Privilege. The Board of Trustees shall have
the authority to provide that the holders of Shares of any Series
shall have the right to exchange said Shares for Shares of one or
more other Series in accordance with such requirements and
procedures as may be established by the Board of Trustees, and in
accordance with the 1940 Act and the rules and regulations
thereunder.
(h) Combination of Series. The Board of Trustees shall
have the authority, without the approval of the Shareholders of
any Series unless otherwise required by applicable law, to
combine the assets and liabilities held with respect to any two
or more Series into assets and liabilities held with respect to a
single Series.
(i) Elimination of Series. At any time that there are no
Shares outstanding of any particular Series or class previously
established and designated, the Board of Trustees may by
resolution of a majority of the then Board of Trustees abolish
that Series or class and rescind the establishment and
designation thereof.
Section 7. Indemnification of Shareholders. If any
Shareholder or former Shareholder shall be exposed to liability
by reason of a claim or demand relating solely to his or her
being or having been a Shareholder of the Trust (or by having
been a Shareholder of a particular Series), and not because of
such Person's acts or omissions, the Shareholder or former
Shareholder (or, in the case of a natural person, his or her
heirs, executors, administrators, or other legal representatives
or, in the case of a corporation or other entity, its corporate
or other general successor) shall be entitled to be held harmless
from and indemnified out of the assets of the Trust or out of the
assets of the applicable Series (as the case may be) against all
loss and expense arising from such claim or demand; provided,
however, there shall be no liability or obligation of the Trust
(or any particular Series) arising hereunder to reimburse any
Shareholder for taxes paid by reason of such Shareholder's
ownership of any Shares.
ARTICLE IV.
The Board of Trustees
Section 1. Number, Election and Tenure. The number of
Trustees constituting the Board of Trustees may be fixed from
time to time by a written instrument signed, or by resolution
approved at a duly constituted meeting, by a majority of the
Board of Trustees, provided, however, that the number of Trustees
shall in no event be less than one (1) nor more than fifteen
(15). The Board of Trustees, by action of a majority of the then
Trustees at a duly constituted meeting, may fill vacancies in the
Board of Trustees or remove any Trustee with or without cause.
The Shareholders may elect Trustees, including filling any
vacancies in the Board of Trustees, at any meeting of
Shareholders called by the Board of Trustees for that purpose. A
meeting of Shareholders for the purpose of electing one or more
Trustees may be called by the Board of Trustees or, to the extent
provided by the 1940 Act and the rules and regulations
thereunder, by the Shareholders. Shareholders shall have the
power to remove a Trustee only to the extent provided by the 1940
Act and the rules and regulations thereunder.
Each Trustee shall serve during the continued lifetime of
the Trust until he or she dies, resigns, is declared bankrupt or
incompetent by a court of appropriate jurisdiction, or is
removed, or, if sooner than any of such events, until the next
meeting of Shareholders called for the purpose of electing
Trustees and until the election and qualification of his or her
successor. Any Trustee may resign at any time by written
instrument signed by him or her and delivered to any officer of
the Trust or to a meeting of the Board of Trustees. Such
resignation shall be effective upon receipt unless specified to
be effective at some later time. Except to the extent expressly
provided in a written agreement with the Trust, no Trustee
resigning and no Trustee removed shall have any right to any
compensation for any period following any such event or any right
to damages on account of such events or any actions taken in
connection therewith following his or her resignation or removal.
Section 2. Effect of Death, Resignation, Removal, etc. of
a Trustee. The death, declination, resignation, retirement,
removal, declaration as bankrupt or incapacity of one or more
Trustees, or of all of them, shall not operate to dissolve the
Trust or any Series or to revoke any existing agency created
pursuant to the terms of this Declaration of Trust. Whenever a
vacancy in the Board of Trustees shall occur, until such vacancy
is filled as provided in this Article IV, Section 1, the
Trustee(s) in office, regardless of the number, shall have all
the powers granted to the Board of Trustees and shall discharge
all the duties imposed upon the Board of Trustees by this
Declaration of Trust. In the event of the death, declination,
resignation, retirement, removal, declaration as bankrupt or
incapacity of all of the then Trustees, the Trust's Investment
Adviser(s) is (are) empowered to appoint new Trustees subject to
the provisions of Section 16(a) of the 1940 Act.
Section 3. Powers. Subject to the provisions of this
Declaration of Trust, the business of the Trust shall be managed
by the Board of Trustees, and such Board of Trustees shall have
all powers necessary or convenient to carry out that
responsibility, including, without limitation, the power to
engage in securities or other transactions of all kinds on behalf
of the Trust. The Board of Trustees shall have full power and
authority to do any and all acts and to make and execute any and
all contracts and instruments that it may consider necessary or
appropriate in connection with the administration of the Trust.
The Trustees shall not be bound or limited by present or future
laws or customs with regard to investment by trustees or
fiduciaries, but shall have full authority and absolute power and
control over the assets of the Trust and the business of the
Trust to the same extent as if the Trustees were the sole owners
of the assets of the Trust and the business in their own right,
including such authority, power and control to do all acts and
things as they, in their sole discretion, shall deem proper to
accomplish the purposes of this Trust. Without limiting the
foregoing, the Trustees may: (1) adopt, amend and repeal By-Laws
not inconsistent with this Declaration of Trust providing for the
regulation and management of the affairs of the Trust; (2) fill
vacancies in or remove from their number in accordance with this
Declaration of Trust or the By-Laws, and may elect and remove
such officers and appoint and terminate such agents as they
consider appropriate; (3) appoint from their own number and
establish and terminate one or more committees consisting of two
or more Trustees which may exercise the powers and authority of
the Board of Trustees to the extent that the Board of Trustees
determine; (4) employ one or more custodians of the Trust
Property and may authorize such custodians to employ
subcustodians and to deposit all or any part of such Trust
Property in a system or systems for the central handling of
securities or with a Federal Reserve Bank; (5) retain a transfer
agent, dividend disbursing agent, a shareholder servicing agent
or administrative services agent, or all of them; (6) provide for
the issuance and distribution of Shares by the Trust directly or
through one or more Principal Underwriters or otherwise; (7)
retain one or more Investment Adviser(s); (8) redeem, repurchase
and transfer Shares pursuant to applicable law; (9) set record
dates for the determination of Shareholders with respect to
various matters, in the manner provided in Article V, Section 5
of this Declaration of Trust; (10) declare and pay dividends and
distributions to Shareholders from the Trust Property; (11)
establish from time to time, in accordance with the provisions of
Article III, Section 6 hereof, any Series or class of Shares,
each such Series to operate as a separate and distinct investment
medium and with separately defined investment objectives and
policies and distinct investment purposes; and (12) in general
delegate such authority as they consider desirable to any officer
of the Trust, to any committee of the Board of Trustees and to
any agent or employee of the Trust or to any such custodian,
transfer, dividend disbursing or shareholder servicing agent,
Principal Underwriter or Investment Adviser. Any determination
as to what is in the best interests of the Trust made by the
Board of Trustees in good faith shall be conclusive.
In construing the provisions of this Declaration of Trust,
the presumption shall be in favor of a grant of power to the
Trustees. Unless otherwise specified herein or required by law,
any action by the Board of Trustees shall be deemed effective if
approved or taken by a majority of the Trustees then in office.
Any action required or permitted to be taken by the Board of
Trustees, or a committee thereof, may be taken without a meeting
if a majority of the members of the Board of Trustees, or
committee thereof, as the case may be, shall individually or
collectively consent in writing to that action. Such action by
written consent shall have the same force and effect as a
majority vote of the Board of Trustees, or committee thereof, as
the case may be. Such written consent or consents shall be filed
with the minutes of the proceedings of the Board of Trustees, or
committee thereof, as the case may be.
The Trustees shall devote to the affairs of the Trust such
time as may be necessary for the proper performance of their
duties hereunder, but neither the Trustees nor the officers,
directors, shareholders or partners of the Trustees, shall be
expected to devote their full time to the performance of such
duties. The Trustees, or any Affiliate shareholder, officer,
director, partner or employee thereof, or any Person owning a
legal or beneficial interest therein, may engage in or possess an
interest in any other business or venture of any nature and
description, independently or with or for the account of others.
Section 4. Payment of Expenses by the Trust. The Board of
Trustees is authorized to pay or cause to be paid out of the
principal or income of the Trust or any particular Series or
class, or partly out of the principal and partly out of the
income of the Trust or any particular Series or class, and to
charge or allocate the same to, between or among such one or more
of the Series or classes that may be established or designated
pursuant to Article III, Section 6, as it deems fair, all
expenses, fees, charges, taxes and liabilities incurred by or
arising in connection with the maintenance or operation of the
Trust or a particular Series or class, or in connection with the
management thereof, including, but not limited to, the Trustees'
compensation and such expenses, fees, charges, taxes and
liabilities for the services of the Trust's officers, employees,
Investment Adviser, Principal Underwriter, auditors, counsel,
custodian, sub-custodian (if any), transfer agent, dividend
disbursing agent, shareholder servicing agent, and such other
agents or independent contractors and such other expenses, fees,
charges, taxes and liabilities as the Board of Trustees may deem
necessary or proper to incur.
Section 5. Payment of Expenses by Shareholders. The Board
of Trustees shall have the power, as frequently as it may
determine, to cause each Shareholder of the Trust, or each
Shareholder of any particular Series, to pay directly, in advance
or arrears, for charges of the Trust's custodian or transfer,
dividend disbursing, shareholder servicing or similar agent, an
amount fixed from time to time by the Board of Trustees, by
setting off such charges due from such Shareholder from declared
but unpaid dividends or distributions owed such Shareholder
and/or by reducing the number of Shares in the account of such
Shareholder by that number of full and/or fractional Shares which
represents the outstanding amount of such charges due from such
Shareholder.
Section 6. Ownership of Trust Property. Legal title to all
of the Trust Property shall at all times be considered to be
vested in the Trust, except that the Board of Trustees shall have
the power to cause legal title to any Trust Property to be held
by or in the name of any Person as nominee, on such terms as the
Board of Trustees may determine, in accordance with applicable
law.
Section 7. Service Contracts.
(a) Subject to such requirements and restrictions as may be
set forth in the By-Laws and/or the 1940 Act, the Board of
Trustees may, at any time and from time to time, contract for
exclusive or nonexclusive advisory, management and/or
administrative services for the Trust or for any Series with any
corporation, trust, association or other organization, including
any Affiliate; and any such contract may contain such other terms
as the Board of Trustees may determine, including without
limitation, authority for the Investment Adviser or administrator
to determine from time to time without prior consultation with
the Board of Trustees what securities and other instruments or
property shall be purchased or otherwise acquired, owned, held,
invested or reinvested in, sold, exchanged, transferred,
mortgaged, pledged, assigned, negotiated, or otherwise dealt with
or disposed of, and what portion, if any, of the Trust Property
shall be held uninvested and to make changes in the Trust's or a
particular Series' investments, or such other activities as may
specifically be delegated to such party.
(b) The Board of Trustees may also, at any time and from
time to time, contract with any corporation, trust, association
or other organization, including any Affiliate, appointing it or
them as the exclusive or nonexclusive distributor or Principal
Underwriter for the Shares of the Trust or one or more of the
Series or classes thereof or for other securities to be issued by
the Trust, or appointing it or them to act as the custodian,
transfer agent, dividend disbursing agent and/or shareholder
servicing agent for the Trust or one or more of the Series or
classes thereof.
(c) The Board of Trustees is further empowered, at any time
and from time to time, to contract with any Persons to provide
such other services to the Trust or one or more of its Series, as
the Board of Trustees determines to be in the best interests of
the Trust or one or more of its Series.
(d) The fact that:
(i) any of the Shareholders, Trustees, employees
or officers of the Trust is a shareholder, director,
officer, partner, trustee, employee, manager, Adviser,
Principal Underwriter, distributor, or Affiliate or
agent of or for any corporation, trust, association, or
other organization, or for any parent or Affiliate of
any organization with which an Adviser's, management or
administration contract, or Principal Underwriter's or
distributor's contract, or custodian, transfer,
dividend disbursing, shareholder servicing or other
type of service contract may have been or may hereafter
be made, or that any such organization, or any parent
or Affiliate thereof, is a Shareholder or has an
interest in the Trust, or that
(ii) any corporation, trust, association or other
organization with which an Adviser's, management or
administration contract or Principal Underwriter's or
distributor's contract, or custodian, transfer,
dividend disbursing, shareholder servicing or other
type of service contract may have been or may hereafter
be made also has an Adviser's, management or
administration contract, or Principal Underwriter's or
distributor's contract, or custodian, transfer,
dividend disbursing, shareholder servicing or other
service contract with one or more other corporations,
trusts, associations, or other organizations, or has
other business or interests,
shall not affect the validity of any such contract or disqualify
any Shareholder, Trustee, employee or officer of the Trust from
voting upon or executing the same, or create any liability or
accountability to the Trust or its Shareholders, provided that
the establishment of and performance under each such contract is
permissible under the provisions of the 1940 Act.
(e) Every contract referred to in this Section 7 shall
comply with such requirements and restrictions as may be set
forth in the By-Laws, the 1940 Act or stipulated by resolution of
the Board of Trustees; and any such contract may contain such
other terms as the Board of Trustees may determine.
ARTICLE V.
Shareholders' Voting Powers and Meetings
Section 1. Voting Powers. Subject to the provisions of
Article III, Section 6(d), the Shareholders shall have power to
vote only (i) for the election of Trustees, including the filling
of any vacancies in the Board of Trustees, as provided in Article
IV, Section 1; (ii) with respect to such additional matters
relating to the Trust as may be required by this Declaration of
Trust, the By-Laws, the 1940 Act or any registration statement of
the Trust filed with the Commission; and (iii) on such other
matters as the Board of Trustees may consider necessary or
desirable. The Shareholder of record (as of the record date
established pursuant to Section 5 of this Article V) of each
Share shall be entitled to one vote for each full Share, and a
fractional vote for each fractional Share. Shareholders shall
not be entitled to cumulative voting in the election of Trustees
or on any other matter. Shares may be voted in person or by
proxy.
Section 2. Meetings. Meetings of the Shareholders may be
called by the Board of Trustees for the purpose of electing
Trustees as provided in Article IV, Section 1 and for such other
purposes as may be prescribed by law, by this Declaration of
Trust or by the By-Laws. Meetings of the Shareholders may also
be called by the Board of Trustees from time to time for the
purpose of taking action upon any other matter deemed by the
Board of Trustees to be necessary or desirable.
Section 3. Quorum and Required Vote. Except when a larger
quorum is required by applicable law, by the By-Laws or by this
Declaration of Trust, thirty-three and one-third percent (33-
1/3%) of the Shares present in person or represented by proxy and
entitled to vote at a Shareholders' meeting shall constitute a
quorum at such meeting. When a separate vote by one or more
Series or classes is required, thirty-three and one-third percent
(33-1/3%) of the Shares of each such Series or class present in
person or represented by proxy and entitled to vote shall
constitute a quorum at a Shareholders' meeting of such Series or
class. Subject to the provisions of Article III, Section 6(d),
Article VIII, Section 4 and any other provision of this
Declaration of Trust, the By-Laws or applicable law which
requires a different vote: (1) in all matters other than the
election of Trustees, the affirmative vote of the majority of
votes cast at a Shareholders' meeting at which a quorum is
present shall be the act of the Shareholders; (2) Trustees shall
be elected by a plurality of the votes cast at a Shareholders'
meeting at which a quorum is present.
Section 4. Shareholder Action by Written Consent without a
Meeting. Any action which may be taken at any meeting of
Shareholders may be taken without a meeting and without prior
notice if a consent in writing setting forth the action so taken
is signed by the holders of Shares having not less than the
minimum number of votes that would be necessary to authorize or
take that action at a meeting at which all Shares entitled to
vote on that action were present and voted. All such consents
shall be filed with the secretary of the Trust and shall be
maintained in the Trust's records. Any Shareholder giving a
written consent or the Shareholder's proxy holders or a
transferee of the Shares or a personal representative of the
Shareholder or its respective proxy-holder may revoke the consent
by a writing received by the secretary of the Trust before
written consents of the number of Shares required to authorize
the proposed action have been filed with the secretary.
If the consents of all Shareholders entitled to vote have
not been solicited in writing and if the unanimous written
consent of all such Shareholders shall not have been received,
the secretary shall give prompt notice of the action taken
without a meeting to such Shareholders. This notice shall be
given in the manner specified in the By-Laws.
Section 5. Record Dates. For purposes of determining the
Shareholders entitled to notice of any meeting or to vote or
entitled to give consent to action without a meeting, the Board
of Trustees may fix in advance a record date which shall not be
more than one hundred eighty (180) days nor less than seven (7)
days before the date of any such meeting.
If the Board of Trustees does not so fix a record date:
(a) The record date for determining Shareholders entitled
to notice of or to vote at a meeting of Shareholders shall be at
the close of business on the business day next preceding the day
on which notice is given or, if notice is waived, at the close of
business on the business day which is five (5) business days next
preceding to the day on which the meeting is held.
(b) The record date for determining Shareholders entitled
to give consent to action in writing without a meeting, (i) when
no prior action by the Board of Trustees has been taken, shall be
the day on which the first written consent is given, or (ii) when
prior action of the Board of Trustees has been taken, shall be at
the close of business on the day on which the Board of Trustees
adopts the resolution taking such prior action or the
seventy-fifth (75th) day before the date of such other action,
whichever is later.
For the purpose of determining the Shareholders of any
Series or class who are entitled to receive payment of any
dividend or of any other distribution, the Board of Trustees may
from time to time fix a date, which shall be before the date for
the payment of such dividend or such other distribution, as the
record date for determining the Shareholders of such Series or
class having the right to receive such dividend or distribution.
Nothing in this Section shall be construed as precluding the
Board of Trustees from setting different record dates for
different Series or classes.
Section 6. Additional Provisions. The By-Laws may include
further provisions for Shareholders' votes, meetings and related
matters.
ARTICLE VI.
Net Asset Value, Distributions and Redemptions
Section 1. Determination of Net Asset Value, Net Income and
Distributions. Subject to Article III, Section 6 hereof, the
Board of Trustees shall have the power to fix an initial offering
price for the Shares of any Series or class thereof which shall
yield to such Series or class not less than the net asset value
thereof, at which price the Shares of such Series or class shall
be offered initially for sale, and to determine from time to time
thereafter the offering price which shall yield to such Series or
class not less than the net asset value thereof from sales of the
Shares of such Series or class; provided, however, that no Shares
of a Series or class thereof shall be issued or sold for
consideration which shall yield to such Series or class less than
the net asset value of the Shares of such Series or class next
determined after the receipt of the order (or at such other times
set by the Board of Trustees), except in the case of Shares of
such Series or class issued in payment of a dividend properly
declared and payable.
Subject to Article III, Section 6 hereof, the Board of
Trustees, in their absolute discretion, may prescribe and shall
set forth in the By-laws or in a duly adopted vote of the Board
of Trustees such bases and time for determining the per Share or
net asset value of the Shares of any Series or net income
attributable to the Shares of any Series, or the declaration and
payment of dividends and distributions on the Shares of any
Series, as they may deem necessary or desirable.
Section 2. Redemptions at the Option of a Shareholder.
Unless otherwise provided in the prospectus of the Trust relating
to the Shares, as such prospectus may be amended from time to
time ("Prospectus"):
(a) The Trust shall purchase such Shares as are offered by
any Shareholder for redemption, upon the presentation of a proper
instrument of transfer together with a request directed to the
Trust or a Person designated by the Trust that the Trust purchase
such Shares or in accordance with such other procedures for
redemption as the Board of Trustees may from time to time
authorize; and the Trust will pay therefor the net asset value
thereof, in accordance with the By-Laws and applicable law.
Payment for said Shares shall be made by the Trust to the
Shareholder within seven days after the date on which the request
is received in proper form. The obligation set forth in this
Section 2 is subject to the provision that in the event that any
time the New York Stock Exchange (the "Exchange") is closed for
other than weekends or holidays, or if permitted by the Rules of
the Commission during periods when trading on the Exchange is
restricted or during any National Financial Emergency which makes
it impracticable for the Trust to dispose of the investments of
the applicable Series or to determine fairly the value of the net
assets held with respect to such Series or during any other
period permitted by order of the Commission for the protection of
investors, such obligations may be suspended or postponed by the
Board of Trustees. If certificates have been issued to a
Shareholder, any such request by such Shareholder must be
accompanied by surrender of any outstanding certificate or
certificates for such Shares in form for transfer, together with
such proof of the authenticity of signatures as may reasonably be
required on such Shares and accompanied by proper stock transfer
stamps, if applicable.
(b) Payments for Shares so redeemed by the Trust shall be
made in cash, except payment for such Shares may, at the option
of the Board of Trustees, or such officer or officers as it may
duly authorize in its complete discretion, be made in kind or
partially in cash and partially in kind. In case of any payment
in kind, the Board of Trustees, or its delegate, shall have
absolute discretion as to what security or securities of the
Trust shall be distributed in kind and the amount of the same;
and the securities shall be valued for purposes of distribution
at the value at which they were appraised in computing the then
current net asset value of the Shares, provided that any
Shareholder who cannot legally acquire securities so distributed
in kind by reason of the prohibitions of the 1940 Act or the
provisions of the Employee Retirement Income Security Act
("ERISA") shall receive cash. Shareholders shall bear the
expenses of in-kind transactions, including, but not limited to,
transfer agency fees, custodian fees and costs of disposition of
such securities.
(c) Payment for Shares so redeemed by the Trust shall be
made by the Trust as provided above within seven days after the
date on which the redemption request is received in good order;
provided, however, that if payment shall be made other than
exclusively in cash, any securities to be delivered as part of
such payment shall be delivered as promptly as any necessary
transfers of such securities on the books of the several
corporations whose securities are to be delivered practicably can
be made, which may not necessarily occur within such seven day
period. Moreover, redemptions may be suspended in the event of a
National Financial Emergency. In no case shall the Trust be
liable for any delay of any corporation or other Person in
transferring securities selected for delivery as all or part of
any payment in kind.
(d) The right of Shareholders to receive dividends or other
distributions on Shares may be set forth in a Plan adopted by the
Board of Trustees and amended from time to time pursuant to Rule
18f-3 of the 1940 Act. The right of any Shareholder of the Trust
to receive dividends or other distributions on Shares redeemed
and all other rights of such Shareholder with respect to the
Shares so redeemed by the Trust, except the right of such
Shareholder to receive payment for such Shares, shall cease at
the time as of which the purchase price of such Shares shall have
been fixed, as provided above.
Section 3. Redemptions at the Option of the Trust. The
Board of Trustees may, from time to time, without the vote or
consent of the Shareholders, and subject to the 1940 Act, redeem
Shares or authorize the closing of any Shareholder account,
subject to such conditions as may be established by the Board of
Trustees.
ARTICLE VII.
Compensation and Limitation of Liability of
Officers and Trustees
Section 1. Compensation. Except as set forth in the last
sentence of this Section 1, the Board of Trustees may, from time
to time, fix a reasonable amount of compensation to be paid by
the Trust to the Trustees and officers of the Trust. Nothing
herein shall in any way prevent the employment of any Trustee for
advisory, management, legal, accounting, investment banking or
other services and payment for the same by the Trust.
Section 2. Indemnification and Limitation of Liability.
(a) To the fullest extent that limitations on the liability
of Trustees and officers are permitted by the DBTA, the officers
and Trustees shall not be responsible or liable in any event for
any act or omission of: any agent or employee of the Trust; any
Investment Adviser or Principal Underwriter of the Trust; or with
respect to each Trustee and officer, the act or omission of any
other Trustee or officer, respectively. The Trust, out of the
Trust Property, shall indemnify and hold harmless each and every
officer and Trustee from and against any and all claims and
demands whatsoever arising out of or related to such officer's or
Trustee's performance of his or her duties as an officer or
Trustee of the Trust. This limitation on liability applies to
events occurring at the time a Person serves as a Trustee or
officer of the Trust whether or not such Person is a Trustee or
officer at the time of any proceeding in which liability is
asserted. Nothing herein contained shall indemnify, hold
harmless or protect any officer or Trustee from or against any
liability to the Trust or any Shareholder 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 such Person's office.
(b) Every note, bond, contract, instrument, certificate or
undertaking and every other act or document whatsoever issued,
executed or done by or on behalf of the Trust, the officers or
the Trustees or any of them in connection with the Trust shall be
conclusively deemed to have been issued, executed or done only in
such Person's capacity as Trustee and/or as officer, and such
Trustee or officer, as applicable, shall not be personally liable
therefore, except as described in the last sentence of the first
paragraph of this Section 2 of this Article VII.
Section 3. Officers and Trustees' Good Faith Action, Expert
Advice, No Bond or Surety. The exercise by the Trustees of their
powers and discretions hereunder shall be binding upon everyone
interested. An officer or Trustee shall be liable to the Trust
and to any Shareholder solely for such officer's or Trustee's own
willful misfeasance, bad faith, gross negligence or reckless
disregard of the duties involved in the conduct of the office of
such officer or Trustee, and for nothing else, and shall not be
liable for errors of judgment or mistakes of fact or law. The
officers and Trustees may obtain the advice of counsel or other
experts with respect to the meaning and operation of this
Declaration of Trust and their duties as officers or Trustees.
No such officer or Trustee shall be liable for any act or
omission in accordance with such advice and no inference
concerning liability shall arise from a failure to follow such
advice. The officers and Trustees shall not be required to give
any bond as such, nor any surety if a bond is required.
Section 4. Insurance. To the fullest extent permitted by
applicable law, the officers and Trustees shall be entitled and
have the authority to purchase with Trust Property, insurance for
liability and for all expenses reasonably incurred or paid or
expected to be paid by a Trustee or officer in connection with
any claim, action, suit or proceeding in which such Person
becomes involved by virtue of such Person's capacity or former
capacity with the Trust, whether or not the Trust would have the
power to indemnify such Person against such liability under the
provisions of this Article.
ARTICLE VIII.
Miscellaneous
Section 1. Liability of Third Persons Dealing with
Trustees. No person dealing with the Trustees shall be bound to
make any inquiry concerning the validity of any actions made or
to be made by the Trustees.
Section 2. Dissolution of Trust or Series. Unless
dissolved as provided herein, the Trust shall have perpetual
existence. The Trust may be dissolved at any time by vote of a
majority of the Shares of the Trust entitled to vote or by the
Board of Trustees by written notice to the Shareholders. Any
Series may be dissolved at any time by vote of a majority of the
Shares of that Series or by the Board of Trustees by written
notice to the Shareholders of that Series.
Upon dissolution of the Trust (or a particular Series, as
the case may be), the Trustees shall (in accordance with 3808
of the DBTA) pay or make reasonable provision to pay all claims
and obligations of each Series (or the particular Series, as the
case may be), including all contingent, conditional or unmatured
claims and obligations known to the Trust, and all claims and
obligations which are known to the Trust but for which the
identity of the claimant is unknown. If there are sufficient
assets held with respect to each Series of the Trust (or the
particular Series, as the case may be), such claims and
obligations shall be paid in full and any such provisions for
payment shall be made in full. If there are insufficient assets
held with respect to each Series of the Trust (or the particular
Series, as the case may be), such claims and obligations shall be
paid or provided for according to their priority and, among
claims and obligations of equal priority, ratably to the extent
of assets available therefor. Any remaining assets (including
without limitation, cash, securities or any combination thereof)
held with respect to each Series of the Trust (or the particular
Series, as the case may be) shall be distributed to the
Shareholders of such Series, ratably according to the number of
Shares of such Series held by the several Shareholders on the
record date for such dissolution distribution.
Section 3. Merger and Consolidation; Conversion.
(a) Merger and Consolidation.
Pursuant to an agreement of merger or consolidation, the Trust,
or any one or more Series, may, by act of a majority of the Board
of Trustees, merge or consolidate with or into one or more
business trusts or other business entities formed or organized or
existing under the laws of the State of Delaware or any other
state or the United States or any foreign country or other
foreign jurisdiction. Any such merger or consolidation shall not
require the vote of the Shareholders affected thereby, unless
such vote is required by the 1940 Act, or unless such merger or
consolidation would result in an amendment of this Declaration of
Trust which would otherwise require the approval of such
Shareholders. In accordance with Section 3815(f) of the DBTA, an
agreement of merger or consolidation may affect any amendment to
this Declaration of Trust or the By-Laws or affect the adoption
of a new declaration of trust or by-laws of the Trust if the
Trust is the surviving or resulting business trust. Upon
completion of the merger or consolidation, the Trustees shall
file a certificate of merger or consolidation in accordance with
Section 3810 of the DBTA.
(b) Conversion. A majority of the Board of Trustees may,
without the vote or consent of the Shareholders, cause (i) the
Trust to convert to a common-law trust, a general partnership,
limited partnership or a limited liability company organized,
formed or created under the laws of the State of Delaware as
permitted pursuant to Section 3821 of the DBTA; (ii) the Shares
of the Trust or any Series to be converted into beneficial
interests in another business trust (or series thereof) created
pursuant to this Section 3 of this Article VIII, or (iii) the
Shares to be exchanged under or pursuant to any state or federal
statute to the extent permitted by law; provided, however, that
if required by the 1940 Act, no such statutory conversion, Share
conversion or Share exchange shall be effective unless the terms
of such transaction shall first have been approved at a meeting
called for that purpose by the "vote of a majority of the
outstanding voting securities," as such phrase is defined in the
1940 Act, of the Trust or Series, as applicable; provided,
further, that in all respects not governed by statute or
applicable law, the Board of Trustees shall have the power to
prescribe the procedure necessary or appropriate to accomplish a
sale of assets, merger or consolidation including the power to
create one or more separate business trusts to which all or any
part of the assets, liabilities, profits or losses of the Trust
may be transferred and to provide for the conversion of Shares of
the Trust or any Series into beneficial interests in such
separate business trust or trusts (or series thereof).
Section 4. Reorganization. A majority of the Board of
Trustees may cause the Trust to sell, convey and transfer all or
substantially all of the assets of the Trust, or all or
substantially all of the assets associated with any one or more
Series, to another trust, business trust, partnership, limited
partnership, limited liability company, association or
corporation organized under the laws of any state, or to one or
more separate series thereof, or to the Trust to be held as
assets associated with one or more other Series of the Trust, in
exchange for cash, shares or other securities (including, without
limitation, in the case of a transfer to another Series of the
Trust, Shares of such other Series) with such transfer either (a)
being made subject to, or with the assumption by the transferee
of, the liabilities associated with each Series the assets of
which are so transferred, or (b) not being made subject to, or
not with the assumption of, such liabilities; provided, however,
that, if required by the 1940 Act, no assets associated with any
particular Series shall be so sold, conveyed or transferred
unless the terms of such transaction shall first have been
approved at a meeting called for that purpose by the "vote of a
majority of the outstanding voting securities," as such phrase is
defined in the 1940 Act, of that Series. Following such sale,
conveyance and transfer, the Board of Trustees shall distribute
such cash, shares or other securities (giving due effect to the
assets and liabilities associated with and any other differences
among the various Series the assets associated with which have so
been sold, conveyed and transferred) ratably among the
Shareholders of the Series the assets associated with which have
been so sold, conveyed and transferred (giving due effect to the
differences among the various classes within each such Series);
and if all of the assets of the Trust have been so sold, conveyed
and transferred, the Trust shall be dissolved.
Section 5. Amendments. Subject to the provisions of the
second paragraph of this Section 5 of this Article VIII, this
Declaration of Trust may be restated and/or amended at any time
by an instrument in writing signed by a majority of the then
Board of Trustees and, if required, by approval of such amendment
by Shareholders in accordance with Article V, Section 3 hereof.
Any such restatement and/or amendment hereto shall be effective
immediately upon execution and approval or upon such future date
and time as may be stated therein. The Certificate of Trust of
the Trust may be restated and/or amended by a similar procedure,
and any such restatement and/or amendment shall be effective
immediately upon filing with the Office of the Secretary of State
of the State of Delaware or upon such future date as may be
stated therein.
Notwithstanding the above, the Board of Trustees expressly
reserves the right to amend or repeal any provisions contained in
this Declaration of Trust or the Certificate of Trust, in
accordance with the provisions of Section 5 of Article III
hereof, and all rights, contractual and otherwise, conferred upon
Shareholders are granted subject to such reservation. The Board
of Trustees further expressly reserves the right to amend or
repeal any provision of the By-Laws pursuant to Article IX of the
By-Laws.
Section 6. Filing of Copies, References, Headings. The
original or a copy of this Declaration of Trust and of each
restatement and/or amendment hereto shall be kept at the
principal executive office of the Trust where it may be inspected
by any Shareholder. 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 any
matters in connection with the Trust hereunder; and, with the
same effect as if it were the original, may rely on a copy
certified by an officer of the Trust to be a copy of this
instrument or of any such restatements and/or amendments. In
this Declaration of Trust and in any such restatements and/or
amendments, references to this instrument, and all expressions of
similar effect to "herein," "hereof" and "hereunder," shall be
deemed to refer to this instrument as amended or affected by any
such restatements and/or amendments. Headings are placed herein
for convenience of reference only and shall not be taken as a
part hereof or control or affect the meaning, construction or
effect of this instrument. Whenever the singular number is used
herein, the same shall include the plural; and the neuter,
masculine and feminine genders shall include each other, as
applicable. This instrument may be executed in any number of
counterparts, each of which shall be deemed an original.
Section 7. Applicable Law. This Declaration of Trust is
created under and is to be governed by and construed and
administered according to the laws of the State of Delaware and
the applicable provisions of the 1940 Act and the Code. The
Trust shall be a Delaware business trust pursuant to the DBTA,
and without limiting the provisions hereof, the Trust may
exercise all powers which are ordinarily exercised by such a
business trust.
Section 8. Provisions in Conflict with Law or Regulations.
(a) The provisions of this Declaration of Trust are
severable, and if the Board of Trustees shall determine, with the
advice of counsel, that any of such provisions is in conflict
with the 1940 Act, the Code, the DBTA, or with other applicable
laws and regulations, the conflicting provision shall be deemed
not to have constituted a part of this Declaration of Trust from
the time when such provisions became inconsistent with such laws
or regulations; provided, however, that such determination shall
not affect any of the remaining provisions of this Declaration of
Trust or render invalid or improper any action taken or omitted
prior to such determination.
(b) If any provision of this Declaration of Trust shall be
held invalid or unenforceable in any jurisdiction, such
invalidity or unenforceability shall attach only to such
provision in such jurisdiction and shall not in any manner affect
such provision in any other jurisdiction or any other provision
of this Declaration of Trust in any jurisdiction.
Section 9. Business Trust Only. It is the intention of the
Trustees to create a business trust pursuant to the DBTA, and
thereby to create the relationship of trustee and beneficial
owners within the meaning of the DBTA between the Trustees and
each Shareholder. It is not the intention of the Trustees to
create a general or limited partnership, limited liability
company, joint stock association, corporation, bailment, or any
form of legal relationship other than a business trust pursuant
to the DBTA. Nothing in this Declaration of Trust shall be
construed to make the Shareholders, either by themselves or with
the Trustees, partners or members of a joint stock association.
Section 10. Use of the Names "J&B" and "▇▇▇▇▇ & ▇▇▇▇▇▇."
The name "J&B" and "▇▇▇▇▇ & Babson" and all rights to the use of
such names belong to ▇▇▇▇▇ & ▇▇▇▇▇▇, Inc., the Manager of the
Trust. ▇▇▇▇▇ & Babson has consented to the use by the Trust of
the identifying words "J&B" and "▇▇▇▇▇ & ▇▇▇▇▇▇" and has granted
to the Trust a non-exclusive license to use such names as part of
the name of the Trust and the name of any Series of Shares. In
the event ▇▇▇▇▇ & Babson, Inc. or an affiliate of ▇▇▇▇▇ & ▇▇▇▇▇▇,
Inc. is not appointed as Manager or ceases to be the Manager of
the Trust or of any Series using such name, the non-exclusive
license granted herein may be revoked by ▇▇▇▇▇ & Babson, Inc.
Upon receipt of such a written revocation from ▇▇▇▇▇ & ▇▇▇▇▇▇,
Inc. or any successor to its interests in such name, the Trustees
agree to execute such amendment to the Trust's Certificate of
Trust and this Declaration of Trust as may be required to effect
a change in the name of Trust or any Series of Shares of the
Trust, and the Trust promptly shall cease using the names "J&B"
and "▇▇▇▇▇ & Babson" as part of its name or the name of any
Series of Shares.
IN WITNESS WHEREOF, the Trustee named below does hereby make
and enter into this Declaration of Trust as of the date first
above written.
/s/▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
Trustee
338527.01