Exhibit 23(a)(2)
AGREEMENT AND DECLARATION OF TRUST
OF
GARTMORE MUTUAL FUNDS III
A DELAWARE STATUTORY TRUST
AND
AN OPEN-END MANAGEMENT INVESTMENT COMPANY
--------------------------------------------------------------------------------
TABLE OF CONTENTS
PAGE
ARTICLE I. NAME; OFFICES; REGISTERED AGENT; DEFINITIONS 1
Section 1. Name 1
Section 2. Offices of the Trust 1
Section 3. Registered Agent and Registered Office 1
Section 4. Definitions 1
ARTICLE II. PURPOSE OF TRUST 3
ARTICLE III. SHARES 6
Section 1. Division of Beneficial Interest. 6
Section 2. Ownership of Shares 7
Section 3. Sale of Shares 8
Section 4. Status of Shares and Limitation of Personal Liability 8
Section 5. Power of Board of Trustees to Make Tax Status Election 8
Section 6. Establishment and Designation of Series and Classes 8
(a) Assets Held with Respect to a Particular Series 9
(b) Liabilities Held with Respect to a Particular Series or
Class 10
(c) Dividends, Distributions and Redemptions 11
(d) Voting 11
(e) Equality 11
(f) Fractions 11
(g) Exchange Privilege 11
(h) Combination of Series 11
(i) Dissolution or Termination 11
Section 7. Indemnification of Shareholders 12
ARTICLE IV. THE BOARD OF TRUSTEES 12
Section 1. Number, Election, Term, Removal and Resignation. 12
Section 2. Trustee Action by Written Consent Without a Meeting 13
Section 3. Powers; Other Business Interests; Quorum and Required Vote. 13
(a) Powers 13
(b) Other Business Interests 14
(c) Quorum and Required Vote 14
Section 4. Payment of Expenses by the Trust 14
Section 5. Payment of Expenses by Shareholders 15
i
--------------------------------------------------------------------------------
Section 6. Ownership of Trust Property 15
Section 7. Service Contracts. 15
ARTICLE V. SHAREHOLDERS' VOTING POWERS AND MEETINGS 16
Section 1. Voting Powers 16
Section 2. Quorum and Required Vote. 17
Section 3. Shareholder Action by Written Consent Without a Meeting 17
Section 4. Record Dates. 18
Section 5. Additional Provisions 18
ARTICLE VI. NET ASSET VALUE; DISTRIBUTIONS; REDEMPTIONS; TRANSFERS 19
Section 1. Determination of Net Asset Value, Net Income and Distributions. 19
Section 2. Redemptions at the Option of a Shareholder 20
Section 3. Redemptions at the Option of the Trust 21
Section 4. Transfer of Shares 21
ARTICLE VII. LIMITATION OF LIABILITY AND INDEMNIFICATION OF AGENT 21
Section 1. Limitation of Liability. 21
Section 2. Indemnification. 22
(a) Indemnification by Trust 22
(b) Exclusion of Indemnification 22
(c) Required Approval 23
(d) Advancement of Expenses 23
(e) Other Contractual Rights 23
(f) Fiduciaries of Employee Benefit Plan 23
Section 3. Insurance 23
Section 4. Derivative Actions 23
ARTICLE VIII. CERTAIN TRANSACTIONS 24
Section 1. Dissolution of Trust or Series 24
Section 2. Merger or Consolidation; Conversion; Reorganization. 25
(a) Merger or Consolidation 25
(b) Conversion 25
(c) Reorganization 26
Section 3. Master Feeder Structure 26
ii
--------------------------------------------------------------------------------
ARTICLE IX. AMENDMENTS 27
Section 1. Amendments Generally 27
ARTICLE X. MISCELLANEOUS 27
Section 1. References; Headings; Counterparts 27
Section 2. Applicable Law 27
Section 3. Provisions in Conflict with Law or Regulations. 27
Section 4. Statutory Trust Only 28
iii
--------------------------------------------------------------------------------
AGREEMENT AND DECLARATION OF TRUST
OF
GARTMORE MUTUAL FUNDS III
AGREEMENT AND DECLARATION OF TRUST made as of this 18th day of June, 2003,
by the Trustees hereunder, and by the holders of Shares to be issued by the
Trust hereunder as hereinafter provided.
WITNESSETH:
WHEREAS this Trust is being formed to carry on the business of an open-end
management investment company as defined in the 1940 Act; and
WHEREAS this Trust is authorized to issue its Shares in separate Series, to
divide Shares of any Series into two or more classes and to issue classes of any
Series, all in accordance with the provisions hereinafter set forth; and
WHEREAS the Trustees have agreed to manage all property coming into their
hands as trustees of a Delaware statutory trust in accordance with the
provisions of the Delaware Statutory Trust Act, as amended from time to time,
and the provisions hereinafter set forth;
NOW, THEREFORE, the Trustees hereby declare that they will hold all cash,
securities and other assets that 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 created hereunder as hereinafter set forth.
ARTICLE I.
NAME; OFFICES; REGISTERED AGENT; DEFINITIONS
Section 1. Name. This Trust shall be known as "Gartmore Mutual Funds III"
and the Board of Trustees shall conduct the business of the Trust under that
name, or any other name as it may from time to time designate.
Section 2. Offices of the Trust. The Board may at any time establish
offices of the Trust at any place or places where the Trust intends to do
business.
Section 3. Registered Agent and Registered Office. The name of the
registered agent of the Trust and the address of the registered office of the
Trust are as set forth in the Trust's Certificate of Trust.
Section 4. Definitions. Whenever used herein, unless otherwise required by
the context or specifically provided:
(a) "1940 Act" shall mean the Investment Company Act of 1940 and the rules
and regulations thereunder, all as adopted or amended from time to
time;
1
--------------------------------------------------------------------------------
(b) "Affiliate" shall have the same meaning as "affiliated person" as such
term is defined in the 1940 Act when used with reference to a
specified Person, as defined below.
(c) "Board of Trustees" shall mean the governing body of the Trust, that
is comprised of the number of Trustees of the Trust fixed from time to
time pursuant to Article IV hereof, having the powers and duties set
forth herein;
(d) "By-Laws" shall mean By-Laws of the Trust, as amended or restated from
time to time in accordance with Article VIII therein. Such By-Laws may
contain any provision not inconsistent with applicable law or this
Declaration of Trust, relating to the governance of the Trust;
(e) "Certificate of Trust" shall mean the certificate of trust of the
Trust to be filed with the office of the Secretary of State of the
State of Delaware as required under the Delaware Statutory Trust Act,
as amended from time to time, to form the Trust, as such certificate
shall be amended or restated from time to time and filed with such
office;
(f) "Code" shall mean the Internal Revenue Code of 1986 and the rules and
regulations thereunder, all as adopted or amended from time to time;
(g) "Commission" shall have the meaning given that term in the 1940 Act;
(h) "DSTA" shall mean the Delaware Statutory 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 that term in the 1940
Act;
(l) "Investment Adviser" or "Adviser" shall mean a Person, as defined
below, furnishing services to the Trust pursuant to any investment
advisory or investment management contract described in Article IV,
Section 7(a) hereof;
(m) "National Financial Emergency" shall mean the whole or any part of any
period during (i) which an emergency exists as a result of which
disposal by the Trust of securities or other assets owned by the Trust
is not reasonably practicable; (ii) which it is not reasonably
practicable for the Trust fairly to determine the net asset value of
its assets; or (iii) such other period as the Commission may by order
permit for the protection of investors;
(n) "Person" shall mean a natural person, partnership, limited
partnership, limited liability company, trust, estate, association,
corporation, organization, custodian, nominee or any other individual
or entity in its own or any representative capacity, in each case,
whether domestic or foreign, and a statutory trust or a foreign
statutory trust;
2
--------------------------------------------------------------------------------
(o) "Principal Underwriter" shall have the meaning given that term in the
1940 Act;
(p) "Series" shall refer to each Series of Shares established and
designated under and in accordance with the provisions of Article III
hereof and shall mean an entity such as that described in the 1940
Act;
(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 pursuant to the
By-Laws;
(s) "Trust" shall mean the Delaware statutory trust formed pursuant to
this Declaration of Trust and the filing of the Certificate of Trust
with the office of the Secretary of State of the State of Delaware;
(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 thereof, including, without
limitation, the rights referenced in Article X, Section 5 hereof;
(u) "Trustee" or "Trustees" shall mean each Person that signs 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 and the By-Laws. Reference herein to a Trustee or the Trustees
shall refer to such Person or Persons in such Person's or Persons'
capacity as a trustee or trustees hereunder and under the By-Laws; and
(v) "vote of a majority of the outstanding voting securities" shall have
the meaning provided under Subsection 2(a)(42) of the 1940 Act or any
successor provision thereof, which Subsection, as of the date hereof,
is as follows: the vote, at a meeting of the Shareholders, (i) of
sixty-seven percent (67%) or more of the voting securities present in
person or represented by proxy at such meeting, if the holders of more
than fifty percent (50%) of the outstanding voting securities of the
Trust are present or represented by proxy; or (ii) of more than fifty
percent (50%) of the outstanding voting securities of the Trust,
whichever is the less.
ARTICLE II.
PURPOSE OF TRUST
The purpose of the Trust is to conduct, operate and carry on the business
of a registered management investment company registered under the 1940 Act
directly, or if one or more Series is established hereunder, through one or more
Series, investing primarily in securities, and to exercise all of the powers
3
--------------------------------------------------------------------------------
granted to a statutory trust formed under the DSTA, 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;
4
--------------------------------------------------------------------------------
(g) To consent to, or participate in, any plan for the reorganization,
consolidation or merger of any corporation or issuer of any security
which is held in the Trust; to consent to any contract, lease,
mortgage, purchase or sale of property by such corporation or issuer;
and to pay calls or subscriptions with respect to any security held in
the Trust;
(h) To join with other security holders in acting through a committee,
depositary, voting trustee or otherwise, and in that connection to
deposit any security with, or transfer any security to, any such
committee, depositary or trustee, and to delegate to them such power
and authority with relation to any security (whether or not so
deposited or transferred) as the Trustees shall deem proper, and to
agree to pay, and to pay, such portion of the expenses and
compensation of such committee, depositary or trustee as the Trustees
shall deem proper;
(i) To compromise, arbitrate or otherwise adjust claims in favor of or
against the Trust or any matter in controversy, including but not
limited to claims for taxes;
(j) To enter into joint ventures, general or limited partnerships and any
other combinations or associations;
(k) To endorse or guarantee the payment of any notes or other obligations
of any Person; to make contracts of guaranty or suretyship, or
otherwise assume liability for payment thereof;
(l) To purchase and pay for entirely out of Trust Property such insurance
as the Board of Trustees may deem necessary or appropriate for the
conduct of the business, including, without limitation, insurance
policies insuring the assets of the Trust or payment of distributions
and principal on its portfolio investments, and insurance policies
insuring the Shareholders, Trustees, officers, employees, agents,
Investment Advisers, Principal Underwriters, or independent
contractors of the Trust, individually against all claims and
liabilities of every nature arising by reason of holding Shares,
holding, being or having held any such office or position, or by
reason of any action alleged to have been taken or omitted by any such
Person as Trustee, officer, employee, agent, Investment Adviser,
Principal Underwriter, or independent contractor, to the fullest
extent permitted by this Declaration of Trust, the By-Laws and by
applicable law; 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.
5
--------------------------------------------------------------------------------
(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 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. Neither the
Trust nor the Board of Trustees shall be required to obtain any court order to
deal with any assets of the Trust or take any other action hereunder.
The foregoing clauses shall each be construed as purposes, objects and powers,
and it is hereby expressly provided that the foregoing enumeration of specific
purposes, objects and powers shall not be held to limit or restrict in any
manner the powers of the Trust, and that they are in furtherance of, and in
addition to, and not in limitation of, the general powers conferred upon the
Trust by the DSTA and the other laws of the State of Delaware or otherwise; nor
shall the enumeration of one thing be deemed to exclude another, although it be
of like nature, not expressed.
ARTICLE III.
SHARES
Section 1. Division of Beneficial Interest.
(a) The beneficial interest in the Trust shall at all times be divided
into outstanding shares of the Trust, all without par value. The
number of shares of beneficial interest in the Trust 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 in accordance with the
1940 Act. The different Series and classes shall be established and
designated pursuant to Article III, Section 6 hereof. If no separate
Series or classes of Series shall be established, the Shares shall
have the rights, powers and duties provided for herein and in Article
III, Section 6 hereof to the extent relevant and not otherwise
provided for herein, and all references to Series and classes shall be
6
--------------------------------------------------------------------------------
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.
(b) The Board of Trustees shall have the power to issue authorized, but
unissued shares of beneficial interest of the Trust, or any Series and
class thereof, from time to time for such consideration paid wholly or
partly in cash or securities as may be determined from time to time by
the Board of Trustees, subject to any requirements or limitations of
the 1940 Act. The Board of Trustees, on behalf of the Trust, may
acquire and hold as treasury shares, reissue for such consideration
and on such terms as it may determine, or cancel, at its discretion
from time to time, any Shares reacquired by the Trust. The Board of
Trustees may classify or reclassify any unissued shares of beneficial
interest or any shares of beneficial interest of the Trust or any
Series or class thereof, that were previously issued and are
reacquired, into one or more Series or classes that may be established
and designated from time to time. Notwithstanding the foregoing, the
Trust and any Series thereof may acquire, hold, sell and otherwise
deal in, for purposes of investment or otherwise, the Shares of any
other Series of the Trust or Shares of the Trust, and such Shares
shall not be deemed treasury shares or cancelled.
(c) Subject to the provisions of Section 6 of this Article III, each Share
shall entitle the holder to voting rights as provided in Article V
hereof. Shareholders shall have no preemptive or other right to
subscribe for new or additional authorized, but unissued shares or
other securities issued by the Trust or any Series thereof. The Board
of Trustees may from time to time divide or combine the Shares of the
Trust or any particular Series thereof into a greater or lesser number
of Shares of the Trust or that Series, respectively. Such division or
combination shall not materially change the proportionate beneficial
interests of the holders of Shares of the Trust or that Series, as the
case may be, in the Trust Property at the time of such division or
combination that is held with respect to the Trust or that Series, as
the case may be, or materially affect the rights of Shares of the
Trust or any other Series.
(d) Any Trustee, officer or other agent of the Trust, and any organization
in which any such Person has an economic or other interest, may
acquire, own, hold and dispose of shares of beneficial interest in the
Trust or any Series and class thereof, whether such shares are
authorized but unissued, or already outstanding, to the same extent as
if such Person were not a Trustee, officer or other agent of the
Trust; and the Trust or any Series may issue and sell and may purchase
such Shares from any such Person or any such organization, subject to
the limitations, restrictions or other provisions applicable to the
sale or purchase of such shares herein and the 1940 Act.
Section 2. Ownership of Shares. The ownership of Shares shall be recorded
on the books of the Trust kept by the Trust or by a transfer or similar agent
for the Trust, which books shall be maintained separately for the Shares of 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 it considers appropriate for the issuance of Share certificates, the
7
--------------------------------------------------------------------------------
transfer of Shares of the Trust and each Series and class thereof, if any, and
similar matters. The record books of the Trust as kept by the Trust or any
transfer or similar agent, as the case may be, shall be conclusive as to who are
the Shareholders of the Trust and each Series and class thereof and as to the
number of Shares of the Trust and each Series and class thereof held from time
to time by each such Shareholder.
Section 3. Sale of Shares. Subject to the 1940 Act and applicable law, the
Trust may sell its authorized but unissued shares of beneficial interest to such
Persons, at such times, on such terms, and for such consideration as the Board
of Trustees may from time to time authorize. Each sale shall be credited to the
individual purchaser's account in the form of full or fractional Shares of the
Trust or such Series thereof (and class thereof, if any), as the purchaser may
select, at the net asset value per Share, subject to Section 22 of the 1940 Act,
and the rules and regulations adopted thereunder; provided, however, that the
Board of Trustees may, in its sole discretion, permit the Principal Underwriter
to impose a sales charge upon any such sale. Every Shareholder by virtue of
having become a Shareholder shall be deemed to have expressly assented and
agreed to the terms of this Declaration of Trust and to have become bound as a
party hereto.
Section 4. Status of Shares and Limitation of Personal Liability. Shares
shall be deemed to be personal property giving to Shareholders only the rights
provided in this Declaration of Trust, the By-Laws, and under applicable law.
Ownership of Shares shall not entitle the Shareholder to any title in or to the
whole or any part of the Trust Property or right to call for a partition or
division of the same or for an accounting, nor shall the ownership of Shares
constitute the Shareholders as partners. Subject to Article VIII, Section 1
hereof, the death, incapacity, dissolution, termination, or bankruptcy of a
Shareholder during the existence of the Trust and any Series thereof shall not
operate to dissolve the Trust or any such Series, nor entitle the representative
of any deceased, incapacitated, dissolved, terminated or bankrupt Shareholder to
an accounting or to take any action in court or elsewhere against the Trust, the
Trustees or any such Series, but entitles such representative only to the rights
of said deceased, incapacitated, dissolved, terminated or bankrupt Shareholder
under this Declaration of Trust. Neither the Trust nor the Trustees, nor any
officer, employee or agent of the Trust, shall have any power to bind personally
any Shareholder, nor, except as specifically provided herein, to call upon any
Shareholder for the payment of any sum of money other than such as the
Shareholder may at any time personally agree to pay. Each Share, when issued on
the terms determined by the Board of Trustees, shall be fully paid and
nonassessable. As provided in the DSTA, Shareholders shall be entitled to the
same limitation of personal liability as that extended to stockholders of a
private corporation organized for profit under the General Corporation Law of
the State of Delaware.
Section 5. Power of Board of Trustees to Make Tax Status Election. The
Board of Trustees shall have the power, in its discretion, to make such
elections as to the tax status of the Trust as may be permitted or required
under the Code, without the vote of any Shareholder.
Section 6. Establishment and Designation of Series and Classes. The
establishment and designation of any Series or class thereof shall be effective,
without the requirement of Shareholder approval, upon the adoption of a
resolution by not less than a majority of the then Board of Trustees, which
resolution shall set forth such establishment and designation and may provide,
to the extent permitted by the DSTA, for rights, powers and duties of such
Series or class thereof (including variations in the relative rights and
preferences as between the different Series and classes thereof) otherwise than
8
--------------------------------------------------------------------------------
as provided herein. Each such resolution shall be incorporated herein by
reference upon adoption. Any such resolution may be amended by a further
resolution of a majority of the Board of Trustees, and if Shareholder approval
would be required to make such an amendment to the language set forth in this
Declaration of Trust, such further resolution shall require the same Shareholder
approval that would be necessary to make such amendment to the language set
forth in this Declaration of Trust. Each such further resolution shall be
incorporated herein by reference upon adoption.
Each Series shall be separate and distinct from any other Series, separate
and distinct records on the books of the Trust shall be maintained for each
Series, and the assets and liabilities belonging to any such Series shall be
held and accounted for separately from the assets and liabilities of the Trust
or any other Series. Each class of a Series shall be separate and distinct from
any other class of the Series. As appropriate, in a manner determined by the
Board of Trustees, the liabilities belonging to any such class of the Series
shall be held and accounted for separately from the liabilities of the Trust,
the Series or any other class of the Series and separate and distinct records on
the books of the Trust for the class of the Series shall be maintained for this
purpose. Subject to Article II hereof, each such Series shall operate as a
separate and distinct investment medium, with separately defined investment
objectives and policies and a distinct investment purpose.
Shares of each Series (and class thereof where applicable) established and
designated pursuant to this Section 6, unless otherwise provided to the extent
permitted by the DSTA, in the resolution establishing and designating such
Series or class, shall have the following rights, powers and duties:
(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,
9
--------------------------------------------------------------------------------
income, earnings, profits and proceeds thereof, funds or payments
which are not readily identifiable as assets held with respect to any
particular Series (collectively "General Assets"), the Board of
Trustees, or an appropriate officer as determined by the Board of
Trustees, shall allocate such General Assets to, between or among any
one or more of the Series in such manner and on such basis as the
Board of Trustees, in its sole discretion, deems fair and equitable,
and any General Assets so allocated to a particular Series shall be
held with respect to that Series. Each such allocation by or under the
direction of the Board of Trustees shall be conclusive and binding
upon the Shareholders of all Series for all purposes.
(b) Liabilities Held with Respect to a Particular Series or Class. The
assets of the Trust held with respect to a particular Series shall be
charged against the liabilities, debts, obligations, costs, charges,
reserves and expenses of the Trust incurred, contracted for or
otherwise existing with respect to such Series. Such liabilities,
debts, obligations, costs, charges, reserves and expenses incurred,
contracted for or otherwise existing with respect to a particular
Series are herein referred to as "liabilities held with respect to"
that Series. Any liabilities, debts, obligations, costs, charges,
reserves and expenses of the Trust which are not readily identifiable
as being liabilities held with respect to any particular Series
(collectively "General Liabilities") shall be allocated by the Board
of Trustees, or an appropriate officer as determined by the Board of
Trustees, to and among any one or more of the Series in such manner
and on such basis as the Board of Trustees in its sole discretion
deems fair and equitable. Each allocation of liabilities, debts,
obligations, costs, charges, reserves and expenses by or under the
direction of the Board of Trustees shall be conclusive and binding
upon the Shareholders of all Series for all purposes. All Persons who
have extended credit that has been allocated to a particular Series,
or who have a claim or contract that has been allocated to any
particular Series, shall look, 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 shall be deemed nevertheless to have impliedly agreed to such
limitation.
Subject to the right of the Board of Trustees in its discretion to allocate
General Liabilities as provided herein, the debts, liabilities, obligations and
expenses incurred, contracted for or otherwise existing with respect to a
particular Series, whether such Series is now authorized and existing pursuant
to 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 to be
filed in the Office of the Secretary of State of the State of Delaware pursuant
to the DSTA, and upon the giving of such notice in the Certificate of Trust, the
statutory provisions of Section 3804 of the DSTA relating to limitations on
liabilities between and among Series (and the statutory effect under Section
3804 of setting forth such notice in the Certificate of Trust) shall become
applicable to the Trust and each Series.
Liabilities, debts, obligations, costs, charges, reserves and expenses
related to the distribution of, and other identified expenses that should
properly be allocated to, the Shares of a particular class may be charged to and
borne solely by such class. The bearing of expenses solely by a particular class
of Shares may be appropriately reflected (in a manner determined by the Board of
Trustees) and may affect the net asset value attributable to, and the dividend,
redemption and liquidation rights of, such class. Each allocation of
liabilities, debts, obligations, costs, charges, reserves and expenses by or
10
--------------------------------------------------------------------------------
under the direction of the Board of Trustees shall be conclusive and binding
upon the Shareholders of all classes for all purposes. All Persons who have
extended credit that has been allocated to a particular class, or who have a
claim or contract that has been allocated to any particular class, shall look,
and may be required by contract to look exclusively, to that particular class
for payment of such credit, claim, or contract.
(c) Dividends, Distributions and Redemptions. Notwithstanding any other
provisions of this Declaration of Trust, including, without
limitation, Article VI hereof, no dividend or distribution including,
without limitation, any distribution paid upon dissolution of the
Trust or of any Series with respect to, nor any redemption of, the
Shares of any Series or class of such Series shall be effected by the
Trust other than from the assets held with respect to such Series,
nor, except as specifically provided in Section 7 of this Article III,
shall any Shareholder of any particular Series otherwise have any
right or claim against the assets held with respect to any other
Series or the Trust generally except, in the case of a right or claim
against the assets held with respect to any other Series, to the
extent that such Shareholder has such a right or claim hereunder as a
Shareholder of such other Series. The Board of Trustees shall have
full discretion, to the extent not inconsistent with the 1940 Act, to
determine which items shall be treated as income and which items as
capital; and each such determination and allocation shall be
conclusive and binding upon the Shareholders.
(d) Voting. All Shares of the Trust entitled to vote on a matter shall
vote on the matter, separately by Series and, if applicable, by class,
provided that: (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. Each Share of any particular Series shall be equal to each
other Share of such Series (subject to the rights and preferences with
respect to separate classes of such Series).
(f) Fractions. A fractional Share of a Series shall carry proportionately
all the rights and obligations of a whole Share of such Series,
including rights with respect to voting, receipt of dividends and
distributions, redemption of Shares and dissolution of the Trust or
that Series.
(g) Exchange Privilege. The Board of Trustees shall have the authority to
provide that the holders of Shares of any Series shall have the right
to exchange said Shares for Shares of one or more other Series in
accordance with such requirements and procedures as may be established
by the Board of Trustees, and in accordance with the 1940 Act.
(h) Combination of Series. 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; provided that
upon completion of such combination of Series, the proportionate
interest of each Shareholder, in the assets and liabilities held with
respect to the combined Series shall equal the proportionate interest
of each such Shareholder in the assets and liabilities held with
respect to each Series that was combined.
11
--------------------------------------------------------------------------------
(i) Dissolution or Termination. Any particular Series shall be dissolved
upon the occurrence of the applicable dissolution events set forth in
Article VIII, Section 1 hereof. Upon dissolution of a particular
Series, the Trustees shall wind up the affairs of such Series in
accordance with Article VIII Section 1 hereof and thereafter, rescind
the establishment and designation thereof. The Board of Trustees shall
terminate any particular class and rescind the establishment and
designation thereof upon the vote of the holders of not less than a
majority of the Shares outstanding and entitled to vote of such class.
In addition, at any time there are no Shares outstanding of a
particular class, the Board of Trustees may terminate such class and
rescind the establishment and designation thereof; provided, however,
that upon the rescission of the establishment and designation of any
particular Series, every class of such Series shall thereby be
terminated and its establishment and designation rescinded. Each
resolution of the Board of Trustees pursuant to this Section 6(i)
shall be incorporated herein by reference upon adoption.
Section 7. Indemnification of Shareholders. If any Shareholder or former
Shareholder shall be exposed to liability by reason of a claim or demand
relating exclusively to his or her being or having been a Shareholder of the
Trust or a Shareholder of a particular Series thereof, and not because of such
Shareholder's actions or omissions, such Shareholder or former Shareholder (or,
in the case of a natural person, his or her heirs, executors, administrators, or
other legal representatives or, in the case of a corporation or other entity,
its corporate or other general successor) shall be entitled to be held harmless
from and indemnified out of the assets of the Trust or out of the assets of such
Series thereof, as the case may be, against all loss and expense arising from
such claim or demand; provided, however, such indemnity shall not cover (i) any
taxes due or paid by reason of such Shareholder's ownership of any Shares and
(ii) expenses charged to a Shareholder pursuant to Article IV, Section 5 hereof.
ARTICLE IV.
THE BOARD OF TRUSTEES
Section 1. Number, Election, Term, Removal and Resignation.
(a) The initial Board of Trustees shall be comprised of the Trustees
entering into this Declaration of Trust on the date first written
above, who shall hold office until the initial holder of a Share
executes a consent in writing to elect a Board of Trustees that holds
office in accordance with paragraph (c) of this Section 1. The initial
Trustees shall (i) execute and file or cause to be filed the
Certificate of Trust with the office of the Secretary of State of the
State of Delaware and (ii) adopt the By-Laws. Each Trustee shall
execute a counterpart to this Declaration of Trust.
(b) The number of Trustees constituting the entire Board of Trustees may
be fixed from time to time by the vote of a majority of the then Board
of Trustees; provided, however, that the number of Trustees shall in
no event be less than one (1) nor more than fifteen (15) and the
percentage of Trustees who are not Interested Persons of the Trust
shall be no less than that required by the 1940 Act. The number of
Trustees shall not be reduced so as to shorten the term of any Trustee
then in office.
12
--------------------------------------------------------------------------------
(c) Each Trustee shall hold office for the lifetime of the Trust or until
such Trustee's earlier death, resignation, removal or inability
otherwise to serve, or, if sooner than any of such events, until the
next meeting of Shareholders called for the purpose of electing
Trustees or consent of Shareholders in lieu thereof for the election
of Trustees, and until the election and qualification of his or her
successor.
(d) Any Trustee may be removed, with or without cause, by the Board of
Trustees, by action of a majority of the Trustees. Shareholders shall
have the power to remove a Trustee only to the extent provided by the
1940 Act.
(e) Any Trustee may resign at any time by giving written notice to the
secretary of the Trust or to a meeting of the Board of Trustees. Such
resignation shall be effective upon receipt, unless specified to be
effective at some later time.
Section 2. Trustee Action by Written Consent Without a Meeting. To the
extent permitted by the 1940 Act, any action that may be taken at any meeting of
the Board of Trustees or any committee thereof may be taken without a meeting
and without prior written notice if a consent or consents in writing setting
forth the action so taken is signed by the Trustees having not less than the
minimum number of votes that would be necessary to authorize or take that action
at a meeting at which all Trustees on the Board of Trustees or any committee
thereof, as the case may be, were present and voted. A consent transmitted by
electronic transmission (as defined in the DSTA) by a Trustee shall be deemed to
be written and signed for purposes of this Section. All such consents shall be
filed with the secretary of the Trust and shall be maintained in the Trust's
records.
Section 3. Powers; Other Business Interests; Quorum and Required Vote.
(a) Powers. Subject to the provisions of this Declaration of Trust, the
business of the Trust (including every Series thereof) shall be
managed by or under the direction of the Board of Trustees, and such
Board of Trustees shall have all powers necessary or convenient to
carry out that responsibility. The Board of Trustees shall have full
power and authority to do any and all acts and to make and execute any
and all contracts and instruments that it may consider necessary or
appropriate in connection with the operation and administration of the
Trust (including every Series thereof). The Board of Trustees shall
not be bound or limited by present or future laws or customs with
regard to investments by trustees or fiduciaries, but, subject to the
other provisions of this Declaration of Trust and the By-Laws, shall
have full authority and absolute power and control over the assets and
the business of the Trust (including every Series thereof) to the same
extent as if the Board of Trustees was the sole owner of such assets
and business in its own right, including such authority, power and
control to do all acts and things as it, in its sole discretion, shall
deem proper to accomplish the purposes of this Trust. Without limiting
the foregoing, the Board of Trustees may, subject to the requisite
vote for such actions as set forth in this Declaration of Trust and
the By-Laws: (1) adopt By-Laws not inconsistent with applicable law or
this Declaration of Trust; (2) amend, restate and repeal such By-Laws,
subject to and in accordance with the provisions of such By-Laws; (3)
fill vacancies on the Board of Trustees in accordance with this
Declaration of Trust and the By-Laws; (4) elect and remove such
officers and appoint and terminate such agents as it considers
appropriate, in accordance with this Declaration of Trust and the
By-Laws; (5) establish and terminate one or more committees of the
Board of Trustees pursuant to the By-Laws; (6) place Trust Property in
custody as required by the 1940 Act, employ one or more custodians of
the Trust Property and authorize such custodians to employ
sub-custodians and to place all or any part of such Trust Property
with a custodian or a custodial system meeting the requirements of the
1940 Act; (7) retain a transfer agent, dividend disbursing agent, a
shareholder servicing agent or administrative services agent, or any
number thereof or any other service provider as deemed appropriate;
(8) provide for the issuance and distribution of shares of beneficial
interest in the Trust or other securities or financial instruments
directly or through one or more Principal Underwriters or otherwise;
(9) retain one or more Investment Adviser(s); (10) re-acquire and
redeem Shares on behalf of the Trust and transfer Shares pursuant to
applicable law; (11) set record dates for the determination of
Shareholders with respect to various matters, in the manner provided
in Article V, Section 4 of this Declaration of Trust; (12) declare and
pay dividends and distributions to Shareholders from the Trust
Property, in accordance with this Declaration of Trust and the
By-Laws; (13) establish and designate from time to time, in accordance
with the provisions of Article III, Section 6 hereof, any Series or
class thereof; and (14) in general delegate such authority as it
considers desirable to any officer of the Trust, to any committee of
the Trust and to any agent or employee of the Trust or to any such
custodian, transfer, dividend disbursing, shareholder servicing agent,
Principal Underwriter, Investment Adviser, or other service provider,
to the extent authorized and in accordance with this Declaration of
13
--------------------------------------------------------------------------------
Trust, the By-Laws and applicable law. The powers of the Board of
Trustees set forth in this Section 3(a) are without prejudice to any
other powers of the Board of Trustees set forth in this Declaration of
Trust and the By-Laws. Any determination as to what is in the best
interests of the Trust or any Series (or class) thereof and its
Shareholders made by the Board of Trustees in good faith shall be
conclusive. In construing the provisions of this Declaration of Trust,
the presumption shall be in favor of a grant of power to the Board of
Trustees.
(b) Other Business Interests. The Trustees shall devote to the affairs of
the Trust (including every Series thereof) such time as may be
necessary for the proper performance of their duties hereunder, but
neither the Trustees nor the officers, directors, shareholders,
partners or employees of the Trustees, if any, shall be expected to
devote their full time to the performance of such duties. The
Trustees, or any Affiliate, shareholder, officer, director, partner or
employee thereof, or any Person owning a legal or beneficial interest
therein, may engage in, or possess an interest in, any business or
venture other than the Trust or any Series thereof, of any nature and
description, independently or with or for the account of others. None
of the Trust, any Series thereof or any Shareholder shall have the
right to participate or share in such other business or venture or any
profit or compensation derived therefrom.
(c) Quorum and Required Vote. At all meetings of the Board of Trustees, a
majority of the Board of Trustees shall be present in person in order
to constitute a quorum for the transaction of business. A meeting at
which a quorum is initially present may continue to transact business
notwithstanding the departure of Trustees from the meeting, if any
action taken is approved by at least a majority of the required quorum
for that meeting. Subject to Article III, Sections 1 and 6 of the
By-Laws and except as otherwise provided herein or required by
applicable law, the vote of not less than a majority of the Trustees
present at a meeting at which a quorum is present shall be the act of
the Board of Trustees.
14
--------------------------------------------------------------------------------
Section 4. Payment of Expenses by the Trust. An authorized officer of the
Trust shall pay or cause to be paid out of the principal or income of the Trust
or any particular Series or class thereof, or partly out of the principal and
partly out of the income of the Trust or any particular Series or class thereof,
and charge or allocate the same to, between or among such one or more of the
Series or class that may be established or designated pursuant to Article III,
Section 6 hereof, as such officer deems fair, all expenses, fees, charges, taxes
and liabilities incurred by or arising in connection with the maintenance or
operation of the Trust or a particular Series or class thereof, or in connection
with the management thereof, including, but not limited to, the Trustees'
compensation and such expenses, fees, charges, taxes and liabilities associated
with the services of the Trust's officers, employees, Investment Adviser(s),
Principal Underwriter, auditors, counsel, custodian, sub-custodian, transfer
agent, dividend disbursing agent, shareholder servicing agent, and such other
agents or independent contractors and such other expenses, fees, charges, taxes
and liabilities as the Board of Trustees may deem necessary or proper to incur.
Section 5. Payment of Expenses by Shareholders. The Board of Trustees shall
have the power, as frequently as it may determine, to cause any Shareholder of
the Trust, or any Shareholder of any particular Series thereof, to pay directly,
in advance or arrears, for charges of the Trust's custodian or transfer,
dividend disbursing, shareholder servicing or similar agent for services
provided to such Shareholder, an amount fixed from time to time by the Board of
Trustees, by setting off such amount due from such Shareholder from the amount
of (i) declared but unpaid dividends or distributions owed such Shareholder, or
(ii) proceeds from the redemption by the Trust of Shares from such Shareholder
pursuant to Article VI hereof.
Section 6. Ownership of Trust Property. Legal title to all of the Trust
Property shall at all times be vested in the Trust, except that the Board of
Trustees shall have the power to cause legal title to any Trust Property to be
held by or in the name of any Person as nominee, on such terms as the Board of
Trustees may determine, in accordance with applicable law.
Section 7. Service Contracts.
(a) Subject to this Declaration of Trust, the By-Laws and the 1940 Act,
the Board of Trustees may, at any time and from time to time, contract
for exclusive or nonexclusive investment advisory or investment
management services for the Trust or for any Series thereof with any
corporation, trust, association or other organization, including any
Affiliate; and any such contract may contain such other terms as the
Board of Trustees may determine, including without limitation,
delegation of authority to the Investment Adviser to determine from
time to time without prior consultation with the Board of Trustees
what securities and other instruments or property shall be purchased
or otherwise acquired, owned, held, invested or reinvested in, sold,
exchanged, transferred, mortgaged, pledged, assigned, negotiated, or
otherwise dealt with or disposed of, and what portion, if any, of the
Trust Property shall be held uninvested and to make changes in the
Trust's or a particular Series' investments, or to engage in such
other activities, including administrative services, as may
specifically be delegated to such party.
(b) The Board of Trustees may also, at any time and from time to time,
contract with any Person, including any Affiliate, appointing it or
them as the exclusive or nonexclusive placement agent, distributor or
Principal Underwriter for the shares of beneficial interest of the
Trust or one or more of the Series or classes thereof, or for other
securities or financial instruments to be issued by the Trust, or
15
--------------------------------------------------------------------------------
appointing it or them to act as the administrator, 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, such Series and
its Shareholders.
(d) None of the following facts or circumstances shall affect the validity
of any of the following contracts or disqualify any Shareholder,
Trustee, employee or officer of the Trust from voting upon or
executing the same, or create any liability or accountability to the
Trust, any Series thereof or the Shareholders, provided that the
establishment of and performance of each such contract is permissible
under the 1940 Act, and provided further that such Person is
authorized to vote upon such contract under the 1940 Act:
(i) the fact that any of the Shareholders, Trustees, employees or
officers of the Trust is a shareholder, director, officer,
partner, trustee, employee, manager, Adviser, placement agent,
Principal Underwriter, distributor, or Affiliate or agent of or
for any Person, or for any parent or Affiliate of any Person,
with which any type of service contract provided for in this
Article IV, Section 7 may have been or may hereafter be made, or
that any such Person, or any parent or Affiliate thereof, is a
Shareholder or has an interest in the Trust, or
(ii) the fact that any Person with which any type of service contract
provided for in this Article IV, Section 7 may have been or may
hereafter be made also has such a service contract with one or
more other Persons, or has other business or interests.
(e) Every contract referred to in this Section 7 is required to comply
with this Declaration of Trust, the By-Laws, the 1940 Act, other
applicable law and any stipulation by resolution of the Board of
Trustees.
ARTICLE V.
SHAREHOLDERS' VOTING POWERS AND MEETINGS
Section 1. Voting Powers. Subject to the provisions of Article III, Section
6 hereof, the Shareholders shall have the power to vote only (i) on such matters
required by this Declaration of Trust, the By-Laws, the 1940 Act, other
applicable law and any registration statement of the Trust filed with the
Commission, the registration of which is effective; and (ii) on such other
matters as the Board of Trustees may consider necessary or desirable. Subject to
Article III hereof, the Shareholder of record (as of the record date established
pursuant to Section 4 of this Article V) of each Share shall be entitled to one
vote for each full Share, and a fractional vote for each fractional Share.
16
--------------------------------------------------------------------------------
Shareholders shall not be entitled to cumulative voting in the election of
Trustees or on any other matter.
Section 2. Quorum and Required Vote.
(a) Forty percent (40%) of the Shares entitled to vote at a Shareholders'
meeting, which are present in person or represented by proxy, shall
constitute a quorum at the Shareholders' meeting, except when a larger
quorum is required by this Declaration of Trust, the By-Laws,
applicable law or the requirements of any securities exchange on which
Shares are listed for trading, in which case such quorum shall comply
with such requirements. When a separate vote by one or more Series or
classes is required, forty percent (40%) of the Shares of each such
Series or class entitled to vote at a Shareholders' meeting of such
Series or class, which are present in person or represented by proxy,
shall constitute a quorum at the Shareholders' meeting of such Series
or class, except when a larger quorum is required by this Declaration
of Trust, the By-Laws, applicable law or the requirements of any
securities exchange on which Shares of such Series or class are listed
for trading, in which case such quorum shall comply with such
requirements.
(b) Subject to any provision of this Declaration of Trust, the By-Laws,
the 1940 Act or other applicable law that requires a different vote:
(1) in all matters other than the election of Trustees, the
affirmative "vote of a majority of the outstanding voting securities"
(as defined herein) of the Trust entitled to vote at a Shareholders'
meeting at which a quorum is present, shall be the act of the
Shareholders; and (2) Trustees shall be elected by not less than a
plurality of the votes cast of the holders of Shares entitled to vote
present in person or represented by proxy at a Shareholders' meeting
at which a quorum is present. Pursuant to Article III, Section 6(d)
hereof, where a separate vote by Series and, if applicable, by classes
is required, the preceding sentence shall apply to such separate votes
by Series and classes.
(c) Abstentions and broker non-votes will be treated as votes present at a
Shareholders' meeting, but will not be treated as votes cast.
Abstentions and broker non-votes, therefore (i) will be included for
purposes of determining whether a quorum is present, and (ii) will
have no effect on proposals which require a plurality or majority of
votes cast for approval, but (iii) will have the same effect as a vote
"against" on proposals requiring any percentage of the outstanding
voting securities of the Trust for approval.
Section 3. Shareholder Action by Written Consent Without a Meeting. Any
action which may be taken at any meeting of Shareholders may be taken without a
meeting and without prior notice if a consent or consents in writing setting
forth the action so taken is signed by the holders of all Shares entitled to
vote on that action, and is received by the secretary of the Trust. A consent
transmitted by electronic transmission (as defined in the DSTA) by a Shareholder
or by a person or persons authorized to act for a Shareholder shall be deemed to
be written and signed for purposes of this Section. All such consents shall be
filed with the secretary of the Trust and shall be maintained in the Trust's
records. Any Shareholder that has given a written consent or the Shareholder's
proxyholder or a personal representative of the Shareholder or its respective
proxyholder may revoke the consent by a writing received by the secretary of the
Trust before the written consents of all Shares entitled to vote have been
received by the secretary of the Trust.
17
--------------------------------------------------------------------------------
Section 4. Record Dates.
(a) For purposes of determining the Shareholders entitled to notice of,
and to vote at, any meeting of Shareholders, the Board of Trustees may
fix a record date, which record date shall not precede the date upon
which the resolution fixing the record date is adopted by the Board of
Trustees, and which record date shall not be more than one hundred and
twenty (120) days nor less than ten (10) days before the date of any
such meeting. For purposes of determining the Shareholders entitled to
vote on any action without a meeting, the Board of Trustees may fix a
record date, which record date shall not precede the date upon which
the resolution fixing the record date is adopted by the Board of
Trustees, and which record date shall not be more than thirty (30)
days after the date upon which the resolution fixing the record date
is adopted by the Board of Trustees.
(b) If the Board of Trustees does not so fix a record date:
(i) the record date for determining Shareholders entitled to notice
of, and to vote at, a meeting of Shareholders shall be at the
close of business on the day next preceding the day on which
notice is given or, if notice is waived, at the close of business
on the day next preceding the day on which the meeting is held.
(ii) the record date for determining Shareholders entitled to vote on
any action by consent in writing without a meeting of
Shareholders, (1) when no prior action by the Board of Trustees
has been taken, shall be the day on which the first signed
written consent setting forth the action taken is delivered to
the Trust, or (2) when prior action of the Board of Trustees has
been taken, shall be at the close of business on the day on which
the Board of Trustees adopts the resolution taking such prior
action.
(c) For the purpose of determining the Shareholders of the Trust or any
Series or class thereof who are entitled to receive payment of any
dividend or of any other distribution of assets of the Trust or any
Series or class thereof, the Board of Trustees may from time to time
fix a record date, which record date shall not precede the date upon
which the resolution fixing the record date is adopted, and which
record date shall not be more than sixty (60) days before the date for
the payment of such dividend or such other distribution. Nothing in
this Section shall be construed as precluding the Board of Trustees
from setting different record dates for different Series or classes.
Section 5. Additional Provisions. The By-Laws may include further
provisions for Shareholders' votes, meetings and related matters.
18
--------------------------------------------------------------------------------
ARTICLE VI.
NET ASSET VALUE; DISTRIBUTIONS;
REDEMPTIONS; TRANSFERS
Section 1. Determination of Net Asset Value, Net Income and Distributions.
(a) Subject to Article III, Section 6 hereof, the Board of Trustees or its
duly authorized delegate, shall have the power to determine from time
to time the offering price for authorized, but unissued, shares of
beneficial interest of the Trust or any Series or class thereof,
respectively, that shall yield to the Trust or such Series or class
not less than the net asset value thereof, at which price the Shares
of the Trust or such Series or class, respectively, shall be offered
for sale, subject to any other requirements or limitations of the 1940
Act.
(b) Subject to Article III, Section 6 hereof, the Board of Trustees may,
subject to the 1940 Act, prescribe and shall set forth in the By-Laws,
this Declaration of Trust or in a resolution of the Board of Trustees
such bases and time for determining the net asset value per Share of
the Trust or any Series or class thereof, or net income attributable
to the Shares of the Trust or any Series or class thereof or the
declaration and payment of dividends and distributions on the Shares
of the Trust or any Series or class thereof, as it may deem necessary
or desirable.
(c) The Shareholders of the Trust or any Series or class, if any, shall be
entitled to receive dividends and distributions, when, if and as
declared by the Board of Trustees with respect thereto, provided that
with respect to classes, such dividends and distributions shall comply
with the 1940 Act. The right of Shareholders to receive dividends or
other distributions on Shares of any class may be set forth in a plan
adopted by the Board of Trustees and amended from time to time
pursuant to the 1940 Act. No Share shall have any priority or
preference over any other Share of the same Series with respect to
dividends or distributions paid in the ordinary course of business or
distributions upon dissolution of the Trust or of such Series made
pursuant to Article VIII, Section 1 hereof; provided however, that if
the Shares of a Series are divided into classes thereof, no Share of a
particular class shall have any priority or preference over any other
Share of the same class with respect to dividends or distributions
paid in the ordinary course of business or distributions upon
dissolution of the Trust or of such Series made pursuant to Article
VIII, Section 1 hereof. All dividends and distributions shall be made
ratably among all Shareholders of the Trust or a particular Series
from the Trust Property held with respect to the Trust or such Series
thereof, respectively, according to the number of Shares of the Trust
or such Series held of record by such Shareholders on the record date
for any dividend or distribution; provided however, that if the Shares
of a Series are divided into classes thereof, all dividends and
distributions from the Trust Property held with respect to such Series
shall be distributed to each class of such Series according to the net
asset value computed for such class and within such particular class,
shall be distributed ratably to the Shareholders of such class
according to the number of Shares of such class held of record by such
Shareholders on the record date for any dividend or distribution.
Dividends may be paid in cash or in kind.
(d) Before payment of any dividend there may be set aside out of any funds
of the Trust, or the applicable Series thereof, available for
dividends such sum or sums as the Board of Trustees may from time to
time, in its absolute discretion, think proper as a reserve fund to
meet contingencies, or for equalizing dividends, or for repairing or
maintaining any property of the Trust, or any Series thereof, or for
19
--------------------------------------------------------------------------------
such other lawful purpose as the Board of Trustees shall deem to be in
the best interests of the Trust, or the applicable Series, as the case
may be, and the Board of Trustees may abolish any such reserve in the
manner in which it was created.
Section 2. Redemptions at the Option of a Shareholder. Unless otherwise
provided in the prospectus of the Trust relating to the Shares, as such
prospectus may be amended from time to time:
(a) The Trust shall purchase such Shares as are offered by any Shareholder
for redemption upon the presentation of a proper instrument of
transfer together with a request directed to the Trust or a Person
designated by the Trust that the Trust purchase such Shares and/or in
accordance with such other procedures for redemption as the Board of
Trustees may from time to time authorize. If certificates have been
issued to a Shareholder, any request for redemption by such
Shareholder must be accompanied by surrender of any outstanding
certificate or certificates for such Shares in form for transfer,
together with such proof of the authenticity of signatures as may
reasonably be required on such Shares and accompanied by proper stock
transfer stamps, if applicable.
(b) The Trust shall pay for such Shares the net asset value thereof, in
accordance with this Declaration of Trust, the By-Laws, the 1940 Act
and other applicable law. Payments for Shares so redeemed by the Trust
shall be made in cash, except payment for such Shares may, at the
option of the Board of Trustees, or such officer or officers as it may
duly authorize in its complete discretion, be made in kind or
partially in cash and partially in kind. In case of any payment in
kind, the Board of Trustees, or its authorized officers, shall have
absolute discretion as to what security or securities of the Trust or
the applicable Series shall be distributed in kind and the amount of
the same; and the securities shall be valued for purposes of
distribution at the value at which they were appraised in computing
the then current net asset value of the Shares, provided that any
Shareholder who cannot legally acquire securities so distributed in
kind by reason of the prohibitions of the 1940 Act or the provisions
of the Employee Retirement Income Security Act of 1974, as amended, or
any other applicable law, 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 by the Trust for such redemption of Shares shall be made by
the Trust to the Shareholder within seven days after the date on which
the redemption request is received in proper form and/or such other
procedures authorized by the Board of Trustees are complied with;
provided, however, that if payment shall be made other than
exclusively in cash, any securities to be delivered as part of such
payment shall be delivered as promptly as any necessary transfers of
such securities on the books of the several corporations whose
securities are to be delivered practicably can be made, which may not
necessarily occur within such seven-day period. In no case shall the
Trust be liable for any delay of any corporation or other Person in
transferring securities selected for delivery as all or part of any
payment in kind.
(d) The obligations of the Trust set forth in this Section 2 are subject
to the provision that such obligations may be suspended or postponed
by the Board of Trustees (1) during any time the New York Stock
Exchange (the "Exchange") is closed for other than weekends or
holidays; (2) if permitted by the rules of the Commission, during
periods when trading on the Exchange is restricted; or (3) during any
National Financial Emergency. The Board of Trustees may, in its
discretion, declare that the suspension relating to a National
20
--------------------------------------------------------------------------------
Financial Emergency shall terminate, as the case may be, on the first
business day on which the Exchange shall have reopened or the period
specified above shall have expired (as to which, in the absence of an
official ruling by the Commission, the determination of the Board of
Trustees shall be conclusive).
(e) The right of any Shareholder of the Trust or any Series or class
thereof to receive dividends or other distributions on Shares redeemed
and all other rights of such Shareholder with respect to the Shares so
redeemed, except the right of such Shareholder to receive payment for
such Shares, shall cease at the time the purchase price of such Shares
shall have been fixed, as provided above.
Section 3. Redemptions at the Option of the Trust. At the option of the
Board of Trustees the Trust may, from time to time, without the vote of the
Shareholders, but subject to the 1940 Act, redeem Shares or authorize the
closing of any Shareholder account, subject to such conditions as may be
established by the Board of Trustees.
Section 4. Transfer of Shares. Shares shall be transferable in accordance
with the provisions of the By-Laws.
ARTICLE VII.
LIMITATION OF LIABILITY
AND INDEMNIFICATION OF AGENT
Section 1. Limitation of Liability.
(a) For the purpose of this Article, "Agent" means any Person who is or
was a Trustee, officer, employee or other agent of the Trust or is or
was serving at the request of the Trust as a trustee, director,
officer, employee or other agent of another foreign or domestic
corporation, partnership, joint venture, trust or other enterprise;
"Proceeding" means any threatened, pending or completed action or
proceeding, whether civil, criminal, administrative or investigative;
and "Expenses" include without limitation attorneys' fees and any
expenses of establishing a right to indemnification under this
Article.
(b) An Agent shall be liable to the Trust and to any Shareholder solely
for such Agent's own willful misfeasance, bad faith, gross negligence
or reckless disregard of the duties involved in the conduct of such
Agent (such conduct referred to herein as "Disqualifying Conduct"),
and for nothing else.
(c) Subject to subsection (b) of this Section 1 and to the fullest extent
that limitations on the liability of Agents are permitted by the DSTA,
the Agents shall not be responsible or liable in any event for any act
or omission of any other Agent of the Trust or any Investment Adviser
or Principal Underwriter of the Trust.
21
--------------------------------------------------------------------------------
(d) No Agent, when acting in its respective capacity as such, shall be
personally liable to any Person, other than the Trust or a Shareholder
to the extent provided in subsections (b) and (c) of this Section 1,
for any act, omission or obligation of the Trust or any Trustee
thereof.
(e) The officers and Trustees may obtain the advice of counsel or other
experts with respect to the meaning and operation of this Declaration
of Trust, the By-Laws, applicable law and their respective duties as
officers or Trustees. No such officer or Trustee shall be liable for
any act or omission in accordance with such advice 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
hereunder, nor any surety if a bond is required by applicable law.
(f) The failure to make timely collection of dividends or interest, or to
take timely action with respect to entitlements, on the Trust's
securities issued in emerging countries, shall not be deemed to be
negligence or other fault on the part of any Agent, and no Agent shall
have any liability for such failure or for any loss or damage
resulting from the imposition by any government of exchange control
restrictions which might affect the liquidity of the Trust's assets or
from any war or political act of any foreign government to which such
assets might be exposed, except, in the case of a Trustee or officer,
for liability resulting from such Trustee's or officer's Disqualifying
Conduct.
(g) The limitation on liability contained in this Article applies to
events occurring at the time a Person serves as an Agent whether or
not such Person is an Agent at the time of any Proceeding in which
liability is asserted.
(h) No amendment or repeal of this Article shall adversely affect any
right or protection of an Agent that exists at the time of such
amendment or repeal.
Section 2. Indemnification.
(a) Indemnification by Trust. The Trust shall indemnify, out of Trust
Property, to the fullest extent permitted under applicable law, any
Person who was or is a party or is threatened to be made a party to
any Proceeding by reason of the fact that such Person is or was an
Agent of the Trust, against Expenses, judgments, fines, settlements
and other amounts actually and reasonably incurred in connection with
such Proceeding if such Person acted in good faith or in the case of a
criminal proceeding, had no reasonable cause to believe the conduct of
such Person was unlawful. The termination of any Proceeding by
judgment, order, settlement, conviction or plea of nolo contendere or
its equivalent shall not of itself create a presumption that the
Person did not act in good faith or that the Person had reasonable
cause to believe that the Person's conduct was unlawful.
(b) Exclusion of Indemnification. Notwithstanding any provision to the
contrary contained herein, there shall be no right to indemnification
for any liability arising by reason of the Agent's Disqualifying
Conduct. In respect of any claim, issue or matter as to which that
Person shall have been adjudged to be liable in the performance of
that Person's duty to the Trust or the Shareholders, indemnification
shall be made only to the extent that the court in which that action
22
--------------------------------------------------------------------------------
was brought shall determine, upon application or otherwise, that in
view of all the circumstances of the case, that Person was not liable
by reason of that Person's Disqualifying Conduct.
(c) Required Approval. Any indemnification under this Article shall be
made by the Trust if authorized in the specific case on a
determination that indemnification of the Agent is proper in the
circumstances by a majority vote of Trustees, even though such number
of Trustees shall be less than a quorum, who are not parties to the
Proceeding and have no economic or other interest in connection with
such specific case; a committee of such Trustees designated by
majority vote of such Trustees even though such number of Trustees
shall be less than a quorum; or by independent legal counsel in a
written opinion.
(d) Advancement of Expenses. Expenses incurred by an Agent in defending
any Proceeding may be advanced by the Trust before the final
disposition of the Proceeding on receipt of an undertaking by or on
behalf of the Agent to repay the amount of the advance if it shall be
determined ultimately that the Agent is not entitled to be indemnified
as authorized in this Article.
(e) Other Contractual Rights. Nothing contained in this Article shall
affect any right to indemnification to which Persons other than
Trustees and officers of the Trust or any subsidiary thereof may be
entitled by contract or otherwise.
(f) Fiduciaries of Employee Benefit Plan. This Article does not apply to
any Proceeding against any trustee, investment manager or other
fiduciary of an employee benefit plan in that Person's capacity as
such, even though that Person may also be an Agent of the Trust as
defined in Section 1 of this Article. Nothing contained in this
Article shall limit any right to indemnification to which such a
trustee, investment manager, or other fiduciary may be entitled by
contract or otherwise which shall be enforceable to the extent
permitted by applicable law other than this Article.
Section 3. Insurance. To the fullest extent permitted by applicable law,
the Board of Trustees shall have the authority to purchase with Trust Property,
insurance for liability and for all Expenses reasonably incurred or paid or
expected to be paid by an Agent in connection with any Proceeding in which such
Agent becomes involved by virtue of such Agent's actions, or omissions to act,
in its capacity or former capacity with the Trust, whether or not the Trust
would have the power to indemnify such Agent against such liability.
Section 4. Derivative Actions. Subject to the requirements set forth in
Section 3816 of the DSTA, a Shareholder or Shareholders may bring a derivative
action on behalf of the Trust only if the Shareholder or Shareholders first make
a pre-suit demand upon the Board of Trustees to bring the subject action unless
an effort to cause the Board of Trustees to bring such action is excused. A
demand on the Board of Trustees shall only be excused if a majority of the Board
of Trustees, or a majority of any committee established to consider the merits
of such action, has a material personal financial interest in the action at
issue. A Trustee shall not be deemed to have a material personal financial
interest in an action or otherwise be disqualified from ruling on a Shareholder
demand by virtue of the fact that such Trustee receives remuneration from his
service on the Board of Trustees of the Trust or on the boards of one or more
investment companies with the same or an affiliated investment advisor or
underwriter.
23
--------------------------------------------------------------------------------
ARTICLE VIII.
CERTAIN TRANSACTIONS
Section 1. Dissolution of Trust or Series. The Trust and each Series shall
have perpetual existence, except that the Trust (or a particular Series) shall
be dissolved:
(a) With respect to the Trust, (i) upon the vote of the holders of not
less than a majority of the Shares of the Trust entitled to vote or
(ii) at the discretion of the Board of Trustees at any time there are
no Shares outstanding of the Trust; or
(b) With respect to a particular Series, (i) upon the vote of the holders
of not less than a majority of the Shares of that Series entitled to
vote or (ii) at the discretion of the Board of Trustees at any time
there are no Shares outstanding of that Series; or
(c) With respect to the Trust (or a particular Series), upon the
occurrence of a dissolution or termination event pursuant to any other
provision of this Declaration of Trust or the DSTA; or
(d) With respect to any Series, upon any event that causes the dissolution
of the Trust.
Upon dissolution of the Trust (or a particular Series, as the case may be),
the Board of Trustees shall (in accordance with Section 3808 of the DSTA) pay or
make reasonable provision to pay all claims and obligations of the Trust and/or
each Series (or the particular Series, as the case may be), including all
contingent, conditional or unmatured claims and obligations known to the Trust,
and all claims and obligations which are known to the Trust, but for which the
identity of the claimant is unknown. If there are sufficient assets held with
respect to the Trust and/or each Series of the Trust (or the particular Series,
as the case may be), such claims and obligations shall be paid in full and any
such provisions for payment shall be made in full. If there are insufficient
assets held with respect to the Trust and/or each Series of the Trust (or the
particular Series, as the case may be), such claims and obligations shall be
paid or provided for according to their priority and, among claims and
obligations of equal priority, ratably to the extent of assets available
therefore. Any remaining assets (including, without limitation, cash, securities
or any combination thereof) held with respect to the Trust and/or each Series of
the Trust (or the particular Series, as the case may be) shall be distributed to
the Shareholders of the Trust and/or each Series of the Trust (or the particular
Series, as the case may be) ratably according to the number of Shares of the
Trust and/or such Series thereof (or the particular Series, as the case may be)
held of record by the several Shareholders on the date for such dissolution
distribution; provided, however, that if the Shares of a Series are divided into
classes thereof, any remaining assets (including, without limitation, cash,
securities or any combination thereof) held with respect to such Series shall be
distributed to each class of such Series according to the net asset value
computed for such class and within such particular class, shall be distributed
ratably to the Shareholders of such class according to the number of Shares of
such class held of record by the several Shareholders on the date for such
dissolution distribution. Upon the winding up of the Trust in accordance with
Section 3808 of the DSTA and its termination, any one (1) Trustee shall execute,
24
--------------------------------------------------------------------------------
and cause to be filed, a certificate of cancellation, with the office of the
Secretary of State of the State of Delaware in accordance with the provisions of
Section 3810 of the DSTA.
Section 2. Merger or Consolidation; Conversion; Reorganization.
(a) Merger or Consolidation. Pursuant to an agreement of merger or
consolidation, the Board of Trustees, by vote of a majority of the
Trustees, may cause the Trust to merge or consolidate with or into one
or more statutory trusts or "other business entities" (as defined in
Section 3801 of the DSTA) formed or organized or existing under the
laws of the State of Delaware or any other state 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 unless
such vote is required by the 1940 Act; provided however, that the
Board of Trustees shall provide thirty (30) days' prior written notice
to the Shareholders of such merger or consolidation. By reference to
Section 3815(f) of the DSTA, any agreement of merger or consolidation
approved in accordance with this Section 2(a) may, without a
Shareholder vote, unless required by the 1940 Act, the requirements of
any securities exchange on which Shares are listed for trading or any
other provision of this Declaration of Trust or the By-Laws, effect
any amendment to this Declaration of Trust or the By-Laws or effect
the adoption of a new governing instrument if the Trust is the
surviving or resulting statutory trust in the merger or consolidation,
which amendment or new governing instrument shall be effective at the
effective time or date of the merger or consolidation. In all respects
not governed by the DSTA, the 1940 Act, other applicable law or the
requirements of any securities exchange on which Shares are listed for
trading, the Board of Trustees shall have the power to prescribe
additional procedures necessary or appropriate to accomplish a merger
or consolidation, including the power to create one or more separate
statutory trusts to which all or any part of the assets, liabilities,
profits or losses of the Trust may be transferred and to provide for
the conversion of Shares into beneficial interests in such separate
statutory trust or trusts. Upon completion of the merger or
consolidation, if the Trust is the surviving or resulting statutory
trust, any one (1) Trustee shall execute, and cause to be filed, a
certificate of merger or consolidation in accordance with Section 3815
of the DSTA.
(b) Conversion. The Board of Trustees, by vote of a majority of the
Trustees, may cause (i) the Trust to convert to an "other business
entity" (as defined in Section 3801 of the DSTA) formed or organized
under the laws of the State of Delaware as permitted pursuant to
Section 3821 of the DSTA; (ii) the Shares of the Trust or any Series
to be converted into beneficial interests in another statutory trust
(or series thereof) created pursuant to this Section 2 of this Article
VIII, or (iii) the Shares to be exchanged under or pursuant to any
state or federal statute to the extent permitted by law. Any such
statutory conversion, Share conversion or Share exchange shall not
require the vote of the Shareholders unless such vote is required by
the 1940 Act; provided however, that the Board of Trustees shall
provide thirty (30) days' prior written notice to the Shareholders of
the Trust of any conversion of Shares of the Trust pursuant to
Subsections (b)(i) or (b)(ii) of this Section 2 or exchange of Shares
of the Trust pursuant to Subsection (b)(iii) of this Section 2, and
thirty (30) days' prior written notice to the Shareholders of a
particular Series of any conversion of Shares of such Series pursuant
to Subsection (b)(ii) of this Section 2 or exchange of Shares of such
Series pursuant to Subsection (b)(iii) of this Section 2. In all
respects not governed by the DSTA, the 1940 Act, other applicable law
or the requirements of any securities exchange on which Shares are
listed for trading, the Board of Trustees shall have the power to
25
--------------------------------------------------------------------------------
prescribe additional procedures necessary or appropriate to accomplish
a statutory conversion, Share conversion or Share exchange, including
the power to create one or more separate statutory trusts to which all
or any part of the assets, liabilities, profits or losses of the Trust
may be transferred and to provide for the conversion of Shares of the
Trust or any Series thereof into beneficial interests in such separate
statutory trust or trusts (or series thereof).
(c) Reorganization. The Board of Trustees, by vote of a majority of the
Trustees, may cause the Trust to sell, convey and transfer all or
substantially all of the assets of the Trust ("sale of Trust assets")
or all or substantially all of the assets associated with any one or
more Series ("sale of such Series' assets"), to another trust,
statutory trust, partnership, limited partnership, limited liability
company, corporation or other association organized under the laws of
any state, or to one or more separate series thereof, or to the Trust
to be held as assets associated with one or more other Series of the
Trust, in exchange for cash, shares or other securities (including,
without limitation, in the case of a transfer to another Series of the
Trust, Shares of such other Series) with such sale, conveyance and
transfer either (a) being made subject to, or with the assumption by
the transferee of, the liabilities associated with the Trust or the
liabilities associated with the Series the assets of which are so
transferred, as applicable, or (b) not being made subject to, or not
with the assumption of, such liabilities. Any such sale, conveyance
and transfer shall not require the vote of the Shareholders unless
such vote is required by the 1940 Act; provided however, that the
Board of Trustees shall provide thirty (30) days' prior written notice
to the Shareholders of the Trust of any such sale of Trust assets, and
thirty (30) days prior written notice to the Shareholders of a
particular Series of any sale of such Series' assets. Following such
sale of Trust assets, the Board of Trustees shall distribute such
cash, shares or other securities ratably among the Shareholders of the
Trust (giving due effect to the assets and liabilities associated with
and any other differences among the various Series the assets
associated with which have been so sold, conveyed and transferred, and
due effect to the differences among the various classes within each
such Series). Following a sale of such Series' assets, the Board of
Trustees shall distribute such cash, shares or other securities
ratably among the Shareholders of such Series (giving due effect to
the differences among the various classes within each such Series). If
all of the assets of the Trust have been so sold, conveyed and
transferred, the Trust shall be dissolved. In all respects not
governed by the DSTA, the 1940 Act or other applicable law, the Board
of Trustees shall have the power to prescribe additional procedures
necessary or appropriate to accomplish such sale, conveyance and
transfer, including the power to create one or more separate statutory
trusts to which all or any part of the assets, liabilities, profits or
losses of the Trust may be transferred and to provide for the
conversion of Shares into beneficial interests in such separate
statutory trust or trusts.
Section 3. Master Feeder Structure. If permitted by the 1940 Act, the Board
of Trustees, by vote of a majority of the Trustees, and without a Shareholder
vote, may cause the Trust to convert to a master feeder structure (a structure
in which a feeder fund invests all of its assets into a master fund, rather than
making investments in securities directly) and thereby cause existing Series of
the Trust to either become feeders into a master fund, or to become master funds
into which other funds are feeders.
26
--------------------------------------------------------------------------------
ARTICLE IX.
AMENDMENTS
Section 1. Amendments Generally. This Declaration of Trust may be restated
and/or amended at any time by an instrument in writing signed by not less than a
majority of the Board of Trustees and, to the extent required by this
Declaration of Trust, the 1940 Act or the requirements of any securities
exchange on which Shares are listed for trading, by approval of such amendment
by the Shareholders in accordance with Article III, Section 6 hereof and Article
V hereof. Any such restatement and/or amendment hereto shall be effective
immediately upon execution and approval or upon such future date and time as may
be stated therein. The Certificate of Trust shall be restated and/or amended at
any time by the Board of Trustees, without Shareholder approval, to correct any
inaccuracy contained therein. Any such restatement and/or amendment of the
Certificate of Trust shall be executed by at least one (1) Trustee and shall be
effective immediately upon its filing with the office of the Secretary of State
of the State of Delaware or upon such future date as may be stated therein.
ARTICLE X.
MISCELLANEOUS
Section 1. References; Headings; Counterparts. In this Declaration of Trust
and in any restatement hereof and/or amendment hereto, references to this
instrument, and all expressions of similar effect to "herein," "hereof' and
"hereunder," shall be deemed to refer to this instrument as so restated and/or
amended. Headings are placed herein for convenience of reference only and shall
not be taken as a part hereof or control or affect the meaning, construction or
effect of this instrument. Whenever the singular number is used herein, the same
shall include the plural; and the neuter, masculine and feminine genders shall
include each other, as applicable. Any references herein to specific sections of
the DSTA, the Code or the 1940 Act shall refer to such sections as amended from
time to time or any successor sections thereof. This instrument may be executed
in any number of counterparts, each of which shall be deemed an original.
Section 2. Applicable Law. This Declaration of Trust is created under and
is to be governed by and construed and administered according to the laws of the
State of Delaware and the applicable provisions of the 1940 Act and the Code.
The Trust shall be a Delaware statutory trust pursuant to the DSTA, and without
limiting the provisions hereof, the Trust may exercise all powers which are
ordinarily exercised by such a statutory trust.
Section 3. Provisions in Conflict with Law or Regulations.
(a) The provisions of this Declaration of Trust are severable, and if the
Board of Trustees shall determine, with the advice of counsel, that
any of such provisions is in conflict with the 1940 Act, the Code, the
DSTA, or with other applicable laws and regulations, the conflicting
provision shall be deemed not to have constituted a part of this
Declaration of Trust from the time when such provisions became
27
--------------------------------------------------------------------------------
inconsistent with such laws or regulations; provided, however, that
such determination shall not affect any of the remaining provisions of
this Declaration of Trust or render invalid or improper any action
taken or omitted prior to such determination.
(b) If any provision of this Declaration of Trust shall be held invalid or
unenforceable in any jurisdiction, such invalidity or unenforceability
shall attach only to such provision in such jurisdiction and shall not
in any manner affect such provision in any other jurisdiction or any
other provision of this Declaration of Trust in any jurisdiction.
Section 4. Statutory Trust Only. It is the intention of the Trustees to
create hereby a statutory trust pursuant to the DSTA, and thereby to create the
relationship of trustee and beneficial owners within the meaning of the DSTA
between, respectively, the Trustees and each Shareholder. It is not the
intention of the Trustees to create a general or limited partnership, limited
liability company, joint stock association, corporation, bailment, or any form
of legal relationship other than a statutory trust pursuant to the DSTA. Nothing
in this Declaration of Trust shall be construed to make the Shareholders, either
by themselves or with the Trustees, partners or members of a joint stock
association.
[The remainder of this page has been intentionally left blank.]
28
--------------------------------------------------------------------------------
IN WITNESS WHEREOF, the Trustee named below does hereby make and enter into
this Agreement and Declaration of Trust as of the date first written above.
▇▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇, Trustee