Exhibit 1
Effective as of
September 12, 1996
AGREEMENT AND DECLARATION OF TRUST
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of
Kalmar Pooled Investment Trust
a Delaware Business Trust
Principal Place of Business:
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TABLE OF CONTENTS
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Page
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ARTICLE I..................................................... 1
Name and Definitions................................ 1
Section 1. Name............................... 1
Section 2. Definitions........................ 1
(a) Trust................................ 1
(b) Trust Property....................... 1
(c) Trustees............................. 1
(d) Shares............................... 2
(e) Shareholder.......................... 2
(f) Person............................... 2
(g) 1940 Act............................. 2
(h) Commission and Principal
Underwriter.......................... 2
(i) Declaration of Trust................. 2
(j) By-Laws.............................. 2
(k) Interested Person.................... 2
(l) Investment Manager................... 2
(m) Series............................... 2
ARTICLE II.................................................... 2
Purpose of Trust.................................... 2
ARTICLE III................................................... 3
Shares.............................................. 3
Section 1. Division of Beneficial Interest.... 3
Section 2. Ownership of Shares................ 3
Section 3. Investments in the Trust........... 4
Section 4. Status of Shares and Limitation of
Personal Liability................. 4
Section 5. Power of Board of Trustees to
Change Provisions Relating to
Shares............................. 4
Section 6. Establishment and Designation of
Shares............................. 5
(a) Assets Held with Respect to
a Particular Series................... 5
(b) Liabilities Held with Respect to a
Particular Series..................... 5
(c) Dividends, Distributions,
Redemptions, and Repurchases.......... 6
(d) Voting................................ 6
(e) Equality.............................. 6
(f) Fractions............................. 7
(g) Exchange Privilege.................... 7
(h) Combination of Series................. 7
(i) Elimination of Series................. 7
ARTICLE IV.................................................... 7
The Board of Trustees............................... 7
(i)
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Section 1. Number, Election and Tenure........ 7
Section 2. Effect of Death, Resignation,
etc. of a Trustee.................. 8
Section 3. Powers............................. 8
Section 4. Payment of Expenses by the Trust... 11
Section 5. Ownership of Assets of the Trust... 12
Section 6. Service Contracts.................. 12
ARTICLE V..................................................... 13
Shareholders' Voting Powers and Meetings............ 13
Section 1. Voting Powers...................... 13
Section 2. Voting Power and Meetings.......... 14
Section 3. Quorum and Required Vote........... 14
Section 4. Action by Written Consent.......... 14
Section 5. Record Dates....................... 14
ARTICLE VI.................................................... 15
Net Asset Value, Distributions, and Redemptions..... 15
Section 1. Determination of Net Asset Value,
Net Income, and Distributions...... 15
Section 2. Redemptions and Repurchases........ 15
Section 3. Redemptions at the Option of the
Trust.............................. 16
Section 4. Transfer of Shares................. 16
ARTICLE VII................................................... 16
Compensation and Limitation of Liability............ 16
Section 1. Compensation of Trustees........... 16
Section 2. Indemnification and Limitation
of Liability....................... 16
Section 3. Trustee's Good Faith Action,
Expert Advice, No Bond or Surety... 17
Section 4. Insurance.......................... 17
ARTICLE VIII.................................................. 17
Miscellaneous....................................... 17
Section 1. Liability of Third Persons
Dealing with Trustees.............. 17
Section 2. Termination of Trust or Series..... 18
Section 3. Merger and Consolidation........... 18
Section 4. Amendments......................... 18
Section 5. Filing of Copies, References,
Headings........................... 19
Section 6. Applicable Law..................... 19
Section 7. Provisions in Conflict with Law
or Regulations..................... 19
Section 8. Business Trust Only................ 20
Section 9. Use of the Name "Kalmar"........... 20
(ii)
AGREEMENT AND DECLARATION OF TRUST
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OF
KALMAR POOLED INVESTMENT TRUST
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WHEREAS, this AGREEMENT AND DECLARATION OF TRUST is made and
entered into as of the date set forth below by the Trustees named hereunder
for the purpose of forming a Delaware business trust in accordance with the
provisions hereinafter set forth,
NOW, THEREFORE, the Trustees hereby direct that a Certificate of
Trust be filed with the Office of the Secretary of State of the State of
Delaware and do hereby declare that the Trustees will hold IN TRUST all
cash, securities and other assets which the Trust now possesses or may
hereafter acquire from time to time in any manner and manage and dispose of
the same upon the following terms and conditions for the pro rata benefit
of the holders of Shares in this Trust.
ARTICLE I.
Name and Definitions
SECTION 1. NAME. This trust shall be known as "Kalmar Pooled
Investment Trust" and the Trustees shall conduct the business of the Trust
under that name or any other name as they may from time to time determine.
SECTION 2. DEFINITIONS. Whenever used herein, unless otherwise
required by the context or specifically provided:
(a) The "Trust" refers to the Delaware business trust
established by this Agreement and Declaration of Trust, as amended from
time to time;
(b) The "Trust Property" means any and all property, real or
personal, tangible or intangible, which is owned or held by or for the
account of the Trust;
(c) "Trustees" refers to the persons who have signed this
Agreement and Declaration of Trust, so long as they continue in office in
accordance with the terms hereof, and all other persons who may from time
to time be duly elected or appointed to serve on the Board of Trustees in
accordance with the provisions hereof, and reference herein to a Trustee or
the Trustees shall
refer to such person or persons in their capacity as trustees hereunder;
(d) "Shares" means the shares of beneficial interest into which
the beneficial interest in the Trust shall be divided from time to time and
includes fractions of Shares as well as whole Shares;
(e) "Shareholder" means a record owner of outstanding Shares;
(f) "Person" means and includes individuals, corporations,
partnerships, trusts, foundations, plans, associations, joint ventures,
estates and other entities, whether or not legal entities, and governments
and agencies and political subdivisions thereof, whether domestic or
foreign;
(g) The "1940 Act" refers to the Investment Company Act of 1940
and the Rules and Regulations thereunder, all as amended from time to time.
References herein to specific sections of the 1940 Act shall be deemed to
include such Rules and Regulations as are applicable to such sections as
determined by the Trustees or their designees;
(h) The terms "Commission" and "Principal Underwriter" shall
have the respective meanings given them in Section 2(a)(7) and Section
(2)(a)(29) of the 1940 Act;
(i) "Declaration of Trust" shall mean this Agreement and
Declaration of Trust, as amended or restated from time to time;
(j) "By-Laws" shall mean the By-Laws of the Trust as amended
from time to time;
(k) The term "Interested Person" has the meaning given it in
Section 2(a)(19) of the 1940 Act;
(l) "Investment Manager" or "Manager" means a party furnishing
services to the Trust pursuant to any contract described in Article IV,
Section 7(a) hereof;
(m) "Series" refers to each Series of Shares established and
designated under or in accordance with the provisions of Article III.
ARTICLE II.
Purpose of Trust
The purpose of the Trust is to conduct, operate and carry on the
business of a management investment company registered under the 1940 Act
through one or more Series investing primarily in securities.
ARTICLE III.
Shares
SECTION 1. DIVISION OF BENEFICIAL INTEREST. The beneficial
interest in the Trust shall at all times be divided into an unlimited
number of Shares, with a par value of $0.01 per Share. The Trustees may
authorize the division of Shares into separate Series and the division of
Series into separate classes of Shares. The different Series shall be
established and designated, and the variations in the relative rights and
preferences as between the different Series shall be fixed and determined,
by the Trustees. If only one Series shall be established, the Shares shall
have the rights and preferences provided for herein and in Article III,
Section 6 hereof to the extent relevant and not otherwise provided for
herein.
Subject to the provisions of Section 6 of this Article III, each
Share shall have voting rights as provided in Article V hereof, and holders
of the Shares of any Series shall be entitled to receive dividends, when,
if and as declared with respect thereto in the manner provided in Article
VI, Section 1 hereof. No Share shall have any priority or preference over
any other Share of the same Series with respect to dividends or
distributions of the Trust or otherwise. All dividends and distributions
shall be made ratably among all Shareholders of a Series (or class) from
the assets held with respect to such Series according to the number of
Shares of such Series (or class) held of record by such Shareholders on the
record date for any dividend or distribution or on the date of termination
of the Trust, as the case may be. Shareholders shall have no preemptive or
other right to subscribe to any additional Shares or other securities
issued by the Trust or any Series. The Trustees may from time to time
divide or combine the Shares of a Series into a greater or lesser number of
Shares of such Series without thereby materially changing the proportionate
beneficial interest of such Shares in the assets held with respect to that
Series or materially affecting the rights of Shares of any other Series.
SECTION 2. OWNERSHIP OF SHARES. The ownership of Shares shall
be recorded on the books of the Trust or a transfer or similar agent for
the Trust, which books shall be maintained separately for the Shares of
each Series. No certificates evidencing the ownership of Shares shall be
issued except as the Board of Trustees may otherwise determine from time to
time. The Trustees may make such rules as they consider appropriate for
the transfer of Shares of each Series (or class) and similar matters. The
record books of the Trust as kept by the Trust or any transfer or similar
agent, as the case may be, shall be conclusive as to the identity of the
Shareholders of each Series and as to the number of Shares of each Series
held from time to time by each Shareholder.
SECTION 3. INVESTMENTS IN THE TRUST. Investments may be
accepted by the Trust from such Persons, at such times, on such terms, and
for such consideration as the Trustees from time to time may authorize.
Each investment shall be credited to the Shareholder's account in the form
of full and fractional Shares of the Trust, in such Series (or class) as
the purchaser shall select, at the net asset value per Share next
determined for such Series (or class) after receipt of the investment;
provided, however, that the Trustees may, in their sole discretion, impose
a sales charge or reimbursement fee upon investments in the Trust.
SECTION 4. STATUS OF SHARES AND LIMITATION OF PERSONAL
LIABILITY. Shares shall be deemed to be personal property giving only the
rights provided in this instrument and the By-Laws of the Trust. Every
Shareholder by virtue of having become a Shareholder shall be held to have
expressly assented and agreed to the terms hereof. The death of a
Shareholder during the existence of the Trust shall not operate to
terminate the Trust, nor entitle the representative of any deceased
Shareholder to an accounting or to take any action in court or elsewhere
against the Trust or the Trustees, but shall entitle such representative
only to the rights of said deceased Shareholder under this Declaration of
Trust. Ownership of Shares shall not entitle a 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 or joint
venturers. Neither the Trust nor the Trustees, nor any officer, employee
or agent of the Trust shall have any power to bind personally any
Shareholder, or to call upon any Shareholder for the payment of any sum of
money or assessment whatsoever other than such as the Shareholder may at
any time agree to pay.
SECTION 5. POWER OF BOARD OF TRUSTEES TO CHANGE PROVISIONS
RELATING TO SHARES. Notwithstanding any other provision of this
Declaration of Trust to the contrary, and without limiting the power of the
Board of Trustees to amend the Declaration of Trust as provided elsewhere
herein, the Board of Trustees shall have the power to amend this
Declaration of Trust, at any time and from time to time, in such manner as
the Board of Trustees may determine in their sole discretion, without the
need for Shareholder action, so as to add to, delete, replace or otherwise
modify any provisions relating to the Shares contained in this Declaration
of Trust, provided that before adopting any such amendment without
Shareholder approval the Board of Trustees shall determine that it is
consistent with the fair and equitable treatment of all Shareholders and
that Shareholder approval is not required by the 1940 Act or other
applicable law. If Shares have been issued, Shareholder approval shall be
required to adopt any amendments to this Declaration of Trust which would
adversely affect to a material degree the rights and preferences of the
Shares of any Series (or class) or to increase or decrease the par value of
the Shares of any Series (or class).
SECTION 6. ESTABLISHMENT AND DESIGNATION OF SHARES. The
establishment and designation of any Series (or class) of Shares shall be
effective upon the adoption by a majority of the Trustees, of a resolution
which sets forth such establishment and designation and the relative rights
and preferences of such Series (or class). Each such resolution shall be
incorporated herein by reference upon adoption.
Shares of each Series (or class) established pursuant to this
Section 6, unless otherwise provided in the resolution establishing such
Series, shall have the following relative rights and preferences:
(a) ASSETS HELD WITH RESPECT TO A PARTICULAR SERIES. All
consideration received by the Trust for the issue or sale of Shares of a
Series, including dividends and distributions paid by, and reinvested in,
such 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, and
shall be so recorded upon the books of account of the Trust. Such
consideration, assets, income, earnings, profits and proceeds thereof, from
whatever source derived, including, without limitation, any proceeds
derived from the sale, exchange or liquidation of such assets, and any
funds or payments derived from any reinvestment of such proceeds, in
whatever form the same may be, are herein referred to as "assets held with
respect to" that Series. In the event that there are any assets, income,
earnings, profits and proceeds thereof, funds or payments which are not
readily identifiable as assets held with respect to any particular Series
(collectively "General Assets"), the 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 Trustees, in their sole discretion, deem fair and
equitable, and any General Asset so allocated to a particular Series shall
be held with respect to that Series. Each such allocation by the Trustees
shall be conclusive and binding upon the Shareholders of all Series for all
purposes in absence of manifest error.
(b) LIABILITIES HELD WITH RESPECT TO A PARTICULAR SERIES. The
assets of the Trust held with respect to each Series shall be charged with
the liabilities of the Trust with respect to such Series and all expenses,
costs, charges and reserves attributable to such Series, and any general
liabilities of the Trust which are not readily identifiable as being held
in respect of a Series shall be allocated and charged by the Trustees to
and among any one or more Series in such manner and on such basis as the
Trustees in their sole discretion deem fair and equitable. The
liabilities, expenses, costs, charges, and reserves so charged to a Series
are herein referred to as "liabilities held with respect to" that Series.
Each allocation of liabilities, expenses, costs, charges and reserves by
the Trustees shall be conclusive and binding upon the holders of all Series
for all purposes in absence of manifest error. All Persons who have
extended credit which has been allocated to a particular Series, or who
have a claim or contract which has been allocated to a Series, shall look
exclusively to the assets held with respect to such Series for payment of
such credit, claim, or contract. In the absence of an express agreement so
limiting the claims of such creditors, claimants and contracting parties,
each creditor, claimant and contracting party shall be deemed nevertheless
to have agreed to such limitation unless an express provision to the
contrary has been incorporated in the written contract or other document
establishing the contractual relationship.
(c) DIVIDENDS, DISTRIBUTIONS, REDEMPTIONS, AND REPURCHASES. No
dividend or distribution including, without limitation, any distribution
paid upon termination of the Trust or of any Series (or class) with respect
to, or any redemption or repurchase of, the Shares of any Series (or class)
shall be effected by the Trust other than from the assets held with respect
to such Series, nor shall any Shareholder of any Series otherwise have any
right or claim against the assets held with respect to any other Series
except to the extent that such Shareholder has such a right or claim
hereunder as a Shareholder of such other Series. The Trustees shall have
full discretion 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 in absence of manifest error.
(d) VOTING. All Shares of the Trust entitled to vote on a
matter shall vote without differentiation between the separate Series on a
one-vote-per-Share basis; provided however, if a matter to be voted on
affects only the interests of not all Series (or class of a Series), then
only the Shareholders of such affected Series (or class) shall be entitled
to vote on the matter.
(e) EQUALITY. All the Shares of each Series shall represent an
equal proportionate undivided interest in the assets held with respect to
such Series (subject to the liabilities of such Series and such rights and
preferences as may have been established and designated with respect to
classes of Shares within such Series), and each Share of a Series shall be
equal to each other Share of such Series.
(f) FRACTIONS. Any fractional Share of a Series shall have
proportionately all the rights and obligations of a whole share of such
Series, including rights with respect to voting, receipt of dividends and
distributions and redemption of Shares.
(g) EXCHANGE PRIVILEGE. The Trustees shall have the authority
to provide that the holders of Shares of any Series shall have the right to
exchange such Shares for Shares of one or more other Series in accordance
with such requirements and procedures as may be established by the
Trustees.
(h) COMBINATION OF SERIES. The Trustees shall have the
authority, without the approval of the Shareholders of any Series unless
otherwise required by applicable law, to combine the assets and liabilities
held with respect to any two or more Series into assets and liabilities
held with respect to a single Series.
(i) ELIMINATION OF SERIES. At any time that there are no Shares
outstanding of a Series (or class), the Trustees may abolish such Series
(or class).
ARTICLE IV.
The Board of Trustees
SECTION 1. NUMBER, ELECTION AND TENURE. The number of Trustees
constituting the Board of Trustees shall be fixed from time to time by a
written instrument signed, or by resolution approved at a duly constituted
meeting, by a majority of the Board of Trustees, provided, however, that
the number of Trustees shall in no event be less than one (1) nor more than
fifteen (15). Subject to the requirements of Section 16(a) of the 1940
Act, the Board of Trustees, by action of a majority of the then Trustees at
a duly constituted meeting, may fill vacancies in the Board of Trustees and
remove Trustees with or without cause. Each Trustee shall serve during the
continued lifetime of the Trust until he or she dies, resigns, is declared
bankrupt or incompetent by a court of competent jurisdiction, or is
removed. Any Trustee may resign at any time by written instrument signed
by him and delivered to any officer of the Trust or to a meeting of the
Trustees. Such resignation shall be effective upon receipt unless
specified to be effective at some other time. Except to the extent
expressly provided in a written agreement with the Trust, no Trustee
resigning and no Trustee removed shall have any right to any compensation
for any period following his or her resignation or removal, or any right to
damages or other payment on account of such removal. Any Trustee may be
removed at any meeting of Shareholders by a vote of two-thirds of the
outstanding Shares of the Trust. A meeting of Shareholders for the purpose
of electing or removing one or more Trustees may be called (i) by the
Trustees upon their own vote, or (ii) upon the demand of Shareholders
owning 10% or more of the Shares of the Trust in the aggregate.
SECTION 2. EFFECT OF DEATH, RESIGNATION, ETC. OF A TRUSTEE. The
death, declination, resignation, retirement, removal, or incapacity of one
or more Trustees, or all of them, shall not operate to annul the Trust or
to revoke any existing agency created pursuant to the terms of this
Declaration of Trust. Whenever a vacancy in the Board of Trustees shall
occur, until such vacancy is filled as provided in Article IV, Section 1,
the Trustees in office, regardless of their number, shall have all the
powers granted to the Trustees and shall discharge all the duties imposed
upon the Trustees by this Declaration of Trust.
SECTION 3. POWERS. Subject to the provisions of this
Declaration of Trust, the business of the Trust shall be managed by the
Board of Trustees, and such Board shall have all powers necessary or
convenient to carry out that responsibility including the power to engage
in transactions of all kinds on behalf of the Trust. Trustees, in all
instances, shall act as principals and are and shall be free from the
control of the Shareholders. The Trustees shall have full power and
authority to do any and all acts and to make and execute any and all
contracts, documents and instruments that they may consider desirable,
necessary or appropriate in connection with the administration of the
Trust. Without limiting the foregoing, the Trustees may: adopt, amend and
repeal By-Laws not inconsistent with this Declaration of Trust providing
for the regulation and management of the affairs of the Trust; elect and
remove such officers and appoint and terminate such agents as they consider
appropriate; appoint from their own number and establish and terminate one
or more committees consisting of two or more Trustees who may exercise the
powers and authority of the Board of Trustees to the extent that the
Trustees determine; employ one or more custodians of the assets of the
Trust and may authorize such custodians to employ subcustodians and to
deposit all or any part of such assets in a system or systems for the
central handling of securities or with a Federal Reserve Bank, retain a
transfer agent or a shareholder servicing agent, or both; provide for the
issuance and distribution of Shares by the Trust directly or through one or
more Principal Underwriters or otherwise; redeem, repurchase and transfer
Shares pursuant to applicable law; set record dates for the determination
of Shareholders with respect to various matters; declare and pay dividends
and distributions to Shareholders of each Series from the assets of such
Series; establish from time to time, in accordance with the provisions of
Article III, Section 6 hereof, any Series of Shares, each such Series to
operate as a separate and distinct investment medium and with separately
defined investment objectives and policies and distinct investment purpose;
and in general delegate such authority as they consider desirable to any
officer of the Trust, to any committee of the Trustees and to any agent or
employee of the Trust or to any such custodian, transfer or shareholder
servicing agent, Investment Manager or Principal Underwriter. Any
determination as to what is in the interests of the Trust made by the
Trustees in good faith shall be conclusive. In construing the provisions
of this Declaration of Trust, the presumption shall be in favor of a grant
of power to the Trustees and unless otherwise specified herein or required
by the 1940 Act or other applicable law, any action by the Board of
Trustees shall be deemed effective if approved or taken by a majority of
the Trustees then in office or a majority of any duly constituted committee
of Trustees. Any action required or permitted to be taken at any meeting
of the Board of Trustees, or any committee thereof, may be taken without a
meeting if all members of the Board of Trustees or committee (as the case
may be) consent thereto in writing, and the writing or writings are filed
with the minutes of the proceedings of the Board of Trustees, or committee,
except as otherwise provided in the 1940 Act.
Without limiting the foregoing, the Trust shall have power and
authority:
(a) To invest and reinvest cash and cash items, to hold cash
uninvested, and to subscribe for, invest in, reinvest in, purchase or
otherwise acquire, own, hold, pledge, sell, assign, transfer, exchange,
distribute, write options on, lend or otherwise deal in or dispose of
contracts for the future acquisition or delivery of all types of
securities, futures contracts and options thereon, and forward currency
contracts 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 organization, 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, futures contracts and
options thereon, and forward currency contracts, to change the investments
of the assets of the Trust; and to exercise any and all rights, powers, and
privileges of ownership or interest in respect of any and all such
investments of every kind and description, including, without limitation,
the right to consent and otherwise act with respect thereto, with power to
designate one or more Persons, to exercise any of said rights, powers, and
privileges in respect of any of said instruments;
(b) 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;
(c) 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;
(d) To exercise powers and right of subscription or otherwise
which in any manner arise out of ownership of securities;
(e) 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 the applicable provisions
of the 1940 Act;
(f) 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;
(g) 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;
(h) To litigate, compromise, arbitrate, settle or otherwise
adjust claims in favor of or against the Trust or a Series, or any matter
in controversy, including but not limited to claims for taxes;
(i) To enter into joint ventures, general or limited
partnerships and any other combinations or associations;
(j) To borrow funds or other property in the name of the Trust
or Series exclusively for Trust purposes;
(k) To endorse or guarantee the payment of any notes or other
obligations of any Person; to make contracts of guaranty or suretyship, or
otherwise assume liability for payment thereof;
(l) To purchase and pay for entirely out of Trust Property such
insurance as the Trustees may deem necessary, desirable 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 Manager,
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
Manager, Principal Underwriter, or independent contractor, including any
action taken or omitted that may be determined to constitute negligence,
whether or not the Trust would have the power to indemnify such Person
against liability; 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.
The Trust shall not be limited to investing in obligations
maturing before the possible termination of the Trust or one or more of its
Series. The Trust shall not in any way be bound or limited by any present
or future law or custom in regard to investment by fiduciaries. The Trust
shall not be required to obtain any court order to deal with any assets of
the Trust or take any other action hereunder.
SECTION 4. PAYMENT OF EXPENSES BY THE TRUST. Subject to the
provisions of Article III, Section 6(b), the Trustees are authorized to pay
or cause to be paid out of the principal or income of the Trust or Series,
or partly out of the principal and partly out of income, and to charge or
allocate the same to, between or among such one or more of the Series that
may be established or designated pursuant to Article III, Section 6, all
expenses, fees, charges, taxes and liabilities incurred or arising in
connection with the Trust or Series, or in connection with the management
thereof, including, but not limited to, the Trustees' compensation and such
expenses and charges for the services of the Trust's officers, employees,
Investment Manager, Principal Underwriter, auditors, counsel, custodian,
transfer agent, Shareholder servicing agent, and such other agents or
independent contractors and such other expenses and charges as the Trustees
may deem necessary or proper to incur.
SECTION 5. OWNERSHIP OF ASSETS OF THE TRUST. Title to all of
the assets of the Trust shall at all times be considered as vested in the
Trust, except that the Trustees shall have power to cause legal title to
any Trust Property to be held by or in the name of one or more of the
Trustees, or in the name of the Trust, or in the name of any other Person
as nominee, on such terms as the Trustees may determine. Upon the
resignation, incompetency, bankruptcy, removal, or death of a Trustee he or
she shall automatically cease to have any such title in any of the Trust
Property, and the title of such Trustee in the Trust Property shall vest
automatically in the remaining Trustees. Such vesting and cessation of
title shall be effective whether or not conveyancing documents have been
executed and delivered. The Trustees may determine that the Trust or the
Trustees, acting for and on behalf of the Trust, shall be deemed to hold
beneficial ownership of any income earned on the securities owned by the
Trust, whether domestic or foreign.
SECTION 6. SERVICE CONTRACTS.
(a) The Trustees may, at any time and from time to time,
contract for exclusive or nonexclusive advisory, management and/or
administrative services for the Trust or for any Series with any Person;
and any such contract may contain such other terms as the Trustees may
determine, including without limitation, authority for the Investment
Manager to determine from time to time without prior consultation with the
Trustees what investments shall be purchased, held, sold or exchanged and
what portion, if any, of the assets of the Trust shall be held uninvested
and to make changes in the Trust's investments, and such other
responsibilities as may specifically be delegated to such Person.
(b) The Trustees may also, at any time and from time to time,
contract with any Persons, appointing such Persons exclusive or
nonexclusive distributor or Principal Underwriter for the Shares of one or
more of the Series or other securities to be issued by the Trust. Every
such contract may contain such other terms as the Trustees may determine.
(c) The Trustees are also empowered, at any time and from time
to time, to contract with any Persons, appointing such Person(s) to serve
as custodian(s), transfer agent and/or shareholder servicing agent for the
Trust or one or more of its Series. Every such contract shall comply with
such terms as may be required by the Trustees.
(d) The Trustees are 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 the Series, as the Trustees determine to be
in the best interests of the Trust and the applicable Series.
(e) The fact that:
(i) any of the Shareholders, Trustees, or officers of
the Trust is a shareholder, director, officer, partner, trustee,
employee, Manager, adviser, Principal Underwriter, distributor,
or affiliate or agent of or for any Person with which an
advisory, management or administration contract, or Principal
Underwriter's or distributor's contract, or transfer, shareholder
servicing or other type of service contract may be made, or that
(ii) any Person with which an advisory, management or
administration contract or Principal Underwriter's or
distributor's contract, or transfer, shareholder servicing or
other type of service contract may be made also has an advisory,
management or administration contract, or principal underwriter's
or distributor's contract, or transfer, shareholder servicing or
other service contract, or has other business or interests with
any other Person, shall not affect the validity of any such
contract or disqualify any Shareholder, Trustee or officer of the
Trust from voting upon or executing the same, or create any
liability or accountability to the Trust or its Shareholders,
provided approval of each such contract is made pursuant to the
applicable requirements of the 1940 Act.
ARTICLE V.
Shareholders' Voting Powers and Meetings
SECTION 1. VOTING POWERS. Subject to the provisions of Article
III, Sections 5 and 6(d), the Shareholders shall have right to vote only
(i) for the election or removal of Trustees as provided in Article IV,
Section 1, and (ii) with respect to such additional matters relating to the
Trust as may be required by the applicable provisions of the 1940 Act,
including Section 16(a) thereof, and (iii) on such other matters as the
Trustees may consider necessary or desirable. Each whole Share shall be
entitled to one vote as to any matter on which it is entitled to vote and
each fractional Share shall be entitled to a proportionate fractional vote.
There shall be no cumulative voting in the election of Trustees. Shares
may be voted in person or by proxy. A proxy purporting to be executed by
or on behalf of a Shareholder shall be deemed valid unless challenged at or
prior to its exercise and the burden of proving invalidity shall rest on
the challenger.
SECTION 2. VOTING POWER AND MEETINGS. Meetings of the
Shareholders may be called by the Trustees for the purposes described in
Section 1 of this Article V. A meeting of Shareholders may be held at any
place designated by the Trustees. Written notice of any meeting of
Shareholders shall be given or caused to be given by the Trustees by
delivering personally or mailing such notice not more than ninety (90), nor
less than ten (10) days before such meeting, postage prepaid, stating the
time and place of the meeting, to each Shareholder at the Shareholder's
address as it appears on the records of the Trust. Whenever notice of a
meeting is required to be given to a Shareholder under this Declaration of
Trust, a written waiver thereof, executed before or after the meeting by
such Shareholder or his or her attorney thereunto authorized and filed with
the records of the meeting, or actual attendance at the meeting of
Shareholders in person or by proxy, shall be deemed equivalent to such
notice.
SECTION 3. QUORUM AND REQUIRED VOTE. Except when a larger
quorum is required by the applicable provisions of the 1940 Act, the
presence in person or by proxy of a majority of the Shares entitled to vote
on a matter shall constitute a quorum at a Shareholders' meeting. Any
meeting of Shareholders may be adjourned from time to time by a majority of
the votes properly cast upon the question of adjourning a meeting to
another date and time, whether or not a quorum is present, and the meeting
may be held as adjourned within a reasonable time after the date set for
the original meeting without further notice. Subject to the provisions of
Article III, Section 6(d) and the applicable provisions of the 1940 Act,
when a quorum is present at any meeting, a majority of the Shares voted
shall decide any questions except only a plurality vote shall be necessary
to elect Trustees.
SECTION 4. ACTION BY WRITTEN CONSENT. Any action taken by
Shareholders may be taken without a meeting if all the holders of Shares
entitled to vote on the matter are provided with not less than 7 days
written notice thereof and written consent to the action is filed with the
records of the meetings of Shareholders by the holders of the number of
shares that would be required to approve the matter as provided in Article
V, Section 3. Such consent shall be treated for all purposes as a vote
taken at a meeting of Shareholders.
SECTION 5. RECORD DATES. For the purpose of determining the
Shareholders who are entitled to vote or act at any meeting or any
adjournment thereof, the Trustees may fix a time, which shall be not more
than ninety (90) nor less than ten (10) days before the date of any meeting
of Shareholders, as the record date for determining the Shareholders having
the right to notice of and to vote at such meeting and any adjournment
thereof, and in such case only Shareholders of record on such record date
shall have such right, notwithstanding any transfer of shares on the books
of the Trust after the record date. For the purpose of determining the
Shareholders who are entitled to receive payment of any dividend or of any
other distribution, the Trustees may fix a date, which shall be before the
date for the payment of such dividend or distribution, as the record date
for determining the Shareholders having the right to receive such dividend
or distribution. Nothing in this Section shall be construed as precluding
the Trustees from setting different record dates for different Series.
ARTICLE VI.
Net Asset Value, Distributions, and Redemptions
SECTION 1. DETERMINATION OF NET ASSET VALUE, NET INCOME, AND
DISTRIBUTIONS. Subject to Article III, Section 6 hereof, the Trustees, in
their absolute discretion, may prescribe and shall set forth in the By-laws
or in a duly adopted resolution of the Trustees such bases and time for
determining the per Share net asset value of the Shares of any Series and
the declaration and payment of dividends and distributions on the Shares of
any Series, as they may deem necessary or desirable.
SECTION 2. REDEMPTIONS AND REPURCHASES. The Trust shall
purchase such Shares as are offered by any Shareholder for redemption, upon
receipt by the Trust or a Person designated by the Trust that the Trust
redeem such Shares or in accordance with such procedures for redemption as
the Trustees may from time to time authorize; and the Trust will pay
therefor the net asset value thereof, in accordance with the By-Laws and
the applicable provisions of the 1940 Act. Payment for said Shares shall
be made by the Trust to the Shareholder within seven days after the date on
which the request for redemption is received in proper form. The
obligation set forth in this Section 2 is subject to the provision that in
the event that any time the New York Stock Exchange (the "Exchange") is
closed for other than weekends or holidays, or if permitted by the Rules of
the Commission during periods when trading on the Exchange is restricted or
during any emergency which makes it impracticable for the Trust to dispose
of the investments of the applicable Series or to determine fairly the
value of the net assets held with respect to such Series or during any
other period permitted by order of the Commission for the protection of
investors, such obligations may be suspended or postponed by the Trustees.
The redemption price may in any case or cases be paid in cash or
wholly or partly in kind in accordance with Rule 18f-1 under the 1940 Act
if the Trustees determine that such payment is advisable in the interest of
the remaining Shareholders of the Series of which the Shares are being
redeemed. Subject to the foregoing, the selection and quantity of
securities or other property so paid or delivered as all or part of the
redemption price shall be determined by or under authority of the Trustees.
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.
SECTION 3. REDEMPTIONS AT THE OPTION OF THE TRUST. The Trust
shall have the right, at its option, upon 60 days notice to the affected
Shareholder at any time to redeem Shares of any Shareholder at the net
asset value thereof as described in Section 1 of this Article VI: (i) if
at such time such Shareholder owns Shares of any Series having an aggregate
net asset value of less than a minimum value determined from time to time
by the Trustees; or (ii) to the extent that such Shareholder owns Shares of
a Series equal to or in excess of a maximum percentage of the outstanding
Shares of such Series determined from time to time by the Trustees; or
(iii) to the extent that such Shareholder owns Shares equal to or in excess
of a maximum percentage, determined from time to time by the Trustees, of
the outstanding Shares of the Trust.
SECTION 4. TRANSFER OF SHARES. The Trust shall transfer shares
held of record by any Person to any other Person upon receipt by the Trust
or a Person designated by the Trust of a written request therefore in such
form and pursuant to such procedures as may be approved by the Trustees.
ARTICLE VII.
Compensation and Limitation of Liability
SECTION 1. COMPENSATION OF TRUSTEES. The Trustees as such shall
be entitled to reasonable compensation from the Trust, and they may fix the
amount of such compensation from time to time. Nothing herein shall in any
way prevent the employment of any Trustee to provide advisory, management,
legal, accounting, investment banking or other services to the Trust and to
be specially compensated for such services by the Trust.
SECTION 2. INDEMNIFICATION AND LIMITATION OF LIABILITY. The
Trustees shall not be responsible or liable in any event for any neglect or
wrong-doing of any officer, agent, employee, Manager or Principal
Underwriter of the Trust, nor shall any Trustee be responsible for the act
or omission of any other Trustee, and, subject to the provisions of the
Bylaws, the Trust out of its assets may indemnify and hold harmless each
and every Trustee and officer of the Trust from and against any and all
claims, demands, costs, losses, expenses, and damages whatsoever arising
out of or related to such Trustee's performance of his or her duties as a
Trustee or officer of the Trust; provided that nothing herein contained
shall indemnify, hold harmless or protect any Trustee or officer from or
against any liability to the Trust or any Shareholder to which he or she
would otherwise be subject by reason of wilful misfeasance, bad faith,
gross negligence or reckless disregard of the duties involved in the
conduct of his or her office.
Every note, bond, contract, instrument, certificate or
undertaking and every other act or thing whatsoever issued, executed or
done by or on behalf of the Trust or the Trustees or any of them in
connection with the Trust shall be conclusively deemed to have been issued,
executed or done only in or with respect to their or his or her capacity as
Trustees or Trustee, and such Trustees or Trustee shall not be personally
liable thereon.
SECTION 3. TRUSTEE'S GOOD FAITH ACTION, EXPERT ADVICE, NO BOND
OR SURETY. The exercise by the Trustees of their powers hereunder shall be
binding upon everyone interested in or dealing with the Trust. A Trustee
shall be liable to the Trust and to any Shareholder solely for his or her
own wilful misfeasance, bad faith, gross negligence or reckless disregard
of the duties involved in the conduct of the office of Trustee, and shall
not be liable for errors of judgment or mistakes of fact or law. The
Trustees may take advice of counsel or other experts with respect to the
meaning and operation of this Declaration of Trust, and shall be under no
liability for any act or omission in accordance with such advice nor for
failing to follow such advice. The Trustees shall not be required to give
any bond as such, nor any surety if a bond is required.
SECTION 4. INSURANCE. The Trustees shall be entitled and
empowered to the fullest extent permitted by law to purchase with Trust
assets insurance for liability and for all expenses reasonably incurred or
paid or expected to be paid by a Trustee or officer in connection with any
claim, action, suit or proceeding in which he or she becomes involved by
virtue of his or her capacity or former capacity with the Trust, whether or
not the Trust would have the power to indemnify him or her against such
liability under the provisions of this Article.
ARTICLE VIII.
Miscellaneous
SECTION 1. LIABILITY OF THIRD PERSONS DEALING WITH TRUSTEES. No
Person dealing with the Trustees shall be bound to make any inquiry
concerning the validity of any transaction made or to be made by the
Trustees or to see to the application of any payments made or property
transferred to the Trust or upon its order.
SECTION 2. TERMINATION OF TRUST OR SERIES. Unless terminated as
provided herein, the Trust shall continue without limitation of time. The
Trust may be terminated at any time by the Trustees upon 60 days prior
written notice to the Shareholders. Any Series may be terminated at any
time by the Trustees upon 60 days prior written notice to the Shareholders
of that Series.
Upon termination of the Trust (or any Series, as the case may
be), after paying or otherwise providing for all charges, taxes, expenses
and liabilities held, severally, with respect to each Series (or the
applicable Series, as the case may be), whether due or accrued or
anticipated as may be determined by the Trustees, the Trust shall, in
accordance with such procedures as the Trustees consider appropriate,
reduce the remaining assets held, severally, with respect to each Series
(or the applicable Series, as the case may be), to distributable form in
cash or shares or other securities, and any combination thereof, and
distribute the proceeds held with respect to each Series (or the applicable
Series, as the case may be), to the Shareholders of that Series, as a
Series, ratably according to the number of Shares of that Series held by
the several Shareholders on the date of termination.
SECTION 3. MERGER AND CONSOLIDATION. The Trustees may cause (i)
the Trust or one or more of its Series to the extent consistent with
applicable law to be merged into or consolidated with another Trust, series
or Person, (ii) the Shares of the Trust or any Series to be converted into
beneficial interests in another business trust (or series thereof), (iii)
the Shares to be exchanged for assets or property under or pursuant to any
state or federal statute to the extent permitted by law or (iv) a sale of
assets of the Trust or one or more of its Series. Such merger or
consolidation, Share conversion, Share exchange or sale of assets must be
authorized by vote as provided in Article V, Section 3 herein; provided
that in all respects not governed by statute or applicable law, the
Trustees shall have power to prescribe the procedure necessary or
appropriate to accomplish a sale of assets, Share exchange, merger or
consolidation including the power to create one or more separate business
trusts to which all or any part of the assets, liabilities, profits or
losses of the Trust may be transferred and to provide for the conversion of
Shares of the Trust or any Series into beneficial interests in such
separate business trust or trusts (or series thereof).
SECTION 4. AMENDMENTS. This Declaration of Trust may be
restated and/or amended at any time by an instrument in writing signed by a
majority of the Trustees then holding office. Any such restatement and/or
amendment hereto shall be effective immediately upon execution and
approval. The Certificate of Trust of the Trust may be restated and/or
amended by a similar procedure, and any such restatement and/or amendment
shall be effective immediately upon filing with the Office of the Secretary
of State of the State of Delaware or upon such future date as may be stated
therein.
SECTION 5. FILING OF COPIES, REFERENCES, HEADINGS. The original
or a copy of this instrument and of each restatement and/or amendment
hereto shall be kept at the office of the Trust where it may be inspected
by any Shareholder. Anyone dealing with the Trust may rely on a
certificate by an officer of the Trust as to whether or not any such
restatements and/or amendments have been made and as to any matters in
connection with the Trust hereunder; and, with the same effect as if it
were the original, may rely on a copy certified by an officer of the Trust
to be a copy of this instrument or of any such restatements and/or
amendments. In this instrument and in any such restatements and/or
amendment, references to this instrument, and all expressions like
"herein," "hereof" and "hereunder," shall be deemed to refer to this
instrument as amended or affected by any such restatements and/or
amendments. Headings are placed herein for convenience of reference only
and shall not be taken as a part hereof or control or affect the meaning,
construction or effect of this instrument. Whenever the singular number is
used herein, the same shall include the plural; and the neuter, masculine
and feminine genders shall include each other, as applicable. This
instrument may be executed in any number of counterparts each of which
shall be deemed an original.
SECTION 6. APPLICABLE LAW. This Agreement and 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
Delaware Business Trust Act, as amended from time to time (the "Act"). The
Trust shall be a Delaware business trust pursuant to such Act, and without
limiting the provisions hereof, the Trust may exercise all powers which are
ordinarily exercised by such a business trust.
SECTION 7. PROVISIONS IN CONFLICT WITH LAW OR REGULATIONS.
(a) The provisions of the Declaration of Trust are severable,
and if the Trustees shall determine, with the advice of counsel, that any
of such provisions is in conflict with the 1940 Act, the regulated
investment company provisions of the Internal Revenue Code or with other
applicable laws and regulations, the conflicting provision shall be deemed
never to have constituted a part of the Declaration of Trust; provided,
however, that such determination shall not affect any of the remaining
provisions of the Declaration of Trust or render invalid or improper any
action taken or omitted prior to such determination.
(b) If any provision of the 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 the Declaration of Trust in any jurisdiction.
SECTION 8. BUSINESS TRUST ONLY. It is the intention of the
Trustees to create a business trust pursuant to the Act, and thereby to
create only the relationship of trustee and beneficial owners within the
meaning of such Act between the Trustees and each Shareholder. It is not
the intention of the Trustees to create a general partnership, limited
partnership, joint stock association, corporation, bailment, joint venture,
or any form of legal relationship other than a business trust pursuant to
such Act. Nothing in this Declaration of Trust shall be construed to make
the Shareholders, either by themselves or with the Trustees, partners or
members of a joint stock association.
SECTION 9. USE OF THE NAME "KALMAR". The name "Kalmar" and all
rights to the use of the name "Kalmar" belong to Kalmar Investment
Advisors, the manager of the Trust and Kalmar Investments, Inc., which are
affiliated companies (the "Kalmar Advisers"). The Kalmar Advisers have
consented to the use by the Trust of the identifying word "Kalmar" and have
granted to the Trust a non-exclusive license to use the name "Kalmar" as
part of the name of the Trust and the name of any Series of Shares. In the
event the Kalmar Advisers or their affiliates are not appointed as Manager
or cease to be the Manager of the Trust or of any Series using such names,
the non-exclusive license granted herein may be revoked by either one of
the Kalmar Advisers. Upon receipt of such a written revocation from such a
Kalmar Adviser or any successor to its interests in such name, the Trustees
agree to execute such amendment to the Trust's Certificate of Trust and
this Declaration of Trust as may be required to effect a change in the name
of Trust or any Series of Shares of the Trust, and the Trust promptly shall
cease using the name "Kalmar" and as part of its name or the name of any
Series of Shares.
This Agreement and Declaration of Trust may be executed in one or
more counterparts which, taken together, shall constitute one and the same
document.
IN WITNESS WHEREOF, the Trustees named below do hereby
make and enter into this Agreement and Declaration of Trust as of the 12th
day of September, 1996.
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THE PRINCIPAL PLACE OF BUSINESS OF THE TRUST IS
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173610.1