AMENDED AND RESTATED AGREEMENT AND DECLARATION OF TRUST OF BRAZOS MUTUAL FUNDS
AMENDED
AND RESTATED
OF
AMENDED
AND RESTATED AGREEMENT AND DECLARATION OF TRUST, made and entered into as of
November 12, 2002 hereby amends and restates in its entirety the AGREEMENT
AND
DECLARATION OF TRUST made and entered into on May 13, 1999, by the Trustees
named hereunder and
by
the holders of beneficial interest to be issued,
and
WHEREAS,
the Trustees desire to amend and restate the Agreement and Declaration of Trust
for the sole purpose of supplementing the Agreement and Declaration of Trust
to
incorporate amendments duly adopted; and
WHEREAS,
this Trust was initially made on October 28, 1996 in order to establish a trust
for the investment and reinvestment of funds contributed thereto;
and
NOW,
THEREFORE, the Trustees 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 “BRAZOS MUTUAL FUNDS” and the Trustees shall conduct the
business of the Trust under that name or any other name as they may from time
to
time determine.
Section
2.
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.
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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 $.001 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.
3
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 or a class
of
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,
Designation and Redesignation of Shares.
The
establishment, designation or redesignation of any Series (or class) of Shares
shall be effective upon the adoption by a majority of the Trustees, in their
sole discretion without the need for Shareholder action, of a resolution which
sets forth such establishment, designation or redesignation 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.
4
(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.
5
(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).
(j) Conversion
Rights.
The
Trustees shall have the authority to provide from time to time that the holders
of Shares of any Series or Class shall have the right to convert or exchange
said Shares for or into Shares of one or more other Series or Classes in
accordance with such requirements and procedures as may be established from
time
to time by the Trustees.
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.
6
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.
7
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;
8
(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
9
(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.
10
(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, 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.
11
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.
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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.
13
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 willful 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 willful 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.
14
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).
15
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.
16
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 “JMIC”.
The
name “JMIC” and all rights to the use of the name “JMIC” belong to ▇▇▇▇ ▇▇▇▇▇▇
Investment Counsel, LLC (the “Advisor”), the Manager of the Trust. The Advisor
has consented to the use by the Trust of the identifying words “JMIC” and has
granted to the Trust a non-exclusive license to use the name “JMIC” as part of
the name of any Series of Shares. In the event the Advisor or an affiliate
of
the Advisor is not appointed as Manager or ceases to be the Manager of the
Trust
or of any Series using such names, the non-exclusive license granted herein
may
be revoked by the Advisor and the Trust promptly shall cease using the name
“JMIC” as part of the name of any Series of Shares, upon receipt of the written
request therefore by the Advisor or any successor to its interests in such
name.
17
IN
WITNESS WHEREOF, the Trustees named below do hereby make and enter into this
Amended and Restated Agreement and Declaration of Trust as of the 5th day of
July, 2005.
/s/
▇▇▇▇▇▇ ▇. ▇▇▇
▇▇▇▇▇▇
▇.
▇▇▇
▇▇▇▇▇▇▇
School of Business
University
of Texas at Austin
▇▇▇▇▇▇,
▇▇ ▇▇▇▇▇
/s/
▇▇▇▇ ▇. ▇▇▇▇▇▇
▇▇▇▇
▇.
▇▇▇▇▇▇
▇▇▇▇
▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇,
▇▇▇▇▇ ▇▇▇▇▇
/s/
▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
▇▇▇▇▇
▇.
▇▇▇▇▇▇▇▇
▇▇▇▇
▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇,
▇▇▇▇▇ ▇▇▇▇▇
/s/
▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
▇▇▇▇▇
▇.
▇▇▇▇▇▇▇
▇▇▇▇
▇▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇
▇▇▇▇
▇▇▇▇▇▇,
▇▇▇▇▇ ▇▇▇▇▇
THE
PRINCIPAL PLACE OF BUSINESS OF THE TRUST IS
▇▇▇▇
▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇
18