CAPITAL PRIVATE CLIENT SERVICES FUNDS AMENDED AND RESTATED AGREEMENT AND DECLARATION OF TRUST Dated: March 11, 2010 CAPITAL PRIVATE CLIENT SERVICES FUNDS AMENDED AND RESTATED AGREEMENT AND DECLARATION OF TRUST
AMENDED
AND RESTATED AGREEMENT AND
DECLARATION
OF TRUST
Dated: March 11,
2010
AMENDED
AND RESTATED AGREEMENT AND
DECLARATION
OF TRUST
AMENDED AND
RESTATED AGREEMENT AND DECLARATION OF TRUST of Capital Private Client Services
Funds, a Delaware statutory trust, made as of March 11, 2010, by the undersigned
Trustees.
WHEREAS, the
undersigned Trustees desire to establish a trust for the investment and
reinvestment of funds contributed thereto; and
WHEREAS, the
Trustees desire that the beneficial interest in the trust assets be divided into
transferable shares of beneficial interest, as hereinafter provided;
and
WHEREAS, the
Trustees declare that all money and property contributed to the trust
established hereunder shall be held and managed in trust for the benefit of the
holders of the shares of beneficial interest issued hereunder and subject to the
provisions hereof;
NOW, THEREFORE, in
consideration of the foregoing, the undersigned Trustees hereby declare that all
money and property contributed to the trust hereunder shall be held and managed
in trust under this Agreement and Declaration of Trust as herein set forth
below.
ARTICLE
1
NAME,
PURPOSE AND DEFINITIONS
Section
1.1 Name. The
name of the trust established hereby is the “Capital Private Client Services
Funds” and so far as may be practicable the Trustees shall conduct the Trust’s
activities, execute all documents and ▇▇▇ or be sued under such
name. However, the Trustees may at any time and from time to time
select such other name for the Trust as they deem proper and the Trust may hold
its property and conduct its activities under such other name. Any
name change shall become effective upon the resolution of a majority of the then
Trustees adopting the new name and the filing of a certificate of amendment
pursuant to Section 3810(b) of the Act. Any such instrument shall not
require the approval of the Shareholders, but shall have the status of an
amendment to this Trust Instrument.
Section
1.2
Trust
Purpose. The purpose of the Trust is to conduct, operate and
carry on the business of an open-end management investment company registered
under the 1940 Act. In furtherance of the foregoing, it shall be the
purpose of the Trust to do everything necessary, suitable, convenient or proper
for the conduct, promotion and attainment of any businesses and purposes which
at any time may be incidental or may appear conducive or expedient for the
accomplishment of the business of an open end management investment company
registered under the 1940 Act and which may be engaged in or carried on by a
trust organized under the Act, and in connection therewith the Trust shall have
the power and authority to engage in the foregoing, both within and without the
State of Delaware, and may exercise all of the powers conferred by the laws of
the State of Delaware upon a Delaware statutory trust.
Section
1.3 Definitions. Wherever
used herein, unless otherwise required by the context or specifically
provided:
(a) “1940
Act” refers to the Investment Company Act of 1940 and the rules and regulations
thereunder, all as may be amended from time to time.
(b) “Act”
means the Delaware Statutory Trust Act, 12 Del. C. §§ 3801 et seq., as from time
to time amended.
(c) “Advisory
Board Member” shall mean a member of an “Advisory Board” as defined in Section
2(a)(1) of the 1940 Act.
(d) “By-laws”
means the By-laws referred to in Section 4.1(g) hereof, as from time to
time amended.
(e) The
terms “Affiliated Person,” “Assignment,” “Commission,” “Interested Person” and
“Principal Underwriter” shall have the meanings given them in the 1940
Act.
(f) “Class”
means any division of Shares within a Series, which Class is or has been
established in accordance with the provisions of Article 2.
(g) “Fiduciary
Covered Person” has the meaning assigned in Section 8.3 hereof.
(h) “Indemnified
Person” has the meaning assigned in Section 8.4 hereof.
(i) “Net
Asset Value” means the net asset value of each Series or Class of the Trust
determined in the manner provided in Section 7.4 hereof, and “Net Asset Value
per Share” has the meaning assigned in Section 7.4 hereof.
(j) “Outstanding
Shares” means those Shares recorded from time to time in the books of the Trust
or its transfer agent as then issued and outstanding, but shall not include
Shares which have been redeemed or repurchased by the Trust and which are at the
time held in the treasury of the Trust.
(k) “Person”
shall have the meaning given in Section 3801 of the Act.
(l) “Series”
means a series of Shares of the Trust established in accordance with the
provisions of Section 2.6 hereof.
(m) “Shareholder”
means a record owner of Outstanding Shares of the Trust.
(n) “Shares”
means the equal proportionate transferable units of beneficial interest into
which the beneficial interest of each Series of the Trust or Class thereof shall
be divided and may include fractions of Shares as well as whole
Shares. All references to Shares in this Trust Instrument shall be
deemed to be Shares of any or all Series or Classes as the context may
require.
(o) “Trust”
refers to the Delaware statutory trust established hereby and reference to the
Trust, when applicable to one or more Series or Classes of the Trust, shall
refer to any such Series or Class. All provisions herein relating to
the Trust shall apply equally to each Series and Class of the Trust except as
the context otherwise requires.
(p) “Trustee”
or “Trustees” means the person or persons who has or have signed this Trust
Instrument, so long as such person or persons shall continue in office in
accordance with the terms hereof, and all other persons who may from time to
time be duly qualified and serving as Trustees in accordance with the provisions
of Article 3 hereof, and reference herein to a Trustee or to the Trustees
shall refer to the individual Trustees in their capacity as Trustees
hereunder.
(q) “Trust
Instrument” means this Agreement and Declaration of Trust as the same may be
amended and restated from time to time.
(r) “Trust
Property” means any and all property, real or personal, tangible or intangible,
which is owned or held by or for the account of the Trust or any Series, or by
or for the account of the Trustees on behalf of the Trust or any
Series.
ARTICLE
2
BENEFICIAL
INTEREST
Section
2.1 Shares of Beneficial
Interest. The beneficial interest in the Trust shall be
divided into such transferable Shares of one or more separate and distinct
Series and Classes within a Series as the Trustees shall from time to time
create and establish. The number of Shares of each Series and Class
authorized hereunder is unlimited. Each Share shall have no par
value, unless otherwise determined by the Trustees in connection with the
creation and establishment of a Series or Class. All Shares when
issued hereunder on the terms determined by the Trustees, including without
limitation Shares of a Series or Class issued in connection with a dividend in
Shares or a split or reverse split of Shares, shall be fully paid and
nonassessable.
Section
2.2 Issuance of
Shares.
(a) The
Trustees in their discretion may, from time to time, without vote of the
Shareholders, issue Shares of each Series and Class to such party or parties and
for such amount and type of consideration (or for no consideration if pursuant
to a Share dividend or split-up or otherwise as determined by the Trustees),
subject to applicable law, including cash or securities (including Shares of a
different Series or Class), at such time or times and on such terms as the
Trustees may deem appropriate, and may in such manner acquire other assets
(including the acquisitions of assets subject to, and in connection with, the
assumption of liabilities) and businesses. In connection with any
issuance of Shares, the Trustees may issue fractional Shares and Shares held in
the treasury. The Trustees may from time to time divide or combine
the Shares into a greater or lesser number without thereby materially changing
the proportionate beneficial interests in the Trust or any Series or
Class.
(b) Any
Trustee, officer or other agent of the Trust, and any organization in which any
such person is interested, may acquire, own, hold and dispose of Shares of any
Series or Class of the Trust to the same extent as if such person were not a
Trustee, officer or other agent of the Trust; and the Trust may issue and sell
or cause to be issued and sold and may purchase Shares of any Series or Class
from any such person or any such organization subject only to the general
limitations, restrictions or other provisions applicable to the sale or purchase
of Shares of such Series or Class generally.
Section
2.3 Register of Shares and Share
Certificates. A register shall be kept at the principal office
of the Trust or an office of one or more transfer agents which shall contain the
names and addresses of the Shareholders of each Series and Class, the number of
Shares of that Series and Class thereof held by them respectively and a record
of all transfers thereof. As to Shares for which no certificate has
been issued, such register shall be conclusive as to who are the holders of the
Shares and who shall be entitled to receive dividends or other distributions or
otherwise to exercise or enjoy the rights of Shareholders. No
Shareholder shall be entitled to receive payment of any dividend or other
distribution, nor to have notice given to him as herein or in the By-laws
provided, until he has given his address to the transfer agent or such other
officer or agent of the Trust as shall keep the said register for entry
thereon. The Trustees shall have no obligation to, but in their
discretion may, authorize the issuance of share certificates and promulgate
appropriate rules and regulations as to their use. If one or more
share certificates are issued, whether in the name of a Shareholder or a
nominee, such certificate or certificates shall constitute evidence of ownership
of the Shares evidenced thereby for all purposes, including transfer, assignment
or sale of such Shares, subject to such limitations as the Trustees may, in
their discretion, prescribe.
Section
2.4 Transfer of
Shares. Except as otherwise provided by the Trustees, Shares
shall be transferable on the records of the Trust only by the record holder
thereof or by his agent thereunto duly authorized in writing, upon delivery to
the Trustees or the Trust’s transfer agent of a duly executed instrument of
transfer, together with a Share certificate, if one is outstanding, and such
evidence of the genuineness of each such execution and authorization and of such
other matters as may be required by the Trustees. Upon such delivery
the transfer shall be recorded on the register of the Trust. Until
such record is made, the Shareholder of record shall be deemed to be the holder
of such Shares for all purposes hereunder and neither the Trustees nor the
Trust, nor any transfer agent or registrar nor any officer, employee or agent of
the Trust shall be affected by any notice of the proposed transfer.
Section
2.5 Treasury
Shares. The Trustees may hold as treasury Shares, reissue for
such consideration and on such terms as they may determine, or cancel, at their
discretion from time to time, any Shares of any Series or Class reacquired by
the Trust. Shares held in the treasury shall, until reissued pursuant
to Section 2.2 hereof, not confer any voting rights on the Trustees, nor
shall such Shares be entitled to any dividends or other distributions declared
with respect to the Shares. Any Shares held in treasury shall not be
canceled unless the Trustees decide otherwise.
Section
2.6 Establishment of Series and
Classes.
(a) The
Trustees shall be authorized, without obtaining any prior authorization or vote
of the Shareholders of any Series or Class of the Trust, to establish and
designate and to change in any manner any initial or additional Series or
Classes and to fix such preferences, voting powers (or lack thereof), rights and
privileges of such Series or Classes as the Trustees may from time to time
determine, to divide or combine the Shares or any Series or Classes into a
greater or lesser number, to classify or reclassify any issued or unissued
Shares or any Series or Classes into one or more Series or Classes of Shares, to
redeem or abolish any outstanding Series or Class of Shares, and to take such
other action with respect to the Shares as the Trustees may deem
desirable. Unless another time is specified by the Trustees, the
establishment and designation of any Series or Class shall be effective upon the
adoption of a resolution by the Trustees setting forth such establishment and
designation and the preferences, powers, rights and privileges of the Shares of
such Series or Class, whether directly in such resolution or by reference to, or
approval of, another document that sets forth such relative rights and
preferences of such Series or Class including, without limitation, any
registration statement of the Trust, or as otherwise provided in such
resolution. The Trust may issue any number of Shares of each Series
or Class.
(b) Subject
to the distinctions permitted among Classes of Shares of the Trust or of Classes
of the same Series, as established by the Trustees consistent with the
requirements of the 1940 Act or as otherwise provided in the instrument
designating and establishing any Class or Series, each Share of the Trust (or
Series, as applicable) shall represent an equal beneficial interest in the net
assets of the Trust (or such Series), and each holder of Shares of the Trust (or
a Series) shall be entitled to receive such holder’s pro rata share of
distributions of income and capital gains, if any, made with respect thereto.
Upon redemption of the Shares of any Series or upon the liquidation and
termination of a Series, the applicable Shareholder shall be paid solely out of
the funds and property of such Series.
(c) Without
limiting the authority of the Trustees set forth in this Section to establish and
designate any further Series or Classes, the Trustees hereby establish and
designate the following Series of the Trust: Capital Core Municipal Fund;
Capital Short-Term Municipal Fund; Capital Core Municipal Fund; Capital
California Short-Term Municipal Fund; and Capital Core Bond
Fund. Each Series shall have one class of shares.
Section
2.7 Investment in the
Trust. The Trustees may accept investments in any Series of
the Trust or Class, if the Series has been divided into Classes, from such
persons and on such terms as they may from time to time authorize. At
the Trustees’ discretion, such investments, subject to applicable law, may be in
the form of cash or securities in which the affected Series is authorized to
invest, valued as provided herein. Unless the Trustees otherwise
determine, investments in a Series shall be credited to each Shareholder’s
account in the form of full Shares at the Net Asset Value per Share next
determined after the investment is received. Without limiting the
generality of the foregoing, the Trustees may (a) fix the Net Asset Value per
Share of the initial capital contribution to the Trust or any Series or Class
thereof, (b) impose sales or other charges upon investments in the Trust or any
Series or any Class thereof or (c) issue fractional Shares. The
Trustees may authorize any distributor, principal underwriter, custodian,
transfer agent or other Person to accept orders for the purchase of Shares that
conform to such authorized terms and to reject any purchase orders for Shares
whether or not conforming to such authorized terms. The Trustees and
any Person authorized by them shall have the right to refuse to accept any
investment in the Trust or any Series or any Class thereof without any cause or
reason.
Section
2.8 Assets and Liabilities
Belonging to Series or Class
(a) Separate
and distinct records shall be maintained by the Trust for each
Series. All consideration received by the Trust for the issue or sale
of Shares of a particular Series, together with all assets in which such
consideration is invested or reinvested, all income, earnings, profits, and
proceeds thereof, including any proceeds derived from the sale, exchange or
liquidation of such assets, and any funds or payments derived from any
reinvestment of such proceeds in whatever form the same may be, shall be held in
such separate and distinct records (directly or indirectly, including through a
nominee or otherwise) and accounted for in such separate and distinct records
separately from the other assets of the Trust and of every other Series and may
be referred to herein as “assets belonging to” that Series. The
assets belonging to a particular Series shall belong to that Series for all
purposes, and to no other Series, subject only to the rights of creditors of
that Series. In addition, any assets, income, earnings, profits or
funds, or payments and proceeds with respect thereto, which are not readily
identifiable as belonging to any particular Series shall be allocated by the
Trustees between and among one or more of the Series in such manner as the
Trustees deem fair and equitable. If there are Classes of Shares
within a Series, the assets belonging to the Series shall be further allocated
to each Class in the proportion that the “assets belonging to” the Class
(calculated in the same manner as with determination of “assets belonging to”
the Series) bears to the assets of all Classes within the
Series. Each such allocation shall be conclusive and binding upon the
Shareholders of all Series and Classes for all purposes, and such assets,
income, earnings, profits or funds, or payments and proceeds with respect
thereto shall be assets belonging to that Series or Class, as the case may
be. The assets belonging to a particular Series and Class shall be so
recorded upon the books of the Trust and shall be held by the Trustees in trust
for the benefit of the holders of Shares of that Series or Class, as the case
may be.
(b) The
assets belonging to each Series shall be charged with the liabilities of that
Series and all expenses, costs, charges and reserves attributable to that
Series. Any general liabilities, expenses, costs, charges or reserves
of the Trust which are not readily identifiable as belonging to any particular
Series shall be allocated and charged by the Trustees between or among any one
or more of the Series in such manner as the Trustees deem fair and
equitable. Each such allocation shall be conclusive and binding upon
the Shareholders of all Series for all purposes. The liabilities,
expenses, costs, charges and reserves allocated and so charged to a Series are
herein referred to as “liabilities belonging to” that Series. Except
as provided in the next two sentences or otherwise required or permitted by
applicable law, the liabilities belonging to such Series shall be allocated to
each Class of a Series in the proportion that the assets belonging to such Class
bear to the assets belonging to all Classes in the Series. To the
extent permitted by Section 3804(a) of the Act or other applicable law, the
Trustees may allocate all or a portion of any liabilities belonging to a Series
to a particular Class or Classes as the Trustees may from time to time determine
is appropriate. In addition, all liabilities, expenses, costs,
charges and reserves belonging to a Class shall be allocated to such
Class.
(c) Without
limitation of the foregoing provisions of this Section 2.8, but subject to
the right of the Trustees in their discretion to allocate general liabilities,
expenses, costs, charges or reserves as herein provided, the debts, liabilities,
obligations and expenses incurred, contracted for or otherwise existing with
respect to a particular Series shall be enforceable against the assets belonging
to such Series only, and not against the assets of the Trust generally or any
other Series. Notice of this limitation on inter-Series liabilities
shall be set forth in the certificate of trust of the Trust (whether originally
or by amendment) as filed or to be filed in the Office of the Secretary of State
of the State of Delaware pursuant to the Act, and upon the giving of such notice
in the certificate of trust, the statutory provisions of Section 3804 of
the Act relating to limitations on inter-Series liabilities (and the statutory
effect under Section 3804 of setting forth such notice in the certificate
of trust) shall become applicable to the Trust and each Series. Any
Person extending credit to, contracting with or having any claim against the
Trust with respect to a particular Series may satisfy or enforce any debt,
liability, obligation or expense incurred, contracted for or otherwise existing
with respect to that Series from the assets of that Series only. No
Shareholder or former Shareholder of any Series shall have a claim on or any
right to any assets allocated or belonging to any other Series.
(d) If,
notwithstanding the provisions of this Section, any liability properly charged
to a Series or Class is paid from the assets of another Series or Class, the
Series or Class from the assets of which the liability was paid shall be
reimbursed from the assets of the Series or Class to which such liability
belonged.
Section
2.9 No Preemptive
Rights. Unless the Trustees decide otherwise, Shareholders
shall have no preemptive or other similar rights to subscribe to any additional
Shares or other securities issued by the Trust, whether of the same or of
another Series or Class.
Section
2.10 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 or for interests in one or more other trusts, corporations, or
other business entities (or a series or class of any of the foregoing) in
accordance with such requirements and procedures as may be established by the
Trustees from time to time.
Section
2.11 Derivative
Actions.
(a) No
Person, other than a Trustee, who is not a Shareholder of a particular Series or
Class shall be entitled to bring any derivative action, suit or other proceeding
on behalf of the Trust with respect to such Series or Class. No
Shareholder of a Series or a Class may maintain a derivative action on behalf of
the Trust with respect to such Series or Class unless holders of at least twenty
percent (20%) of the outstanding Shares of such Series or Class join in the
bringing of such action.
(b) In
addition to the requirements set forth in Section 3816 of the Act, a Shareholder
may bring a derivative action on behalf of the Trust with respect to a Series or
Class only if the following conditions are met: (i) the Shareholder
or Shareholders must make a pre-suit demand upon the Trustees to bring the
subject action unless an effort to cause the Trustees to bring such an action is
not likely to succeed (for this purpose a demand on the Trustees shall only be
deemed not likely to succeed and therefore be excused if a majority of the
Trustees, or a majority of any committee established to consider the merits of
such action, has a personal financial interest in the transaction at issue, and
a Trustee shall not be deemed interested in a transaction or otherwise
disqualified from ruling on the merits of a Shareholder demand by virtue of the
fact that (a) such Trustee receives remuneration for his service as a Trustee of
the Trust or as a trustee or director of one or more investment companies that
are under common management with or otherwise affiliated with the Trust, (b)
such Trustee was identified as a potential defendant or witness, (c) the Trustee
approved the act being challenged (if the act did not result in any material
personal benefit to the Trustee, or if the Trustee is also a Shareholder the act
did not result in any material benefit that is not shared pro rata with other
Shareholders) or (d) the Trustee is a Shareholder); and (ii) unless a demand is
not required under clause (i) of this paragraph, the Trustees must be afforded a
reasonable amount of time (in any case, not less than ninety (90) days) to
consider such Shareholder request and to investigate the basis of such claim,
and the Trustees shall be entitled to retain counsel or other advisers in
considering the merits of the request and may require an undertaking by the
Shareholders making such request to reimburse the Trust for the expense of any
such advisers in the event that the Trustees determine not to bring such
action. For purposes of this Section 2.11, the Trustees may designate
a committee of one Trustee to consider a Shareholder demand if necessary to
create a committee with a majority of Trustees who do not have a personal
financial interest in the transaction at issue.
Section
2.12 Fractions. Except
as otherwise determined by the Trustees, any fractional Share of any Series or
Class, if any such fractional Share is outstanding, shall carry proportionately
all the rights and obligations of a whole Share of that Series or Class,
including rights and obligations with respect to voting, receipt of dividends
and distributions, redemption of Shares, and liquidation of the
Trust.
Section
2.13 No Appraisal
Rights. Shareholders shall have no right to demand payment for
their Shares or to any other rights of dissenting Shareholders in the event the
Trust participates in any transaction which would give rise to appraisal or
dissenters’ rights by a stockholder of a corporation organized under the General
Corporation Law of the State of Delaware or would otherwise give rise to such
appraisal or dissenters’ rights.
Section
2.14 Status of
Shares. Shares shall be deemed to be personal property giving
Shareholders only the rights provided in this instrument. Every
Shareholder by virtue of having become a Shareholder shall be held to have
expressly assented and agreed to be bound by the terms hereof. The death of a
Shareholder during the continuance of the Trust or any Series or Class thereof
shall not operate to dissolve or terminate the Trust or any Series or Class 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 decedent under this
Trust Instrument. Ownership of Shares shall not entitle the
Shareholder to any title in or to the whole or any part of the Trust Property or
to any right to call for a partition or division of the same or for an
accounting, nor shall the ownership of Shares constitute the Shareholders
partners.
Section
2.15 Shareholders.
(a) No
Shareholder of the Trust or of any Series or Class shall be personally liable
for the debts, liabilities, obligations and expenses incurred by, contracted
for, or otherwise existing with respect to, the Trust or by or on behalf of any
Series or Class. Except as otherwise provided in this Trust
Instrument, the Trustees shall have no power to bind any Shareholder personally
or to call upon any Shareholder for the payment of any sum of money or
assessment whatsoever other than such as the Shareholder may at any time
personally agree to pay pursuant to terms hereof or by way of subscription for
any Shares or otherwise.
(b) If
any Shareholder or former Shareholder of the Trust or any Series or Class shall
be held to be personally liable solely by reason of his being or having been a
Shareholder thereof and not because of his acts or omissions or for some other
reason, the Shareholder or former Shareholder (or his heirs, executors,
administrators or other legal representatives, or, in the case of a corporation
or other entity, its corporate or other general successor) shall be entitled out
of the assets belonging to the applicable Series or Class to be held harmless
from and indemnified against all loss and expense arising from such
liability. The Trust, on behalf of the affected Series, may, at its
option, assume the defense of any claim made against the Shareholder for any act
or obligation of the Series or Class and satisfy any judgment thereon from the
assets of the Series or Class. The indemnification and reimbursement
required by the preceding sentence shall be made only out of assets of the one
or more Series or Classes whose Shares were held by said Shareholder at the time
the act or event occurred which gave rise to the claim against or liability of
said Shareholder. The rights accruing to a Shareholder under this
Section shall not impair any other right to which such Shareholder may be
lawfully entitled, nor shall anything herein contained restrict the right of the
Trust or any Series or Class thereof to indemnify or reimburse a Shareholder in
any appropriate situation even though not specifically provided
herein. Neither the Trust nor the applicable Series or Class shall be
responsible for satisfying any obligation arising from such a claim that has
been settled by the Shareholder without prior written notice to the Trust and
consent of the Trust to settle the claim.
ARTICLE
3
THE
TRUSTEES
Section
3.1 Election. Except
for the Trustees named herein or appointed pursuant to Section 3.7 hereof, or
Trustees appointed to fill vacancies pursuant to Section 3.3 hereof,
the
Trustees shall be
elected by the Shareholders in accordance with this Trust Instrument and the
1940 Act.
Section
3.2 Term of Office of Trustees;
Resignation and Removal.
(a) Each
Trustee shall hold office during the existence of this Trust, and until its
termination as herein provided unless such Trustee resigns or is removed as
provided herein. Any Trustee may resign by notice to the Chairman, if
any, the Vice Chairman, if any, the President or the Secretary and such
resignation shall be effective upon such notice, or at a later date specified by
such Trustee.
(b) Any
of the Trustees may be removed with or without cause by the affirmative vote of
the Shareholders of two thirds (2/3) of the Shares, or with cause by the action
of two thirds (2/3) of the remaining Trustees (provided the aggregate number of
Trustees, after such removal and after giving effect to any appointment made to
fill the vacancy created by such removal, shall not be less than the number
required by Section 3.4 hereof). Removal with cause shall include,
but not be limited to, the removal of a Trustee due to physical or mental
incapacity.
(c) Upon
the resignation or removal of a Trustee, or his otherwise ceasing to be a
Trustee, he shall execute and deliver such documents as the remaining Trustees
shall require for the purpose of conveying to the Trust or the remaining
Trustees any Trust Property held in the name of the resigning or removed
Trustee. Upon the death of any Trustee or upon removal or resignation
due to any Trustee’s incapacity to serve as trustee, his legal representative
shall execute and deliver on his behalf such documents as the remaining Trustees
shall require as provided in the preceding sentence.
(d) 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 the effective date of his resignation or
removal, or any right to damages on account of a removal.
(e) The
Trustees, by resolution of a majority of Trustees, may adopt or amend a
retirement policy for the Trustees of the Trust. Any such policy
shall be binding on each Trustee unless waived by a majority of the other
Trustees.
Section
3.3 Vacancies and Appointment of
Trustees.
(a) A
vacancy shall occur if a Trustee dies, resigns, retires, is removed or is
incapacitated, or a Trustee is otherwise unable to serve, or the number of
Trustees is increased. Whenever a vacancy in the number of Trustees
shall occur, until such vacancy is filled, the other Trustees shall have all the
powers hereunder and the certificate of the other Trustees of such vacancy shall
be conclusive. In the case of an existing vacancy, the remaining
Trustee or Trustees shall fill such vacancy by appointing such other person as
such Trustee or Trustees in their discretion shall see fit consistent with the
limitations under the 1940 Act, unless such Trustee or Trustees determine, in
accordance with Section 3.4, to decrease the number of Trustees.
(b) An
appointment of a Trustee may be made by the Trustees then in office in
anticipation of a vacancy to occur at a later date.
(c) An
appointment of a Trustee shall be effective upon the acceptance of the person so
appointed to serve as trustee, except that any such appointment in anticipation
of a vacancy shall become effective at or after the date such vacancy
occurs.
Section
3.4 Number of
Trustees. The original number of Trustees shall be
three. The Trustees serving as such from time to time may, by
resolution of a majority thereof, increase or decrease the number of Trustees,
provided, however, that the number of Trustees shall not be decreased to less
than three (3). No decrease in the number of Trustees shall have the
effect of removing any Trustee from office prior to the expiration of such
Trustee’s term, but the number of Trustees may be decreased in conjunction with
the removal of a Trustee in accordance with Section 3.2(b).
Section
3.5 Effect of Death,
Resignation, Etc. of a Trustee. The death, resignation,
retirement, removal, incapacity, or inability of the Trustees, or any one of
them, shall not operate to terminate the Trust or any Series or to revoke any
existing trust or agency created pursuant to the terms of this Trust
Instrument.
Section
3.6 Ownership of Assets of the
Trust.
(a) Legal
title to all of the Trust Property shall at all times be vested in the Trust as
a separate legal entity, except that the Trustees may cause legal title to any
Trust Property to be held by, or in the name of, one or more of the Trustees
acting for and on behalf of the Trust, or in the name of any Person as nominee
acting for and on behalf of the Trust. No Shareholder shall be deemed
to have a severable ownership interest in any individual asset of the Trust or
of any Series or Class, or any right of partition or possession thereof, but
each Shareholder shall have, except as otherwise provided for herein, a
proportionate undivided beneficial interest in each Series or Class of Shares
which are owned by such Shareholder. The Trust, or at the
determination of the Trustees, one or more of the Trustees or a nominee acting
for and on behalf of the Trust, shall be deemed to hold legal title and
beneficial ownership of any income earned on securities held by the Trust which
have been issued by any business entities formed, organized, or existing under
the laws of any jurisdiction, including the laws of any foreign
country.
(b) If
title to any part of the Trust Property is vested in one or more Trustees, the
right, title and interest of the Trustees in the Trust Property shall vest
automatically in each person who may hereafter become a Trustee upon his due
election and qualification. Upon the resignation, removal, death or
incapacity of a Trustee he shall automatically cease to have any right, title or
interest in any of the Trust Property, and the right, title and interest of such
Trustee in the Trust Property shall vest automatically in the remaining
Trustees. To the extent permitted by law, such vesting and cessation
of title shall be effective whether or not conveyancing documents have been
executed and delivered.
Section
3.7 Series
Trustees. In connection with the establishment of one or more
Series or Classes, the Trustees establishing such Series or Class may appoint,
to the extent permitted by the 1940 Act, separate Trustees with respect to such
Series or Classes (the “Series Trustees”). Series Trustees may, but
are not required to, serve as Trustees of the Trust of any other Series or Class
of the Trust. To the extent provided by the Trustees in the
appointment of Series Trustees, the Series Trustees may have, to the exclusion
of any other Trustee of the Trust, all the powers and authorities of Trustees
hereunder with respect to such Series or Class, but may have no power or
authority with respect to any other Series or Class (unless the Trustees permit
such Series Trustees to create new Classes within such Series). Any
provision of this Trust Instrument relating to election of Trustees by
Shareholders shall entitle only the Shareholders of a Series or Class for which
Series Trustees have been appointed to vote with respect to the election of such
Trustees and the Shareholders of any other Series or Class shall not be entitled
to participate in such vote. If Series Trustees are appointed, the
Trustees initially appointing such Series Trustees may, without the approval of
any Outstanding Shares, amend either this Trust Instrument or the By-Laws to
provide for the respective responsibilities of the Trustees and the Series
Trustees in circumstances where an action of the Trustees or Series Trustees
affects all Series and Classes of the Trust or two or more Series or Classes
represented by different Trustees.
Section
3.8 No
Accounting. Except to the extent required by the 1940 Act or,
if determined to be necessary or appropriate by the other Trustees under
circumstances which would justify his removal for cause, no person ceasing to be
a Trustee for reasons including, but not limited to, death, resignation,
retirement, removal or incapacity (nor the estate of any such person) shall be
required to make an accounting to the Shareholders or remaining Trustees upon
such cessation.
ARTICLE
4
POWERS
OF THE TRUSTEES
Section
4.1 Powers. The
Trustees shall manage or direct the management of the Trust Property and the
business of the Trust with full powers of delegation except as may be prohibited
by this Trust Instrument. The Trustees shall have power to conduct
the business of the Trust and carry on its operations in any and all of its
branches and maintain offices both within and without the State of Delaware, in
any and all states of the United States of America, in the District of Columbia,
in any and all commonwealths, territories, dependencies, colonies, or
possessions of the United States of America, and in any foreign jurisdiction and
to do all such other things and execute all such instruments as they deem
necessary, proper or desirable in order to promote the interests of the Trust
although such things or instruments are not herein specifically
mentioned. Any determination as to what is in the interests of the
Trust made by the Trustees in good faith shall be conclusive. In
construing the provisions of this Trust Instrument, the presumption shall be in
favor of a grant of power to the Trustees. The enumeration of any
specific power in this Trust Instrument shall not be construed as limiting the
aforesaid power. The powers of the Trustees may be exercised in their
sole discretion in accordance with Section 8.3(c) hereof (except as otherwise
required by the ▇▇▇▇ ▇▇▇) and without order of or resort to any
court. Without limiting the foregoing and subject to any applicable
limitation in this Trust Instrument, the Trustees shall have power and authority
to cause the Trust (or to act on behalf of the Trust):
(a) To
invest and reinvest cash, to hold cash uninvested, and to subscribe for, invest
in, reinvest in, purchase or otherwise acquire, own, hold, pledge, sell, assign,
transfer, exchange, distribute, write options on, lend or otherwise deal in or
dispose of contracts for the future acquisition or delivery of fixed income or
other securities, and securities of every nature and kind, including, but not
limited to, all types of bonds, debentures, stocks, negotiable or non-negotiable
instruments, obligations, evidences of indebtedness, certificates of deposit or
indebtedness, commercial paper, repurchase agreements, bankers’ acceptances, and
other securities and financial instruments of any kind, including without
limitation futures contracts and options on such contracts, issued, created,
guaranteed, or sponsored by any and all Persons, including the United States of
America, any foreign government, and all states, territories, and possessions of
the United States of America or any foreign government and any political
subdivision, agency, or instrumentality thereof, or by any bank or savings
institution, or by any corporation or organization organized under the laws of
the United States or of any state, territory, or possession thereof, or by any
corporation or organization organized under any foreign law, or in “when issued”
contracts for any such securities, to change the investments of the assets of
the Trust, and to exercise any and all rights, powers, and privileges of
ownership or interest and to fulfill any and all obligations in respect of any
and all such investments of every kind and description, including 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
enter into contracts of any kind and description, including swaps and other
types of derivative contracts;
(c) To
purchase, sell and hold currencies and enter into contracts for the future
purchase or sale of currencies, including but not limited to forward foreign
currency exchange contracts;
(d) To
issue, sell, repurchase, redeem, retire, cancel, acquire, hold, resell, reissue,
dispose of, exchange, and otherwise deal in Shares and, subject to the
provisions set forth in Article 2 and Article 7, to apply to any such
repurchase, redemption, retirement, cancellation or acquisition of Shares any
funds or property of the Trust, or the particular Series or Class of the Trust,
with respect to which such Shares are issued;
(e) To
borrow funds or other property and in this connection issue notes or other
evidence of indebtedness; to secure borrowings by mortgaging, pledging or
otherwise subjecting as security the Trust Property; to endorse, guarantee, or
undertake the performance of an obligation, liability or engagement of any
Person and to lend or pledge Trust Property or any part thereof to secure any or
all of such obligations;
(f) To
provide for the distribution of interests of the Trust either through a
Principal Underwriter in the manner hereinafter provided for or by the Trust
itself, or both, or otherwise pursuant to a plan of distribution of any
kind;
(g) To
adopt By-Laws not inconsistent with this Trust Instrument providing for the
conduct of the business of the Trust and to amend and repeal them to the extent
that they do not reserve that right to the Shareholders, which By-Laws shall be
deemed a part of this Trust Instrument and are incorporated herein by
reference;
(h) To
appoint and terminate such officers, employees, agents and contractors as they
consider appropriate, any of whom may be a Trustee, and to provide for the
compensation of all of the foregoing;
(i) To
set record dates (or delegate the power to so do) in the manner provided herein
or in the By-Laws;
(j) To
delegate such of the Trustees’ power and authority hereunder (which delegation
may include the power to subdelegate) as they consider desirable to any officers
of the Trust and to any investment adviser, manager, administrator, custodian,
underwriter or other agent or independent contractor, and to employ auditors,
counsel or other agents of the Trust;
(k) To
join with other holders of any securities or debt instruments in acting through
a committee, depository, voting trustee or otherwise, and in that connection to
deposit any security or debt instrument with, or transfer any security or debt
instrument to, any such committee, depository or trustee, and to delegate to
them such power and authority with relation to any security or debt instrument
(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, depository or trustee as the Trustees shall deem
proper;
(l) To
enter into joint ventures, general or limited partnerships and any other
combinations or associations;
(m) To
pay pensions for faithful service, as deemed appropriate by the Trustees, and to
adopt, establish and carry out pension, profit-sharing, share bonus, share
purchase, savings, thrift and other retirement, incentive and benefit plans,
trusts and provisions, including the purchasing of life insurance and annuity
contracts as a means of providing such retirement and other benefits, for any or
all of the Trustees, officers, employees and agents of the Trust;
(n) To
the extent permitted by law, indemnify any Person with whom the Trust or any
Series or Class has dealings;
(o) To
engage in and to prosecute, defend, compromise, abandon, or adjust by
arbitration, or otherwise, any actions, suits, proceedings, disputes, claims and
demands relating to the Trust, and out of the assets of the Trust or the
applicable Series or Class thereof to pay or to satisfy any debts, claims or
expenses incurred in connection therewith, including those of litigation, and
such power shall include without limitation the power of the Trustees or any
appropriate committee thereof, in the exercise of their or its good faith
business judgment, to dismiss any action, suit, proceeding, dispute, claim or
demand, derivative or otherwise, brought by any Person, including a Shareholder
in its own name or the name of the Trust, whether or not the Trust or any of the
Trustees may be named individually therein or the subject matter arises by
reason of business for or on behalf of the Trust;
(p) To
purchase and pay for entirely or partially out of Trust Property such insurance
as they may deem necessary or appropriate for the conduct of the business of the
Trust, including, without limitation, insurance policies insuring the Trust
Property and payment of distributions and principal on its investments, and
insurance policies insuring the Shareholders, Trustees, officers,
representatives, Advisory Board Members, employees, agents, investment advisers,
managers, administrators, custodians, underwriters, or independent contractors
of the Trust individually against all claims and liabilities of every nature
arising by reason of 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 in such capacity, 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 such liability;
(q) To
vote or give assent, or exercise any rights of ownership, with respect to stock
or other securities, debt instruments or property; and to execute and deliver
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, debt instruments or property as the Trustees shall deem
proper;
(r) To
hold any security or property in a form not indicating any trust, whether in
bearer, book entry, unregistered or other negotiable form; or either in the name
of the Trustees or of the Trust or in the name of a custodian, subcustodian or
other depository or a nominee or nominees or otherwise;
(s) To
establish separate and distinct Series with separately defined investment
objectives and policies and distinct investment purposes in accordance with the
provisions of Article 2 hereof and to establish Classes thereof having
relative rights, powers and duties as they may provide consistent with
applicable law;
(t) To
consent to or participate in any plan for the reorganization, consolidation or
merger of any corporation, issuer or concern, any security or debt instrument of
which is held by the Trust; to consent to any contract, lease, mortgage,
purchase or sale of property by such corporation, issuer or concern; and to pay
calls or subscriptions with respect to any security or debt instrument held in
the Trust;
(u) To
make distributions of income and of capital gains to Shareholders in the manner
herein provided;
(v) To
establish, from time to time, a minimum investment for Shareholders in the Trust
or in one or more Series or Classes, and to require the redemption of the Shares
of any Shareholders whose investment is less than such minimum in accordance
with Section 7.3 hereof;
(w) To
cause each Shareholder, or each Shareholder of any particular Series or Class,
to pay directly, in advance or arrears, for charges of the Trust’s custodian or
transfer, shareholder servicing or similar agent, an amount fixed from time to
time by the Trustees, by setting off such charges due from such Shareholder from
declared but unpaid dividends owed such Shareholder and/or by reducing the
number of Shares in the account of such Shareholder by that number of full
and/or fractional Shares which represents the outstanding amount of such charges
due from such Shareholder;
(x) To
establish one or more committees, to delegate any powers of the Trustees to such
committees and to adopt a committee charter providing for such responsibilities,
membership (including Trustees, officers or other agents of the Trust) and other
characteristics of such committees as the Trustees may deem proper.
Notwithstanding the provisions of this Article 4, and in addition to such
provisions or any other provision of this Trust Instrument or of the By-laws,
the Trustees may by resolution appoint a committee consisting of fewer than the
whole number of the Trustees then in office, which committee may be empowered to
act for and bind the Trustees and the Trust, as if the acts of such committee
were the acts of all the Trustees then in office, with respect to any matter
including the institution, prosecution, dismissal, settlement, review or
investigation of any action, suit or proceeding that may be pending or
threatened to be brought before any court, administrative agency or other
adjudicatory body;
(y) To
interpret the investment policies, practices or limitations of the Trust or of
any Series or Class;
(z) To
establish a registered office and have a registered agent in the State of
Delaware;
(aa) To
pay or cause to be paid out of the principal or income of the Trust, or partly
out of the principal and partly out of income, as they deem fair, all expenses,
fees, charges, taxes and liabilities incurred or arising in connection with the
Trust, 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, Advisory Board Members, Trustees emeritus,
investment adviser or manager, Principal Underwriter, auditors, counsel,
custodian, transfer agent, shareholder servicing agent, and other agents or
independent contractors and such other expenses and charges as the Trustees may
deem necessary or proper to incur, which expenses, fees, charges, taxes and
liabilities shall be allocated in accordance with the terms of this Trust
Instrument;
(bb) To
invest part or all of the Trust Property (or part or all of the assets of any
Series), or to dispose of part or all of the Trust Property (or part or all of
the assets of any Series) and invest the proceeds of such disposition, in
interests issued by one or more other investment companies or pooled portfolios,
each of which may (but need not) be a trust (formed under the laws of any state
or jurisdiction) which is classified as a partnership for federal income tax
purposes, including investment by means of transfer of part or all of the Trust
Property in exchange for an interest or interests in such one or more investment
companies or pooled portfolios, all without any requirement of approval by
Shareholders;
(cc) To
select or to authorize one or more persons to select brokers, dealers, futures
commission merchants, banks or any agents or other entities, as appropriate,
with which to effect transactions in securities and other instruments or
investments;
(dd) In
general, to carry on any other business in connection with or incidental to any
of the foregoing powers, to do everything necessary, suitable or proper for the
accomplishment of any purpose or the attainment of any object or the furtherance
of any power herein set forth, either alone or in association with others, and
to do every other act or thing incidental or appurtenant to or growing out of or
connected with the aforesaid business or purposes, objects or powers;
and
(ee) To
appoint one or more Advisory Board Members to serve the role provided for in
Section 2(a)(1) of the 1940 Act and to cause the Trust to pay compensation to
such persons for serving in such capacity.
The foregoing
clauses shall be construed both as objects and powers, and the foregoing
enumeration of specific powers shall not be held to limit or restrict in any
manner the general powers of the Trustees. Any action by one or more
of the Trustees in his or their capacity as such hereunder shall be deemed an
action on behalf of the Trust or the applicable Series or Class, and not an
action in an individual capacity.
No
one dealing with the Trustees shall be under any obligation to make any inquiry
concerning the authority of the Trustees, or to see to the application of any
payments made or property transferred to the Trustees or upon their
order.
Section
4.2 Trustees and Officers as
Shareholders. Any Trustee, officer or other agent of the Trust
may acquire, own and dispose of Shares to the same extent as if such person were
not a Trustee, officer or agent; and the Trustees may issue and sell or cause to
be issued and sold Shares to and buy such Shares from any such person or any
firm or company in which such person invested, subject to the general
limitations herein contained as to the sale and purchase of such
Shares.
Section
4.3 Action by the Trustees and
Committees. Meetings of the Trustees shall be held from time
to time within or without the State of Delaware upon the call of the Chairman,
if any, the Vice Chairman, if any, the President, the Principal Executive
Officer, the Secretary, an Assistant Secretary or any two
Trustees. No annual meeting of Trustees shall be
required.
(a) Regular
meetings of the Trustees may be held without call or notice at a time and place
fixed by the By-laws or by resolution of the Trustees. Notice of any
other meeting shall be given not later than 48 hours preceding the meeting by
United States mail or by electronic mail or other electronic transmission to
each Trustee at his residence or business address or email address as set forth
in the records of the Trust or otherwise given personally not less than 24 hours
before the meeting but may be waived in writing, including by electronic mail,
by any Trustee either before or after such meeting. The attendance of
a Trustee at a meeting shall constitute a waiver of notice of such meeting
except when a Trustee attends a meeting for the express purpose of objecting to
the transaction of any business on the ground that the meeting has not been
lawfully called or convened.
(b) A
quorum for all meetings of the Trustees shall be one third of the total number
of Trustees, but no less than two Trustees. Unless provided otherwise
in this Trust Instrument or otherwise required by the 1940 Act, any action of
the Trustees may be taken at a meeting by vote of a majority of the Trustees
present (a quorum being present) or without a meeting by written consent of a
majority of the Trustees, which written consent shall be filed with the minutes
of proceedings of the Trustees. Written consent may be evidenced by
electronic mail or other electronic transmission from the Trustee giving such
consent. If there be less than a quorum present at any meeting of the
Trustees, a majority of those present may adjourn the meeting until a quorum
shall have been obtained.
(c) Any
committee of the Trustees, including an executive committee, if any, may act
with or without a meeting. A quorum for all meetings of any such
committee shall be two or more of the members thereof, unless the Trustees shall
provide otherwise or if the committee consists of only one
member. Unless provided otherwise in this Trust Instrument, any
action of any such committee may be taken at a meeting by vote of a majority of
the members present (a quorum being present) or without a meeting by written
consent of a majority of the members, which written consent shall be filed with
the minutes of proceedings of such committee. Written consent may be evidenced
by electronic mail or other electronic transmission from the Trustee giving such
consent.
(d) With
respect to actions of the Trustees and any committee of the Trustees, Trustees
who are Interested Persons of the Trust or are otherwise interested in any
action to be taken may be counted for quorum purposes under this Section 4.3 and
shall be entitled to vote to the extent permitted by the 1940 Act.
(e) All
or any one or more Trustees may participate in a meeting of the Trustees or any
committee thereof by means of a conference telephone or similar communications
equipment by means of which all persons participating in the meeting can hear
each other, and participation in a meeting pursuant to such communications
system shall constitute presence in person at such meeting, unless the 1940 Act
specifically requires the Trustees to act “in person,” in which case such term
shall be construed consistent with Commission or staff releases or
interpretations.
Section
4.4 Chairman of the
Trustees. The Trustees may appoint one of their number to be
Chairman of the Trustees who shall preside at all meetings of the Trustees at
which he is present. The Chairman may be (but is not required to be)
the chief executive officer of the Trust, but shall not be an officer of the
Trust solely by virtue of being appointed Chairman. The Chairman
shall have such responsibilities as may be determined by the Trustees from time
to time. The Trustees may elect Co-Chairmen or Vice Chairmen of the
Board. In the absence of the Chairman, another Trustee shall be
designated by the Trustees to preside over the meeting of the Trustees, to set
the agenda for the meeting and to perform the other responsibilities of the
Chairman in his absence.
Section
4.5 Principal
Transactions. Except to the extent prohibited by applicable
law, the Trustees may, on behalf of the Trust, buy any securities from or sell
any securities to, or lend any assets of the Trust to, any Trustee or officer of
the Trust or any firm of which any such Trustee or officer is a member acting as
principal, or have any such dealings with any Affiliated Person of the Trust,
investment adviser, investment sub-adviser, distributor or transfer agent
for the Trust or with any Interested Person of such Affiliated Person or other
Person; and the Trust may employ any such Affiliated Person or other Person, or
firm or company in which such Affiliated Person or other Person is an Interested
Person, as broker, legal counsel, registrar, investment adviser,
investment sub-adviser, distributor, transfer agent, dividend disbursing
agent, custodian or in any other capacity upon customary terms.
ARTICLE
5
INVESTMENT
ADVISER, INVESTMENT SUB-ADVISER,
PRINCIPAL
UNDERWRITER, ADMINISTRATOR, TRANSFER AGENT,
CUSTODIAN
AND OTHER CONTRACTORS
Section
5.1 Certain
Contracts. Subject to compliance with the provisions of the
1940 Act, but notwithstanding any limitations of present and future law or
custom in regard to delegation of powers by trustees generally, the Trustees
may, at any time and from time to time and without limiting the generality of
their powers and authority otherwise set forth herein, enter into, modify,
amend, supplement, assign or terminate one or more contracts with, and pay
compensation to, any one or more corporations, trusts, associations,
partnerships, limited partnerships, other type of organizations, or individuals
to provide for the performance and assumption of some or all of the following
services, duties and responsibilities to, for or of the Trust and/or the
Trustees, and to provide for the performance and assumption of such other
services, duties and responsibilities in addition to those set forth below as
the Trustees may determine to be appropriate:
(a) Investment Adviser and
Investment Sub-Adviser. The Trustees may in their discretion,
from time to time, enter into an investment advisory or management contract or
contracts with respect to the Trust or any Series whereby the other party or
parties to such contract or contracts shall undertake to furnish the Trust with
such management, investment advisory, statistical and research facilities
and services and such other facilities and services, if any, and all upon such
terms and conditions, as the Trustees may in their discretion
determine. Notwithstanding any other provision of this Trust
Instrument, the Trustees may authorize any investment adviser (subject to such
general or specific instructions as the Trustees may from time to time adopt) to
effect purchases, sales or exchanges of portfolio securities, other investment
instruments of the Trust, or other Trust Property on behalf of the Trustees, or
may authorize any officer, employee, agent, or Trustee to effect such purchases,
sales or exchanges pursuant to recommendations of the investment adviser (and
all without further action by the Trustees). Any such purchases,
sales and exchanges shall be deemed to have been authorized by the
Trustees.
The Trustees may
authorize, subject to applicable requirements of the 1940 Act, the investment
adviser to employ, from time to time, one or more sub-advisers to perform such
of the acts and services of the investment adviser, and upon such terms and
conditions, as may be agreed upon between the investment adviser and
sub-adviser. Any reference in this Trust Instrument to the investment
adviser shall be deemed to include such sub-advisers, unless the context
otherwise requires.
(b) Principal
Underwriter. The Trustees may in their discretion from time to
time enter into an exclusive or non-exclusive underwriting contract or contracts
providing for the sale of Shares for any one or more of its Series or Classes or
other securities to be issued by the Trust, including a contract whereby the
Trust may either agree to sell Shares or other securities to the other party to
the contract or appoint such other party its sales agent for such Shares or
other securities. In either case, the contract may also provide for the
repurchase or sale of Shares or other securities by such other party as
principal or as agent of the Trust.
(c) Administrator. The
Trustees may in their discretion from time to time enter into one or more
contracts whereby the other party or parties shall undertake to furnish the
Trust with administrative services. The contract or contracts shall
be on such terms and conditions as the Trustees may in their discretion
determine.
(d) Transfer
Agent. The Trustees may in their discretion from time to time
enter into one or more transfer agency and Shareholder service contracts whereby
the other party or parties shall undertake to furnish the Trust with transfer
agency and Shareholder services. The contract or contracts shall be
on such terms and conditions as the Trustees may in their discretion
determine.
(e) Administrative Service and
Distribution Plans. The Trustees may, on such terms and
conditions as they may in their discretion determine, adopt one or more plans
pursuant to which compensation may be paid directly or indirectly by the Trust
for Shareholder servicing, administration and/or distribution services with
respect to one or more Series or Classes including without limitation, plans
subject to Rule 12b-1 under the 1940 Act, and the Trustees may enter into
agreements pursuant to such plans.
(f) Fund
Accounting. The Trustees may in their discretion from time to
time enter into one or more contracts whereby the other party or parties
undertakes to handle all or any part of the Trust’s accounting responsibilities,
whether with respect to the Trust’s properties, Shareholders or
otherwise.
(g) Custodian and
Depository. The Trustees may in their discretion from time to
time enter into one or more contracts whereby the other party or parties
undertakes to act as depository for and to maintain custody of the property of
the Trust or any Series or Class and accounting records in connection
therewith.
(h) Parties to
Contract. Any contract described in this Article 5 may be
entered into with any corporation, firm, partnership, trust or association,
although one or more of the Trustees or officers of the Trust may be an officer,
director, trustee, shareholder, or member of such other party to the contract,
and no such contract shall be invalidated or rendered void or voidable by reason
of the existence of any relationship, nor shall any person holding such
relationship be disqualified from voting on or executing the same in his
capacity as Shareholder and/or Trustee, nor shall any Person holding such
relationship be liable merely by reason of such relationship for any loss or
expense to the Trust under or by reason of said contract or accountable for any
profit realized directly or indirectly therefrom, provided that the contract
when entered into was not inconsistent with the provisions of this
Article 5. The same Person (including a firm, corporation,
partnership, trust, or association) may be the other party to contracts entered
into pursuant to this Article 5, and any individual may be financially
interested or otherwise affiliated with persons who are parties to any or all of
the contracts mentioned in this Section 5.1.
ARTICLE
6
SHAREHOLDER
VOTING POWERS AND MEETINGS
Section
6.1 Voting.
(a) The
Shareholders shall have power to vote only: (i) for the election of one or more
Trustees in order to comply with the provisions of the 1940 Act (including
Section 16(a) thereof), (ii) for the removal of Trustees in accordance with
Section 3.2(b) hereof, (iii) on certain amendments to this Trust Instrument
enumerated in Section 9.6 hereof, (iv) with respect to such additional matters
relating to the Trust as may be required by the 1940 Act, or (v) as the Trustees
may consider necessary or desirable.
(b) On
each matter submitted to a vote of Shareholders, unless the Trustees determine
otherwise, all Shares of all Series and Classes shall vote together as a single
class; provided, however, that: as to any matter (i) with respect to which a
separate vote of one or more Series or Classes is required by the 1940 Act or by
action of the Trustees in establishing and designating the Series or Class(es),
such requirements as to a separate vote by such Series or Class(es) shall apply
in lieu of all Shares of all Series and Classes voting together, and (ii) which
does not affect the interests of a particular Series or Class, only the holders
of Shares of the one or more affected Series or Classes shall be entitled to
vote. In general, 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; provided, however, on any matter
submitted to a vote of Shareholders, the Trustees may determine, without the
vote or consent of Shareholders (except as required by the 1940 Act), that each
dollar of Net Asset Value (number of Shares owned times Net Asset Value per
Share of the Trust, if no Series shall have been established, or of such Series
or Class, as applicable) shall be entitled to one vote on any matter on which
such Shares are entitled to vote and each fractional dollar amount shall be
entitled to a proportionate fractional vote. Without limiting the
power of the Trustees in any way to designate otherwise in accordance with the
preceding sentence, the Trustees hereby establish that 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 or in any manner
provided for in the By-Laws or as determined by the Trustees. A proxy
may be given in writing, electronically, by telephone, by telecopy, or in any
other manner provided for in the By-Laws or as determined by the
Trustees. Until Shares are issued, the Trustees may exercise all
rights of Shareholders and may take any action required or permitted by law,
this Trust Instrument or any of the By-Laws of the Trust to be taken by
Shareholders. A Shareholder may authorize another Person or Persons
to act for such Shareholder as proxy by transmitting or authorizing in writing,
electronically, by telephone, by telecopy or other electronic transmission to
the Person who will be the holder of the proxy or to a proxy
solicitation firm, proxy support service organization or like agent duly
authorized by the Person who will be the holder of the proxy to receive such
transmission, provided that any such writing or other transmission must either
set forth or be submitted with information from which it can be determined that
the writing or other transmission was authorized by the
Shareholder.
Section
6.2 Notices. Any
and all notices to which any Shareholder hereunder may be entitled and any and
all communications shall be deemed duly served or given if presented personally
to a Shareholder, left at his or her residence or usual place of business or
sent via United States mail or by electronic transmission to a Shareholder at
his or her address as it is registered with the Trust. If mailed,
such notice shall be deemed to be given when deposited in the United States mail
addressed to the Shareholder at his or her address as it is registered with the
Trust with postage thereon prepaid.
Section
6.3 Meetings of
Shareholders.
(a) Meetings
of the Shareholders may be called at any time by the Chairman or the Trustees
and shall be called by any Trustee upon written request of Shareholders holding,
in the aggregate, not less than 10% of the Shares (or Class or Series thereof),
such request specifying the purpose or purposes for which such meeting is to be
called. Any such meeting shall be held within or without the State of
Delaware on such day and at such time as the Trustees shall
designate. Shareholders of one third of the Shares of the Trust (or
Class or Series thereof), present in person or by proxy, shall constitute a
quorum for the transaction of any business, except as may otherwise be required
by the 1940 Act or by this Trust Instrument or the By-Laws. Any
lesser number shall be sufficient for adjournments. Unless the 1940
Act, this Trust Instrument or the By-Laws require a greater number of
affirmative votes, the affirmative vote by the Shareholders holding more than
50% of the Shares (or Class or Series thereof) present, either in person or by
proxy, or, if applicable, holding more than 50% of the Net Asset Value of the
Shares present, either in person or by proxy, at such meeting constitutes the
action of the Shareholders, and a plurality shall elect a Trustee.
(b) Any
meeting of Shareholders, whether or not a quorum is present, may be adjourned
for any lawful purpose by a majority of the votes properly cast upon the
question of adjourning a meeting to another date and time provided that no
meeting shall be adjourned for more than six months beyond the originally
scheduled meeting date. In addition, any meeting of Shareholders, whether or not
a quorum is present, may be adjourned or postponed by, or upon the authority of,
the Chairman or the Trustees to another date and time provided that no meeting
shall be adjourned or postponed for more than six months beyond the originally
scheduled meeting date. Any adjourned or postponed session or
sessions may be held, within a reasonable time after the date set for the
original meeting as determined by, or upon the authority of, the Trustees
without the necessity of further notice or a new record date.
Section
6.4 Record
Date. For the purpose of determining the Shareholders who are
entitled to notice of any meeting and to vote at any meeting, or to participate
in any distribution, or for the purpose of any other action, the Trustees may
from time to time fix a date, not more than 120 calendar days prior to the
original date of any meeting of the Shareholders (which may be adjourned or
postponed in compliance with Section 6.3(b) hereof) or payment of distributions
or other action, as the case may be, as a record date for the determination of
the persons to be treated as Shareholders of record for such purposes, and any
Shareholder who was a Shareholder at the date and time so fixed shall be
entitled to vote at such meeting or to be treated as a Shareholder of record for
purposes of such other action, even though he has since that date and time
disposed of his Shares, and no Shareholder becoming such after that date and
time shall be so entitled to vote at such meeting or to be treated as a
Shareholder of record for purposes of such other action. Nothing in
this Section 6.4 shall be construed as precluding the Trustees from setting
different record dates for different Series or Classes.
Section
6.5 Notice of
Meetings.
(a) Written
or printed notice of all meetings of the Shareholders, stating the time, place
and purposes of the meeting, shall be given as provided in Section 6.2 for the
giving of notices, at least 10 business days before the meeting. At
any such meeting, any business properly before the meeting may be considered
whether or not stated in the notice of the meeting. Any adjourned or
postponed meeting held as provided in Section 6.3 shall not require the giving
of additional notice.
(b) Notice
of any Shareholder meeting need not be given to any Shareholder if a written
waiver of notice (including, but not limited to, electronic, telegraphic or
facsimilie or computerized writings), executed before or after such meeting, is
filed with the record of such meeting, or to any Shareholder who shall attend
such meeting in person or by proxy. The attendance of a Shareholder
at a meeting of Shareholders shall constitute a waiver of notice of such meeting
except when a Shareholder attends a meeting for the express purpose of objecting
to the transaction of any business on the ground that the meeting has not been
lawfully called or convened.
Section
6.6 Proxies,
Etc. At any meeting of Shareholders, any Shareholder entitled
to vote thereat may vote by proxy, provided that no proxy shall be voted at any
meeting unless it shall have been placed on file with the Secretary, or with
such other officer or agent of the Trust as the Secretary may direct, for
verification prior to the time at which such vote shall be taken.
(a) Pursuant
to a resolution of a majority of the Trustees, proxies may be solicited in the
name of one or more Trustees or one or more of the officers of the
Trust. Only Shareholders of record shall be entitled to
vote.
(b) When
Shares are held jointly by several persons, any one of them may vote at any
meeting in person or by proxy in respect of such Shares, but if more than one of
them shall be present at such meeting in person or by proxy, and such joint
owners or their proxies so present disagree as to any vote to be cast, such vote
shall not be received in respect of such Shares.
(c) 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. If the Shareholder is a
minor or a person of unsound mind, and subject to guardianship or to the legal
control of any other person regarding the charge or management of its Share, he
may vote by his guardian or such other person appointed or having such control,
and such vote may be given in person or by proxy.
Section
6.7 Action by Written
Consent. Subject to the provisions of the 1940 Act, any action
taken by Shareholders may be taken without a meeting if a majority of the Shares
entitled to vote on the matter (or such larger proportion thereof as shall be
required by law, by any provision of this Trust Instrument or by the Trustees)
consent to the action in writing. Such consent shall be treated for
all purposes as a vote taken at a meeting of Shareholders. Any
written consent may be given by facsimile, electronic mail or other electronic
means. The Trustees may adopt additional rules and procedures
regarding the taking of Shareholder action by written consents.
Section
6.8 Delivery by Electronic
Transmission or Otherwise. Notwithstanding any provision in
this Trust Instrument to the contrary, any notice, proxy, vote, consent,
instrument or writing of any kind referenced in, or contemplated by, this Trust
Instrument or the By-laws may, as determined by the Trustees, be given, granted
or otherwise delivered by electronic transmission (within the meaning of the
Act), including via the internet, or in any other manner permitted by applicable
law.
ARTICLE
7
DISTRIBUTIONS
AND REDEMPTIONS
Section
7.1 Distributions.
(a) The
Trustees may from time to time declare and pay dividends or other distributions
with respect to any Series or Class. The amount of such dividends or
distributions and the payment of them and whether they are in cash or any other
Trust Property shall be wholly in the discretion of the Trustees.
(b) Dividends
and distributions on Shares of a particular Series or any Class thereof may be
paid with such frequency as the Trustees may determine, which may be daily or
otherwise, pursuant to a standing resolution or resolution adopted only once or
with such frequency as the Trustees may determine, to the Shareholders of Shares
in that Series or Class, from such of the income and capital gains, accrued or
realized, from the Trust Property belonging to that Series, or in the case of a
Class, belonging to that Series and allocable to that Class, as the Trustees may
determine, after providing for actual and accrued liabilities belonging to that
Series. All dividends and distributions on Shares in a particular
Series or Class thereof shall be distributed pro rata to the Shareholders of
Shares in that Series or Class in proportion to the total outstanding Shares in
that Series or Class held by such Shareholders at the date and time of record
established for the payment of such dividends or distribution, except to the
extent otherwise required or permitted by the preferences and special or
relative rights and privileges of any Series or Class and except that in
connection with any dividend or distribution program or procedure the Trustees
may determine that no dividend or distribution shall be payable on Shares as to
which the Shareholder’s purchase order and/or payment in the prescribed form has
not been received by the time or times established by the Trustees under such
program or procedure. Such dividends and distributions may be made in
cash or Shares of that Series or Class or a combination thereof as determined by
the Trustees or pursuant to any program that the Trustees may have in effect at
the time for the election by each Shareholder of the mode of the making of such
dividend or distribution to that Shareholder. The Trustees may adopt
and offer to Shareholders such dividend reinvestment plans, cash dividend payout
plans or related plans as the Trustees shall deem appropriate.
(c) Anything
in this Trust Instrument to the contrary notwithstanding, the Trustees may at
any time declare and distribute a stock dividend pro rata among the Shareholders
of a particular Series, or Class thereof, as of the record date of
that Series or Class fixed as provided in subsection (b) of this Section
7.1. The Trustees shall have full discretion, to the extent not
inconsistent with the 1940 Act, to determine which items shall be treated as
income and which items as capital; and each such determination and allocation
shall be conclusive and binding upon the Shareholders.
Section
7.2 Redemption by
Shareholder.
(a) Unless
the Trustees otherwise determine with respect to a particular Series or Class at
the time of establishing and designating the same and subject to the 1940 Act,
each holder of Shares of a particular Series or Class thereof shall have the
right at such times as may be permitted by the Trust to require the Trust to
redeem (out of the assets belonging to the applicable Series or Class) all or
any part of his Shares at a redemption price equal to the Net Asset Value per
Share of that Series or Class next determined in accordance with Section 7.4
after the Shares are properly tendered for redemption, less such redemption fee
or other charge, if any, as may be fixed by the Trustees. Except as
otherwise provided in this Trust Instrument, payment of the redemption price
shall be in cash; provided, however, that to the extent permitted by applicable
law, the Trustees may authorize the Trust to make payment wholly or partly in
securities or other assets belonging to the applicable Series at the value of
such securities or assets used in such determination of Net Asset
Value. Subject to the foregoing, the fair value, selection, and
quantity of securities or other assets so paid or delivered as all or part of
the redemption price may be determined by or under the authority of the
Trustees. In no case shall the Trust or the Trustees be liable for
any delay of any Person in transferring securities selected for delivery as all
or part of the redemption price.
(b) Notwithstanding
the foregoing, the Trust may postpone payment of the redemption price and may
suspend the right of the holders of Shares of any Series or Class to require the
Trust to redeem Shares of that Series or Class during any period or at any time
when and to the extent permissible under the 1940 Act.
(c) If
a Shareholder shall submit a request for the redemption of a greater number of
Shares than are then allocated to such Shareholder, such request shall not be
honored.
Section
7.3 Redemption by
Trust.
(a) Unless
the Trustees otherwise determine with respect to a particular Series or Class at
the time of establishing and designating the same, each Share of each Series or
Class thereof that has been established and designated is subject to redemption
(out of the assets belonging to the applicable Series or Class) by the Trust at
the redemption price which would be applicable if such Share were then being
redeemed by the Shareholder pursuant to Section 7.2 at any time if the Trustees
determine that it is in the best interest of the Trust to so redeem such Shares,
which determination may be delegated to the investment adviser of the
Trust. Upon such redemption the holders of the Shares so redeemed
shall have no further right with respect thereto other than to receive payment
of such redemption price. Without limiting the generality of the
foregoing, the Trustees may cause the Trust to redeem (out of the assets
belonging to the applicable Series or Class) all of the Shares of one or more
Series or Classes held by (i) any Shareholder if the value of such Shares held
by such Shareholder is less than the minimum amount established from time to
time by the Trustees, (ii) all Shareholders of one or more Series or Classes if
the value of such Shares held by all Shareholders is less than the minimum
amount established from time to time by the Trustees or (iii) any Shareholder to
reimburse the Trust for any loss or expense it has sustained or incurred by
reason of the failure of such Shareholder to make full payment for Shares
purchased by such Shareholder, or by reason of any defective redemption request,
or by reason of indebtedness incurred because of such Shareholder or to collect
any charge relating to a transaction effected for the benefit of such
Shareholder or as provided in the prospectus relating to such
Shares.
(b) If
the Trustees shall, at any time and in good faith, determine that direct or
indirect ownership of Shares of any Series or Class thereof has or may become
concentrated in any Person to an extent that would disqualify any Series as a
regulated investment company under the Internal Revenue Code, then the Trustees
shall have the power (but not the obligation), by such means as they deem
equitable, to (i) call for the redemption of a number,
or amount, of Shares held by such Person sufficient to maintain or bring the
direct or indirect ownership of Shares into conformity with the requirements for
such qualification, (ii) refuse to transfer or issue Shares of any Series or
Class thereof to such Person whose acquisition of the Shares in question would
result in such disqualification, or
(iii) take such other actions as they deem necessary and appropriate to avoid
such disqualification
Section
7.4 Net Asset
Value.
(a) The
Net Asset Value per Share of any Series or Class thereof shall be the quotient
obtained by dividing the value of the net assets of that Series or Class (being
the value of the assets belonging to that Series or Class less the liabilities
belonging to that Series or Class) by the total number of Shares of that Series
or Class outstanding, all determined in accordance with the methods and
procedures, including without limitation those with respect to rounding,
established by the Trustees from time to time.
(b) The
Trustees may determine to maintain the Net Asset Value per Share of any Series
at a designated constant dollar amount and in connection therewith may adopt
procedures not inconsistent with the 1940 Act for the continuing declarations of
income attributable to that Series or Class thereof as dividends payable in
additional Shares of that Series or Class thereof at the designated constant
dollar amount and for the handling of any losses attributable to that Series or
Class thereof. Such procedures may, among other things, provide that
in the event of any loss each Shareholder of a Series or Class thereof shall be
deemed to have contributed to the capital of the Trust attributable to that
Series or Class thereof his pro rata portion of the total number of Shares
required to be cancelled in order to permit the Net Asset Value per Share of
that Series or Class thereof to be maintained, after reflecting such loss, at
the designated constant dollar amount. Each Shareholder of the Trust
shall be deemed to have agreed, by his investment in the Trust, to make the
contribution referred to in the preceding sentence in the event of any such
loss.
Section
7.5 Power to Modify
Procedures.
(a) Notwithstanding
any of the foregoing provisions of this Article 7, the Trustees may prescribe,
in their absolute discretion except as may be required by the 1940 Act, such
other bases and times for determining the Net Asset Value of the Shares or net
income, or the declaration and payment of dividends and distributions as they
may deem necessary or desirable for any reason, including to enable the Trust to
comply with any provision of the 1940 Act, or any securities exchange or
association registered under the Securities Exchange Act of 1934, or any order
of exemption issued by the Commission, all as in effect now or hereafter amended
or modified.
(b) Nothing
in this Trust Instrument shall be deemed to restrict the ability
of the Trustees in their full discretion, without the need for any
notice to, or approval by the Shareholders of, any Series or Class, to allocate,
reallocate or authorize the contribution or payment, directly or indirectly, to
one or more than one Series or Class of the following: (i) assets,
income, earnings, profits, and proceeds thereof, (ii) proceeds derived from the
sale, exchange or liquidation of assets, and (iii) any cash or other assets
contributed or paid to the Trust from a manager, administrator or other adviser
of the Trust or an Affiliated Person thereof, or other third party, another
Series or another Class, in each case to remediate misallocations of income and
capital gains, ensure equitable treatment of Shareholders of a Series or Class,
or for such other valid reason determined by the Trustees.
ARTICLE
8
COMPENSATION,
LIMITATION OF LIABILITY OF TRUSTEES
Section
8.1 Compensation. The
Trustees as such shall be entitled to compensation from the Trust, and the
Trustees may fix the amount of such compensation. Nothing herein shall in any
way prevent the employment of any Trustee for advisory, management, legal,
accounting, investment banking or other services and payment for the same by the
Trust.
Section
8.2 Limitation of
Liability.
(a) The
Trustees shall be entitled to the protection against personal liability for the
obligations of the Trust under Section 3803(b) of the Act. No Trustee
or former Trustee shall be liable to the Trust, its Shareholders, or to any
Trustee, officer, employee, or agent thereof for any action or failure to act
(including, without limitation, the failure to compel in any way any former or
acting Trustee to redress any breach of trust) except for his own bad faith,
willful misfeasance, gross negligence or reckless disregard of his duties
involved in the conduct of the office of the Trustee hereunder. No
Trustee who has been determined to be an “audit committee financial expert” (for
purposes of Section 407 of the ▇▇▇▇▇▇▇▇-▇▇▇▇▇ Act of 2002 or any successor
provision thereto) by the Board of Trustees shall be subject to any greater
liability or duty of care in discharging such Trustee’s duties and
responsibilities by virtue of such determination than is any Trustee who has not
been so designated. No Trustee or former Trustee shall be responsible
or liable in any event for any neglect or wrongdoing of any other Trustee,
Advisory Board Member, officer, agent, employee, manager, adviser, sub-adviser
or principal underwriter of the Trust.
(b) The
officers, employees, Advisory Board Members and agents of the Trust shall be
entitled to the protection against personal liability for the obligations of the
Trust under Section 3803(c) of the Act. No officer, employee,
Advisory Board Member or agent of the Trust shall be liable to the Trust, its
Shareholders, or to any Trustee, officer, employee, or agent thereof for any
action or failure to act (including, without limitation, the failure to compel
in any way any former or acting Trustee to redress any breach of trust) except
for his own bad faith, willful misfeasance, gross negligence or reckless
disregard of his duties.
Section
8.3 Fiduciary
Duty.
(a) To
the extent that, at law or in equity, a Trustee, officer, employee, Advisory
Board Member, Trustee emeritus or agent of the Trust (each a “Fiduciary Covered
Person”) has duties (including fiduciary duties) and liabilities relating
thereto to the Trust, to the Shareholders or to any other Person, a Fiduciary
Covered Person acting under this Trust Instrument shall not be liable to the
Trust, to the Shareholders or to any other Person for his good faith reliance on
the provisions of this Trust Instrument. The provisions of this Trust
Instrument, to the extent that they restrict or eliminate the duties and
liabilities of Fiduciary Covered Persons otherwise existing at law or in equity,
are agreed by the parties hereto to replace such other duties and liabilities of
such Fiduciary Covered Persons.
(b) Unless
otherwise expressly provided herein:
(i) whenever
a conflict of interest exists or arises between any Fiduciary Covered Person or
any of his Affiliated Persons, on the one hand, and the Trust or any
Shareholders or any other Person, on the other hand; or
(ii) whenever
this Trust Instrument or any other agreement contemplated herein or therein
provides that a Fiduciary Covered Person shall act in a manner that is, or
provides terms that are, fair and reasonable to the Trust, any Shareholders or
any other Person; then such Fiduciary Covered Person shall resolve such conflict
of interest, take such action or provide such terms, considering in each case
the relative interest of each party (including his own interest) to such
conflict, agreement, transaction or situation and the benefits and burdens
relating to such interests, any customary or accepted industry practices, and
any applicable generally accepted accounting practices or
principles. In the absence of bad faith by a Fiduciary Covered
Person, the resolution, action or terms so made, taken or provided by a
Fiduciary Covered Person shall not constitute a breach of this Trust Instrument
or any other agreement contemplated herein or of any duty or obligation of a
Fiduciary Covered Person at law or in equity or otherwise.
(c) Notwithstanding
any other provision of this Trust Instrument to the contrary or as otherwise
provided in the 1940 Act, (i) whenever in this Trust Instrument Fiduciary
Covered Persons are permitted or required to make a decision in their “sole
discretion” or under a grant of similar authority, the Fiduciary Covered Persons
shall be entitled to consider such interests and factors as they desire,
including their own interests, and, to the fullest extent permitted by
applicable law, shall have no duty or obligation to give any consideration to
any interest of or factors affecting the Trust, the Shareholders or any other
Person; and (ii) whenever in this Trust Instrument a Fiduciary Covered Person is
permitted or required to make a decision in “good faith” or under another
express standard, the Fiduciary Covered Person shall act under such express
standard and shall not be subject to any other or different
standard.
(d) Any
Fiduciary Covered Person and any Affiliated Persons of any Fiduciary Covered
Person may engage in or possess an interest in other profit-seeking or business
ventures of any nature or description, independently or with others, whether or
not such ventures are competitive with the Trust and the doctrine of corporate
opportunity, or any analogous doctrine, shall not apply to any Fiduciary Covered
Person. No Fiduciary Covered Person who acquires knowledge of a
potential transaction, agreement, arrangement or other matter that may be an
opportunity for the Trust shall have any duty to communicate or offer such
opportunity to the Trust, and such Fiduciary Covered Person shall not be liable
to the Trust or to the Shareholders for breach of any fiduciary or other duty by
reason of the fact that such Fiduciary Covered Person pursues or acquires for,
or directs such opportunity to another Person or does not communicate such
opportunity or information to the Trust. Neither the Trust nor any
Shareholders shall have any rights or obligations by virtue of this Trust
Instrument or the trust relationship created hereby in or to such independent
ventures or the income or profits or losses derived therefrom, and the pursuit
of such ventures, even if competitive with the activities of the Trust, shall
not be deemed wrongful or improper. Any Fiduciary Covered Person may
engage or be interested in any financial or other transaction with the Trust,
the Shareholders or any Affiliated Person of the Trust or the
Shareholders.
(e) To
the fullest extent permitted by law, it is intended that Advisory Board Members
and Trustees emeritus shall have no fiduciary duties or liabilities to the Trust
or the Shareholders.
Section
8.4 Indemnification. The
Trust shall indemnify to the fullest extent permitted by law each of its
Trustees, former Trustees, Trustees emeritus, Advisory Board Members and
officers and persons who serve at the Trust’s request as directors, officers or
trustees of another organization in which the Trust has any interest as a
shareholder, creditor, or otherwise, and may indemnify any trustee, director or
officer of a predecessor organization (each an “Indemnified Person”), and may
indemnify its employees and agents, against all liabilities and expenses
(including amounts paid in satisfaction of judgments, in compromise, as fines
and penalties, and expenses including reasonable accountants’ and counsel fees)
reasonably incurred in connection with the defense or disposition of any action,
suit or other proceeding of any kind and nature whatsoever, whether brought in
the right of the Trust or otherwise, and whether of a civil, criminal or
administrative nature, before any court or administrative or legislative body,
including any appeal therefrom, in which he or she may be involved as a party,
potential party, non-party witness or otherwise or with which he or she may be
threatened, while as an Indemnified Person or thereafter, by reason of being or
having been such an Indemnified Person, except that no Indemnified Person shall
be indemnified against any liability to the Trust or its Shareholders to which
such Indemnified Person would otherwise be subject by reason of bad faith,
willful misfeasance, gross negligence or reckless disregard of his or her duties
involved in the conduct of such Indemnified Person’s office (such willful
misfeasance, bad faith, gross negligence or reckless disregard being referred to
herein as “Disabling Conduct”). Expenses, including accountants’ and
counsel fees so incurred by any such Indemnified Person (but excluding amounts
paid in satisfaction of judgments, in compromise or as fines or penalties),
shall be promptly paid from time to time, and the expenses of the Trust’s
employees or agents may be paid from time to time, by the Trust or a Series in
advance of the final disposition of any such action, suit or proceeding upon
receipt of an undertaking by or on behalf of such Indemnified Person to repay
amounts so paid to the Trust if it is ultimately determined that indemnification
of such expenses is not authorized under this Article 8 and either (i) such
Indemnified Person provides security for such undertaking, (ii) the Trust is
insured against losses arising by reason of such payment, or (iii) a majority of
a quorum of disinterested, non-party Trustees, or independent legal counsel in a
written opinion, determines, based on a review of readily available facts, that
there is reason to believe that such Indemnified Person ultimately will be found
entitled to indemnification.
Section
8.5 Indemnification
Determinations. Indemnification of an Indemnified Person
pursuant to Section 8.4 shall be made if (a) the court or body before whom the
proceeding is brought determines, in a final decision on the merits, that such
Indemnified Person was not liable by reason of Disabling Conduct or (b) in the
absence of such a determination, a majority of a quorum of disinterested,
non-party Trustees or independent legal counsel in a written opinion make a
reasonable determination, based upon a review of the facts, that such
Indemnified Person was not liable by reason of Disabling Conduct. In
making such a determination, the Board of Trustees of the Trust shall act in
conformity with then applicable law and administrative interpretations, and
shall afford a Trustee requesting indemnification who is not an “interested
person” of the Trust, as defined in Section 2(a)(19) of the 1940 Act, a
rebuttable presumption that such Trustee did not engage in Disabling Conduct
while acting in his capacity as a Trustee.
Section
8.6 Indemnification Not
Exclusive. The right of indemnification provided by this
Article 8 shall not be exclusive of or affect any other rights to which any such
Indemnified Person may be entitled. As used in this Article 8,
“Indemnified Person” shall include such person’s heirs, executors and
administrators, and a “disinterested, non-party Trustee” is a Trustee who is
neither an Interested Person of the Trust nor a party to the proceeding in
question.
Section
8.7 Reliance on Experts,
Etc. Each Trustee, officer or employee of the Trust shall, in
the performance of his duties, be fully and completely justified and protected
with regard to any act or any failure to act resulting from reliance in good
faith upon the books of account or other records of the Trust, upon an opinion
of counsel, or upon reports made to the Trust by any of its officers or
employees or by any manager, adviser, administrator, accountant, appraiser or
other expert or consultant selected with reasonable care by the Trustees,
officers or employees of the Trust, regardless of whether such counsel or expert
may also be a Trustee. The Trustees may take advice of counsel or
other experts with respect to the meaning and operation of this Trust
Instrument, and shall be under no liability for any act or omission in
accordance with such advice nor for failing to follow such advice.
Section
8.8 No Duty of Investigation;
Notice in Trust Instrument. No purchaser, lender, or other
Person dealing with the Trustees or any officer, employee or agent of the Trust
shall be bound to make any inquiry concerning the validity of any transaction
purporting to be made by the Trustees or by said officer, employee or agent or
be liable for the application of money or property paid, loaned, or delivered to
or on the order of the Trustees or of said officer, employee or
agent. Every obligation, contract, instrument, certificate or other
interest or undertaking of the Trust, and every other act or thing whatsoever
executed in connection with the Trust, shall be conclusively taken to have been
executed or done by the executors thereof only in their capacity as Trustees,
officers, employees or agents of the Trust. The execution of any such
obligation, contract, instrument, certificate or other interest or undertaking
shall not personally bind such Trustees, officers employees or agents of the
Trust or make them personally liable thereunder, nor shall it give rise to a
claim against their private property or the private property of the Shareholders
for the satisfaction of any obligation or claim thereunder. The
Trustees may maintain insurance for the protection of the Trust Property,
Shareholders, Trustees, officers, employees and agents in such amount as the
Trustees shall deem advisable.
Section
8.9 No Bond Required of
Trustees. No Trustee shall, as such, be obligated to give any
bond or surety or other security for the performance of any of his duties
hereunder.
Section
8.10 Insurance. The
Trust shall purchase and maintain in effect one or more policies of insurance on
behalf of its Trustees and officers in such amounts and with such coverage as
shall be determined from time to time by the Board of Trustees, and also may
purchase and maintain such insurance for any of its employees and other agents,
issued by a reputable insurer or insurers, against any expenses actually and
reasonably incurred by such person in any proceeding arising out of or in
connection with his service to the Trust, with customary limitations and
exceptions, whether or not the Trust would have the power to indemnify such
person against such expenses pursuant to this Article 8.
ARTICLE
9
MISCELLANEOUS
Section
9.1 Trust Not a
Partnership. It is the intention of the Trustees that the
Trust shall be a statutory trust under the Act and that this Trust Instrument
and the By-laws, if any, shall together constitute the “governing instrument” of
the Trust as defined in Section 3801(f) of the Act. It is hereby expressly
declared that a Delaware statutory trust and not a partnership or other form of
organization is created hereby. All persons extending credit to,
contracting with or having any claim against any Series of the Trust or any
Class within any Series shall look only to the assets of such Series or Class
for payment under such credit, contract or claim; and neither the Shareholders
nor the Trustees, nor any of the Trust’s officers, employees or agents, whether
past, present or future, shall be personally liable therefor. Every
note, bond, contract or other undertaking issued by or on behalf of the Trust or
the Trustees relating to the Trust or to a Series or Class shall include a
recitation limiting the obligations represented thereby to the Trust or to one
or more Series or Classes and its or their assets (but the omission of such a
recitation shall not operate to bind any Shareholder, Trustee, officer, employee
or agent of the Trust).
Section
9.2 Dissolution and Termination
of Trust, Series or Class.
(a) Unless
terminated as provided herein, the Trust shall continue without limitation of
time. The Trust may be dissolved at any time by the Trustees by written notice
to the Shareholders. Any Series of Shares may be dissolved at any time by the
Trustees by written notice to the Shareholders of such Series. Any Class of any
Series of Shares may be terminated at any time by the Trustees by written notice
to the Shareholders of such Class. Any action to dissolve the Trust shall be
deemed also to be an action to dissolve each Series and each Class thereof and
any action to dissolve a Series shall be deemed also to be an action to
terminate each Class thereof.
(b) Upon
the requisite action by the Trustees to dissolve the Trust or any one or more
Series, after paying or otherwise providing for all charges, taxes, expenses and
liabilities, whether due or accrued or anticipated, of the Trust or of the
particular Series as may be determined by the Trustees, the Trust shall in
accordance with such procedures as the Trustees consider appropriate reduce the
remaining assets of the Trust or of the affected Series to distributable form in
cash or Shares (if the Trust has not dissolved) or other securities, or any
combination thereof, and distribute the proceeds to the Shareholders of the
Trust or Series involved, ratably according to the number of Shares of the Trust
or such Series held by the several Shareholders of such Series on the date of
distribution unless otherwise determined by the Trustees or otherwise provided
by this Trust Instrument. Thereupon, any affected Series shall terminate and the
Trustees and the Trust shall be discharged of any and all further liabilities
and duties relating thereto or arising therefrom, and the right, title and
interest of all parties with respect to such Series shall be canceled and
discharged. Upon the requisite action by the Trustees to terminate any Class of
any Series of Shares, the Trustees may, to the extent they deem it appropriate,
follow the procedures set forth in this Section 9.2(b) with respect to such
Class that are specified in connection with the dissolution and winding up of
the Trust or any Series of Shares. Alternatively, in connection with the
termination of any Class of any Series of Shares, the Trustees may treat such
termination as a redemption of the Shareholders of such Class effected pursuant
to Section 7.3 of Article 7 of this Trust Instrument provided that the costs
relating to the termination of such Class shall be included in the determination
of the Net Asset Value of the Shares of such Class for purposes of determining
the redemption price to be paid to the Shareholders of such Class (to the extent
not otherwise included in such determination).
(c) Following
completion of winding up of the Trust’s business, the Trustees shall cause a
certificate of cancellation of the Trust’s Certificate of Trust to be filed in
accordance with the Act, which certificate of cancellation may be signed by any
one Trustee. Upon termination of the Trust, the Trustees, subject to Section
3808 of the Act, shall be discharged of any and all further liabilities and
duties relating thereto or arising therefrom, and the right, title and interest
of all parties with respect to the Trust shall be canceled and
discharged.
Section
9.3 Merger, Consolidation,
Incorporation.
(a) Notwithstanding
any other provision of this Trust Instrument to the contrary, the Trustees may,
without Shareholder approval unless such approval is required by the 1940 Act,
(i) cause the Trust to convert into or merge, reorganize or consolidate with or
into one or more trusts, partnerships, limited liability companies,
associations, corporations or other business entities (each, a “Successor
Entity”), or a series of any Successor Entity to the extent permitted by law,
(ii) cause the Shares to be exchanged under or pursuant to any state or federal
statute to the extent permitted by law, (iii) cause the Trust to incorporate
under the laws of a state, commonwealth, possession or colony of the United
States, (iv) sell or convey all or substantially all of the assets of the Trust
or any Series or Class to another Series or Class of the Trust or to a Successor
Entity, or a series of a Successor Entity to the extent permitted by law, for
adequate consideration as determined by the Trustees which may include the
assumption of all outstanding obligations, taxes and other liabilities, accrued
or contingent of the Trust or any affected Series or Class, and which may
include Shares of such other Series or Class of the Trust or shares of
beneficial interest, stock or other ownership interest of such Successor Entity
(or series thereof) or (v) at any time sell or convert into money all or any
part of the assets of the Trust or any Series or Class thereof. Any
agreement of merger, reorganization, consolidation, exchange or conversion or
certificate of merger, certificate of conversion or other applicable certificate
may be signed by a majority of the Trustees or an authorized officer of the
Trust and facsimile signatures conveyed by electronic or telecommunication means
shall be valid.
(b) Pursuant
to and in accordance with the provisions of Section 3815(f) of the Act, and
notwithstanding anything to the contrary contained in this Trust Instrument, an
agreement of merger or consolidation approved by the Trustees in accordance with
this Section 9.3 may effect any amendment to the Trust Instrument or effect the
adoption of a new trust instrument of the Trust or change the name of the Trust
if the Trust is the surviving or resulting entity in the merger or
consolidation.
(c) Notwithstanding
anything else herein, the Trustees may, without Shareholder approval unless such
approval is required by the 1940 Act, create one or more statutory or business
trusts to which all or any part of the assets, liabilities, profits or losses of
the Trust or any Series or Class thereof may be transferred and may provide for
the conversion of Shares in the Trust or any Series or Class thereof into
beneficial interests in any such newly created trust or trusts or any series or
classes thereof.
(d) Notwithstanding
any provision of this Trust Instrument to the contrary, the Trustees may,
without Shareholder approval, invest all or a portion of the Trust Property of
any Series, or dispose of all or a portion of the Trust Property of any Series,
and invest the proceeds of such disposition in interests issued by one or more
other investment companies registered under the 1940 Act. Any such other
investment company may (but need not) be a trust (formed under the laws of the
State of Delaware or any other state or jurisdiction) or sub-trust thereof which
is classified as a partnership for federal income tax purposes. Notwithstanding
any provision of this Trust Instrument to the contrary, the Trustees may,
without Shareholder approval unless such approval is required by the 1940 Act,
cause a Series that is organized in the master/feeder fund structure to withdraw
or redeem its Trust Property from the master fund and cause such series to
invest its Trust Property directly in securities and other financial instruments
or in another master fund.
Section
9.4 Filing of Copies,
References, Headings. The original or a copy of this Trust
Instrument and of each amendment hereof or Trust Instrument supplemental 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 or Trustee of the Trust as to whether or not any such amendments
or supplements 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 or Trustee of the Trust to be a copy of this Trust
Instrument or of any such amendment or supplemental Trust
Instrument. In this Trust Instrument or in any such amendment or
supplemental Trust Instrument, references to this Trust Instrument, and all
expressions like “herein,” “hereof” and “hereunder,” shall be deemed to refer to
this Trust Instrument as amended or affected by any such supplemental Trust
Instrument. All expressions like “his”, “he” and “him” shall be
deemed to include the feminine and neuter, as well as masculine,
genders. Headings are placed herein for convenience of reference only
and in case of any conflict, the text of this Trust Instrument rather than the
headings shall control. This Trust Instrument may be executed in any
number of counterparts each of which shall be deemed an original.
Section
9.5 Applicable
Law. The trust set forth in this instrument is made in the
State of Delaware, and the Trust and this Trust Instrument, and the rights and
obligations of the Trustees and Shareholders hereunder, shall be governed by and
construed and administered according to the Act and the laws of said State;
provided, however, that there shall not be applicable to the Trust, the Trustees
or this Trust Instrument (a) the provisions of Sections 3540 and 3561 of Title
12 of the Delaware Code or (b) any provisions of the laws (statutory or common)
of the State of Delaware (other than the Act) pertaining to trusts which relate
to or regulate: (i) the filing with any court or governmental body or agency of
trustee accounts or schedules of trustee fees and charges, (ii) affirmative
requirements to post bonds for trustees, officers, agents or employees of a
trust, (iii) the necessity for obtaining court or other governmental approval
concerning the acquisition, holding or disposition of real or personal property,
(iv) fees or other sums payable to trustees, officers, agents or employees of a
trust, (v) the allocation of receipts and expenditures to income or principal,
(vi) restrictions or limitations on the permissible nature, amount or
concentration of trust investments or requirements relating to the titling,
storage or other manner of holding of trust assets, or (vii) the establishment
of fiduciary or other standards or responsibilities or limitations on the acts
or powers of trustees, which are inconsistent with the limitations or
liabilities or authorities and powers of the Trustees set forth or referenced in
this Trust Instrument. The Trust shall be of the type commonly called
a “statutory trust”, and without limiting the provisions hereof, the Trust may
exercise all powers which are ordinarily exercised by such a trust under
Delaware law. The Trust specifically reserves the right to exercise
any of the powers or privileges afforded to trusts or actions that may be
engaged in by trusts under the Act, and the absence of a specific reference
herein to any such power, privilege or action shall not imply that the Trust may
not exercise such power or privilege or take such actions.
Section
9.6 Amendments. Except
as specifically provided herein, the Trustees may, without Shareholder vote,
amend or otherwise supplement this Trust Instrument by making an amendment
hereto, a Trust Instrument supplemental hereto or an amended and restated trust
instrument. Shareholders shall have the right to vote: (i) on any
amendment which would affect their right to vote granted in Section 6.1, (ii) on
any amendment to this Section 9.6, (iii) on any amendment for which such vote is
required by the 1940 Act and (iv) on any amendment submitted to them by the
Trustees. Any amendment required or permitted to be submitted to
Shareholders which, as the Trustees determine, shall affect the Shareholders of
one or more Series or Classes shall be authorized by vote of the Shareholders of
each Series or Class affected and no vote of shareholders of a Series or Class
not affected shall be required. Anything in this Trust Instrument to
the contrary notwithstanding, no amendment to Article 8 hereof shall limit the
rights to indemnification or insurance provided therein with respect to action
or omission of any persons protected thereby prior to such
amendment. The Trustees may without Shareholder vote, restate or
amend or otherwise supplement the By-laws and the Certificate of Trust as the
Trustees deem necessary or desirable.
Section
9.7 Fiscal
Year. The fiscal year of the Trust or any Series shall end on
a specified date as determined from time to time by the Trustees.
Section
9.8 Provisions in Conflict with
Law. The provisions of this Trust Instrument 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 other applicable laws and
regulations, the conflicting provision shall be deemed never to have constituted
a part of this Trust Instrument (including, if the context requires, any
non-conflicting provisions contained in the same section or subsection as the
conflicting provision); provided, however, that such determination shall not
affect any of the remaining provisions of this Trust Instrument or render
invalid or improper any action taken or omitted prior to such determination. If
any provision of this Trust Instrument shall be held invalid or unenforceable in
any jurisdiction, such invalidity or unenforceability shall attach only to such
provision in such jurisdiction and shall not in any manner affect such
provisions in any other jurisdiction or any other provision of this Trust
Instrument in any jurisdiction.
Section
9.9 Reliance by Third
Parties. Any certificate executed by an individual who,
according to the records of the Trust or of any recording office in which this
Trust Instrument may be recorded, appears to be a Trustee hereunder, certifying
to (a) the number or identity of Trustees or Shareholders, (b) the due
authorization of the execution of any instrument or writing, (c) the form of any
vote passed at a meeting of Trustees or Shareholders, (d) the fact that the
number of Trustees or Shareholders present at any meeting or executing any
written instrument satisfies the requirements of this Trust Instrument, (e) the
form of any By-laws adopted by or the identity of any officers elected by the
Trustees, or (f) the existence of any fact or facts which in any manner relate
to the affairs of the Trust, shall be conclusive evidence as to the matters so
certified in favor of any person dealing with the Trustees and their
successors.
IN
WITNESS WHEREOF, the undersigned, being the Trustees of the Trust, have executed
this Agreement and Declaration of Trust as of the 11h day of March
2010.
/s/ ▇▇▇▇▇▇▇ ▇.
▇▇▇▇▇, ▇▇.
________________________________
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇,
▇▇., Trustee
/s/ H. ▇▇▇▇▇▇▇▇▇
▇▇▇▇▇▇▇▇
________________________________
H.
▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇, Trustee
/s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇
________________________________
▇▇▇▇▇▇ ▇▇▇▇▇▇,
Trustee
/s/ ▇▇▇▇▇▇▇ ▇.
▇▇▇▇▇▇
________________________________
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇,
Trustee
/s/ ▇▇▇▇ ▇. ▇▇▇▇
________________________________
▇▇▇▇ ▇. ▇▇▇▇,
Trustee