EXHIBIT 23(a)
▇▇▇▇▇▇ ENHANCED PORTFOLIO TRUST
(A Delaware Business Trust)
TRUST INSTRUMENT
Dated June 21, 2002
TABLE OF CONTENTS
PAGE
ARTICLE I DEFINITIONS................................................................................1
ARTICLE II THE TRUSTEES...............................................................................2
Section 1. Management of the Trust.....................................................................2
Section 2. Initial Trustees and Number of Trustees.....................................................2
Section 3. Term of Office of Trustees..................................................................2
Section 4. Vacancies; Appointment of Trustees..........................................................2
Section 5. Temporary Vacancy or Absence................................................................3
Section 6. Chairman....................................................................................3
Section 7. Action by the Trustees......................................................................3
Section 8. Ownership of Trust Property.................................................................3
Section 9. Effect of Trustees Not Serving..............................................................4
Section 10. Trustees, Etc. as Shareholders.............................................................4
ARTICLE III POWERS OF THE TRUSTEES.....................................................................4
Section 1. Powers......................................................................................4
Section 2. Certain Transactions........................................................................7
ARTICLE IV SERIES; CLASSES; SHARES....................................................................7
Section 1. Establishment of Series or Classes..........................................................7
Section 2. Shares of Beneficial Interest...............................................................8
Section 3. Investment in the Trust.....................................................................8
Section 4. Assets and Liabilities of Series............................................................9
Section 5. Ownership and Transfer of Shares............................................................9
Section 6. Status of Shares; Limitation of Shareholder Liability......................................10
ARTICLE V DISTRIBUTIONS AND REDEMPTIONS.............................................................10
Section 1. Distributions..............................................................................10
Section 2. Redemptions................................................................................10
Section 3. Determination of Net Asset Value...........................................................11
Section 4. Suspension of Right of Redemption..........................................................11
Section 5. Redemptions Necessary for Qualification as Regulated Investment Company....................11
i
TABLE OF CONTENTS
(continued)
PAGE
ARTICLE VI SHAREHOLDERS' VOTING POWERS AND MEETINGS..................................................12
Section 1. Voting Powers..............................................................................12
Section 2. Meetings of Shareholders...................................................................12
Section 3. Quorum; Required Vote......................................................................12
ARTICLE VII CONTRACTS WITH SERVICE PROVIDERS..........................................................13
Section 1. Investment Adviser.........................................................................13
Section 2. Principal Underwriter......................................................................13
Section 3. Transfer Agency, Shareholder Services and Administration Agreements........................14
Section 4. Custodian..................................................................................14
Section 5. Parties to Contracts with Service Providers................................................14
ARTICLE VIII EXPENSES OF THE TRUST AND SERIES..........................................................14
ARTICLE IX LIMITATION OF LIABILITY AND INDEMNIFICATION...............................................15
Section 1. Limitation of Liability....................................................................15
Section 2. Indemnification............................................................................15
Section 3. Indemnification of Shareholders............................................................17
ARTICLE X MISCELLANEOUS.............................................................................17
Section 1. Trust Not a Partnership....................................................................17
Section 2. Trustee Action; Expert Advice; No Bond or Surety...........................................17
Section 3. Record Dates...............................................................................17
Section 4. Dissolution and Termination of the Trust or Series or Classes..............................18
Section 5. Reorganization, ▇▇▇▇▇▇ and Consolidation...................................................18
Section 6. Trust Instrument...........................................................................20
Section 7. Applicable Law.............................................................................20
Section 8. Amendments.................................................................................21
Section 9. Fiscal Year................................................................................21
Section 10. Severability..............................................................................21
Section 11. Use of the Names "▇▇▇▇▇▇" and "INTECH"....................................................21
Section 12. Derivative Actions........................................................................22
ii
▇▇▇▇▇▇ ENHANCED PORTFOLIO TRUST
TRUST INSTRUMENT
This
TRUST INSTRUMENT is made on June 21, 2002, by the Trustees, to
establish a business trust under the law of
Delaware for the investment and
reinvestment of funds contributed to the Trust by investors. The Trustees
declare that all money and property contributed to the Trust shall be held and
managed in trust pursuant to this
Trust Instrument. The name of the Trust
created by this
Trust Instrument is ▇▇▇▇▇▇ Enhanced Portfolio Trust.
ARTICLE I
DEFINITIONS
Unless otherwise provided or required by the context:
(a) "Bylaws" means the Bylaws of the Trust adopted by the Trustees, as
amended from time to time;
(b) "Class" means any class of Shares of a Series established pursuant
to Article IV;
(c) "Commission," "Interested Person," and "Principal Underwriter" have
the meanings provided in the 1940 Act;
(d) "Covered Person" means a person so defined in Article IX, Section
2;
(e) "
Delaware Act" means the
Delaware Business Trust Act, 12 Del.C.
Section 3801 et seq., as amended from time to time;
(f) "Majority Shareholder Vote" means "the vote of a majority of
the outstanding voting securities" as defined in the 1940 Act;
(g) "Net Asset Value" means the net asset value per share of each
Series or Class of the Trust, determined as provided in Article V, Section 3;
(h) "Outstanding Shares" means Shares shown in the books of the
Trust or its transfer agent as then issued and outstanding, but does not include
Shares which have been repurchased or redeemed by the Trust and which are held
in the treasury of the Trust;
(i) "Series" means a series of Shares established pursuant to Article
IV;
(j) "Shareholder" means a record owner of Outstanding Shares;
(k) "Shares" means the equal proportionate transferable units of
interest into which the beneficial interest of each Series or Class is divided
from time to time (including whole Shares and fractions of Shares);
(l) "Trust" means ▇▇▇▇▇▇ Enhanced Portfolio Trust established
hereby, and reference to the Trust, when applicable to one or more Series,
refers to any such Series;
(m) "Trustees" means the persons who have signed this
Trust
Instrument, so long as they 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 Article II, in all cases in their
capacities as Trustees hereunder;
(n) "Trust Property" means any and all property, real or personal,
tangible or intangible, which is owned or held by or for the Trust or any Series
or the Trustees on behalf of the Trust or any Series;
(o) The "1940 Act" means the Investment Company Act of 1940, as
amended from time to time.
ARTICLE II
THE TRUSTEES
Section 1. Management of the Trust. The business and affairs of the
Trust shall be managed by or under the direction of the Trustees, and they shall
have all powers necessary or desirable to carry out that responsibility. The
Trustees may execute all instruments and take all action they deem necessary or
desirable to promote the interests of the Trust. Any determination made by the
Trustees in good faith as to what is in the interests of the Trust shall be
conclusive.
Section 2. Initial Trustees and Number of Trustees. Prior to any
offering of Shares, there may be a sole Trustee and thereafter the number of
Trustees shall be fixed from time to time by a majority of the Trustees,
provided, that there shall be at least two (2) Trustees. No reduction in the
number of Trustees shall have the effect of removing any Trustee prior to the
expiration of his term but the number of Trustees may be decreased in
conjunction with the removal of a Trustee pursuant to Section 3. Other than the
initial Trustee(s), Trustees may become such by election of Shareholders or by
appointment of the Trustees then in office pursuant to Section 4.
Section 3. Term of Office of Trustees. Each Trustee shall hold office
for life or until his successor is elected and qualified or the Trust
terminates; except that (a) any Trustee may resign by delivering to the other
Trustees or to any Trust officer a written resignation effective upon such
delivery or a later date specified therein; (b) any Trustee who requests to be
retired, or who has become physically or mentally incapacitated or is otherwise
unable to serve, may be retired by a written instrument signed by a majority of
the remaining Trustees, specifying the effective date of retirement; (c) any
Trustee may be retired or removed with or without cause at any time upon the
unanimous written request of the remaining Trustees; and (d) any Trustee may be
removed at any meeting of the Shareholders by a vote of at least two-thirds of
the Outstanding Shares.
Section 4. Vacancies; Appointment of Trustees. In the case of the
death, resignation, retirement, or removal of any Trustee, or in case a vacancy
shall, by reason of an increase in the number of Trustees, or for any reason,
exist, the remaining Trustees may appoint any person as they determine in their
sole discretion to fill that vacancy, leave such vacancy unfilled or reduce the
number of Trustees (provided that such aggregate number of Trustees shall not be
less than the minimum number required by Section 2 of this Article). Such
appointment shall be made by
2
a written instrument signed by a majority of the Trustees or by a resolution of
the Trustees, ▇▇▇▇ adopted and recorded in the records of the Trust, specifying
the effective date of the appointment. The Trustees may appoint a new Trustee as
provided above in anticipation of a vacancy expected to occur because of the
retirement, resignation or removal of a Trustee, or an increase in number of
Trustees, provided that such appointment shall become effective only at or after
the expected vacancy occurs. As soon as any such Trustee has accepted his
appointment in writing, the Trust estate shall vest in the new Trustee, together
with the continuing Trustees, without any further act or conveyance, and he
shall be deemed a Trustee hereunder. The foregoing power of appointment is
subject to the provisions of the 1940 Act including any requirement of
Shareholder approval, as modified by or interpreted by any applicable order or
orders of the Commission or any rule or regulations adopted or interpretive
releases of the Commission.
Section 5. Temporary Vacancy or Absence. Whenever a vacancy in the
Trustees shall occur, until such vacancy is filled, or while any Trustee is
absent from his domicile (unless that Trustee has made arrangements to be
informed about, and to participate in, the affairs of the Trust during such
absence), or is physically or mentally incapacitated, the remaining Trustees
shall have all the powers hereunder and their certificate as to such vacancy,
absence or incapacity shall be conclusive.
Section 6. Chairman. The Trustees may appoint one of their number to be
a non-officer Chairman of the Trustees. In such event, the Chairman shall
preside at all meetings of the Trustees.
Section 7. Action by the Trustees. The Trustees shall act by majority
vote at a meeting duly called (including any meeting held by means of conference
telephone, internet connection or similar communication equipment by means of
which all participants can hear one another, unless the 1940 Act requires that a
particular action be taken only at a meeting of the Trustees in person) at which
a quorum is present or by written consent of a majority of Trustees (or such
greater number as may be required by applicable law) without a meeting. A
majority of the Trustees shall constitute a quorum at any meeting. Meetings of
the Trustees may be called orally or in writing by the Chairman of the Trustees,
any two other Trustees, the President or Secretary. Regular meetings of the
Trustees may be held without call or notice at a time and place fixed by the
Bylaws or by resolution of the Trustees. Notice of the time, date and place of
other meetings shall be given to each Trustee by telephone, facsimile or other
electronic mechanism sent to his home or business address at least twenty-four
hours in advance of the meeting or by written notice mailed to his home or
business address at least seventy-two hours in advance of the meeting. Notice
need not be given to any Trustee who attends the meeting without objecting to
the lack of notice or who signs a waiver of notice either before, at or after
the meeting. Notice or waiver of notice need not state the purpose or purposes
of the meeting. Subject to the requirements of the 1940 Act, the Trustees by
majority vote may delegate to any Trustee or Trustees authority to approve
particular matters or take particular actions on behalf of the Trust. Any
written consent or waiver may be provided and delivered to the Trust by
facsimile or other similar electronic mechanism.
Section 8. Ownership of Trust Property. The Trust Property of the Trust
and of each Series shall be held separate and apart from any assets now or
hereafter held in any capacity
3
other than as Trustee hereunder by the Trustees or any successor Trustees. All
of the Trust Property and legal title thereto shall at all times be considered
as vested in the Trust, provided that the Trustees may cause legal title to any
Trust Property to be held by or in the name of the Trustees acting on behalf of
the Trust, or in the name of any person as nominee. No Shareholder shall be
deemed to have a severable ownership in any individual asset of the Trust or of
any Series or any right of partition or possession thereof, but each Shareholder
shall have, as provided in Article IV, a proportionate undivided beneficial
interest in the Trust or Series represented by Shares. The Trust or the Trustees
on behalf of the Trust shall be deemed to hold legal and beneficial ownership of
any income earned on securities held by the Trust issued by any business entity
formed, organized or existing under the laws of any jurisdiction other than a
state, commonwealth, possession or colony of the United States or the laws of
the United States.
Section 9. Effect of Trustees Not Serving. The death, resignation,
retirement, removal, incapacity or inability or refusal to serve of the
Trustees, or any one of them, shall not operate to annul the Trust or to revoke
any existing agency created pursuant to the terms of this
Trust Instrument.
Section 10. Trustees, Etc. as Shareholders. Subject to any restrictions
in the Bylaws, any Trustee, officer, agent or independent contractor of the
Trust may acquire, own and dispose of Shares to the same extent as any other
Shareholder, and the Trustees may issue and sell Shares to and buy Shares from
any such person or any firm or company in which such person is interested,
subject only to any general limitations herein.
ARTICLE III
POWERS OF THE TRUSTEES
Section 1. Powers. The Trustees in all instances shall act as
principals, free of the control of the Shareholders. The Trustees shall have
full power and authority to take or refrain from taking any action and to
execute any contracts and instruments that they may consider necessary or
desirable in the management of the Trust. The Trustees shall not in any way be
bound or limited by current or future laws or customs applicable to trust
investments, but shall have full power and authority to make any investments
which they, in their sole discretion, deem proper to accomplish the purposes of
the Trust. The Trustees may exercise all of their powers without recourse to any
court or other authority. Subject to any applicable limitation herein or in the
Bylaws, the Trustees shall have power and authority, without limitation:
(a) To invest and reinvest cash and other property, and to
hold cash or other property uninvested, without in any event being bound or
limited by any current or future law or custom concerning investments by
trustees, and to sell, exchange, lend, pledge, mortgage, hypothecate, write
options on and lease any or all of the Trust Property; to invest in obligations,
securities and assets of any kind, and without regard to whether they may mature
before or after the possible termination of the Trust; and without limitation to
invest all or any part of its cash and other assets and property in securities
issued by any investment company or series thereof;
(b) To operate as and carry on the business of an investment
company, and exercise all the powers necessary and proper to conduct such a
business;
4
(c) To adopt Bylaws 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 such right is not reserved to the Shareholders;
(d) To elect and remove such officers and appoint and
terminate such agents, independent contractors and delegatees as they deem
appropriate;
(e) To employ an investment adviser (subject to such general
or specific instruments as the Trustees may from time to time adopt) to effect
purchases, sales, loans or exchanges of Trust Property on behalf of the Trustees
or may authorize any officer, employee or Trustee to effect such purchases,
sales, loans or exchanges pursuant to recommendations of any such investment
adviser;
(f) To employ as custodian of any Trust Property, subject to
any provisions herein or in the Bylaws, one or more banks, trust companies or
companies that are members of a national securities exchange, or other entities
permitted under the 1940 Act, as modified by or interpreted by the Commission;
(g) To retain one or more transfer agents, dividend disbursing
agents, placement agents, administrators, or Shareholder servicing agents, or
both;
(h) To provide for the distribution of Shares, either through
a Principal Underwriter or distributor as provided herein, or by the Trust
itself, or both, or pursuant to a distribution plan of any kind;
(i) To set record dates in the manner provided for herein or
in the Bylaws;
(j) To delegate such authority as they consider desirable to
any officers of the Trust and to any agent, subagent, independent contractor,
delegatee, manager, investment adviser, custodian or underwriter;
(k) To sell or exchange any or all of the Trust Property,
subject to Article X, Section 4;
(l) To vote or give assent, or exercise any rights of
ownership, with respect to securities or other property; and to execute and
deliver powers of attorney delegating such power to other persons;
(m) To exercise powers and rights of subscription or otherwise
which in any manner arise out of ownership of securities;
(n) To hold any security or other Trust Property (i) in a form
not indicating any trust, whether in bearer, book entry, unregistered or other
negotiable form, or (ii) either in the Trust's or Trustees' own name or in the
name of a custodian or a nominee or nominees, subject to safeguards according to
the usual practice of business trusts or investment companies;
(o) To establish separate and distinct Series with separately
defined investment objectives and policies and distinct investment purposes, and
with separate Shares
5
representing beneficial interests in such Series, and to establish separate
Classes, all in accordance with the provisions of Article IV;
(p) To the full extent permitted by Section 3804 of the
Delaware Act, to allocate assets, liabilities and expenses of the Trust to a
particular Series and assets, liabilities and expenses to a particular Class or
to apportion the same between or among two or more Series or Classes, provided
that any liabilities or expenses incurred by a particular Series or Class shall
be payable solely out of the assets belonging to that Series or Class as
provided for in Article IV, Section 4;
(q) To consent to or participate in any plan for the
liquidation, reorganization, consolidation or merger of any corporation or
concern whose securities are held by the Trust; to consent to any contract,
lease, mortgage, purchase or sale of property by such corporation or concern;
and to pay calls or subscriptions with respect to any security held by the
Trust;
(r) To compromise, arbitrate or otherwise adjust claims in
favor of or against the Trust or any matter in controversy including, but not
limited to, claims for taxes;
(s) To make distributions of income and of capital gains to
Shareholders in the manner provided for in this
Trust Instrument or in the
Bylaws;
(t) To borrow money and in connection therewith to issue notes
or other evidences of indebtedness and to pledge or grant security interests in
Trust Property as security therefor;
(u) To establish committees for such purposes, with such
membership, and with such responsibilities as the Trustees may consider proper;
(v) To issue, sell, repurchase, redeem, cancel, retire,
acquire, hold, resell, reissue, dispose of and otherwise deal in Shares; to
establish terms and conditions regarding the issuance, sale, repurchase,
exchange, redemption, cancellation, retirement, acquisition, holding, resale,
reissuance, disposition of or dealing in Shares; and, subject to Articles IV and
V, to apply to any such repurchase, redemption, retirement, cancellation or
acquisition of Shares any funds or property of the Trust or of the particular
Series with respect to which such Shares are issued;
(w) To enter into joint ventures, general or limited
partnerships and any other combinations or associations;
(x) To endorse or guarantee the payment of any notes or other
obligations of any person or to make contracts of guaranty or suretyship, or
otherwise assume liability for payment thereof;
(y) 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;
6
(z) To join with other security holders in acting through a
committee, depository, voting trustee or otherwise, and in that connection to
deposit any security with, or transfer any security to, any such committee,
depository or trustee, and to delegate to them such power and authority with
relation to any security (whether or not so deposited or transferred) as the
Trustees shall deem proper, and to agree to pay, and to pay, such portion of the
expenses and compensation of such committee, depository or trustee as the
Trustees shall deem proper;
(aa) To either (i) invest all or a portion of the Trust
Property, or (ii) sell all or a portion of the Trust Property and invest the
proceeds thereof, in another investment company that is registered under the
1940 Act, in the Trustees' sole discretion, without the vote or approval of any
Shareholder or Shareholders, notwithstanding any other provision of this Trust
Instrument or the Bylaws to the contrary; and
(bb) To carry on any other business in connection with or
incidental to any of the foregoing powers, to do everything necessary or
desirable to accomplish any purpose or to further any of the foregoing powers,
and to take every other action incidental to the foregoing business or purposes,
objects or powers.
The clauses above shall be construed as objects and powers, and the
enumeration of specific powers shall not limit in any way the general powers of
the Trustees. Any action by one or more of the Trustees in their capacity as
such hereunder shall be deemed an action on behalf of the Trust or the
applicable Series, 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. In construing this
Trust Instrument, the presumption shall be in favor of a grant of power to the
Trustees.
Section 2. Certain Transactions. Except as 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 investment adviser, administrator,
distributor or transfer agent for the Trust or with any Interested Person of
such person. The Trust may employ any such person or entity in which such person
is an Interested Person, as broker, legal counsel, registrar, investment
adviser, administrator, distributor, transfer agent, dividend disbursing agent,
custodian or in any other capacity upon customary terms.
ARTICLE IV
SERIES; CLASSES; SHARES
Section 1. Establishment of Series or Classes. The Trust shall consist
of one or more Series. The Trustees hereby establish the Series listed in
Schedule A attached hereto and made a part hereof. Each additional Series shall
be established by the adoption of a resolution of the Trustees. The Trustees may
divide the Shares of any Series into Classes. The Trustees hereby establish the
Classes listed in Schedule A attached hereto and made a part hereof. Each
additional Class shall be established by the adoption of a resolution of the
Trustees. In such case each Class of a Series shall represent interests in the
assets of that Series. The Trustees by
7
resolution may designate the relative rights and preferences of the Shares of
each Series or Class. The Trust shall maintain separate and distinct records for
each Series and hold and account for the assets thereof separately from the
other assets of the Trust or of any other Series. A Series may issue any number
of Shares and need not issue Shares. Each Share of a Series shall represent an
equal beneficial interest in the net assets of such Series. Each holder of
Shares of a Series or Class shall be entitled to receive his pro rata share of
all distributions made with respect to such Series or Class. Upon redemption of
his Shares, such Shareholder shall be paid solely out of the funds and property
of such Series. The Trustees may change the name of any Series or Class. At any
time that there are no Shares outstanding of any particular Series (or Class)
previously established and designated, the Trustees may by a majority vote
abolish that Series (or Class) and rescind the establishment and designation
thereof.
Section 2. Shares of Beneficial Interest. The beneficial interest in
the Trust shall be divided into Shares of one or more separate and distinct
Series or Classes established by the Trustees. The number of Shares of each
Series and Class is unlimited and each Share shall have a par value, or be
without par value, as determined by resolution of the Trustees. All Shares
issued hereunder shall be fully paid and nonassessable. Shareholders shall have
no preemptive or other right to subscribe to any additional Shares or other
securities issued by the Trust or any Series. The Trustees shall have full power
and authority, in their sole discretion and without obtaining Shareholder
approval: to issue original or additional Shares at such times and for the
amount and type of consideration and on such terms and conditions as they deem
appropriate; to issue fractional Shares and Shares held in the treasury; to
establish and to change in any manner Shares of any Series or Classes with such
preferences, terms of conversion, voting powers, rights and privileges as the
Trustees may determine (but without a vote of a majority of the Outstanding
Shares of the Series or Class, as the case may be, voting as a class, the
Trustees may not change Outstanding Shares in a manner materially adverse to the
Shareholders of such Shares); to divide or combine the Shares of any Series or
Classes into a greater or lesser number; to classify or reclassify any Shares of
any Series or Classes into one or more Series or Classes of Shares; to abolish
any one or more Series or Classes of Shares; to issue Shares to acquire other
assets (including assets subject to, and in connection with, the assumption of
liabilities) and businesses; and to take such other action with respect to the
Shares as the Trustees may deem desirable. Shares held in the treasury shall not
confer any voting rights on the Trustees and shall not be entitled to any
dividends or other distributions declared with respect to the Shares.
Section 3. Investment in the Trust. The Trustees shall accept
investments in any Series 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 that Series
is authorized to invest, valued as provided in Article V, Section 3. Investments
in a Series shall be credited to each Shareholder's account in the form of full
or fractional Shares at the Net Asset Value per Share next determined after the
investment is received or accepted as may be determined by the Trustees;
provided, however, that the Trustees may, in their sole discretion, (a) impose a
sales charge upon investments in any Series or Class or (b) determine the Net
Asset Value per Share of the initial capital contribution. The Trustees shall
have the right to refuse to accept investments in any Series at any time without
any cause or reason therefor whatsoever.
8
Section 4. Assets and Liabilities of 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 and accounted for separately from the other assets of the
Trust and every other Series and are referred to as "assets belonging to" that
Series. The assets belonging to a particular Series shall belong only to that
Series for all purposes, and to no other Series, subject only to the rights of
creditors of that particular Series. Any assets, income, earnings, profits and
proceeds thereof, funds, or payments which are not readily identifiable as
belonging to any particular Series shall be allocated by the Trustees between
and among one or more Series as the Trustees deem fair and equitable. Each such
allocation shall be conclusive and binding upon the Shareholders of all Series
for all purposes, and such assets, earnings, income, profits or funds, or
payments and proceeds thereof shall be referred to as assets belonging to that
Series. The assets belonging to a Series shall be so recorded upon the books of
the Trust, and shall be held by the Trustees in trust for the benefit of the
Shareholders of that Series. The assets belonging to a Series shall be charged
with the liabilities of that Series and all expenses, costs, charges and
reserves attributable to that Series, except that liabilities and expenses
allocated solely to a particular Class shall be borne by that Class. Any general
liabilities, expenses, costs, charges or reserves of the Trust which are not
readily identifiable as belonging to any particular Series or Class shall be
allocated and charged by the Trustees between or among any one or more of the
Series or Classes or, if appropriate, between or among any one or more of the
Series or Classes and any other investment company advised by the same
investment adviser, in each case in such manner as the Trustees deem fair and
equitable. Each such allocation shall be conclusive and binding upon the
Shareholders of all Series or Classes for all purposes.
Without limiting the foregoing, but subject to the right of the
Trustees 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 of such Series only, and not against the
assets of the Trust generally or of any other Series. Notice of this contractual
limitation on liabilities among Series may, in the Trustees' discretion, 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
Delaware Act, and upon the giving of such
notice in the certificate of trust, the statutory provisions of Section 3804 of
the
Delaware Act relating to limitations on liabilities among Series (and the
statutory effect under Section 3804 of setting forth such notice in the
certificate of trust) shall become applicable to the Trust and each Series. Any
person extending credit to, contracting with or having any claim against any
Series may look only to the assets of that Series to satisfy or enforce any
debt, liability, obligation or expense incurred, contracted for or otherwise
existing with respect to that Series. 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. No Shareholder or former Shareholder of any
particular Series shall have any claim or right to institute suit against or in
the right of the Trust or any Series with respect to any matter that does not
directly affect that particular Series.
Section 5. Ownership and Transfer of Shares. The Trust shall maintain a
register containing the names and addresses of the Shareholders of each Series
and Class thereof, the
9
number of Shares of each Series and Class held by such Shareholders, and a
record of all Share transfers. The register shall be conclusive as to the
identity of Shareholders of record and the number of Shares held by them from
time to time. The Trustees may authorize the issuance of certificates
representing Shares and adopt rules governing their use. The Trustees may make
rules governing the transfer of Shares, whether or not represented by
certificates.
Section 6. Status of Shares; Limitation of Shareholder Liability.
Shares shall be deemed to be personal property giving Shareholders only the
rights provided in this Trust Instrument. Every Shareholder, by virtue of having
acquired a Share, shall be held expressly to have assented to and agreed to be
bound by the terms of this Trust Instrument. No Shareholder shall be personally
liable for the debts, liabilities, obligations and expenses incurred by,
contracted for, or otherwise existing with respect to, the Trust or any Series.
The death of a Shareholder during the existence of the Trust shall not operate
to terminate the Trust, nor entitle the representative of any deceased
Shareholder to an accounting or to take any action in court or elsewhere against
the Trust or the Trustees, but entitles such representative only to the rights
of said deceased Shareholder under the Trust. Neither the Trust nor the Trustees
shall have any power to bind any Shareholder personally or to demand payment
from any Shareholder for anything, other than as agreed by the Shareholder.
Shareholders shall have the same limitation of personal liability as is extended
to shareholders of a private corporation for profit incorporated in the State of
Delaware. Every written obligation of the Trust or any Series shall contain a
statement to the effect that such obligation may only be enforced against the
assets of the Trust or such Series; however, the omission of such statement
shall not operate to bind or create personal liability for any Shareholder or
Trustee.
ARTICLE V
DISTRIBUTIONS AND REDEMPTIONS
Section 1. Distributions. The Trustees may declare and pay dividends
and other distributions from the assets belonging to each Series. The amount and
payment of dividends or distributions and their form, whether they are in cash,
Shares or other Trust Property, shall be determined by the Trustees. Dividends
and other distributions may be paid pursuant to a standing resolution adopted
once or more often as the Trustees determine. All dividends and other
distributions on Shares of a particular Series shall be distributed pro rata to
the Shareholders of that Series in proportion to the number of Shares of that
Series they held on the record date established for such payment, except that
such dividends and distributions shall appropriately reflect expenses allocated
to a particular Class of such Series. The Trustees may adopt and offer to
Shareholders such dividend reinvestment plans, cash dividend payout plans or
similar plans as the Trustees deem appropriate.
Section 2. Redemptions. Each Shareholder of a Series shall have the
right at such times as may be permitted by the Trustees to require the Series to
redeem all or any part of his Shares at a redemption price per Share equal to
the Net Asset Value per Share. In the absence of such resolution, the redemption
price per Share shall be the Net Asset Value next determined after receipt by
the Series of a request for redemption in proper form less such charges as are
determined by the Trustees and described in any required disclosure document.
The Trustees may specify conditions, prices and places of redemption, and may
specify binding requirements
10
for the proper form or forms of requests for redemption. Payment of the
redemption price may be wholly or partly in securities or other assets at the
value of such securities or assets used in such determination of Net Asset
Value, or may be in cash. Following redemption, Shares may be reissued from time
to time. The Trustees may require Shareholders to redeem Shares for any reason
under terms set by the Trustees, including the failure of a Shareholder to
supply a personal identification number if required to do so, or to have the
minimum investment required, or to pay when due for the purchase of Shares
issued to him. To the extent permitted by law, the Trustees may retain the
proceeds of any redemption of Shares required by them for payment of amounts due
and owing by a Shareholder to the Trust or any Series or Class. Notwithstanding
the foregoing, the Trustees may postpone payment of the redemption price and may
suspend the right of the Shareholders to require any Series or Class to redeem
Shares during any period of time when and to the extent permissible under the
1940 Act.
Section 3. Determination of Net Asset Value. The Trustees shall cause
the Net Asset Value of Shares of each Series or Class to be determined from time
to time in a manner consistent with applicable laws and regulations. The
Trustees may delegate the power and duty to determine Net Asset Value per Share
to one or more Trustees or officers of the Trust or to a custodian, depository
or other agent appointed for such purpose. The Net Asset Value of Shares shall
be determined separately for each Series or Class at such times as may be
prescribed by the Trustees or, in the absence of action by the Trustees, as of
the close of the regular trading session on the New York Stock Exchange on each
day for all or part of which such Exchange is open for unrestricted trading.
Section 4. Suspension of Right of Redemption. If, as referred to in
Section 2 of this Article, the Trustees postpone payment of the redemption price
and suspend the right of Shareholders to redeem their Shares, such suspension
shall take effect at the time the Trustees shall specify, but not later than the
close of business on the business day next following the declaration of
suspension. Thereafter Shareholders shall have no right of redemption or payment
until the Trustees declare the end of the suspension. If the right of redemption
is suspended, a Shareholder may either withdraw his request for redemption or
receive payment based on the Net Asset Value per Share next determined after the
suspension terminates.
Section 5. Redemptions Necessary for Qualification as Regulated
Investment Company. If the Trustees shall determine that direct or indirect
ownership of Shares of any Series has or may become concentrated in any person
to an extent which 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 lot or other means they deem equitable to (a) call for
redemption by any such person of a number, or principal amount, of Shares
sufficient to maintain or bring the direct or indirect ownership of Shares into
conformity with the requirements for such qualification and (b) refuse to
transfer or issue Shares to any person whose acquisition of Shares in question
would, in the Trustees' judgment, result in such disqualification. Any such
redemption shall be effected at the redemption price and in the manner provided
in this Article. Shareholders shall upon demand disclose to the Trustees in
writing such information concerning direct and indirect ownership of Shares as
the Trustees deem necessary to comply with the requirements of any taxing
authority.
11
ARTICLE VI
SHAREHOLDERS' VOTING POWERS AND MEETINGS
Section 1. Voting Powers. The Shareholders shall have power to vote
only with respect to (a) the election and removal of Trustees as provided in
Article II; (b) any investment advisory contract to the extent that approval of
such contract (or amendment thereto) is required by the 1940 Act; (c) the
amendment of this Trust Instrument to the extent and as provided in Article X,
Section 8; and (d) such additional matters relating to the Trust as may be
required by law, this Trust Instrument, or the Bylaws or any registration of the
Trust with the Commission or any State, or as the Trustees may consider
desirable.
On any matter submitted to a vote of the Shareholders, all Shares shall
be voted by individual Series or Class, except (a) when required by the 1940
Act, Shares shall be voted in the aggregate and not by individual Series or
Class, and (b) when the Trustees have determined that the matter affects the
interests of more than one Series or Class, then the Shareholders of all such
affected Series or Classes shall be entitled to vote thereon. As determined by
the Trustees without the vote or consent of Shareholders (except as required by
the 1940 Act), on any matter submitted to a vote of Shareholders, either (i)
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 or (ii) each dollar of Net Asset Value (number of Shares owned
times Net Asset Value per share 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 or removal of Trustees. Shares may be voted in person or by proxy or in
any manner provided for in the Bylaws. The Bylaws may provide that proxies may
be given by any electronic or telecommunications device or in any other manner,
but if a proposal by anyone other than the officers or Trustees is submitted to
a vote of the Shareholders of the Trust or of any Series or Class, or if there
is a proxy contest or proxy solicitation or proposal in opposition to any
proposal by the officers or Trustees, Shares may be voted only in person or by
written proxy. Until Shares of a Series are issued, as to that Series the
Trustees may exercise all rights of Shareholders and may take any action
required or permitted to be taken by Shareholders by law, this Trust Instrument
or the Bylaws.
Section 2. Meetings of Shareholders. Special meetings of the
Shareholders of any Series or Class may be called by the Trustees and shall be
called by the Trustees upon the written request of Shareholders owning at least
twenty-five percent (25%) of the Outstanding Shares of such Series or Class
entitled to vote. Shareholders shall be entitled to at least fifteen days'
notice of any meeting, given as determined by the Trustees.
Section 3. Quorum; Required Vote. One-third of the Outstanding Shares
of each Series or Class, or one-third of the Outstanding Shares of the Trust,
entitled to vote in person or by proxy shall be a quorum for the transaction of
business at a Shareholders' meeting with respect to such Series or Class, or
with respect to the entire Trust, respectively. Except when a larger
12
vote is required by law, this Trust Instrument or the Bylaws, at any meeting at
which a quorum is present, a majority of the Shares voted in person or by proxy
shall decide any matters to be voted upon with respect to the entire Trust and a
plurality of such Shares shall elect a Trustee; provided, that if this Trust
Instrument or applicable law permits or requires that Shares be voted on any
matter by individual Series or Classes, then a majority of the Shares of that
Series or Class (or, if required by law, a Majority Shareholder Vote of that
Series or Class) voted in person or by proxy on the matter shall decide that
matter insofar as that Series or Class is concerned.
Shareholders may act as to the Trust or any Series or Class by the
written consent of a majority (or such greater amount as may be required by
applicable law) of the Outstanding Shares of the Trust or of such Series or
Class, as the case may be. If the consents of all Shareholders entitled to vote
have not been solicited in writing and if the unanimous written consent of all
such Shareholders shall not have been received, the Secretary shall give prompt
notice of the action approved by the Shareholders without a meeting.
Notwithstanding any other provision herein or in the Bylaws, any
meeting of Shareholders, whether or not a quorum is present, may be adjourned
from time to time by the vote of the majority of the Shares represented at that
meeting, either in person or by proxy. Any adjourned session or sessions of a
meeting of Shareholders may be held within a reasonable time of the original
meeting date established pursuant to Article X, Section 3 without further
notice.
ARTICLE VII
CONTRACTS WITH SERVICE PROVIDERS
Section 1. Investment Adviser. Subject to a Majority Shareholder Vote,
the Trustees may enter into one or more investment advisory contracts on behalf
of the Trust or any Series, providing for investment advisory services,
statistical and research facilities and services, and other facilities and
services to be furnished to the Trust or Series on terms and conditions
acceptable to the Trustees. Any such contract may provide for the investment
adviser to effect purchases, sales or exchanges of portfolio securities or other
Trust Property on behalf of the Trustees or may authorize any officer or agent
of the Trust to effect such purchases, sales or exchanges pursuant to
recommendations of the investment adviser. The Trustees may authorize the
investment adviser to employ one or more subadvisers. Any reference in this
Trust Instrument to the investment adviser shall be deemed to include such
subadvisers, unless the context otherwise requires.
Section 2. Principal Underwriter. The Trustees may enter into contracts
with another party on behalf of the Trust or any Series or Class, providing for
the distribution and sale of Shares by such other party, either directly or as
sales agent, on terms and conditions acceptable to the Trustees. The Trustees
may adopt a plan or plans of distribution with respect to Shares of any Series
or Class and enter into any related agreements, whereby the Series or Class
finances directly or indirectly any activity that is primarily intended to
result in sales of its Shares, subject to the requirements of Section 12 of the
1940 Act, Rule 12b-1 thereunder, and other applicable rules and regulations.
13
Section 3. Transfer Agency, Shareholder Services and Administration
Agreements. The Trustees, on behalf of the Trust or any Series or Class, may
enter into transfer agency agreements, Shareholder service agreements and
administration and management agreements with any party or parties on terms and
conditions acceptable to the Trustees.
Section 4. Custodian. The Trustees shall at all times place and
maintain the securities and similar investments of the Trust and of each Series
in custody meeting the requirements of Section 17(f) of the 1940 Act and the
rules thereunder. The Trustees, on behalf of the Trust or any Series, may enter
into an agreement with a custodian on terms and conditions acceptable to the
Trustees, providing for the custodian, among other things, to (a) hold the
securities owned by the Trust or any Series and deliver the same upon written
order or oral order confirmed in writing, (b) receive and receipt for any moneys
due to the Trust or any Series and deposit the same in its own banking
department or elsewhere, (c) disburse such funds upon orders or vouchers, and
(d) employ one or more subcustodians.
Section 5. Parties to Contracts with Service Providers. The Trustees
may enter into any contract referred to in this Article with any entity,
although one or more of the Trustees or officers of the Trust may be an officer,
director, trustee, partner, shareholder or member of such entity, and no such
contract shall be invalidated or rendered void or voidable because of such
relationship. No person having such a relationship shall be disqualified from
voting on or executing a contract in his capacity as Trustee and/or Shareholder,
or be liable merely by reason of such relationship for any loss or expense to
the Trust with respect to such a contract or accountable for any profit realized
directly or indirectly therefrom.
Any contract referred to in Sections 1 and 2 of this Article shall be
consistent with and subject to the applicable requirements of Section 15 of the
1940 Act and the rules and orders thereunder with respect to its continuance in
effect, its termination and the method of authorization and approval of such
contract or renewal. No amendment to a contract referred to in Section 1 of this
Article shall be effective unless assented to in a manner consistent with the
requirements of Section 15 of the 1940 Act, and the rules and orders thereunder.
ARTICLE VIII
EXPENSES OF THE TRUST AND SERIES
Subject to Article IV, Section 4, the Trust or a particular Series
shall pay, or shall reimburse the Trustees from the Trust estate or the assets
belonging to the particular Series, for their expenses and disbursements,
including, but not limited to, interest charges, taxes, brokerage fees and
commissions; expenses of pricing Trust portfolio securities; expenses of issue,
repurchase and redemption of Shares; certain insurance premiums; applicable
fees, interest charges and expenses of third parties, including the Trust's
investment advisers, managers, administrators, distributors, custodians,
transfer agents and fund accountants; fees of pricing, interest, dividend,
credit and other reporting services; costs of membership in trade associations;
telecommunications expenses; funds transmission expenses; auditing, legal and
compliance expenses; costs of forming the Trust and its Series and maintaining
its existence; costs of preparing and printing the prospectuses of the Trust and
each Series, statements of additional information and Shareholder reports and
delivering them to Shareholders; expenses of meetings
14
of Shareholders and proxy solicitations therefor; costs of maintaining books and
accounts; costs of reproduction, stationery and supplies; fees and expenses of
the Trustees; compensation of the Trust's officers and employees and costs of
other personnel performing services for the Trust or any Series; costs of
Trustee meetings; Commission registration fees and related expenses; state or
foreign securities laws registration fees and related expenses; and for such
non-recurring items as may arise, including litigation to which the Trust or a
Series (or a Trustee or officer of the Trust acting as such) is a party, and for
all losses and liabilities by them incurred in administering the Trust. The
Trustees shall have a lien on the assets belonging to the appropriate Series, or
in the case of an expense allocable to more than one Series, on the assets of
each such Series, prior to any rights or interests of the Shareholders thereto,
for the reimbursement to them of such expenses, disbursements, losses and
liabilities. This Article shall not preclude the Trust from directly paying any
of the aforementioned fees and expenses.
ARTICLE IX
LIMITATION OF LIABILITY AND INDEMNIFICATION
Section 1. Limitation of Liability. All persons contracting with or
having any claim against the Trust or a particular Series shall look only to the
assets of the Trust or such Series for payment under such contract or claim; and
neither the Trustees nor any of the Trust's officers, employees or agents,
whether past, present or future, shall be personally liable therefor. Every
written instrument or obligation on behalf of the Trust or any Series shall
contain a statement to the foregoing effect, but the absence of such statement
shall not operate to make any Trustee or officer of the Trust liable thereunder.
Provided they have exercised reasonable care and have acted under the reasonable
belief that their actions are in the best interest of the Trust, the Trustees,
officers, employees and managers of the Trust shall not be responsible or liable
for any act or omission or for neglect or wrongdoing of them or any officer,
agent, employee, manager, investment adviser, delegatee or independent
contractor of the Trust, but nothing contained in this Trust Instrument or in
the
Delaware Act shall protect any Trustee, officer, employee or manager of the
Trust against liability to the Trust or to Shareholders to which he would
otherwise be subject by reason of willful misfeasance, bad faith, gross
negligence or reckless disregard of the duties involved in the conduct of his
office.
Section 2. Indemnification.
(a) Subject to the exceptions and limitations contained in
subsection (b) below, the Trust or the appropriate Series shall indemnify each
of its present and former Trustees and officers to the fullest extent permitted
by law and may indemnify any of its present and former employees and agents to
the fullest extent permitted by law (including 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) ("Covered
Persons") against all liabilities and expenses (including amounts paid in
satisfaction of judgments, in compromise, as fines and penalties, and as counsel
fees and expenses) reasonably incurred by him in connection with any action,
suit or other proceeding, whether civil or criminal, in which he may be involved
or with which he may be threatened, while in office or thereafter, by reason of
his being or having been such a Trustee, officer, employee or agent.
15
(b) No indemnification shall be provided hereunder to a
Covered Person:
(i) Who shall have been adjudicated by a court or
body before which the proceeding was brought (A) to be liable to the
Trust or its Shareholders by reason of willful misfeasance, bad faith,
gross negligence or reckless disregard of the duties involved in the
conduct of his office, or (B) not to have acted in good faith in the
reasonable belief that his action was in or not opposed to the best
interests of the Trust; or
(ii) In the absence of such a decision, unless there
has been a determination that such Covered Person did not engage in
willful misfeasance, bad faith, gross negligence or reckless disregard
of the duties involved in the conduct of his office: (A) by the court
or other body approving the settlement or other disposition; (B) by at
least a majority of those Trustees who are neither Interested Persons
of the Trust nor are parties to the proceeding based upon a review of
readily available facts (as opposed to a full trial-type inquiry); or
(C) by written opinion of independent legal counsel approved by the
Trustees based upon a review of readily available facts (as opposed to
a full trial-type inquiry).
(c) The rights of indemnification provided herein shall not be
available in connection with any action, suit or proceeding initiated by the
party seeking indemnification unless such action, suit or proceeding is approved
by the Trustees, including a majority of the disinterested Trustees.
(d) To the maximum extent permitted by applicable law,
expenses in connection with the preparation and presentation of a defense to any
claim, action, suit or proceeding of the character described in subsection (a)
of this Section may be paid by the Trust or applicable Series from time to time
prior to final disposition thereof upon receipt of an undertaking by or on
behalf of such Covered Person that such amount will be paid over by such person
to the Trust or applicable Series if it is ultimately determined that such
person is not entitled to indemnification under this Section; provided, however,
that either (i) such Covered Person shall have provided appropriate security for
such undertaking, (ii) the Trust is insured against losses arising out of any
such advance payments or (iii) either a majority of the Trustees who are neither
Interested Persons of the Trust nor parties to the proceeding, or independent
legal counsel approved by the Trustees in a written opinion, shall have
determined, based upon a review of readily available facts (as opposed to a full
trial-type inquiry) that there is reason to believe that such Covered Person
will not be disqualified from indemnification under this Section.
(e) The rights of indemnification herein provided shall be
severable, shall not be exclusive of or affect any other rights to which any
Covered Person may now or hereafter be entitled, and shall inure to the benefit
of the heirs, executors and administrators of a Covered Person.
(f) By action of the Trustees, and notwithstanding any
interest of the Trustees in the action, the Trust shall have power to purchase
and maintain insurance, in such amounts as the Trustees deem appropriate, on
behalf of any Covered Person, whether or not such person is indemnified against
such liability or expense under the provisions of this Article IX and whether
16
or not the Trust would have the power or would be required to indemnify such
person against such liability under the provisions of this Article IX or of the
Delaware Act or by any other applicable law, subject only to any limitations
imposed by the 1940 Act.
(g) Any repeal or modification of this Article IX by the
Shareholders of the Trust, or adoption or modification of any other provision of
the Trust Instrument or Bylaws inconsistent with this Article, shall be
prospective only, to the extent that such repeal or modification would, if
applied retrospectively, adversely affect any limitation on the liability of any
Covered Person or indemnification available to any Covered Person with respect
to any act or omission which occurred prior to such repeal, modification or
adoption.
Section 3. Indemnification of Shareholders. If any Shareholder or
former Shareholder of any Series shall be held personally liable solely by
reason of being or having been a Shareholder and not because of acts or
omissions or for some other reason, the Shareholder or former Shareholder (or
such person's heirs, executors, administrators or other legal representatives or
in the case of any entity, its general successor) shall be entitled out of the
assets belonging to the applicable Series to be held harmless from and
indemnified against all loss and expense arising from such liability. The Trust,
on behalf of the affected Series, shall, upon request by such Shareholder,
assume the defense of any such claim made against such Shareholder for any act
or obligation of the Series and satisfy any judgment thereon from the assets of
the Series.
ARTICLE X
MISCELLANEOUS
Section 1. Trust Not a Partnership. This Trust Instrument creates a
trust and not a partnership. No Trustee shall have any power to bind personally
either the Trust's officers or any Shareholder.
Section 2. Trustee Action; Expert Advice; No Bond or Surety. The
exercise by the Trustees of their powers and discretion hereunder in good faith
and with reasonable care under the circumstances then prevailing shall be
binding upon everyone interested. Subject to the provisions of Article IX, the
Trustees shall not be liable for errors of judgment or mistakes of fact or law.
The Trustees may take advice of counsel or other experts with respect to the
meaning and operation of this Trust Instrument, and subject to the provisions of
Article IX, shall not be liable for any act or omission in accordance with such
advice or for failing to follow such advice. The Trustees shall not be required
to give any bond as such, nor any surety if a bond is obtained.
Section 3. Record Dates. The Trustees may fix in advance a date up to
ninety (90) days before the date of any Shareholders' meeting, or the date for
the payment of any dividends or other distributions, or the date for the
allotment of rights, or the date when any change or conversion or exchange of
Shares shall go into effect as a record date for the determination of the
Shareholders entitled to notice of, and to vote at, any such meeting, or
entitled to receive payment of such dividend or other distribution, or to
receive any such allotment of rights, or to exercise such rights in respect of
any such change, conversion or exchange of Shares. Any
17
Shareholder who was a Shareholder at the date and time so fixed shall be
entitled to vote at such meeting or any adjournment thereof.
Section 4. Dissolution and Termination of the Trust or Series or
Classes.
(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 to also be an action to dissolve each Series
and each Class thereof.
(b) Upon the requisite action by the Trustees to dissolve the
Trust or any one or more Series of Shares, 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. 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 paragraph (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 5 of Article V 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 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 Delaware Act, which
certificate of cancellation may be signed by any one Trustee. Upon termination
of the Trust, the Trustees 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 or
discharged.
Section 5. Reorganization, Merger and Consolidation.
(a) Notwithstanding anything else herein, the Trustees may,
without Shareholder approval unless such approval is required by the 1940 Act,
(i) cause the Trust to convert into or merge or consolidate with or into one or
more trusts, partnerships, limited
18
liability companies, associations, corporations or other business entities (or a
series of any of the foregoing to the extent permitted by law) (including
trusts, partnerships, limited liability companies, associations, corporations or
other business entities created by the Trustees to accomplish such conversion,
merger or consolidation) so long as the surviving or resulting entity is an
open-end management investment company under the 1940 Act, or is a series
thereof to the extent permitted by law, and that, in the case of any trust,
partnership, limited liability company, association, corporation or other
business entity created by the Trustees to accomplish such conversion, merger or
consolidation, will succeed to or assume the Trust's registration under the 1940
Act and that, in any case, is formed, organized or existing under the laws of
the United States or of a state, commonwealth, possession or colony of the
United States, (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 Delaware, (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 another trust, partnership, limited liability
company, association, corporation or other business entity (or a series of any
of the foregoing to the extent permitted by law) (including a trust,
partnership, limited liability company, association, corporation or other
business entity created by the Trustees to accomplish such sale and conveyance),
organized under the laws of the United States or of any state, commonwealth,
possession or colony of the United States so long as such trust, partnership,
limited liability company, association, corporation or other business entity is
an open-end management investment company under the 1940 Act and, in the case of
any trust, partnership, limited liability company, association, corporation or
other business entity created by the Trustees to accomplish such sale and
conveyance, will succeed to or assume the Trust's registration under the 1940
Act, 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 trust,
partnership, limited liability company, association, corporation or other
business entity (or series thereof) or (v) at any time sell or convert into
money all of the assets of the Trust or any Series or Class thereof. Any
agreement of merger or consolidation or exchange or conversion or certificate of
merger or certificate of conversion may be signed by a majority of the Trustees
and facsimile signatures conveyed by electronic or similar telecommunication
means shall be valid.
(b) Pursuant to and in accordance with the provisions of
Section 3815(f) of the Delaware Act, and notwithstanding anything to the
contrary contained in this Declaration of Trust, an agreement of merger or
consolidation approved by the Trustees in accordance with this Section 5 may
effect any amendment to the governing instrument of the Trust or effect the
adoption of a new trust instrument of the Trust if the Trust is the surviving or
resulting trust 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 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.
19
(d) Notwithstanding anything else herein, 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 subtrust thereof)
which is classified as a partnership for federal income tax purposes.
Notwithstanding anything else herein, 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 6. Trust Instrument. The original or a copy of this Trust
Instrument and of each amendment hereto 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 a
Trustee or an officer of the Trust as to the authenticity of the Trust
Instrument or any such amendments or supplements and as to any matters in
connection with the Trust. The masculine gender herein shall include the
feminine and neuter genders. Headings herein are for convenience only and shall
not affect the construction of this Trust Instrument. This Trust Instrument may
be executed in any number of counterparts, each of which shall be deemed an
original.
Section 7. Applicable Law. This Trust Instrument and the Trust created
hereunder are governed by and construed and administered according to the
Delaware Act and the applicable laws of the State of Delaware; provided,
however, that there shall not be applicable to the Trust, the Trustees or this
Trust Instrument (a) the provisions of Section 3540 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 Delaware 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 of responsibility or limitations on the acts or powers of
trustees, which are inconsistent with the limitations on liabilities or
authority and powers of the Trustees set forth or referenced in this Trust
Instrument. The Trust shall be of the type commonly called a Delaware business
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 Delaware 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.
20
Section 8. Amendments. The Trustees may, without any Shareholder vote,
amend or otherwise supplement this Trust Instrument by making an amendment, a
Trust Instrument supplemental hereto or an amended and restated trust
instrument; provided, that Shareholders shall have the right to vote on any
amendment (a) which would affect the voting rights of Shareholders granted in
Article VI, Section 1, (b) to this Section 8, (c) required to be approved by
Shareholders by law or by the Trust's registration statement(s) filed with the
Commission, and (d) submitted to them by the Trustees in their discretion. Any
amendment submitted to Shareholders which the Trustees determine would affect
the Shareholders of any Series shall be authorized by vote of the Shareholders
of such Series and no vote shall be required of Shareholders of a Series not
affected.
Notwithstanding anything else herein, no amendment by Shareholders is
permitted (a) to Article IX which would have the effect of reducing the
indemnification and other rights provided thereby to Trustees, officers,
employees and agents of the Trust or to Shareholders or former Shareholders, or
(b) which would repeal or amend this sentence of Article X, Section 8. The
Trustees may, without a Shareholder vote, restate, amend or otherwise supplement
this Trust Instrument as the Trustees deem necessary or desirable.
Section 9. Fiscal Year. The fiscal year of the Trust shall end on the
date set in the manner specified in the Bylaws. The Trustees may change the
fiscal year of the Trust without Shareholder approval.
Section 10. Severability. The provisions of this Trust Instrument are
severable. If the Trustees determine, with the advice of counsel, that any
provision hereof conflicts with the 1940 Act, the regulated investment company
provisions of the Internal Revenue Code or with other applicable laws and
regulations, the conflicting provision shall be deemed never to have constituted
a part of this Trust Instrument; 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 hereof shall be held invalid or unenforceable in
any jurisdiction, such invalidity or unenforceability shall attach only to such
provision only in such jurisdiction and shall not affect any other provision of
this Trust Instrument.
Section 11. Use of the Names "▇▇▇▇▇▇" and "INTECH". ▇▇▇▇▇▇ Financial
Group LLC ("▇▇▇▇▇▇") and Enhanced Investment Technologies, LLC have consented to
and granted a non-exclusive license for the use by the Trust and by each Series
thereof to the identifying words "▇▇▇▇▇▇", "INTECH" and/or "Enhanced Investment
Technologies", respectively, in the name of the Trust and of each Series. Such
consent is conditioned upon the Trust's employment of ▇▇▇▇▇▇ or INTECH as
investment adviser or subadviser to the Trust and to each Series or upon the
employment of ▇▇▇▇▇▇ or INTECH as investment adviser or subadviser to a master
fund (or series thereof) in which the Trust or its Series may invest. ▇▇▇▇▇▇ and
INTECH shall control the use of such names insofar as such names contain the
identifying word "▇▇▇▇▇▇" or "INTECH." ▇▇▇▇▇▇ may from time to time use the
identifying word "▇▇▇▇▇▇", "INTECH" or "Enhanced Investment Technologies" or any
derivatives thereof, in other connections and for other purposes, including
without limitation in the names of other investment companies, corporations or
businesses that it may manage, advise, sponsor or own or in which it may have a
financial interest. ▇▇▇▇▇▇ may require the Trust or any Series to cease using
the identifying words
21
"▇▇▇▇▇▇", "INTECH" and/or "Enhanced Investment Technologies" or any derivatives
thereof in the name of the Trust or any Series if the Trust or Series ceases to
employ ▇▇▇▇▇▇ or INTECH as investment adviser or if the master fund (or series
thereof) in which the Trust or its Series may invest ceases to employ ▇▇▇▇▇▇ or
INTECH as investment adviser or subadviser.
Section 12. Derivative Actions. In addition to the requirements set
forth in Section 3816 of the Delaware Act, a Shareholder may bring a derivative
action on behalf of the Trust only if the following conditions are met:
(a) 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 purposes of
this paragraph (a), a demand on the Trustees shall only be deemed not likely to
succeed and therefore excused if a majority of the Trustees, or a majority of
any committee of the Board of Trustees established to consider the merits of
such action, is composed of Trustees who are not "independent trustees" (as that
term is defined in the Delaware Act).
(b) Unless a demand is not required under paragraph (a) of
this Section 12, Shareholders eligible to bring such derivative action under the
Delaware Act who collectively hold at least 10% of the Outstanding Shares of the
Trust, or who collectively hold at least 10% of the Outstanding Shares of the
Series or Class to which such action relates, shall join in the request for the
Trustees to commence such action; and
(c) Unless a demand is not required under paragraph (a) of
this Section 12, the Trustees must be afforded a reasonable amount of time to
consider such Shareholder request and to investigate the basis of such claim.
For purposes of this Section 12, the Board of 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. The Trustees shall be entitled to retain
counsel or other advisors 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 advisors in the event that the Trustees
determine not to bring such action.
[the balance of this page left intentionally blank]
22
IN WITNESS WHEREOF, the undersigned, being all of the initial
Trustee(s), have executed this Trust Instrument as of the date first above
written.
/s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
-----------------------------------
▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
/s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇
-----------------------------------
▇▇▇▇▇ ▇. ▇▇▇▇▇▇
/s/ ▇. ▇▇▇▇▇▇ ▇▇▇
-----------------------------------
▇. ▇▇▇▇▇▇ ▇▇▇
23
SCHEDULE A
SERIES AND CLASSES OF THE TRUST
▇▇▇▇▇▇ Risk Managed Growth Fund
Institutional Shares
Investor Shares
Service Shares
▇▇▇▇▇▇ Risk Managed Core Fund
Institutional Shares
Investor Shares
Service Shares
▇▇▇▇▇▇ Risk Managed Value Fund
Institutional Shares
Investor Shares
Service Shares
24