AGREEMENT AND DECLARATION OF TRUST
OF
PBHG INSURANCE SERIES FUND
THIS AGREEMENT AND DECLARATION OF TRUST of PBHG Insurance Series Fund,
dated October 16, 2000, is among ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, ▇▇▇▇▇▇
▇. ▇▇▇▇▇▇▇, and ▇▇▇▇▇▇ ▇ ▇▇▇▇▇▇ as Trustees, and each person who becomes a
Shareholder in accordance with the terms hereinafter set forth.
NOW, THEREFORE, the Trustees do hereby declare that all money and property
contributed to the trust hereunder shall be held and managed in trust under this
Agreement for the benefit of the Shareholders as herein set forth below.
ARTICLE I
NAME, DEFINITIONS, PURPOSE AND CERTIFICATE OF TRUST
Section 1.1. Name. The name of the business trust established hereby is
PBHG Insurance Series Fund and the Trustees may transact the Trust's affairs in
that name. The Trust shall constitute a Delaware business trust in accordance
with the Delaware Act.
Section 1.2. Name Reservation. The Trust acknowledges that it uses the term
"PBHG" in its name only with the permission of Pilgrim ▇▇▇▇▇▇ & Associates,
Ltd., a Delaware corporation ("Pilgrim"), the investment adviser to the Trust,
and agrees that Pilgrim shall control the use of the term "PBHG" by the Trust.
The Trust further agrees that if Pilgrim, its successors or assigns should at
any time cease to be the investment adviser to the Trust, the Trust shall, at
the written request of Pilgrim, its successors or assigns, eliminate the term
"PBHG" from its name and any materials or documents referring to the Trust, and
will not henceforth use the term "PBHG" in the conduct of the Trust's business,
except to any extent specifically agreed to by Pilgrim. The Trust further
acknowledges that Pilgrim reserves the right to grant the non-exclusive right to
use the term "PBHG" to any other persons or entities, including other investment
companies, whether now in existence or hereafter created. The provisions of this
paragraph are binding on the Trust, its successors and assigns and on its
trustees, officers, stockholders, creditors and all other persons claiming under
or through it.
Section 1.3. Definitions. Whenever used herein, unless otherwise required
by the context or specifically provided:
(a) "Affiliated Person," "Company," "Person," and "Principal Underwriter"
shall have the meanings given them in the 1940 Act, as modified by or
interpreted by any applicable order or orders of the Commission or any
rules or regulations adopted or interpretive releases of the
Commission thereunder. The term "Commission" shall have the meaning
given it in the 1940 Act;
(b) "Agreement" means this Agreement and Declaration of Trust, as it may
be amended from time to time;
(c) "allocable" has the meaning specified in Section 2.5(d);
(d) "allocated" has the meaning specified in Section 2.5(d);
(e) "Bylaws" means the Bylaws referred to in Section 4.1(e), as from time
to time amended;
(f) "Company" has the meaning specified in Section 2(a)(8) of the ▇▇▇▇
▇▇▇.
(g) "Covered Persons" means a person who is or was a Trustee, officer,
employee or agent of the Trust, or is or was serving at the request of
the Trustees as a director, trustee, partner, officer, employee or
agent of a corporation, trust, partnership, joint venture or other
enterprise.
(h) The "Delaware Act" refers to the Delaware Business Trust Act, 12 Del.
C.ss.3801 et seq., as such Act may be amended from time to time;
(i) "fund complex" has the meaning specified in Regulation 14A under the
Securities Exchange Act of 1934, as amended from time to time;
(j) "Governing Instrument" means collectively this Agreement, the Bylaws,
all amendments to this Agreement and the Bylaws and every resolution
of the Trustees or any committee of the Trustees that by its terms is
incorporated by reference into this Agreement or stated to constitute
part of the Trust's Governing Instrument or that is incorporated
herein by Section 2.3 of this Agreement;
(k) "Majority Shareholder Vote" means "the vote of a majority of the
outstanding voting securities" (as defined in the ▇▇▇▇ ▇▇▇) of the
Trust or Portfolio, as applicable;
(l) "Majority Trustee Vote" means the vote of a majority of the Trustees.
(m) The "1940 Act" means the Investment Company Act of 1940, as amended
from time to time;
(n) "Outstanding Shares" means Shares shown on the books of the Trust or
its transfer agent as then issued and outstanding, and includes Shares
of one Portfolio that the Trust has purchased on behalf of another
Portfolio, but excludes Shares of a Portfolio that the Trust has
redeemed or repurchased;
(o) "Portfolio" means a series of Shares of the Trust established in
accordance with the provisions of Section 2.3;
(p) "Proportionate Interest" has the meaning specified in Section 2.5(d);
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(q) "Purchasing Portfolio" has the meaning specified in Section 2.9;
(r) "Schedule A" has the meaning specified in Section 2.3;
(s) "Selling Portfolio" has the meaning specified in Section 2.9;
(t) "Shareholder" means a record owner of Outstanding Shares of the Trust;
(u) "Shares" means, as to a Portfolio, the equal proportionate
transferable units of beneficial interest into which the beneficial
interest of such Portfolio of the Trust shall be divided and may
include fractions of Shares as well as whole Shares;
(v) The "Trust" means PBHG Insurance Series Fund, the Delaware business
trust established hereby, and reference to the Trust, when applicable
to one or more Portfolios, shall refer to each such Portfolio;
(w) The "Trustees" means the Persons who have signed this Agreement as
trustees so long as they shall continue to serve as trustees of the
Trust in accordance with the terms hereof, and all other Persons who
may from time to time be duly appointed as Trustee in accordance with
the provisions of Section 3.4, or elected as Trustee by the
Shareholders, and reference herein to a Trustee or to the Trustees
shall refer to such Persons in their capacity as Trustees hereunder;
and
(x) "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 Portfolio, or by the Trustees on behalf of the
Trust.
Section 1.4. 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 through one or more Portfolios investing primarily in
securities and to carry on such other business as the Trustees may from time to
time determine pursuant to their authority under this Agreement.
Section 1.5. Certificate of Trust. Immediately upon the execution of this
Agreement, the Trustees shall file a Certificate of Trust with respect to the
Trust in the Office of the Secretary of State of the State of Delaware pursuant
to the Delaware Act.
ARTICLE II
BENEFICIAL INTEREST
Section 2.1. Shares of Beneficial Interest. The beneficial interest in the
Trust shall be divided into an unlimited number of Shares, with par value of
$0.001 per Share. The Trustees may, from time to time, authorize the division of
the Shares into one or more series, each of which constitutes a Portfolio.
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All Shares issued hereunder, including without limitation, Shares issued in
connection with a dividend or other distribution in Shares or a split or reverse
split of Shares, shall be fully paid and nonassessable.
Section 2.2. Issuance of Shares. The Trustees in their discretion may, from
time to time, without vote of the Shareholders, issue Shares, in addition to the
then issued and Outstanding Shares, to such party or parties and for such amount
and type of consideration, subject to applicable law, including cash or
securities, 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
acquisition 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. The Trustees may from time to time divide
or combine the Shares into a greater or lesser number without thereby changing
the proportionate beneficial interests in the Trust. Contributions to the Trust
may be accepted for, and Shares shall be redeemed as, whole Shares and/or
1/1,000th of a Share or integral multiples thereof.
Section 2.3. Establishment of Portfolios. The Trust shall consist of one or
more separate and distinct Portfolios, each with an unlimited number of Shares
unless otherwise specified. The Trustees hereby establish and designate the
Portfolios listed on Schedule A attached hereto and made a part hereof
("Schedule A"). Each additional Portfolio shall be established by the adoption
of a resolution by the Trustees. Each such resolution is hereby incorporated
herein by this reference and made a part of the Trust's Governing Instrument
whether or not expressly stated in such resolution, and shall be effective upon
the occurrence of both (i) the date stated therein (or, if no such date is
stated, upon the date of such adoption) and (ii) the execution of an amendment
either to this Agreement or to Schedule A hereto establishing and designating
such additional Portfolio or Portfolios. The Shares of each Portfolio shall have
the relative rights and preferences provided for herein and such rights and
preferences as may be designated by the Trustees in any amendment or
modification to the Trust's Governing Instrument. The Trust shall maintain
separate and distinct records of each Portfolio and shall hold and account for
the assets belonging thereto separately from the other Trust Property and the
assets belonging to any other Portfolio. Each Share of a Portfolio shall
represent an equal beneficial interest in the net assets belonging to that
Portfolio.
Section 2.4. Actions Affecting Portfolios. Subject to the right of
Shareholders, if any, to vote pursuant to Section 6.1, the Trustees shall have
full power and authority, in their sole discretion without obtaining any prior
authorization or vote of the Shareholders of any Portfolio, to establish and
designate and to change in any manner any Portfolio of Shares; to fix or change
such preferences, voting powers, rights, and privileges of any Portfolio as the
Trustees may from time to time determine, including any change that may
adversely affect a Shareholder; to divide or combine the Shares of any Portfolio
into a greater or lesser number; to classify or reclassify or convert any issued
Shares of any Portfolio into one or more Portfolios of Shares of a Portfolio;
and to take such other action with respect to the Shares as the Trustees may
deem desirable. A Portfolio may issue any number of Shares but need not issue
any Shares. At any time that there are no Outstanding Shares of any particular
Portfolio previously established and designated, the Trustees may abolish that
Portfolio and the establishment and designation thereof.
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Section 2.5. Relative Rights and Preferences. Unless the establishing
resolution or any other resolution adopted pursuant to Section 2.3 otherwise
provides, Shares of each Portfolio thereof established hereunder shall have the
following relative rights and preferences:
(a) Except as set forth in paragraph (e) of this Section 2.5, each Share
of a Portfolio shall represent an equal pro rata interest in the
assets belonging to such Portfolio and shall have identical voting,
dividend, liquidation and other rights, preferences, powers,
restrictions, limitations, qualifications and designations and terms
and conditions with each other Share of such Portfolio.
(b) Shareholders shall have no preemptive or other right to subscribe to
any additional Shares or other securities issued by the Trust or the
Trustees, whether of the same or other Portfolio.
(c) All consideration received by the Trust for the issue or sale of
Shares of a particular Portfolio, 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 of every other Portfolio and may be
referred to herein as "assets belonging to" that Portfolio. The assets
belonging to a particular Portfolio shall belong to that Portfolio for
all purposes, and to no other Portfolio, subject only to the rights of
creditors of that Portfolio. 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 Portfolio shall be allocated by the Trustees between and
among one or more of the Portfolios in such manner as the Trustees, in
their sole discretion, deem fair and equitable. Each such allocation
shall be conclusive and binding upon the Shareholders of all
Portfolios thereof for all purposes, and such assets, income,
earnings, profits, or funds, or payments and proceeds with respect
thereto shall be assets belonging to that Portfolio.
(d) Each Portfolio shall have a proportionate undivided interest (as
determined by or at the direction of, or pursuant to authority granted
by, the Trustees, consistent with industry practice) ("Proportionate
Interest") in the net assets belonging to that Portfolio. References
herein to assets, expenses, charges, costs, and reserves "allocable"
or "allocated" to a particular Portfolio shall mean the aggregate
amount of such item(s) of the Portfolio multiplied by the Portfolio's
Proportionate Interest.
(e) A particular Portfolio shall be charged with the liabilities of that
Portfolio, and all expenses, costs, charges and reserves attributable
to any particular Portfolio shall be borne by such Portfolio. Any
general liabilities, expenses, costs, charges or reserves of the Trust
(or any Portfolio) that are not readily identifiable as chargeable to
or bearable by any particular Portfolio shall be allocated and charged
by the Trustees between or among any one or more of the Portfolios in
such manner as the Trustees in their sole discretion deem fair and
equitable. Each such allocation shall be conclusive and binding upon
the
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Shareholders of all Portfolios for all purposes. Without limitation of
the foregoing provisions of this Section 2.5(e), (i) the debts,
liabilities, obligations and expenses incurred, contracted for or
otherwise existing with respect to a particular Portfolio shall be
enforceable against the assets of such Portfolio only, and not against
the assets of the Trust generally or assets belonging to any other
Portfolio, and (ii) none of the debts, liabilities, obligations and
expenses incurred, contracted for or otherwise existing with respect
to the Trust generally that have not been allocated to a specified
Portfolio, or with respect to any other Portfolio, shall be
enforceable against the assets of such specified Portfolio. Notice of
this contractual limitation on inter-Portfolio liabilities shall be
set forth in the Trust's Certificate of Trust described to Section
1.5, 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 inter-Portfolio 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
Portfolio.
All references to Shares in this Agreement shall be deemed to be shares of
any or all Portfolios as the context may require. All provisions herein relating
to the Trust shall apply equally to each Portfolio of the Trust except as the
context otherwise requires.
Section 2.6. Investment in the Trust. Investments may be accepted by the
Trust from such Persons, at such times, on such terms, and for such
consideration, which may consist of cash or tangible or intangible property or a
combination thereof, as the Trustees from time to time may authorize. At the
Trustees' sole discretion, such investments, subject to applicable law, may be
in the form of cash or securities in which the affected Portfolio is authorized
to invest, valued as provided in applicable law. Each such investment shall be
credited to the individual Shareholder's account in the form of full and
fractional Shares of the Trust, in such Portfolio as the Shareholder shall
select.
Section 2.7. Personal Liability of Shareholders. As provided by applicable
law, no Shareholder of the Trust 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 Portfolio thereof. Neither the Trust
nor the Trustees, nor any officer, employee, or agent of the Trust shall have
any power to bind personally any Shareholder or, except as provided herein or by
applicable law, 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 by way of subscription for any Shares or otherwise. The
Shareholders shall be entitled, to the fullest extent permitted by applicable
law, to the same limitation of personal liability as is extended under the
Delaware General Corporation Law to stockholders of private corporations for
profit. Every note, bond, contract or other undertaking issued by or on behalf
of the Trust or the Trustees relating to the Trust or to any Portfolio shall
include a recitation limiting the obligation represented thereby to the Trust
and its assets or to one or more Portfolios and the assets belonging thereto
(but the omission of such a recitation shall not operate to bind any Shareholder
or Trustee of the Trust).
Section 2.8. Assent to Agreement. Every Shareholder, by virtue of having
purchased a Share, shall be held to have expressly assented to, and agreed to be
bound by, the terms hereof. The death of a Shareholder during the continuance of
the Trust shall not operate to terminate the same nor entitle the
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representative of any deceased Shareholder to an accounting or to take any
action in court or elsewhere against the Trust or the Trustees, but only to
rights of said decedent under this Trust.
Section 2.9. Purchases of Shares Among Portfolios. The Trust may purchase,
on behalf of any Portfolio (the "Purchasing Portfolio"), Shares of another
Portfolio (the "Selling Portfolio"). Shares of the Selling Portfolio so
purchased on behalf of the Purchasing Portfolio shall be Outstanding Shares, and
shall have all preferences, voting powers, rights and privileges established for
such Shares.
ARTICLE III
THE TRUSTEES
Section 3.1. Management of the Trust. The Trustees shall have exclusive and
absolute control over the Trust Property and over the business of the Trust to
the same extent as if the Trustees were the sole owners of the Trust Property
and business in their own right, but with such powers of delegation as may be
permitted by this Agreement. 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 and all foreign jurisdictions 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 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 Agreement, the presumption
shall be in favor of a grant of power to the Trustees.
The enumeration of any specific power in this Agreement shall not be
construed as limiting the aforesaid power. The powers of the Trustees may be
exercised without order of or resort to any court or other authority.
Section 3.2. Trustees. The number of Trustees shall be such number as shall
be fixed from time to time by a majority of the Trustees; provided, however,
that the number of Trustees shall in no event be less than two (2) nor more than
fifteen (15). The initial Trustees are those first identified above.
Section 3.3. Terms of Office of Trustees. The Trustees shall hold office
during the lifetime of this Trust, and until its termination as herein provided;
except that (a) any Trustee may resign his trusteeship or may retire by written
instrument signed by him and delivered to the other Trustees, which shall take
effect upon such delivery or upon such later date as is specified therein; (b)
any Trustee may be removed at any time by written instrument, signed by at least
two-thirds of the number of Trustees prior to such removal, specifying the date
when such removal shall become effective; (c) any Trustee who has become
physically or mentally incapacitated by reason of disease or otherwise, or is
otherwise unable to serve, may be retired by written instrument signed by a
majority of the other Trustees, specifying the date of his retirement; (d) any
Trustee who has died shall be terminated upon the date of death; and (e) a
Trustee may be removed at any meeting of the Shareholders by a vote of the
Shareholders owning at least two-thirds of the Outstanding Shares.
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Section 3.4. Vacancies and Appointment of Trustees. In case of the
declination to serve, death, resignation, retirement or removal of a Trustee, or
a Trustee is otherwise unable to serve, or an increase in the number of
Trustees, a vacancy shall occur. Whenever a vacancy in the Board of Trustees
shall occur, until such vacancy is filled, the other Trustees shall have all the
powers hereunder and the certification of the other Trustees of such vacancy
shall be conclusive. In the case of an existing vacancy, the remaining Trustees
may fill such vacancy by appointing such other person as they in their
discretion shall see fit, or may leave such vacancy unfilled or may reduce the
number of Trustees to not less than two (2) Trustees. Such appointment shall be
evidenced by a written instrument signed by a majority of the Trustees in office
or by resolution of the Trustees, duly adopted, which shall be recorded in the
minutes of a meeting of the Trustees, whereupon the appointment shall take
effect.
An appointment of a Trustee may be made by the Trustees then in office in
anticipation of a vacancy to occur by reason of retirement, resignation, or
removal of a Trustee, or an increase in number of Trustees effective at a later
date, provided that said appointment shall become effective only at the time or
after the expected vacancy occurs. As soon as any Trustee appointed pursuant to
this Section 3.4 or elected by the Shareholders shall have accepted the Trust
and agreed in writing to be bound by the terms of the Agreement, the Trust
estate shall vest in the new Trustee or Trustees, together with the continuing
Trustees, without any further act or conveyance, and he shall be deemed a
Trustee hereunder.
Section 3.5. Temporary Absence of Trustee. Any Trustee may, by power of
attorney, delegate his power for a period not exceeding six months at any one
time to any other Trustee or Trustees, provided that in no case shall less than
two Trustees personally exercise the other powers hereunder except as herein
otherwise expressly provided.
Section 3.6. Effect of Death, Resignation, etc. of a Trustee. The
declination to serve, death, resignation, retirement, removal, incapacity, or
inability of the Trustees, or any one of them, shall not operate to terminate
the Trust or to revoke any existing agency created pursuant to the terms of this
Trust Agreement.
Section 3.7. Ownership of Assets of the Trust. The assets of the Trust and
of each Portfolio thereof shall be held separate and apart from any assets now
or hereafter held in any capacity other than as Trustee hereunder by the
Trustees or any successor Trustees. Legal title in all of the assets of the
Trust and the right to conduct any business shall at all times be considered as
vested in the Trustees on behalf of the Trust, except that the Trustees may
cause legal title to any Trust Property to be held by, or in the name 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 belonging
to any Portfolio, 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 the Trust or in assets belonging to the
Portfolio in which the Shareholder holds Shares. The Shares shall be personal
property giving only the rights specifically set forth in this Agreement or the
Delaware Act.
Section 3.8. Outside Businesses; Transactions with Affiliates. Any Trustee,
or Affiliated Person (as defined in Section 2(a)(3) of the ▇▇▇▇ ▇▇▇) of such
Trustee or of the Trust, may engage in or possess an interest in other business
ventures or investments of any nature or description, whether
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presently existing or hereafter created, independently or with others, including
ones in competition with the Trust, with no obligation to offer to the Trust the
right to participate therein, and the Trust shall have no rights by virtue of
this Agreement in and to such business or investment or the income or profits
derived from any of them, and the pursuit of any such business or investment
shall not be deemed wrongful or improper. The Company may transact business with
any Trustee or any Affiliated Person of such Trustee unless prohibited by
applicable provisions of the 1940 Act.
ARTICLE IV
POWERS OF THE TRUSTEES
Section 4.1. Powers. The Trustees in all instances shall act as principals,
and are and shall be free from the control of the Shareholders. The Trustees
shall have full power and authority to do any and all acts and to make and
execute any and all contracts and instruments that they may consider necessary
or appropriate in connection with the management of the Trust. Without limiting
the foregoing and subject to any applicable limitation in this Agreement or the
Bylaws of the Trust, the Trustees shall have power and authority:
(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 present or future law or custom in regard to investments by
Trustees, and to sell, exchange, lend, pledge, mortgage, hypothecate,
write options on and lease any or all of the assets of the Trust;
(b) To operate as, and to carry on the business of, an investment company,
and to exercise all the powers necessary and appropriate to the
conduct of such operations;
(c) To borrow money 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 or engagement
of any other Person and to lend Trust Property;
(d) To provide for the distribution of interests of the Trust either
through a principal underwriter in the manner hereafter provided for
or by the Trust itself, or both, or otherwise pursuant to a plan of
distribution of any kind;
(e) To adopt Bylaws not inconsistent with this Trust Agreement providing
for the conduct of the business of the Trust and to amend and repeal
them to the extent that they do not reserve such right to the
Shareholders; such Bylaws shall be deemed incorporated and included in
this Trust Agreement;
(f) To elect and remove such officers and appoint and terminate such
agents as they consider appropriate;
(g) To employ one or more banks, trust companies or companies that are
members of a national securities exchange or such other domestic or
foreign entities as custodians of
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any assets of the Trust subject to any conditions set forth in this
Agreement or in the Bylaws;
(h) To retain one or more transfer agents and shareholder servicing
agents;
(i) To set record dates in the manner provided herein or in the Bylaws;
(j) To delegate such authority 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;
(k) To sell or exchange any or all of the assets of the Trust, subject to
the right of Shareholders, if any, to vote on such transaction
pursuant to Section 6.1;
(l) To vote or give assent, or exercise any rights of ownership, with
respect to stock or other securities or property; and to execute and
deliver proxies and powers of attorney to such person or persons as
the Trustees shall deem proper, granting to such person or persons
such power and discretion with relation to securities or property as
the Trustee shall deem proper;
(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 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 Trust or of a Portfolio or a custodian or
a nominee or nominees, subject in either case to proper safeguards
according to the usual practice of Delaware business trusts or
investment companies registered under the 1940 Act;
(o) To establish separate and distinct Portfolios with separately defined
investment objectives and policies and distinct investment purposes in
accordance with the provisions of Article II hereof having relative
rights, powers and duties as they may provide consistent with
applicable law;
(p) Subject to the provisions of Section 3804 of the Delaware Act, to
allocate assets, liabilities and expenses of the Trust to a particular
Portfolio or to apportion the same between or among two or more
Portfolios, provided that any liabilities or expenses incurred by a
particular Portfolio shall be payable solely out of the assets
belonging to that Portfolio as provided for in Article II hereof;
(q) To consent to or participate in any plan for the reorganization,
consolidation or merger of any corporation or concern, any security of
which is held in 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 in the Trust;
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(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 declare and pay dividends and make distributions of income and of
capital gains and capital to Shareholders in the manner hereinafter
provided;
(t) To establish, from time to time, a minimum investment for Shareholders
in the Trust or in one or more Portfolios, and to require the
redemption of the Shares of any Shareholder whose investment is less
than such minimum upon giving notice to such Shareholder;
(u) To establish one or more committees, to delegate any of the powers of
the Trustees to said committees and to adopt a committee charter
providing for such responsibilities, membership (including Trustees,
officers or other agents of the Trust therein) and any other
characteristics of said committees as the Trustees may deem proper,
each of which committees may consist of less than the whole number of
Trustees then in office, and 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;
(v) To interpret the investment policies, practices or limitations of any
Portfolios;
(w) To establish a registered office and have a registered agent in the
State of Delaware; and
(x) 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 hereinbefore
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.
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 their capacity as such hereunder shall be deemed an
action on behalf of the Trust or the applicable Portfolio, and not an action in
an individual capacity.
The Trustees shall not be limited to investing in obligations maturing
before the possible termination of the Trust.
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. Issuance and Repurchase of Shares. The Trustees shall have the
power to issue, sell, repurchase, redeem, retire, cancel, acquire, hold, resell,
reissue, dispose of, and otherwise deal in Shares and, subject to the provisions
set forth in Articles II and VII hereof, to apply to any such
11
repurchase, redemption, retirement, cancellation or acquisition of Shares any
funds or property of the Trust, or any assets belonging to the particular
Portfolio, with respect to which such Shares are issued.
Section 4.3. Action by the Trustees. The Board of Trustees or any committee
thereof shall act by majority vote of those present at a meeting duly called
(including a meeting by telephonic or other electronic means, unless the 1940
Act requires that a particular action be taken only at a meeting of the Trustees
in person) at which a quorum required by the Bylaws is present or by written
consent of at least seventy-five percent (75%) of the Trustees or committee, as
the case may be, without a meeting, provided that the writing or writings are
filed with the minutes of proceedings of the Board or committee. Written
consents or waivers of the Trustees may be executed in one or more counterparts.
Any written consent or waiver may be provided and delivered to the Trust by any
means by which notice may be given to a Trustee. Subject to the requirements of
the 1940 Act, the Trustees by Majority Trustee Vote may delegate to any Trustee
or Trustees authority to approve particular matters or take particular actions
on behalf of the Trust.
Section 4.4. Principal Transactions. 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, distributor, administrator or transfer agent for
the Trust or with any Affiliated Person of such Person; and the Trust may employ
any such Person, or firm or Company in which such Person is an Affiliated
Person, as broker, legal counsel, registrar, investment adviser, distributor,
administrator, transfer agent, dividend disbursing agent, custodian, or in any
capacity upon customary terms, subject in all cases to applicable laws, rules,
and regulations and orders of regulatory authorities.
Section 4.5. Payment of Expenses by the Trust. The Trustees are authorized
to pay or cause to be paid out of the principal or income of the Trust or any
Portfolio, or partly out of the principal and partly out of income, and to
charge or allocate to, between or among such one or more of the Portfolios, as
they deem fair, all expenses, fees, charges, taxes and liabilities incurred or
arising in connection with the Trust or Portfolio, or in connection with the
management thereof, including, but not limited to, the Trustees' compensation
and such expenses and charges for the services of the Trust's officers,
employees, investment adviser and manager, administrator, principal underwriter,
auditors, counsel, custodian, transfer agent, Shareholder servicing agent, and
such other agents or independent contractors and such other expenses and charges
as the Trustees may deem necessary or proper to incur.
Section 4.6. Trustee Compensation. The Trustees as such shall be entitled
to reasonable compensation from the Trust. They may fix the amount of their
compensation. Nothing herein shall in any way prevent the employment of any
Trustee for advisory, management, administrative, legal, accounting, investment
banking, underwriting, brokerage, or investment dealer or other services and the
payment for the same by the Trust.
Section 4.7. Independent or Disinterested Trustee. A Trustee who is not an
"interested person" (as that term is defined under the 1940 Act or any rules or
interpretation thereunder) of the Trust shall be deemed to be independent and
disinterested under the Delaware Act and other applicable Delaware law when
making any determinations or taking any action as a Trustee. Service by a person
as
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a trustee or a director of one or more trusts, corporations or other entities of
a fund complex shall not be considered in determining whether a trustee is
independent or disinterested under the Delaware Act and other applicable
Delaware law.
ARTICLE V
INVESTMENT ADVISER, PRINCIPAL UNDERWRITER AND
TRANSFER AGENT
Section 5.1. Investment 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 Portfolio whereby the other party or
parties to such contract or contracts shall undertake to furnish the Trustees
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.
The Trustees may authorize 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
among the Trustees, the investment adviser and sub-adviser. Any references in
this Agreement to the investment adviser shall be deemed to include such
sub-advisers, unless the context otherwise requires.
Section 5.2. Other Service Contracts. The Trustees may authorize the
engagement of a principal underwriter, transfer agent, administrator, custodian,
and similar service providers.
Section 5.3. Parties to Contract. Any contract of the character described
in Sections 5.1 and 5.2 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.
Section 5.4. Miscellaneous. The fact that (i) any of the Shareholders,
Trustees or officers of the Trust is a shareholder, director, officer, partner,
trustee, employee, manager, adviser, principal underwriter or distributor or
agent of or for any Company or of or for any parent or affiliate of any Company,
with which an advisory or administration contract, or principal underwriter's or
distributor's contract, or transfer, shareholder servicing, custodian or other
agency contract may have been or may hereafter be made, or that any such
Company, or any parent or affiliate thereof, is a Shareholder or has an interest
in the Trust, or that (ii) any Company with which an advisory or administration
contract or principal underwriter's or distributor's contract, or transfer,
shareholder servicing, custodian, or other agency contract may have been or may
hereafter be made also has an advisory or administration contract, or principal
underwriter's or distributor's contract, or transfer, shareholder servicing,
custodian or other agency contract with one or more other companies, or has
other business or interests shall not affect the validity of any such contract
or disqualify any Shareholder, Trustee or officer of the Trust from voting upon
or executing the same or create any liability or accountability to the Trust or
its Shareholders.
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ARTICLE VI
SHAREHOLDERS' VOTING POWERS AND MEETING
Section 6.1. Voting Powers. The Shareholders shall have power to vote only
to: (i) elect Trustees, provided that a meeting of Shareholders has been called
for that purpose; (ii) remove Trustees, provided that a meeting of Shareholders
has been called for that purpose; (iii) approve the termination of the Trust or
any Portfolio, provided that the Trustees have called a meeting of the
Shareholders for the purpose of approving any such termination, unless, as of
the date on which the Trustees have determined to so terminate the Trust or such
Portfolio, there are fewer than 100 holders of record of the Trust or of such
terminating Portfolio; (iv) approve the sale of all or substantially all the
assets of the Trust or any Portfolio, unless the primary purpose of such sale is
to change the Trust's domicile or form of organization or form of business
trust; (v) approve the merger or consolidation of the Trust or any Portfolio
with and into another Company or with and into any Portfolio of the Trust,
unless (A) the primary purpose of such merger or consolidation is to change the
Trust's domicile or form of organization or form of business trust, or (B) after
giving effect to such merger or consolidation, based on the number of Shares
outstanding as of a date selected by the Trustees, the Shareholders of the Trust
or such Portfolio will have a majority of the outstanding shares of the
surviving Company or Portfolio thereof, as the case may be; (vi) approve any
amendment to this Article VI, Section 6.1; and (vii) approve such additional
matters as may be required by law or as the Trustees, in their sole discretion,
shall determine.
Until Shares are issued, the Trustees may exercise all rights of
Shareholders and may take any action required or permitted by law, this Trust
Agreement or any of the Bylaws of the Trust to be taken by Shareholders.
On any matter submitted to a vote of the Shareholders, all Shares shall be
voted together, except when required by applicable law or when the Trustees have
determined that the matter affects the interests of one or more Portfolios, then
only the Shareholders of all such affected Portfolios shall be entitled to vote
thereon. Each Share shall entitle the holder thereof to one vote for each dollar
(and each fractional dollar thereof) of net asset value (number of Shares owned
times net asset value per share) of Shares outstanding in such holder's name on
the books of the Trust, irrespective of the Portfolio, and all Shares shall be
voted in the aggregate; provided, however, that to the extent Portfolio voting
is required by the 1940 Act, or otherwise directed by the Trustees, as to any
such matter, Shares shall be voted by individual Portfolio. No holder of Shares
of any Portfolio shall be entitled to vote on any acquisition of assets of
another corporation with and into the Trust if the consideration for such
acquisition consists solely of the Shares of another Portfolio of the Trust. The
net asset value of a Share of any Portfolio shall be determined by or in
accordance with the determination of the Trustees, which is authorized to
determine the methods to be used to value the assets of a Portfolio, the amount
and allocation of liabilities of the Trust to each Portfolio, and all other
matters in connection therewith. The vote necessary to approve any such matter
shall be set forth in the Bylaws.
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ARTICLE VII
DISTRIBUTIONS AND REDEMPTIONS
Section 7.1. Distributions. The Trustees may from time to time declare and
pay dividends and make other distributions with respect to any Portfolio, which
may be from income, capital gains or capital. 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. 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 Portfolio shall be distributed pro rata to the
Shareholders of that Portfolio, in proportion to the number of Shares of that
Portfolio they held on the record date established for such payment. The
Trustees may adopt and offer to Shareholders such dividend reinvestment plans,
cash distribution payment plans, or similar plans as the Trustees deem
appropriate.
Section 7.2. Redemptions. Any holder of record of Shares of a particular
Portfolio, shall have the right to require the Trust to redeem his Shares, or
any portion thereof, subject to such terms and conditions as are set forth in
the registration statement of the Trust in effect from time to time. The
redemption price may in any case or cases be paid wholly or partly in kind if
the Trustees determine that such payment is advisable in the interest of the
remaining Shareholders of the Portfolio for which the Shares are being redeemed.
Subject to the foregoing, the fair value, selection and quantity of securities
or other property so paid or delivered as all or part of the redemption price
may be determined by or under authority of the Trustees. In no case shall the
Trust be liable for any delay of any Person in transferring securities selected
for delivery as all or part of any payment in kind.
Section 7.3. Redemption of Shares by Trustees. The Trustees may, at their
option, call for the redemption of the Shares of any Person or may refuse to
transfer or issue Shares to any Person to the extent that the same is necessary
to comply with applicable law or advisable to further the purposes for which the
Trust is formed. To the extent permitted by law, the Trustees may retain the
proceeds of any redemption of Shares required by them for payments of amounts
due and owing by a Shareholder to the Trust or any Portfolio.
Section 7.4. Redemption of De Minimis Accounts. If, at any time when a
request for transfer or redemption of Shares of any Portfolio is received by the
Trust or its agent, the value of the Shares of such Portfolio in a Shareholder's
account is less than Five Hundred Dollars ($500.00), or such greater amount as
the Trustees in their discretion shall have determined in accordance with
Section 4.1(t), after giving effect to such transfer or redemption and upon
giving thirty (30) days' notice to the Shareholder, the Trust may cause the
remaining Shares of such Portfolio in such Shareholder's account to be redeemed,
subject to such terms and conditions as are set forth in the registration
statement of the Trust in effect from time to time.
ARTICLE VIII
LIMITATION OF LIABILITY AND INDEMNIFICATION
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Section 8.1. Limitation of Liability. A Trustee or officer, when acting in
such capacity, shall not be personally liable to any person for any act,
omission or obligation of the Trust or any Trustee or officer; provided,
however, that nothing contained herein or in the Delaware Act shall protect any
Trustee or officer against any 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 with the Trust.
Section 8.2. Indemnification of Covered Persons. Every Covered Person shall
be indemnified by the Trust to the fullest extent permitted by the Delaware Act,
the Bylaws and other applicable law.
Section 8.3. Indemnification of Shareholders. In case any Shareholder or
former Shareholder of the Trust shall be held to be personally liable solely by
reason of his being or having been a Shareholder of the Trust or any Portfolio
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 general successor) shall be entitled, out of the assets
belonging to the applicable Portfolio, to be held harmless from and indemnified
against all loss and expense arising from such liability in accordance with the
Bylaws and applicable law. The Trust, on behalf of the affected Portfolio, shall
upon request by the Shareholder, assume the defense of any such claim made
against the Shareholder for any act or obligation of that Portfolio.
ARTICLE IX
MISCELLANEOUS
Section 9.1. Trust Not a Partnership; Taxation. It is hereby expressly
declared that a trust and not a partnership is created hereby. No Trustee
hereunder shall have any power to bind personally either the Trust's officers or
any Shareholder. All persons extending credit to, contracting with or having any
claim against the Trust or the Trustees shall look only to the assets of the
appropriate Portfolio or, until the Trustees shall have established any separate
Portfolio, of the Trust for payment under such credit, contract or claim; and
neither the Shareholders, the Trustees, nor the Trust's officers nor any of the
agents of the Trustees whether past, present or future, shall be personally
liable therefor.
It is intended that the Trust or each Portfolio be classified for income
tax purposes as an association taxable as a corporation, and the Trustees shall
do all things that they, in their sole discretion, determine are necessary to
achieve that objective, including (if they so determine), electing such
classifications on Internal Revenue Form 8832. The Trustees, in their sole
discretion and without the vote or consent of the Shareholders, may amend this
Agreement to ensure that this objective is achieved.
Section 9.2. Trustee's Good Faith 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 VIII and
to Section 9.1, 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 Agreement, and subject
to the provisions of Article VIII and Section 9.1, shall be under
16
no liability 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 9.3. Termination of Trust or Portfolio.
(a) Unless terminated as provided herein, the Trust shall continue without
limitation of time. The Trust may be terminated at any time by the
Trustees by written notice to the Shareholders, subject to the right
of Shareholders, if any, to vote pursuant to Section 6.1. Any
Portfolio may be terminated at any time by the Trustees by written
notice to the Shareholders of that Portfolio, subject to the right of
Shareholders, if any, to vote pursuant to Section 6.1.
(b) On termination of the Trust or any Portfolio pursuant to paragraph (a)
above,
(1) the Trust or that Portfolio thereafter shall carry on no business
except for the purpose of winding up its affairs,
(2) the Trustees shall (i) proceed to wind up the affairs of the
Trust or that Portfolio, and all powers of the Trustees under
this Agreement with respect thereto shall continue until such
affairs have been wound up, including the powers to fulfill or
discharge the contracts of the Trust or that Portfolio, (ii)
collect its assets or the assets belonging thereto, (iii) sell,
convey, assign, exchange, or otherwise dispose of all or any part
of those assets to one or more persons at public or private sale
for consideration that may consist in whole or in part of cash,
securities, or other property of any kind, (iv) discharge or pay
its liabilities, and (v) do all other acts appropriate to
liquidate its business, and
(3) after paying or adequately providing for the payment of all
liabilities, and upon receipt of such releases, indemnities, and
refunding agreements as they deem necessary for their protection,
the Trustees shall distribute the remaining assets ratably among
the Shareholders of the Trust or that Portfolio.
(c) On completion of distribution of the remaining assets pursuant to
paragraph (b)(3) above, the Trust or the affected Portfolio shall
terminate and the Trustees and the Trust shall be discharged from all
further liabilities and duties hereunder with respect thereto and the
rights and interests of all parties therein shall be cancelled and
discharged. On termination of the Trust, following completion of
winding up of its 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 may be signed by
any one Trustee.
Section 9.4. Sale of Assets; Merger and Consolidation. Subject to right of
Shareholders, if any, to vote pursuant to Section 6.1, the Trustees may cause
(i) the Trust or one or more of its Portfolios to the extent consistent with
applicable law to sell all or substantially all of its assets to, or be merged
into or consolidated with, another Portfolio, business trust (or series thereof)
or Company (or series thereof), (ii) the Shares of the Trust or any Portfolio to
be converted into beneficial interests in another
17
business trust (or series thereof) created pursuant to this Section 9.4, or
(iii) the Shares to be exchanged under or pursuant to any state or federal
statute to the extent permitted by law. In all respects not governed by statute
or applicable law, the Trustees shall have power to prescribe the procedure
necessary or appropriate to accomplish a sale of assets, merger or consolidation
including the power to create one or more separate business trusts to which all
or any part of the assets, liabilities, profits or losses of the Trust may be
transferred and to provide for the conversion of Shares of the Trust or any
Portfolio into beneficial interests in such separate business trust or trusts.
Section 9.5. Filing of Copies, References, Headings. The original or a copy
of this Agreement or any amendment hereto or any supplemental agreement shall be
kept at the office of the Trust where it may be inspected by any Shareholder. In
this Agreement or in any such amendment or supplemental agreement, references to
this Agreement, and all expressions like "herein," "hereof," and "hereunder,"
shall be deemed to refer to this Agreement as amended or affected by any such
supplemental agreement. 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 Agreement, rather than the headings, shall control.
This Agreement may be executed in any number of counterparts each of which shall
be deemed an original.
Section 9.6. Governing Law. The Trust and this Agreement, and the rights,
obligations and remedies of the Trustees and Shareholders hereunder, are to be
governed by and construed and administered according to the Delaware Act and the
other laws of the State of Delaware; provided, however, that there shall not be
applicable to the Trust, the Trustees, the Shareholders or this Trust Agreement
(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 or responsibilities or limitations on the indemnification, acts
or powers of trustees or other Persons, which are inconsistent with the
limitations or liabilities or authorities and powers of the Trustees or officers
of the Trust set forth or referenced in this Agreement.
The Trust shall be of the type commonly called a "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; provided, however, that the exercise of any
such power, privilege or action shall not otherwise violate applicable law.
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Section 9.7. Amendments. Except as specifically provided in Section 6.1,
the Trustees may, without any Shareholder vote, amend this Agreement by making
an amendment to this Agreement or to Schedule A, an agreement supplemental
hereto, or an amended and restated trust instrument. Any such amendment, having
been approved by a Majority Trustee Vote, shall become effective, unless
otherwise provided by such Trustees, upon being executed by a duly authorized
officer of the Trust. Any amendment submitted to Shareholders that the Trustees
determine would affect the Shareholders of fewer than all Portfolios shall be
authorized by a vote of only the Shareholders of the affected Portfolio(s), and
no vote shall be required of Shareholders of any Portfolio that is not affected.
Notwithstanding anything else herein to the contrary, any amendment to Article
VIII that would have the effect of reducing the indemnification provided thereby
to Covered Persons or to Shareholders or former Shareholders, and any repeal or
amendment of this sentence shall each require the affirmative vote of
Shareholders owning at least two-thirds of the Outstanding Shares entitled to
vote thereon. A certification signed by a duly authorized officer of the Trust
setting forth an amendment to this Agreement and reciting that it was duly
adopted by the Shareholders or by the Trustees as aforesaid, or a copy of this
Agreement, as amended, executed by a majority of the Trustees, or a duly
authorized officer of the Trust, shall be conclusive evidence of such amendment
when lodged among the records of the Trust.
Section 9.8. Provisions in Conflict with Law. The provisions of this
Agreement are severable, and if the Trustees shall determine, with the advice of
counsel, that any of such provisions is in conflict with applicable law the
conflicting provision shall be deemed never to have constituted a part of this
Agreement; provided, however, that such determination shall not affect any of
the remaining provisions of this Agreement or render invalid or improper any
action taken or omitted prior to such determination. If any provision of this
Agreement shall be held invalid or enforceable 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 Agreement in any jurisdiction.
Section 9.9. Shareholders' Right to Inspect Shareholder List. One or more
Persons who together and for at least six months have been Shareholders of at
least five percent (5%) of the Outstanding Shares of any Portfolio may present
to any officer or resident agent of the Trust a written request for a list of
its Shareholders. Within twenty (20) days after such request is made, the Trust
shall prepare and have available on file at its principal office a list verified
under oath by one of its officers or its transfer agent or registrar which sets
forth the name and address of each Shareholder and the number of Shares of each
Portfolio which the Shareholder holds. The rights provided for herein shall not
extend to any Person who is a beneficial owner but not also a record owner of
Shares of the Trust.
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IN WITNESS WHEREOF, the undersigned, being all of the Trustees of the
Trust, have executed this instrument this 16th day of October, 2000.
/s/▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇▇
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/s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
-----------------------------------
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
/s/▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
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▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
/s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
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SCHEDULE A
PBHG INSURANCE SERIES FUND PORTFOLIOS
PORTFOLIO
PBHG Growth II Portfolio
PBHG Large Cap Growth Portfolio
PBHG Select Value Portfolio
PBHG Mid-Cap Value Portfolio
PBHG Small Cap Value Portfolio
PBHG Technology & Communications Portfolio
PBHG Select 20 Portfolio