EXHIBIT 1
DECLARATION OF TRUST
OF
▇▇▇▇▇▇▇ ▇▇▇▇▇ TRUST
▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Dated January 28, 1997
AGREEMENT AND DECLARATION OF TRUST made this 28th day of January, 1997 by
the undersigned trustees (together with all other persons from time to time duly
elected, qualified and serving as Trustees in accordance with the provisions of
Article II hereof, the "Trustees");
WHEREAS, the Trustees desire to establish a trust for the investment and
reinvestment of funds contributed thereto;
WHEREAS, the Trustees desire that the beneficial interest in the trust
assets be divided into transferable shares of beneficial interest, as
hereinafter provided;
WHEREAS, the Trustees declare that all money and property contributed to
the trust established hereunder shall be held and managed in trust for the
benefit of the holders, from time to time, of the shares of beneficial interest
issued hereunder and subject to the provisions hereof;
NOW, THEREFORE, in consideration of the foregoing premises and the
agreements contained herein, the undersigned, being all of the Trustees of the
Trust, hereby declare as follows:
ARTICLE I
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NAME AND DEFINITIONS
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Section 1. Name. The name of the Trust created by this Agreement and
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Declaration of Trust is "▇▇▇▇▇▇▇ Sachs Trust."
Section 2. Definitions. Unless otherwise provided or required by the
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context:
(a) "Administrator" means the party, other than the Trust, to the contract
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described in Article III, Section 3 hereof.
(b) "By-laws" means the By-laws of the Trust adopted by the Trustees, as
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amended from time to time, which By-laws are expressly herein incorporated by
reference as part of the "governing instrument" within the meaning of the
Delaware Act.; provided that in the event of a conflict between the provisions
of this Declaration and the By-laws, the provisions of this Declaration shall
control.
(c) "Class" means the class of Shares of a Series established pursuant to
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Article V.
(d) "Commission," "Interested Person" and "Principal Underwriter" have the
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meanings provided in the 1940 Act. Except as such term may be otherwise defined
by the Trustees in conjunction with the establishment of any Series of Shares,
the term "vote of a majority of the Shares outstanding and entitled to vote" or
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"Shares representing a majority of the votes entitled to be cast" shall have the
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same meaning as is assigned to the term "vote of a majority of the outstanding
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voting securities" in the 1940 Act (except as shall be necessary to give effect
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to voting on a net asset basis in accordance with Article VII, Section 1).
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(e) "Covered Person" means a person so defined in Article IV, Section 3.
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(f) "Custodian" means any Person other than the Trust who has custody of
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any Trust Property as required by Section 17(f) of the 1940 Act, but does not
include a system for the central handling of securities described in said
Section 17(f).
(g) "Declaration" shall mean this Agreement and Declaration of Trust, as
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amended or restated from time to time. Reference in this Declaration of Trust
to "Declaration," "hereof," "herein," and "hereunder" shall be deemed to refer
to this Declaration rather than exclusively to the article or section in which
such words appear.
(h) "Delaware Act" means Chapter 38 of Title 12 of the Delaware Code
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entitled "Treatment of Delaware Business Trusts," as amended from time to time.
(i) "Distributor" means the party, other than the Trust, to the contract
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described in Article III, Section 1 hereof.
(j) "His" shall include the feminine and neuter, as well as the masculine,
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genders.
(k) "Investment Adviser" means the party, other than the Trust, to the
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contract described in Article III, Section 2 hereof.
(l) "Net Asset Value" means the net asset value of each Series of the
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Trust, determined as provided in Article VI, Section 3.
(m) "Person" means and includes individuals, corporations, partnerships,
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trusts, associations, joint ventures, estates and other entities, and
governments and agencies and political subdivisions, thereof, whether domestic
or foreign.
(n) "Series" means a series of Shares established pursuant to Article V.
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(o) "Shareholder" means a record owner of Outstanding Shares.
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(p) "Shares" means the equal proportionate transferable units of interest
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into which the beneficial interest of each Series or Class is divided from time
to time (including whole Shares and fractions of Shares). "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.
(q) "Transfer Agent" means any Person other than the Trust who maintains
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the Shareholder records of the Trust, such as the list of Shareholders, the
number of Shares credited to each account, and the like.
(r) "Trust" means ▇▇▇▇▇▇▇ ▇▇▇▇▇ Trust established hereby, and reference to
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the Trust, when applicable to one or more Series, refers to that Series.
(s) "Trustees" means the persons who have signed this Declaration of Trust,
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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.
(t) "Trust Property" means any and all property, real or personal, tangible
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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.
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(u) The "1940 Act" means the Investment Company Act of 1940, as amended
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from time to time.
ARTICLE II
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THE TRUSTEES
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Section 1. Management of the Trust. The business and affairs of the Trust
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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. In construing the provisions of this Declaration, the presumption
shall be in favor of a grant of power to the Trustees.
Section 2. Powers. The Trustees in all instances shall act as principals,
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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 By-laws or
resolutions of the Trust, the Trustees shall have power and authority, without
limitation:
(a) To operate as and carry on the business of an investment company, and
exercise all the powers necessary and appropriate to the conduct of such
operations.
(b) To invest in, hold for investment, or reinvest in, cash, including
foreign currencies; securities, including common, preferred and preference
stocks; warrants; subscription rights; profit- sharing interests or
participation and all other contracts for or evidence of equity interests;
bonds, debentures, bills, time notes and all other evidences of indebtedness;
negotiable or non-negotiable instruments; government securities, including
securities of any state, municipality or other political subdivision thereof, or
any governmental or quasi-governmental agency or instrumentality; and money
market instruments including bank certificates of deposit, finance paper,
commercial paper, bankers' acceptances and all kinds of repurchase agreements,
of any corporation, company, trust, association, firm or other business
organization however established, and of any country, state, municipality or
other political subdivision, or any governmental or quasi-governmental agency or
instrumentality; or any other security, property or instrument in which the
Trust or any of its Series shall be authorized to invest.
(c) To acquire (by purchase, subscription or otherwise), to hold, to trade
in and deal in, to acquire any rights or options to purchase or sell, to sell or
otherwise dispose of, to lend and to pledge any such securities, to enter into
repurchase agreements, reverse repurchase agreements, firm commitment agreements
and forward foreign currency exchange contracts, to purchase and sell options on
securities, securities indices, currency and other financial assets, futures
contracts and options on futures contracts of all descriptions and to engage in
all other types of transactions in which the Trust or any of its Series shall
be authorized to engage.
(d) To exercise all rights, powers and privileges of ownership or interest
in all securities, repurchase agreements and other property and instruments
included in the Trust Property, including the right to vote thereon and
otherwise act with respect thereto and to do all acts for the preservation,
protection, improvement and enhancement in value of all such securities and
repurchase agreements.
(e) To acquire (by purchase, lease or otherwise) and to hold, use,
maintain, develop and dispose of (by sale or otherwise) any property, real or
personal, including cash or foreign currency, and any interest
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therein.
(f) To borrow money or other property in the name of the Trust or any of
its Series exclusively for Trust purposes 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; and to endorse, guarantee,
or undertake the performance of any obligation or engagement of any other Person
and to lend Trust Property.
(g) To aid by further investment any corporation, company, trust,
association or firm, any obligation of or interest in which is included in the
Trust Property or in the affairs of which the Trustees have any direct or
indirect interest; to do all acts and things designed to protect, preserve,
improve or enhance the value of such obligation or interest; and to guarantee or
become surety on any or all of the contracts, stocks, bonds, notes, debentures
and other obligations of any such corporation, company, trust, association or
firm.
(h) To adopt By-laws not inconsistent with this Declaration 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.
(i) To elect and remove such officers and appoint and terminate such agents
as they deem appropriate.
(j) To employ as custodian of any assets of the Trust, subject to any
provisions herein or in the By-laws, one or more banks, trust companies or
companies that are members of a national securities exchange, or other entities
permitted by the Commission to serve as such.
(k) To retain one or more transfer agents and shareholder servicing agents,
or both.
(l) To provide for the distribution of Shares either through a Principal
Underwriter as provided herein or by the Trust itself, or both, or pursuant to a
distribution plan of any kind and to adopt on behalf of any Series or Class
distribution, authorized dealer service, administration, service or other plans
providing for the compensation by such Series or Class for distribution,
administration, shareholder liaison or similar services.
(m) To set record dates in the manner provided for herein or in the By-
laws.
(n) To delegate such authority as they consider desirable to any officers
of the Trust and to any agent, independent contractor, manager, investment
adviser, custodian or underwriter.
(o) To hold any security or other 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.
(p) To establish separate and distinct Series with separately defined
investment objectives and policies and distinct investment purposes, and with
separate Shares representing beneficial interests in such Series, and to
establish separate Classes, all in accordance with the provisions of Article V.
(q) 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 V, Section 4.
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(r) To consent to or participate in any plan for the 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 in the Trust.
(s) 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.
(t) To make distributions of income, capital gains, returns of capital (if
any) and redemption proceeds to Shareholders in the manner hereinafter provided
for.
(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, redemption, cancellation,
retirement, acquisition, holding, resale, reissuance, disposition of or dealing
in Shares; and, subject to Articles V and VI, 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 invest part or all of the Trust Property (or part or all of the
assets of any Series), or to dispose of part or all of the Trust Property (or
part or all of the assets of any Series) and invest the proceeds of such
disposition, in securities issued by one or more other investment companies
registered under the 1940 Act (including investment by means of transfer of part
or all of the Trust Property in exchange for an interest or interests in such
one or more investment companies) all without any requirement of approval by
Shareholders. Any such other investment company may (but need not) be a trust
(formed under the laws of the State of New York or of any other state) which is
classified as a partnership for federal income tax purposes.
(x) To sell or exchange any or all of the assets of the Trust, subject to
Article IX, Section 4.
(y) To enter into joint ventures, partnerships and other combinations and
associations.
(z) To join with other security holders in acting through a committee,
depositary, voting trustee or otherwise, and in that connection to deposit any
security with, or transfer any security to, any such committee, depositary or
trustee, and to delegate to them such power and authority with relation to any
security (whether or not so deposited or transferred) as the Trustees shall deem
proper, and to agree to pay, and to pay, such portion of the expenses and
compensation of such Committee, depositary or trustee as the Trustees shall deem
proper;
(aa) To purchase and pay for entirely out of Trust Property such insurance
as the Trustees may deem necessary or appropriate for the conduct of the
business, including, without limitation, insurance policies insuring the assets
of the Trust or payment of distributions and principal on its portfolio
investments, and, subject to applicable law and any restrictions set forth in
the By-laws, insurance policies insuring the Shareholders, Trustees, officers,
employees, agents, investment advisers, Principal Underwriters, or independent
contractors of the Trust, individually, against all claims and liabilities of
every nature arising by reason of holding Shares, holding, being or having held
any such office or position, or by reason of any action alleged to have been
taken or omitted by any such Person as Trustee, officer, employee, agent,
investment adviser, Principal Underwriter, or independent contractor, including
any action taken or omitted that may be determined to constitute negligence,
whether or not the Trust would have the power to indemnify such Person against
liability;
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(bb) To adopt, establish and carry out pension, profit-sharing, share
bonus, share purchase, savings, thrift and other retirement, incentive and
benefit plans and trusts, 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;
(cc) To enter into contracts of any kind and description;
(dd) To interpret the investment policies, practices or limitations of any
Series or Class;
(ee) To guarantee indebtedness and contractual obligations of others;
(ff) To take any other action that may be taken by a Board of Directors of
a business corporation organized under the laws of the State of Delaware; and
(gg) 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
Declaration, the presumption shall be in favor of a grant of power to the
Trustees.
Section 3. Certain Transactions. Except as prohibited by applicable law,
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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.
Section 4. Initial Trustees; Election and Number of Trustees. The initial
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Trustees shall be the persons initially signing this Declaration. The number of
Trustees (other than the initial Trustees) shall be fixed from time to time by a
majority of the Trustees; provided, that there shall be at least one (1) Trustee
and no more than fifteen (15). The Trustee (other than the initial Trustees)
shall be appointed by the Trustees pursuant to Section 6 of this Article II,
provided that the Trustees shall be elected by the Shareholders as and to the
extent required under the 1940 Act on such dates as the Trustees may fix from
time to time.
Section 5. Term of Office of Trustees. Each Trustee shall hold office for
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life (or until the attainment of any mandatory retirement age or term limits
established by a majority of the Trustees) or until his successor is elected 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 may be removed
with or without cause at any time by a written instrument signed by at least a
majority of the then Trustees, specifying the effective date of removal; (c) any
Trustee who requests to be retired, or who is declared bankrupt or 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 other Trustees,
specifying the effective date of retirement; and (d) any Trustee may be removed
at any meeting of the Shareholders by a
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vote of at least two-thirds of the Outstanding Shares.
Section 6. Vacancies; Appointment of Trustees. Whenever a vacancy shall
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exist in the Board of Trustees, regardless of the reason for such vacancy, the
remaining Trustees shall appoint any person as they determine in their sole
discretion to fill that vacancy, consistent with the limitations under the 1940
Act. Such appointment shall be made by a written instrument signed by a
majority of the Trustees or by a resolution of the Trustees, duly 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 Trustees' power of appointment is
subject to Section 16(a) of the 1940 Act. Whenever a vacancy in the number of
Trustees shall occur, until such vacancy is filled as provided in this Article
II, the Trustees in office, regardless of their number, shall have all the
powers granted to the Trustees and shall discharge all the duties imposed upon
the Trustees by the Declaration.
Section 7. Temporary Vacancy or Absence. Whenever a vacancy in the Board
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of 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. Any Trustee may, by power of
attorney, delegate his powers as Trustee for a period not exceeding six (6)
months at any one time to any other Trustee or Trustees.
Section 8. Chairman. The Trustees shall appoint one of their number to be
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Chairman of the Board of Trustees. The Chairman shall preside at all meetings
of the Trustees, shall be responsible for the execution of policies established
by the Trustees and the administration of the Trust, and may be the chief
executive, financial and/or accounting officer of the Trust.
Section 9. Action by the Trustees. Except as provided below with respect
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to action taken by any Trustee or Trustees or committee pursuant to delegation
by a majority vote of the Trustees, the Trustees shall act by majority vote at a
meeting duly called at which a quorum is present, including a meeting held by
conference telephone, teleconference or other electronic media or communication
equipment by means of which all persons participating in the meeting can
communicate with each other; 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 President or by any one
of the Trustees. Notice of the time, date and place of all Trustees' meetings
shall be given to each Trustee as set forth in the By-laws; provided, however,
that no notice is required if the Trustees provide for regular or stated
meetings. 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 or after the meeting. Subject to applicable law, the Trustees by majority
vote may delegate to any Trustee or Trustees or committee (which may, in
addition to or in lieu of Trustees, include officers of the Trust) authority to
approve particular matters or take any particular actions on behalf of the Trust
including action for and binding upon the Trustees and the Trust with respect to
the institution, prosecution, dismissal, settlement, review or investigation of
any legal action, suit or proceeding pending or threatened. Approval of any
particular matter or the taking of any particular action on behalf of the Trust
pursuant to any such delegation shall be taken by a majority of the Trustees or
committee to whom the authority is delegated (unless a single Trustee is
delegated to act with respect thereto or unless the Trustees in delegating such
responsibility shall specify a different standard or a different standard is
otherwise required by applicable law). Any written consent or waiver may be
provided and delivered to the Trust by facsimile or other similar electronic
mechanism.
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Section 10. Ownership of Trust Property. The Trust Property of the Trust
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and of each Series 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 and beneficial ownership of all of
the assets of the Trust shall at all times be considered as vested in the Trust,
except that the Trustees may cause legal title in and beneficial ownership of
any Trust Property to be held by, or in the name of one or more of the Trustees
acting for and on behalf of the Trust, or in the name of any person as nominee
acting for and on behalf of the Trust. No Shareholder shall be deemed to have a
severable ownership 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 V, a proportionate undivided beneficial interest in the
Trust or Series or Class thereof represented by Shares. The Shares shall be
personal property giving only the rights specifically set forth in this Trust
Instrument. The Trust, or at the determination of the Trustees one or more of
the Trustees or a nominee acting for and on behalf of the Trust, shall be deemed
to hold legal title and beneficial ownership of any income earned on securities
of the Trust issued by any business entities formed, organized, or existing
under the laws of any jurisdiction, including the laws of any foreign country.
Upon the resignation or removal of a Trustee, or his otherwise ceasing to be a
Trustee (other than as a result of his death or incapacity), he shall execute
and deliver such documents as the remaining Trustees shall require for the
purpose of conveying to the Trust or the remaining Trustees any Trust Property
held in the name of the resigning or removed Trustee. Upon the incapacity or
death of any Trustee, his legal representative shall execute and deliver on his
behalf such documents as the remaining Trustees shall require as provided in the
preceding sentence.
Section 11. Effect of Trustees Not Serving. The death, resignation,
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retirement, removal, incapacity or inability or refusal to serve of the
Trustees, or any one or more or all of them, shall not operate to annul the
Trust or to revoke any existing agency created pursuant to the terms of this
Declaration.
Section 12. Trustees, etc. as Shareholders. Subject to any restrictions
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in the By-laws, 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; 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.
Section 13. Series of Trustees. In connection with the establishment of
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one or more Series or Classes, the Trustees establishing such Series or Class
may appoint, to the extent permitted by the Delaware Act, separate Trustees with
respect to such Series or Classes (the "Series Trustees"). Series Trustees may,
but are not required to, serve as Trustees of the Trust or any other Series or
Class of the Trust. To the extent provided by the Trustees in the appointment
of Series Trustees, the Series Trustees may have, to the exclusion of any other
Trustee of the Trust, all the powers and authorities of Trustees hereunder with
respect to such Series or Class, but may have no power or authority with respect
to any other Series or Class. Any provision of this Declaration relating to
election of Trustees by Shareholders only shall entitle the Shareholders of a
Series or Class for which Series Trustees have been appointed to vote with
respect to the election of such Series Trustees and the Shareholders of any
other Series or Class shall not be entitled to participate in such vote. In the
event that Series Trustees are appointed, the Trustees initially appointing such
Series Trustees shall, without the approval of any Outstanding Shares, amend
either the Declaration or the By-laws to provide for the respective
responsibilities of the Trustees and the Series Trustees in circumstances where
an action of the Trustees or Series Trustees affects all Series of the Trust or
two or more Series represented by different Trustees.
ARTICLE III
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CONTRACTS WITH SERVICE PROVIDERS
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Section 1. Underwriting Contract. The Trustees may in their discretion
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from time to time enter
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into an exclusive or non-exclusive distribution contract or contracts providing
for the sale of the Shares whereby the Trustees may either agree to sell the
Shares to the other party to the contract or appoint such other party as their
sales agent for the Shares, and in either case on such terms and conditions, if
any, as may be prescribed in the By-laws, and such further terms and conditions
as the Trustees may in their discretion determine not inconsistent with the
provisions of this Article III or of the By-laws; and such contract may also
provide for the repurchase of the Shares by such other party as agent of the
Trustees.
Section 2. Advisory or Management Contract. The Trustees may in their
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discretion from time to time enter into one or more investment advisory or
management contracts or, if the Trustees establish multiple Series, separate
investment advisory or management contracts with respect to one or more Series
whereby the other party or parties to any such contracts shall undertake to
furnish the Trust or such Series management, investment advisory,
administration, accounting, legal, statistical and research facilities and
services, promotional or marketing activities, and such other facilities and
services, if any, as the Trustees shall from time to time consider desirable and
all upon such terms and conditions as the Trustees may in their discretion
determine. Notwithstanding any provisions of the Declaration, the Trustees may
authorize the Investment Advisers or persons to whom the Investment Adviser
delegates certain or all of their duties, or any of them, under any such
contracts (subject to such general or specific instructions as the Trustees may
from time to time adopt) to effect purchases, sales, loans or exchanges of
portfolio securities and other investments of the Trust 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 such
Investment Advisers, or any of them (and all without further action by the
Trustees). Any such purchases, sales, loans and exchanges shall be deemed to
have been authorized by all of the Trustees.
Section 3. Administration Agreement. The Trustees may in their discretion
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from time to time enter into an administration agreement or, if the Trustees
establish multiple Series or Classes, separate administration agreements with
respect to each Series or Class, whereby the other party to such agreement shall
undertake to manage the business affairs of the Trust or of a Series or Class
thereof of the Trust and furnish the Trust or a Series or a Class thereof with
office facilities, and shall be responsible for the ordinary clerical,
bookkeeping and recordkeeping services at such office facilities, and other
facilities and services, if any, and all upon such terms and conditions as the
Trustees may in their discretion determine.
Section 4. Service Agreements. The Trustees may in their discretion from
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time to time enter into service agreements with respect to one or more Series or
Classes of Shares whereby the other parties to such service agreements will
provide or arrange for the provision of distribution, administration and/or
support services pursuant to distribution, authorized dealer service,
administration, service or similar plans, and all upon such terms and conditions
as the Trustees in their discretion may determine.
Section 5. Transfer Agent. The Trustees may in their discretion from time
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to time enter into a transfer agency and shareholder service contract whereby
the other party to such contract shall undertake to furnish transfer agency and
shareholder services to the Trust. The contract shall have such terms and
conditions as the Trustees may in their discretion determine not inconsistent
with the Declaration. Such services may be provided by one or more Persons.
Section 6. Custodian. The Trustees may appoint or otherwise engage one or
---------
more banks or trust companies, or any other entity satisfying the requirements
of the 1940 Act, to serve as Custodian with authority as its agent, but subject
to such restrictions, limitations and other requirements, if any, as may be
contained in the By-laws of the Trust. The Trustees may also authorize the
Custodian to employ one or more sub-custodians, including such foreign banks and
securities depositories as meet the requirements of applicable provisions of the
1940 Act, and upon such terms and conditions as may be agreed upon between the
Custodian and such sub-custodian, to hold securities and other assets of the
Trust and to perform the acts and services of the Custodian, subject to
applicable provisions of law and resolutions adopted by the Trustees.
Section 7. Affiliations of Trustees or Officers, Etc. The fact that:
-----------------------------------------
9
(i) any of the Shareholders, Trustees or officers of the Trust or any
Series thereof is a shareholder, director, officer, partner, trustee,
employee, manager, adviser or distributor of or for any partnership,
corporation, trust, association or other organization or of or for any
parent or affiliate of any organization, with which a contract of the
character described in this Article III, for services as Custodian,
Transfer Agent, disbursing agent or for any other services approved by the
Trustees with respect to any Series or Class may have been or may hereafter
be made, or that any such organization, or any parent or affiliate thereof,
is a Shareholder of or has an interest in the Trust, or that
(ii) any partnership, corporation, trust, association or other
organization with which a contract of the character described in Sections
1, 2, 3 or 4 of this Article III or for services as Custodian, Transfer
Agent or disbursing agent or for any other services approved by the
Trustees with respect to any Series or Class may have been or may hereafter
be made also has any one or more of such contracts with one or more other
partnerships, corporations, trusts, associations or other organizations, 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.
ARTICLE IV
----------
COMPENSATION, LIMITATION OF LIABILITY AND INDEMNIFICATION
---------------------------------------------------------
Section 1. Compensation. The Trustees as such shall be entitled to
------------
reasonable compensation from the Trust, and they may fix the amount of such
compensation. Nothing herein shall in any way prevent the employment of any
Trustee for advisory, management, legal, accounting, investment banking or other
services and payment for the same by the Trust.
Section 2. 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 all Series or such particular Series for payment under such contract
or claim; and neither the Trustees nor, when acting in such capacity, 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 may 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 and officers 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, investment adviser or independent
contractor of the Trust, but nothing contained in this Declaration or in the
Delaware Act shall protect any Trustee or officer 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 3. Indemnification. (a) Subject to the exceptions and limitations
---------------
contained in subsection (b) below:
(i) every person who is, or has been, a Trustee or an officer, employee or
agent of the Trust or any Series (including any individual who serves at
its request as director, officer, partner, trustee or the like of another
organization in which it has any interest as a shareholder, creditor or
otherwise) ("Covered Person") shall be indemnified by the Trust or the
appropriate Series to the fullest extent permitted by law against liability
and against all expenses reasonably incurred or paid by him in connection
with any claim, action, suit or proceeding in which he becomes involved as
a party or
10
otherwise by virtue of his being or having been a Covered Person and
against amounts paid or incurred by him in the settlement thereof; and
(ii) as used herein, the words "claim," "action," "suit," or "proceeding"
shall apply to all claims, actions, suits or proceedings (civil, criminal
or other, including appeals), actual or threatened, and the words
"liability" and "expenses" shall include, without limitation, reasonable
attorneys' fees, costs, judgments, amounts paid in settlement, fines,
penalties and other liabilities.
(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
the best interest of the Trust; or
(ii) in the event of a settlement, 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; (B) by at least a majority of those Trustees who are neither
Interested Persons of the Trust nor are parties to the matter based upon a
review of readily available facts (as opposed to a full trial-type
inquiry); (C) by written opinion of independent legal counsel based upon a
review of readily available facts (as opposed to a full trial-type inquiry)
or (D) by a vote of a majority of the Outstanding Shares entitled to vote
(excluding any Outstanding Shares owned of record or beneficially by such
individual).
(c) The rights of indemnification herein provided may be insured against by
policies maintained by the Trust, 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.
(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 him to the Trust or
applicable Series if it is ultimately determined that he 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 matter, or independent legal counsel 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) Any repeal or modification of this Article IV by the Shareholders, or
adoption or modification of any other provision of the Declaration or By-laws
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
his being or having been a Shareholder 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 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
11
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 claim
made against such Shareholder for any act or obligation of the Series and
satisfy any judgment thereon from the assets of the Series.
Section 4. No Bond Required of Trustees. No Trustee shall be obligated to
----------------------------
give any bond or other security for the performance of any of his duties
hereunder.
Section 5. No Duty of Investigation; Notice in Trust Instruments, Etc. No
----------------------------------------------------------
purchaser, lender, transfer agent or other Person dealing with the Trustees or
any officer, employee or agent of the Trust or a Series thereof shall be bound
to make any inquiry concerning the validity of any transaction purporting to be
made by the Trustees or by said officer, employee or agent or be liable for the
application of money or property paid, loaned, or delivered to or on the order
of the Trustees or of said officer, employee or agent. Every obligation,
contract, instrument, certificate, Share, other security of the Trust or a
Series thereof or undertaking, and every other act or thing whatsoever executed
in connection with the Trust shall be conclusively presumed to have been
executed or done by the executors thereof only in their capacity as Trustees
under this Declaration or in their capacity as officers, employees or agents of
the Trust or a Series thereof. Every written obligation, contract, instrument,
certificate, Share, other security of the Trust or a Series thereof or
undertaking made or issued by the Trustees may recite that the same is executed
or made by them not individually, but as Trustees under the Declaration, and
that the obligations of the Trust or a Series thereof under any such instrument
are not binding upon any of the Trustees or Shareholders individually, but bind
only the Trust Property or the Trust Property of the applicable Series, and may
contain any further recital which they may deem appropriate, but the omission of
such recital shall not operate to bind the Trustees individually. The Trustees
may maintain insurance for the protection of the Trust Property or the Trust
Property of the applicable Series, its Shareholders, Trustees, officers,
employees and agents in such amount as the Trustees shall deem adequate to cover
possible tort liability, and such other insurance as the Trustees in their sole
judgment shall deem advisable and as required by the 1940 Act.
Section 6. Reliance on Experts, Etc. Each Trustee, officer or employee of
------------------------
the Trust or a Series thereof shall, in the performance of his duties, powers
and discretion hereunder be fully and completely justified and protected with
regard to any act or any failure to act resulting from reliance in good faith
upon the books of account or other records of the Trust or a Series thereof,
upon an opinion of counsel, or upon reports made to the Trust or a Series
thereof by any of its officers or employees or by the Investment Adviser, the
Administrator, the Distributor, Transfer Agent, selected dealers, accountants,
appraisers or other experts or consultants selected with reasonable care by the
Trustees, officers or employees of the Trust, regardless of whether such counsel
or expert may also be a Trustee.
ARTICLE V
---------
SERIES; CLASSES; SHARES
-----------------------
Section 1. Establishment of Series or Class. The Trust shall consist of
--------------------------------
one or more Series. Without limiting the authority of the Trustees to establish
and designate any further Series, the Trustees hereby establish the following 35
Series: ▇▇▇▇▇▇▇ ▇▇▇▇▇ Adjustable Rate Government Fund, ▇▇▇▇▇▇▇ Sachs Short
Duration Government Fund, ▇▇▇▇▇▇▇ ▇▇▇▇▇ Short Duration Tax-Free Fund, ▇▇▇▇▇▇▇
Sachs Core Fixed Income Fund, ▇▇▇▇▇▇▇ ▇▇▇▇▇ Global Income Fund, ▇▇▇▇▇▇▇ Sachs
Government Income Fund, ▇▇▇▇▇▇▇ ▇▇▇▇▇ Municipal Income Fund, ▇▇▇▇▇▇▇ Sachs High
Yield Fund, ▇▇▇▇▇▇▇ ▇▇▇▇▇ Balanced Fund, ▇▇▇▇▇▇▇ Sachs Core U.S. Equity Fund,
▇▇▇▇▇▇▇ ▇▇▇▇▇ Growth and Income Fund, ▇▇▇▇▇▇▇ Sachs Capital Growth Fund, ▇▇▇▇▇▇▇
▇▇▇▇▇ Mid-Cap Equity Fund, ▇▇▇▇▇▇▇ Sachs Small Cap Equity Fund, ▇▇▇▇▇▇▇ ▇▇▇▇▇
International Equity Fund, ▇▇▇▇▇▇▇ Sachs Asia Growth Fund, ▇▇▇▇▇▇▇ ▇▇▇▇▇
Emerging Market Equity Fund, Institutuional Liquid Assets- - Prime Obligations
Portfolio, Institutional Liquid Assets-Government Portfolio, Institutional
Liquid Assets-Treasury Obligations Portfolio, Institutional Liquid Assets-Money
Market Portfolio, Institutional Liquid Assets- Federal Portfolio, Institutional
Liquid Assets-Treasury
12
Instruments Portfolio, Institutional Liquid Assets-Tax-Exempt Diversified
Portfolio, Institutional Liquid Assets-Tax-Exempt New York Portfolio,
Institutional Liquid Assets-Tax-Exempt California Portfolio, Financial Square
Prime Obligations Fund, Financial Square Government Fund, Financial Square
Treasury Obligations Fund, Financial Square Money Market Fund, Financial Square
Money Market Plus Fund, Financial Square Municipal Money Market Fund, Financial
Square Tax-Free Fund, Financial Square Federal Fund, and Financial Square
Treasury Instruments Fund (the "Existing Series"). Each additional Series shall
be established and is effective upon the adoption of a resolution of a majority
of the Trustees or any alternative date specified in such resolution. The
Trustees may designate the relative rights and preferences of the Shares of each
Series. The Trustees may divide the Shares of any Series into Classes. Without
limiting the authority of the Trustees to establish and designate any further
Classes, the Trustees hereby establish the following classes of shares with
respect to the series set forth below:
Class A Shares:
▇▇▇▇▇▇▇ Sachs Adjustable Rate Government Fund, ▇▇▇▇▇▇▇ ▇▇▇▇▇
Global Income Fund, ▇▇▇▇▇▇▇ Sachs Government Income Fund, ▇▇▇▇▇▇▇
Sachs Municipal Income Fund, ▇▇▇▇▇▇▇ ▇▇▇▇▇ High Yield Fund, ▇▇▇▇▇▇▇
Sachs Balanced Fund, ▇▇▇▇▇▇▇ ▇▇▇▇▇ Core U.S. Equity Fund, ▇▇▇▇▇▇▇
Sachs Growth and Income Fund, ▇▇▇▇▇▇▇ ▇▇▇▇▇ Capital Growth Fund,
▇▇▇▇▇▇▇ Sachs Small Cap Equity Fund, ▇▇▇▇▇▇▇ ▇▇▇▇▇ International
Equity Fund, ▇▇▇▇▇▇▇ Sachs Emerging Market Equity Fund ▇▇▇▇▇▇▇ ▇▇▇▇▇
Asia Growth Fund.
Class B Shares
▇▇▇▇▇▇▇ Sachs Global Income Fund, ▇▇▇▇▇▇▇ ▇▇▇▇▇ Government
Income Fund, ▇▇▇▇▇▇▇ Sachs Municipal Income Fund, ▇▇▇▇▇▇▇ ▇▇▇▇▇
High Yield Fund, ▇▇▇▇▇▇▇ Sachs Balanced Fund, ▇▇▇▇▇▇▇ ▇▇▇▇▇ Core
U.S. Equity Fund, ▇▇▇▇▇▇▇ Sachs Growth and Income Fund, ▇▇▇▇▇▇▇
Sachs Capital Growth Fund, ▇▇▇▇▇▇▇ ▇▇▇▇▇ Small Cap Equity Fund,
▇▇▇▇▇▇▇ Sachs International Equity Fund, ▇▇▇▇▇▇▇ ▇▇▇▇▇ Emerging
Market Equity Fund, ▇▇▇▇▇▇▇ Sachs Asia Growth Fund and
Institutional Liquid Assets Prime Obligations Portfolio.
Institutional Shares:
▇▇▇▇▇▇▇ ▇▇▇▇▇ Adjustable Rate Government Fund, ▇▇▇▇▇▇▇
Sachs Short Duration Government Fund, ▇▇▇▇▇▇▇ ▇▇▇▇▇ Short
Duration Tax-Free Fund, ▇▇▇▇▇▇▇ Sachs Core Fixed Income Fund,
▇▇▇▇▇▇▇ ▇▇▇▇▇ Global Income Fund, ▇▇▇▇▇▇▇ Sachs High Yield Fund ,
▇▇▇▇▇▇▇ ▇▇▇▇▇ Core U.S. Equity Fund, ▇▇▇▇▇▇▇ Sachs Growth and
Income Fund, ▇▇▇▇▇▇▇ ▇▇▇▇▇ Mid-Cap Equity Fund, ▇▇▇▇▇▇▇ Sachs
International Equity Fund, ▇▇▇▇▇▇▇ ▇▇▇▇▇ Emerging Market Equity,
▇▇▇▇▇▇▇ Sachs Asia Growth Fund, Financial Square Prime
Obligations Fund, Financial Square Government Fund, Financial
Square Treasury Obligations Fund, Financial Square Money Market
Fund, Financial Square Money Market Plus Fund, Financial Square
Municipal Money Market Fund, Financial Square Tax-Free Fund,
Financial Square Federal Fund, Financial Square Treasury
Instruments Fund, Institutional Liquid Assets-Prime Obligations
Portfolio, Institutional Liquid Assets-Government Portfolio,
Institutional Liquid Assets-Treasury Obligations Portfolio,
Institutional Liquid Assets-Money Market Portfolio, Institutional
Liquid Assets-Federal Portfolio, Institutional Liquid Assets-
Treasury Instruments Portfolio, Institutional Liquid Assets-Tax-
Exempt Diversified Portfolio, Institutional Liquid Assets-Tax-
Exempt New York Portfolio and Institutional Liquid Assets-Tax-
Exempt California Portfolio.
Service Shares:
▇▇▇▇▇▇▇ ▇▇▇▇▇ Adjustable Rate Government Fund, ▇▇▇▇▇▇▇ Sachs
Short Duration Government Fund, ▇▇▇▇▇▇▇ ▇▇▇▇▇ Short Duration Tax-
Free Fund, ▇▇▇▇▇▇▇ Sachs Core Fixed Income Fun, ▇▇▇▇▇▇▇ ▇▇▇▇▇
Global Income Fund, ▇▇▇▇▇▇▇ Sachs High Yield Fund, ▇▇▇▇▇▇▇ ▇▇▇▇▇
Core U.S. Equity Fund, ▇▇▇▇▇▇▇ Sachs Growth and Income Fund,
▇▇▇▇▇▇▇ ▇▇▇▇▇ Mid-Cap Equity Fund, ▇▇▇▇▇▇▇ Sachs International
Equity Fund, ▇▇▇▇▇▇▇ ▇▇▇▇▇ Emerging Market Equity Fund, ▇▇▇▇▇▇▇
Sachs Asia Growth Fund, Financial Square Prime Obligations Fund,
Financial Square
13
Government Fund, Financial Square Treasury Obligations Fund,
Financial Square Money Market Fund, Financial Square Money Market
Plus Fund, Financial Square Municipal Money Market Fund,
Financial Square Tax-Free Fund, Financial Square Federal Fund,
Financial Square Treasury Instruments Fund, Institutional Liquid
Assets-Prime Obligations Portfolio, Institutional Liquid Assets-
Government Portfolio, Institutional Liquid Assets-Treasury
Obligations Portfolio, Institutional Liquid Assets-Money Market
Portfolio, Institutional Liquid Assets-Federal Portfolio,
Institutional Liquid Assets-Treasury Instruments Portfolio,
Institutional Liquid Assets-Tax-Exempt Diversified Portfolio,
Institutional Liquid Assets-Tax- Exempt New York Portfolio and
Institutional Liquid Assets-Tax-Exempt California Portfolio.
Administration Shares:
▇▇▇▇▇▇▇ ▇▇▇▇▇ Adjustable Rate Government Fund, ▇▇▇▇▇▇▇
Sachs Short Duration Government Fund, ▇▇▇▇▇▇▇ ▇▇▇▇▇ Short
Duration Tax-Free Fund, ▇▇▇▇▇▇▇ Sachs Core Fixed Income Fund,
Financial Square Prime Obligations Fund, Financial Square
Government Fund, Financial Square Treasury Obligations Fund,
Financial Square Money Market Fund, Financial Square Money Market
Plus Fund, Financial Square Municipal Money Market Fund,
Financial Square Tax-Free Fund, Financial Square Federal Fund,
Financial Square Treasury Instruments Fund, Institutional Liquid
Assets-Prime Obligations Portfolio, Institutional Liquid Assets-
Government Portfolio, Institutional Liquid Assets-Treasury
Obligations Portfolio, Institutional Liquid Assets-Money Market
Portfolio, Institutional Liquid Assets-Federal Portfolio,
Institutional Liquid Assets-Treasury Instruments Portfolio,
Institutional Liquid Assets-Tax-Exempt Diversified Portfolio,
Institutional Liquid Assets-Tax- Exempt New York Portfolio and
Institutional Liquid Assets-Tax-Exempt California Portfolio.
Preferred
Administration Shares:
Financial Square Prime Obligations Fund, Financial
Square Government Fund, Financial Square Treasury Obligations
Fund, Financial Square Money Market Fund, Financial Square Money
Market Plus Fund, Financial Square Municipal Money Market Fund,
Financial Square Tax-Free Fund, Financial Square Federal Fund,
Financial Square Treasury Instruments Fund.
(the "Existing Classes"). The Shares of the Existing Series and each Class
thereof herein established and designated and any Shares of any further Series
and Classes that may from time to time be established and designated by the
Trustees shall be established and designated, and the variations in the relative
rights and preferences as between the different Series shall be fixed and
determined, by the Trustees; provided, that all Shares shall be identical except
for such variations as shall be fixed and determined between different Series or
Classes by the Trustees in establishing and designating such Class or Series. In
connection therewith with respect to the Existing Classes, the purchase price,
the method of determining the net asset value and allocating expenses, and the
relative dividend and voting rights of holders shall be as set forth in the
Trust's Registration Statement on Form N-1A under the Securities Act of 1933
and/or the 1940 Act, as amended from time to time.
All references to Shares in this Declaration shall be deemed to be Shares
of any or all Series or Classes as the context may require. 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 or any Class thereof 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
a Class thereof 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
14
property of such Series. The Trustees may adopt and change the name of any
Series or Class.
Section 2. Shares. The beneficial interest in the Trust shall be divided
------
into transferable 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 no par value per Share or such other amount
as the Trustees may establish. 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. 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 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; to divide or combine the Shares of any Series or Classes into a
greater or lesser number; to classify or reclassify any unissued 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. Subject to applicable law, the
-----------------------
Trustees shall accept investments in any Series or Class from such persons and
on such terms as they may from time to time authorize. Without limiting the
generality of the foregoing, at the Trustees' discretion, such investments may
be in the form of cash or securities in which that Series is authorized to
invest, valued as provided in Article VI, Section 3. The value of an investment
in a Class or a Series shall be credited to each Shareholder's account in the
form of full Shares at the Net Asset Value per Share next determined after the
investment is received 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, (b) issue fractional
Shares, (c) determine the Net Asset Value per Share of the initial capital
contribution or (d) authorize the issuance of Shares at a price other than Net
Asset Value to the extent permitted by the 1940 Act or any rule, order or
interpretation of the Commission thereunder. The Trustees shall have the right
to refuse to accept investments in any Series at any time without any cause or
reason therefor whatsoever.
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 assets of every other
Series and are referred to as "assets belonging to" that Series. The assets
belonging to a Series shall belong only to that Series for all purposes, and to
no other Series, subject only to the rights of creditors of that 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 Series, and shall be held by
the Trustees in trust for the benefit of the Shareholders of that Series. The
assets belonging to a Series or Class 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 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.
15
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, including the assets 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, 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.
Section 5. Ownership and Transfer of Shares. The Trust or a transfer or
--------------------------------
similar agent for the Trust shall maintain a register containing the names and
addresses of the Shareholders of each Series and Class thereof, the 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. Except as
otherwise provided by the Trustees, Shares shall be transferable on the books of
the Trust only by the record holder thereof or by his duly authorized agent upon
delivery to the Trustees or the Trust's transfer agent of a duly executed
instrument of transfer, together with a Share certificate if one is outstanding,
and such evidence or the genuineness of each such execution and authorization
and of such other matters as may be required by the Trustees. Upon such
delivery, and subject to any further requirements specified by the Trustees or
contained in the By-laws, the transfer shall be recorded on the books of the
Trust. Until a transfer is so recorded, the Shareholder of record of Shares
shall be deemed to be the holder of such Shares for all purposes hereunder and
neither the Trustees nor the Trust, nor any transfer agent or registrar or any
officer, employee or agent of the Trust, shall be affected by any notice of a
proposed transfer.
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 Declaration. 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 Declaration and to have become a party hereto. 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, incapacity, dissolution, termination or bankruptcy of a
Shareholder during the existence of the Trust shall not operate to terminate the
Trust, nor entitle the representative of any such 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 such Shareholder under
this Trust. Ownership of Shares shall not entitle the Shareholder to any title
in or to the whole or any part of the Trust Property or right to call for a
partition or division of the same or for an accounting, nor shall the ownership
of Shares constitute the Shareholders as partners. 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
may contain a statement to the effect that such obligation may only be enforced
against the assets of the appropriate Series or all Series; however, the
omission of such statement shall not operate to bind or create personal
liability for any Shareholder or Trustee.
ARTICLE VI
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16
DISTRIBUTIONS AND REDEMPTIONS
-----------------------------
Section 1. Distributions. The Trustees or a committee of one or more
-------------
Trustees and/or one or more officers may declare and pay dividends and other
distributions, including dividends on Shares of a particular Series and other
distributions from the assets belonging to that Series. No dividend or
distribution, including, without limitation, any distribution paid upon
termination of the Trust or of any Series (or Class) with respect to, nor any
redemption or repurchase of, the Shares of any Series (or Class) shall be
effected by the Trust other than from the assets held with respect to such
Series, nor shall any Shareholder of any particular Series otherwise have any
right or claim against the assets held with respect to any other Series except
to the extent that such Shareholder has such a right or claim hereunder as a
Shareholder of such other Series. The Trustees shall have full discretion to
determine which items shall be treated as income and which items as capital; and
each such determination and allocation shall be conclusive and binding upon the
Shareholders. 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 at such time as the Trustees shall have prescribed
by resolution, or, to the extent permitted by the 1940 Act, at such other
redemption price and at such times as the Trustees shall prescribe by
resolution. 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 the Trust's Registration Statement for that Series, as
from time to time in effect, under the Securities Act of 1933. The Trustees may
specify conditions, prices, and places of redemption, may specify binding
requirements for the proper form or forms of requests for redemption and may
specify the amount of any deferred sales charge to be withheld from redemption
proceeds. 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. Upon 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, but not
limited to, the failure of a Shareholder to supply a taxpayer identification
number if required to do so, or to have the minimum investment required (which
may vary by Series), 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 or any governmental
authority. 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 regular trading 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
17
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, any
Shareholder having tendered a redemption request 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. Repurchase by Agreement. In addition to the redemption of
-----------------------
Shares otherwise provided in this Article VII, the Trust may repurchase Shares
directly, or through the Distributor or another agent designated for the
purpose, by agreement with the owner thereof at a price not exceeding the Net
Asset Value per Share determined as of the time when the purchase or contract of
purchase is made or the Net Asset Value as of any time which may be later
determined, provided payment is not made for the Shares prior to the time as of
which such Net Asset Value is determined.
ARTICLE VII
-----------
SHAREHOLDERS' VOTING POWERS AND MEETINGS
----------------------------------------
Section 1. Voting Powers. The Shareholders shall have power to vote only
-------------
with respect to (a) the election of Trustees to the extent and as provided in
Section 2 of this Article; (b) the removal of Trustees as provided in Article
II, Section 5(d); (c) any matter required to be approved by Shareholders of the
Trust or any Series or Class thereof under the 1940 Act; (d) any termination of
the Trust to the extent and as provided in Article IX, Section 4; (e) the
amendment of this Declaration to the extent and as provided in Article IX,
Section 8; and (f) such additional matters relating to the Trust as may be
required or authorized by law, this Declaration, or the By-laws 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 in the aggregate not by individual Series or Class, except (a) when
required by the 1940 Act, Shares shall be voted by individual Series or Class,
and (b) when the Trustees have determined that the matter affects the interests
of only one or more Series or Class, then only the Shareholders of all such
Series or Classes shall be entitled to vote thereon. As determined by the
Trustees without the vote or consent of Shareholders, 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 of Trustees. Shares may be voted in person or
by proxy or in any manner provided for in the By-laws. The By-laws 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 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 Declaration or
the By-laws. Meetings of Shareholders shall be called and notice thereof and
record dates therefor shall be given and set as provided in the By-laws.
Section 2. Quorum; Required Vote. Except when a larger vote is required
---------------------
by law, this Declaration
18
or the By-laws, holders of Shares of the Trust, Series or Class, as applicable,
representing one-third of the votes entitled to be cast at the meeting in person
or by proxy shall be a quorum for the transaction of business at a Shareholders'
meeting. Any lesser number shall be sufficient for adjournments. Any adjourned
session of a Shareholders' meeting may be held within a reasonable time without
further notice. Except when a larger vote is required by law, this Declaration
or the By-laws, holders of Shares representing a majority of votes present and
entitled to be cast at a Shareholders' meeting in person or by proxy shall
decide any matters to be voted upon with respect to the entire Trust except that
a plurality of such votes shall elect a Trustee; provided, that if this
Declaration or applicable law permits or requires that Shares be voted on any
matter by individual Series or Classes, then holders, except when a larger vote
is required by law, this Declaration or the By-laws, of Shares of that Series or
Class representing a majority of the votes present or entitled to be cast voting
at a Shareholders' meeting in person or by proxy on the matter shall decide that
matter insofar as that Series or Class is concerned, except that a plurality of
such votes shall elect a Series Trustee. With respect to any matter presented
by the Trustees to the Shareholders for approval, the shareholders may act as to
the Trust or any Series or Class by the written consent of holders of Shares of
the Trust, Series or Class, as the case may be, representing a majority (or such
other amount as may be required by applicable law) of the votes entitled to be
cast on the matters subject to such consent.
Section 3. Record Dates. For the purpose of determining the Shareholders
------------
of any Series (or Class) who are entitled to receive payment of any dividend or
of any other distribution, the Trustees may from time to time fix a date, which
shall be before the date for the payment of such dividend or such other payment,
as the record date for determining the Shareholders of such Series (or Class)
having the right to receive such dividend or distribution. Without fixing a
record date, the Trustees may for distribution purposes close the register or
transfer books for one or more Series (or Classes) any time prior to the payment
of a distribution. Nothing in this Section shall be construed as precluding the
Trustees from setting different record dates for different Series (or Classes).
Section 4. Additional Provisions. The By-laws may include further
---------------------
provisions for Shareholders' votes and meetings and related matters.
ARTICLE VIII
------------
EXPENSES OF THE TRUST AND SERIES
--------------------------------
Section 1. Payment of Expenses by the Trust. Subject to Article IV,
--------------------------------
Section 4, and Article IV, Section 3, the Trust or a particular Series shall
pay, or shall reimburse the Trustees from the assets belonging to all Series or
the particular Series, for their expenses (or the expenses of a Class of such
Series) and disburse ments, including, but not limited to, interest charges,
taxes, brokerage fees and commissions; expenses of issue, repurchase and
redemption of Shares; 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 (including, if
approved by the Trustees, an allocated portion of the legal, accounting and
compliance expenses incurred by the Investment Adviser, Administrator or other
service provider to the Trust); 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 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
19
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.
Section 2. Payment of Expenses by Shareholders. The Trustees shall have
-----------------------------------
the power, as frequently as they may determine, to cause each Shareholder, or
each Shareholder of any particular Series of Class, to pay directly, in advance
or arrears, for charges of the Trust's custodian or transfer, shareholder
servicing or similar agent, an amount fixed from time to time by the Trustees,
by setting off such charges due from such Shareholder from declared but unpaid
dividends owed such Shareholder and/or by reducing the number of Shares in the
account of such Shareholder by that number of full and/or fractional Shares
which represents the outstanding amount of such charges due from such
Shareholder.
ARTICLE IX
----------
MISCELLANEOUS
-------------
Section 1. Trust Not a Partnership. This Declaration 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. 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 IV, the Trustees shall not be liable for
errors of judgment or mistakes of fact or law.
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.
Section 4. Termination of the Trust. (a) This Trust shall have perpetual
------------------------
existence. Upon the vote of a majority of the Shares Outstanding and entitled
to vote of the Trust or of each Series to be affected, the Trustees may
(i) sell and convey all or substantially all of the assets of all Series or
any affected Series to another Series or to another entity which is an
open-end investment company as defined in the 1940 Act, or is a series
thereof, for adequate consideration, which may include the assumption of
all outstanding obligations, taxes and other liabilities, accrued or
contingent, of the Trust or any affected Series, and which may include
shares of or interests in such Series, entity, or series thereof; or
(ii) at any time sell and convert into money all or substantially all of
the assets of all Series or any affected Series.
Upon paying or making reasonable provision for the payment of all known
liabilities of all Series or any affected Series in either (i) or (ii), by such
assumption or otherwise, the Trustees shall distribute the remaining proceeds or
assets (as the case may be) ratably among the Shareholders of all Series or any
affected Series; however, the payment to any particular Class of such Series may
be reduced by any fees, expenses or charges allocated to that Class.
(b) The Trustees may take any of the actions specified in subsection (a)
(i) and (ii) above without
20
obtaining the vote of a majority of the Shares Outstanding and entitled to vote
of the Trust or any Series if a majority of the Trustees determines, in their
sole discretion, that the continuation of the Trust or Series is not in the best
interests of the Trust, such Series, or their respective Shareholders. In
reaching such determination, the Trustees may consider such factors as the
Trustees, in their sole discretion, deem to be appropriate, which factors may
include the inability of the Trust or a Series to maintain its assets at an
appropriate size, changes in laws or regulations governing the Trust or the
Series or affecting assets of the type in which the Trust or Series invests, or
economic developments or trends having a significant adverse impact on the
business or operations of the Trust or such Series.
(c) Upon completion of the distribution of the remaining proceeds or assets
pursuant to subsection (a), the Trust or affected Series shall terminate and the
Trustees and the Trust shall be discharged of any and all further liabilities
and duties hereunder with respect thereto and the right, title and interest of
all parties therein shall be canceled and discharged. Upon 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 of cancellation may
be signed by any one Trustee.
Section 5. Reorganization and Master/Feeder. (a) Notwithstanding
--------------------------------
anything else herein, a majority of the Trustees may, without Shareholder
approval unless such approval is required by applicable federal law, (i) cause
the Trust to merge or consolidate with or into one or more entities, if the
surviving or resulting entity is the Trust or another open-end management
investment company under the 1940 Act, or a series thereof, (ii) cause the
Shares to be exchanged under or pursuant to any state or federal statute to the
extent permitted by law, or (iii) cause the Trust to incorporate under the laws
of Delaware or any other U.S. jurisdiction. Any agreement of merger or
consolidation or certificate of merger may be signed by a majority of Trustees
and facsimile signatures conveyed by electronic or telecommunication means shall
be valid.
(b) Pursuant to and in accordance with the provisions of Section 3815(f) of
the Delaware Act, an agreement of merger or consolidation approved by the
Trustees in accordance with this Section 5 may effect any amendment to the
Declaration or effect the adoption of a new trust instrument of the Trust if it
is the surviving or resulting trust in the merger or consolidation.
(c) The Trustees may cause to be organized or assist in organizing a
corporation or corporations under the laws of any jurisdiction or any other
trust, partnership, association or other organization to take over all or
portion of the Trust Property or the Trust Property allocated or belonging to
such Series or to carry on any business in which the Trust shall directly or
indirectly have any interest, or to sell, convey and transfer all or a portion
of the Trust Property or the Trust Property allocated or belonging to such
Series to any such corporation, trust, association or organization in exchange
for the shares or securities thereof or otherwise, and to lend money to,
subscribe for the shares or securities of, and enter into any contracts with any
such corporation, trust, partnership, association, or organization or any
corporation, partnership, trust, association or organization in which the Trust
or such Series holds or is about to acquire shares or any other interest. The
Trustees may also cause a merger or consolidation between the Trust or any
successor thereto and any such corporation, trust, partnership, association or
other organization if and to the extent permitted by law, as provided under the
law then in effect. Nothing contained herein shall be construed as requiring
approval of Shareholders for the Trustees to organize or assist in organizing
one or more corporations, trusts, partnerships, associations or other
organizations and selling, conveying or transferring all or a portion of the
Trust Property to such organization or entities.
(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 New
York 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
21
Trustees may, without Shareholder approval unless such approval is required by
applicable law, 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. Declaration of Trust. The original or a copy of this
--------------------
Declaration of Trust and of each amendment hereto or Declaration of Trust
supplemental 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 Declaration
of Trust 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 Declaration of Trust. This Declaration of
Trust may be executed in any number of counterparts, each of which shall be
deemed an original.
Section 7. Applicable Law. This Declaration 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
Declaration of Trust (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 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 responsibilities or limitations on the acts or powers of
trustees, which are inconsistent with the limitations or liabilities or
authorities and powers of the Trustees set forth or referenced in this
Declaration. 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.
Section 8. Amendments. The Trustees may, without any Shareholder vote,
----------
amend or otherwise supplement this Declaration by making an amendment, a
Declaration of Trust supplemental hereto or an amended and restated trust
instrument; provided, that Shareholders shall have the right to vote on any
amendment (a) which would adversely affect the voting rights of Shareholders
granted in Article VII, Section l, (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,
any amendment to Article IV 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,
and any repeal or amendment of this sentence shall each require the affirmative
vote of the holders of two-thirds of the Outstanding Shares of the Trust
entitled to vote thereon.
Section 9. 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:
22
(a) Shareholders eligible to bring such derivative action under the
Delaware Act who hold at least 10% of the Outstanding Shares of the Trust, or
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
(b) the Trustees must be afforded a reasonable amount of time to consider
such shareholder request and to investigate the basis of such claim. The
Trustees shall be entitled to retain counsel or other advisers in considering
the merits of the request and shall require an undertaking by the Shareholders
making such request to reimburse the Trust for the expense of any such advisers
in the event that the Trustees determine not to bring such action.
Section 10. Fiscal Year. The fiscal year of the Series shall end on a
-----------
specified date as set forth in the By-laws; provided that different Series may
have different fiscal years. The Trustees may change the fiscal year of any
Series without Shareholder approval.
Section 11. Severability. The provisions of this Declaration 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 Declaration; provided, however, that such determination shall not
affect any of the remaining provisions of this Declaration 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 Declaration.
23
IN WITNESS WHEREOF, the undersigned have executed this instrument as of the
date first written above.
▇▇▇▇▇ ▇. ▇▇▇▇▇▇,
as Trustee and not individually
▇▇▇▇▇ ▇. ▇▇▇▇,
as Trustee and not individually
▇▇▇▇▇▇▇ Grip,
as Trustee and not individually
▇▇▇▇ ▇. ▇▇▇▇▇▇▇,
as Trustee and not individually,
▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
as Trustee and not individually,
▇▇▇▇ ▇. ▇▇▇▇▇
as Trustee and not individually,
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇,
as Trustee and not individually,
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
as Trustee and not individually,
24
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
as Trustee and not individually,
/netuser10/suzanp/▇▇▇▇▇▇/101842.259/1997proxy/dt4.wpf25
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