EXHIBIT (A)(III) UNDER FORM N-1A
EXHIBIT 3(I) UNDER ITEM 601/REG. S-K
AMENDED AND RESTATED
AGREEMENT AND DECLARATION OF TRUST
of
BBH TRUST
a Delaware Statutory Trust
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TABLE OF CONTENTS
PAGE
Article I Name and Definitions..................................................
Section 1. Name...........................................................
Section 2. Registered Agent and Registered Office; Principal Place
of Business....................................................
Section 3. Definitions....................................................
Article II Purpose of Trust.....................................................
Article III Shares..............................................................
Section 1. Division of Beneficial Interest................................
Section 2. Ownership of Shares............................................
Section 3. Investments in the Trust.......................................
Section 4. Status of Shares and Limitation of Personal Liability..........
Section 5. Power of Board of Trustees to Change Provisions Relating
to Shares......................................................
Section 6. Establishment and Designation of Series........................
Article IV The Board of Trustees................................................
Section 1. Number, Election and Tenure....................................
Section 2. Effect of Death, Resignation, Removal, etc. of a Trustee.......
Section 3. Powers.........................................................
Section 4. Payment of Fees and Expenses by the Trust......................
Section 5. Payment of Fees and Expenses by Shareholders...................
Section 6. Ownership of Trust Property....................................
Section 7. Service Contracts..............................................
Section 8. Compensation...................................................
Article V Shareholders' Voting Powers and Meetings..............................
Section 1. Voting Powers..................................................
Section 2. Meetings.......................................................
Section 3. Quorum and Required Vote.......................................
Section 4. Shareholder Action by Written Consent without a Meeting........
Section 5. Record Dates...................................................
Section 6. Additional Provisions..........................................
Article VI Net Asset Value, Distributions and Redemptions.......................
Section 1. Determination of Net Asset Value, Net Income and
Distributions..................................................
Section 2. Redemptions at the Option of a Shareholder.....................
Section 3. Redemptions at the Option of the Trust.........................
Article VII Limitation of Liability; Indemnification............................
Section 1. Trustees, Shareholders, etc. Not Personally Liable.............
Section 2. Officers and Trustees' Good Faith Action, Expert Advice,
No Bond or Surety
Section 3. Indemnification of Shareholders................................
Section 4. Indemnification of Trustees, Officers, etc.....................
Section 5. Compromise Payment.............................................
Section 6. Indemnification Not Exclusive, etc.............................
Section 7. Insurance......................................................
Section 8. Liability of Third Persons Dealing with Trustees...............
Section 9. Derivative Actions.............................................
Article VIII Miscellaneous......................................................
Section 1. Dissolution and Liquidation of Trust, Series, or Class.........
Section 2. Merger and Consolidation; Conversion...........................
Section 3. Reorganization.................................................
Section 4. Amendments.....................................................
Section 5. Filing of Copies, References, Headings.........................
Section 6. Applicable Law.................................................
Section 7. Provisions in Conflict with Law or Regulations.................
Section 8. Statutory Trust Only...........................................
Section 9. Use of the Name "BBH"..........................................
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AMENDED AND RESTATED
AGREEMENT AND DECLARATION OF TRUST
OF
BBH TRUST
AGREEMENT AND DECLARATION OF TRUST amended and restated as of this 8th day
of December, 2006, by the Trustees hereunder, and by the holders of shares of
beneficial interest to be issued hereunder as hereinafter provided. This
Agreement and Declaration of Trust shall be effective upon the filing of the
Certificate of Trust in the office of the Secretary of State of the State of
Delaware.
W I T N E S S E T H:
WHEREAS this Trust has been formed to carry on the business of an
investment company; and
WHEREAS this Trust is authorized to issue its shares of beneficial
interest in separate Series, and to issue classes of Shares of any Series or
divide Shares of any Series into two or more classes, all in accordance with the
provisions hereinafter set forth; and
WHEREAS the Trustees have agreed to manage all property coming into their
hands as trustees of a Delaware statutory trust in accordance with the
provisions of the Delaware Statutory Trust Act (12 Del. C. {section}3801, et
seq.), as from time to time amended and including any successor statute of
similar import (the "DSTA"), and the provisions hereinafter set forth.
NOW, THEREFORE, the Trustees hereby declare that they will hold all cash,
securities and other assets which they may from time to time acquire in any
manner as Trustees hereunder IN TRUST to manage and dispose of the same upon the
following terms and conditions for the benefit of the holders from time to time
of shares of beneficial interest in this Trust and the Series created hereunder
as hereinafter set forth.
ARTICLE I
NAME AND DEFINITIONS
Section 1. Name
. This Trust shall be known as "BBH Trust" and the Trustees shall conduct
the business of the Trust under that name, or any other name as they may from
time to time determine.
Section 2. Registered Agent and Registered Office; Principal Place of
Business.
(a) Registered Agent and Registered Office. The name of the
registered agent of the Trust and the address of the registered office of
the Trust are as set forth on the Certificate of Trust.
(b) Principal Place of Business. The principal place of business
of the Trust is ▇▇▇ ▇▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇, or such other location
within or outside of the State of Delaware as the Board of Trustees may
determine from time to time.
Section 3. Definitions
. Whenever used herein, unless otherwise required by the context or
specifically provided:
(a) "1940 Act" shall mean the Investment Company Act of 1940 and
the rules and regulations thereunder, all as adopted or amended from time
to time;
(b) "Affiliate" shall have the meaning given to it in
Section 2(a)(3) of the 1940 Act when used with reference to a specified
Person;
(c) "Board of Trustees" shall mean the governing body of the
Trust, which is comprised of the Trustees of the Trust;
(d) "By-Laws" shall mean the By-Laws of the Trust, as amended from
time to time in accordance with Article IX of the By-Laws, and
incorporated herein by reference;
(e) "Certificate of Trust" shall mean the certificate of trust
filed with the Office of the Secretary of State of the State of Delaware
as required under the DSTA to form the Trust;
(f) "Code" shall mean the Internal Revenue Code of 1986, as
amended, and the rules and regulations thereunder;
(g) "Commission" shall have the meaning given it in
Section 2(a)(7) of the 1940 Act;
(h) "DSTA" shall mean the Delaware Statutory Trust Act (12 Del. C.
{section}3801, et seq.), as amended from time to time;
(i) "Declaration of Trust" shall mean this Agreement and
Declaration of Trust, as amended or restated from time to time;
(j) "General Liabilities" shall have the meaning given it in
Article III, Section 6(b) of this Declaration Trust;
(k) "Interested Person" shall have the meaning given it in
Section 2(a)(19) of the 1940 Act;
(l) "Investment Adviser" or "Adviser" shall mean a party
furnishing services to the Trust pursuant to any contract described in
Article IV, Section 7(a) hereof;
(m) "Person" shall include a natural person, partnership, limited
partnership, trust, estate, association, corporation, custodian, nominee
or any other individual or entity in its own or any representative
capacity;
(n) "Principal Underwriter" shall have the meaning given to it in
Section 2(a)(29) of the 1940 Act;
(o) "Series" shall refer to each Series of Shares established and
designated under or in accordance with the provisions of Article III and
shall mean an entity such as that described in Section 18(f)(2) of the
1940 Act, and subject to Rule 18f-2 thereunder;
(p) "Shares" shall mean the outstanding shares of beneficial
interest into which the beneficial interest in the Trust shall be divided
from time to time, and shall include fractional and whole shares;
(q) "Shareholder" shall mean a record owner of Shares;
(r) "Trust" shall refer to the Delaware statutory trust
established by this Declaration of Trust, as amended from time to time;
(s) "Trust Property" shall mean any and all property, real or
personal, tangible or intangible, which is owned or held by or for the
account of the Trust or one or more of any Series, including, without
limitation, the rights referenced in Article VIII, Section 2 hereof; and
(t) "Trustee" or "Trustees" shall refer to each signatory to this
Declaration of Trust as a trustee, so long as such signatory continues in
office in accordance with the terms hereof, and all other Persons who may,
from time to time, be duly elected or appointed, qualified and serving on
the Board of Trustees in accordance with the provisions hereof. Reference
herein to a Trustee or the Trustees shall refer to such Person or Persons
in their capacity as trustees hereunder.
ARTICLE II
PURPOSE OF TRUST
The purpose of the Trust is to conduct, operate and carry on the business
of a registered management investment company registered under the 1940 Act
through one or more Series investing primarily in securities and, in addition to
any authority given by law, to exercise all of the powers and to do any and all
of the things as fully and to the same extent as any private corporation
organized for profit under the general corporation law of the State of Delaware,
now or hereafter in force, including, without limitation, the following powers:
(a) To invest and reinvest cash, to hold cash uninvested, and to
subscribe for, invest in, reinvest in, purchase or otherwise acquire, own,
hold, pledge, sell, assign, mortgage, transfer, exchange, distribute,
write options on, lend or otherwise deal in or dispose of contracts for
the future acquisition or delivery of fixed income or other securities,
and securities or property of every nature and kind, including, without
limitation, all types of bonds, debentures, stocks, preferred stocks,
negotiable or non-negotiable instruments, obligations, evidences of
indebtedness, certificates of deposit or indebtedness, commercial paper,
repurchase agreements, bankers' acceptances, and other securities of any
kind, issued, created, guaranteed, or sponsored by any and all Persons,
including, without limitation, states, territories, and possessions of the
United States and the District of Columbia and any political subdivision,
agency, or instrumentality thereof, any foreign government or any
political subdivision of the U.S. Government or any foreign government, or
any international instrumentality, or by any bank or savings institution,
or by any corporation or organization organized under the laws of the
United States or of any state, territory, or possession thereof, or by any
corporation or organization organized under any foreign law, or in "when
issued" contracts for any such securities, and to change the investments
of the assets of the Trust;
(b) To exercise any and all rights, powers and privileges with
reference to or incident to ownership or interest, use and enjoyment of
any of such securities and other instruments or property of every kind and
description, including, but without limitation, the right, power and
privilege to own, vote, hold, purchase, sell, negotiate, assign, exchange,
lend, transfer, mortgage, hypothecate, lease, pledge or write options with
respect to or otherwise deal with, dispose of, use, exercise or enjoy any
rights, title, interest, powers or privileges under or with reference to
any of such securities and other instruments or property, the right to
consent and otherwise act with respect thereto, with power to designate
one or more Persons, to exercise any of said rights, powers, and
privileges in respect of any of said instruments, and to do any and all
acts and things for the preservation, protection, improvement and
enhancement in value of any of such securities and other instruments or
property;
(c) To sell, exchange, lend, pledge, mortgage, hypothecate, lease
or write options with respect to or otherwise deal in any property rights
relating to any or all of the assets of the Trust or any Series, subject
to any requirements of the 1940 Act;
(d) To vote or give assent, or exercise any rights of ownership,
with respect to stock or other securities or property; and to execute and
deliver proxies or powers of attorney to such person or persons as the
Trustees shall deem proper, granting to such person or persons such power
and discretion with relation to securities or property as the Trustees
shall deem proper;
(e) To exercise powers and rights of subscription or otherwise
which in any manner arise out of ownership of securities;
(f) To hold any security or property in a form not indicating that
it is trust property, whether in bearer, unregistered or other negotiable
form, or in its own name or in the name of a custodian or subcustodian or
a nominee or nominees or otherwise or to authorize the custodian or a
subcustodian or a nominee or nominees to deposit the same in a securities
depository;
(g) To consent to, or participate in, any plan for the
reorganization, consolidation or merger of any corporation or issuer of
any security which is held in the Trust; to consent to any contract,
lease, mortgage, purchase or sale of property by such corporation or
issuer; and to pay calls or subscriptions with respect to any security
held in the Trust;
(h) 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;
(i) 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;
(j) To enter into joint ventures, general or limited partnerships
and any other combinations or associations;
(k) To endorse or guarantee the payment of any notes or other
obligations of any Person; to make contracts of guaranty or suretyship, or
otherwise assume liability for payment thereof;
(l) To purchase and pay for entirely out of Trust Property such
insurance as the Trustees may deem necessary or appropriate for the
conduct of the business, including, without limitation, insurance policies
insuring the assets of the Trust or payment of distributions and principal
on its portfolio investments, and insurance policies insuring the
Shareholders, Trustees, officers, employees, agents, Investment 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, to the fullest
extent permitted by this Declaration of Trust, the Bylaws and by
applicable law;
(m) To adopt, establish and carry out pension, profit-sharing,
share bonus, share purchase, savings, thrift and other retirement,
incentive and benefit plans, trusts and provisions, including the
purchasing of life insurance and annuity contracts as a means of providing
such retirement and other benefits, for any or all of the Trustees,
officers, employees and agents of the Trust;
(n) To purchase or otherwise acquire, own, hold, sell, negotiate,
exchange, assign, transfer, mortgage, pledge or otherwise deal with,
dispose of, use, exercise or enjoy, property of all kinds;
(o) To buy, sell, mortgage, encumber, hold, own, exchange, rent or
otherwise acquire and dispose of, and to develop, improve, manage,
subdivide, and generally to deal and trade in real property, improved and
unimproved, and wheresoever situated; and to build, erect, construct,
alter and maintain buildings, structures, and other improvements on real
property;
(p) To borrow or raise moneys for any of the purposes of the
Trust, and to mortgage or pledge the whole or any part of the property and
franchises of the Trust, real, personal, and mixed, tangible or
intangible, and wheresoever situated;
(q) To enter into, make and perform contracts and undertakings of
every kind for any lawful purpose, without limit as to amount; and
(r) To issue, purchase, sell and transfer, reacquire, hold, trade
and deal in Shares, bonds, debentures and other securities, instruments or
other property of the Trust, from time to time, to such extent as the
Board of Trustees shall, consistent with the provisions of this
Declaration of Trust, determine; and to repurchase, re-acquire and redeem,
from time to time, its Shares or, if any, its bonds, debentures and other
securities.
The Trust shall not be limited to investing in obligations maturing before
the possible dissolution of the Trust or one or more of its Series. The Trust
shall not in any way be bound or limited by any present or future law or custom
in regard to investment by fiduciaries. Neither the Trust nor the Trustees
shall be required to obtain any court order to deal with any assets of the Trust
or take any other action hereunder.
The foregoing clauses shall each be construed as purposes, objects and
powers, and it is hereby expressly provided that the foregoing enumeration of
specific purposes, objects and powers shall not be held to limit or restrict in
any manner the powers of the Trust, and that they are in furtherance of, and in
addition to, and not in limitation of, the general powers conferred upon the
Trust by the DSTA and the other laws of the State of Delaware or otherwise; nor
shall the enumeration of one thing be deemed to exclude another, although it be
of like nature, not expressed.
ARTICLE III
SHARES
Section 1. Division of Beneficial Interest
. The beneficial interest in the Trust shall at all times be divided into
Shares, all without par value. The number of Shares authorized hereunder is
unlimited. The Board of Trustees may authorize the division of Shares into
separate and distinct Series and the division of any Series into separate
classes of Shares. The different Series and classes shall be established and
designated, and the variations in the relative rights and preferences as between
the different Series and classes shall be fixed and determined by the Board of
Trustees without the requirement of Shareholder approval. If no separate Series
or classes shall be established, the Shares shall have the rights and
preferences provided for herein and in Article III, Section 6 hereof to the
extent relevant and not otherwise provided for herein, and all references to
Series and classes shall be construed (as the context may require) to refer to
the Trust. The fact that a Series shall have initially been established and
designated without any specific establishment or designation of classes (i.e.,
that all Shares of such Series are initially of a single class) shall not limit
the authority of the Board of Trustees to establish and designate separate
classes of said Series. The fact that a Series shall have more than one
established and designated class, shall not limit the authority of the Board of
Trustees to establish and designate additional classes of said Series, or to
establish and designate separate classes of the previously established and
designated classes.
The Board of Trustees shall have the power to issue Shares of the Trust,
or any Series or class thereof, from time to time for such consideration (but
not less than the net asset value thereof) and in such form as may be fixed from
time to time pursuant to the direction of the Board of Trustees.
The Board of Trustees may hold as treasury shares, reissue for such
consideration and on such terms as they may determine, or cancel, at their
discretion from time to time, any Shares of any Series reacquired by the Trust.
The Board of Trustees may classify or reclassify any unissued Shares or any
Shares previously issued and reacquired of any Series or class into one or more
Series or classes that may be established and designated from time to time.
Notwithstanding the foregoing, the Trust and any Series thereof may acquire,
hold, sell and otherwise deal in, for purposes of investment or otherwise, the
Shares of any other Series of the Trust or Shares of the Trust, and such Shares
shall not be deemed treasury shares or canceled.
Subject to the provisions of Section 6 of this Article III, each Share
shall have voting rights as provided in Article V hereof, and the Shareholders
of any Series shall be entitled to receive dividends and distributions, when, if
and as declared with respect thereto in the manner provided in Article IV,
Section 3 hereof. No Share shall have any priority or preference over any other
Share of the same Series or class with respect to dividends or distributions
paid in the ordinary course of business or distributions upon dissolution of the
Trust or of such Series or class made pursuant to Article VIII, Section 1
hereof. All dividends and distributions shall be made ratably among all
Shareholders of a particular class or Series from the Trust Property held with
respect to such Series according to the number of Shares of such class of such
Series held of record by such Shareholders on the record date for any dividend
or distribution. Shareholders shall have no preemptive or other right to
subscribe to new or additional Shares or other securities issued by the Trust or
any Series. The Trustees may from time to time divide or combine the Shares of
any particular Series into a greater or lesser number of Shares of that Series.
Such division or combination may not materially change the proportionate
beneficial interests of the Shares of that Series in the Trust Property held
with respect to that Series or materially affect the rights of Shares of any
other Series.
Any Trustee, officer or other agent of the Trust, and any organization in
which any such Person is interested, may acquire, own, hold and dispose of
Shares of the Trust to the same extent as if such Person were not a Trustee,
officer or other agent of the Trust; and the Trust may issue and sell or cause
to be issued and sold and may purchase Shares from any such Person or any such
organization subject only to the general limitations, restrictions or other
provisions applicable to the sale or purchase of such Shares generally.
Section 2. Ownership of Shares
. The ownership of Shares shall be recorded on the books of the Trust
kept by the Trust or by a transfer or similar agent for the Trust, which books
shall be maintained separately for the Shares of each Series and class thereof
that has been established and designated. No certificates certifying the
ownership of Shares shall be issued except as the Board of Trustees may
otherwise determine from time to time. The Board of Trustees may make such
rules not inconsistent with the provisions of the 1940 Act as it considers
appropriate for the issuance of Share certificates, the transfer of Shares of
each Series or class and similar matters. The record books of the Trust as kept
by the Trust or any transfer or similar agent, as the case may be, shall be
conclusive as to who are the Shareholders of each Series or class thereof and as
to the number of Shares of each Series or class thereof held from time to time
by each such Shareholder.
Section 3. Investments in the Trust
. Investments may be accepted by the Trust from such Persons, at such
times, on such terms, and for such consideration as the Board of Trustees may,
from time to time, authorize. Each investment shall be credited to the
individual Shareholder's account in the form of full and fractional Shares of
the Trust, in such Series or class as the purchaser may select, at the net asset
value per Share next determined for such Series or class after receipt of the
investment; provided, however, that the Principal Underwriter may, in its sole
discretion, impose a sales charge upon investments in the Trust.
Section 4. Status of Shares and Limitation of Personal Liability
. Shares shall be deemed to be personal property giving to Shareholders
only the rights provided in this Declaration of Trust and under applicable law.
Every Shareholder by virtue of having become a Shareholder shall be held to have
expressly assented and agreed to the terms hereof and to have become a party
hereto. The death of a Shareholder during the existence of the Trust shall not
operate to dissolve the Trust or any Series, nor entitle the representative of
any deceased Shareholder to an accounting or to take any action in court or
elsewhere against the Trust or the Trustees or any Series, but entitles such
representative only to the rights of said deceased Shareholder under this
Declaration of 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, nor any officer, employee or agent of the Trust, shall have
any power to bind personally any Shareholder, nor, except as specifically
provided herein, to call upon any Shareholder for the payment of any sum of
money other than such as the Shareholder may at any time personally agree to
pay. All Shares when issued on the terms determined by the Board of Trustees
shall be fully paid and nonassessable. As provided in the DSTA, Shareholders of
the Trust shall be entitled to the same limitation of personal liability
extended to stockholders of a private corporation organized for profit under the
general corporation law of the State of Delaware.
Section 5. Power of Board of Trustees to Change Provisions Relating to
Shares
. Notwithstanding any other provisions of this Declaration of Trust and
without limiting the power of the Board of Trustees to amend this Declaration of
Trust or the Certificate of Trust as provided elsewhere herein, the Board of
Trustees shall have the power to amend this Declaration of Trust, or the
Certificate of Trust, at any time and from time to time, in such manner as the
Board of Trustees may determine in its sole discretion, without the need for
Shareholder action, so as to add to, delete, replace or otherwise modify any
provisions relating to the Shares contained in this Declaration of Trust,
provided that Shareholder approval is not otherwise required by the 1940 Act or
other applicable law.
The Board of Trustees shall have the power, in its discretion, to make
such elections as to the tax status of the Trust as may be permitted or required
under the Code as presently in effect or as amended, without the vote of any
Shareholder.
Section 6. Establishment and Designation of Series
. The establishment and designation of any Series or class of Shares
shall be effective upon the resolution by a majority of the then Board of
Trustees, adopting a resolution which sets forth such establishment and
designation and the relative rights and preferences of such Series or class.
Each such resolution shall be incorporated herein by reference upon adoption.
Each Series shall be separate and distinct from any other Series and shall
maintain separate and distinct records on the books of the Trust, and the assets
and liabilities belonging to any such Series shall be held and accounted for
separately from the assets and liabilities of the Trust or any other Series.
Shares of each Series or class established pursuant to this Section 6,
unless otherwise provided in the resolution establishing such Series, shall have
the following relative rights and preferences:
(a) Assets Held with Respect to a Particular Series. All
consideration received by the Trust for the issue or sale of Shares of a
particular Series, together with all assets in which such consideration is
invested or reinvested, all income, earnings, profits, and proceeds
thereof from whatever source derived, including, without limitation, any
proceeds derived from the sale, exchange or liquidation of such assets,
and any funds or payments derived from any reinvestment of such proceeds
in whatever form the same may be, shall irrevocably be held with respect
to that Series for all purposes, subject only to the rights of creditors
with respect to that Series, and shall be so recorded upon the books of
account of the Trust. Such consideration, assets, income, earnings,
profits and proceeds thereof, from whatever source derived, including,
without limitation, any proceeds derived from the sale, exchange or
liquidation of such assets, and any funds or payments derived from any
reinvestment of such proceeds, in whatever form the same may be, are
herein referred to as "assets held with respect to" that Series. In the
event that there are any assets, income, earnings, profits and proceeds
thereof, funds or payments which are not readily identifiable as assets
held with respect to any particular Series (collectively "General
Assets"), the Board of Trustees shall allocate such General Assets to,
between or among any one or more of the Series in such manner and on such
basis as the Board of Trustees, in its sole discretion, deems fair and
equitable, and any General Asset so allocated to a particular Series shall
be held with respect to that Series. Each such allocation by the Board of
Trustees shall be conclusive and binding upon the Shareholders of all
Series for all purposes.
(b) Liabilities Held with Respect to a Particular Series or Class.
The assets of the Trust held with respect to each particular Series shall
be charged against the liabilities of the Trust held with respect to that
Series and all expenses, costs, charges and reserves attributable to that
Series, and any liabilities, expenses, costs, charges and reserves of the
Trust which are not readily identifiable as being held with respect to any
particular Series (collectively "General Liabilities") shall be allocated
and charged by the Board of Trustees to and among any one or more of the
Series in such manner and on such basis as the Board of Trustees, in its
sole discretion, deems fair and equitable. The liabilities, expenses,
costs, charges, and reserves so charged to a Series are herein referred to
as "liabilities held with respect to" that Series. Each allocation of
liabilities, expenses, costs, charges and reserves by the Board of
Trustees shall be conclusive and binding upon the Shareholders of all
Series for all purposes. All Persons who have extended credit which has
been allocated to a particular Series, or who have a claim or contract
which has been allocated to any particular Series, shall look, and shall
be required by contract to look exclusively, to the assets of that
particular Series for payment of such credit, claim, or contract. In the
absence of an express contractual agreement so limiting the claims of such
creditors, claimants and contract providers, each creditor, claimant and
contract provider will be deemed nevertheless to have impliedly agreed to
such limitation.
Subject to the right of the Board of Trustees in its discretion to
allocate General Liabilities as provided herein, the debts, liabilities,
obligations and expenses incurred, contracted for or otherwise existing with
respect to a particular Series, whether such Series is now authorized and
existing pursuant to this Declaration of Trust or is hereafter authorized and
existing pursuant to this Declaration of Trust, shall be enforceable against the
assets held with respect to that Series only, and not against the assets of any
other Series or the Trust generally and none of the debts, liabilities,
obligations and expenses incurred, contracted for or otherwise existing with
respect to the Trust generally or any other Series thereof shall be enforceable
against the assets held with respect to such Series. Notice of this limitation
on liabilities between and among Series shall be set forth in the Certificate of
Trust of the Trust (whether originally or by amendment) as filed or to be filed
in the Office of the Secretary of State of the State of Delaware pursuant to the
DSTA, and upon the giving of such notice in the Certificate of Trust, the
statutory provisions of Section 3804 of the DSTA relating to limitations on
liabilities between and 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.
Liabilities, debts, obligations, costs, charges, reserves and expenses
related to the distribution of, and other identified expenses that should
properly be allocated to, the Shares of a particular class may be charged to and
borne solely by such class. The bearing of expenses solely by a particular
class of Shares may be appropriately reflected (in a manner determined by the
Board of Trustees) and may affect the net asset value attributable to, and the
dividend, redemption and liquidation rights of, such class. Each allocation of
liabilities, debts, obligations, costs, charges, reserves and expenses by or
under the direction of the Board of Trustees shall be conclusive and binding
upon the Shareholders of all classes for all purposes. All Persons who have
extended credit that has been allocated to a particular class, or who have a
claim or contract that has been allocated to any particular class, shall look,
and may be required by contract to look exclusively, to that particular class
for payment of such credit, claim, or contract.
(c) Dividends, Distributions, Redemptions and Repurchases.
Notwithstanding any other provisions of this Declaration of Trust,
including, without limitation, Article VI, no dividend or distribution
including, without limitation, any distribution paid upon dissolution 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 or
class, nor, except as specifically provided in Section 4 of Article VII or
Section 5 of Article IV, shall any Shareholder of any particular Series or
class otherwise have any right or claim against the assets held with
respect to any other Series or class or the Trust generally except to the
extent that such Shareholder has such a right or claim hereunder as a
Shareholder of such other Series or class. The Board of Trustees shall
have full discretion, to the extent not inconsistent with the 1940 Act, to
determine which items shall be treated as income and which items as
capital; and each such determination and allocation shall be conclusive
and binding upon the Shareholders.
(d) Voting. All Shares of the Trust entitled to vote on a matter
shall vote on the matter in the aggregate without differentiation between
the separate Series or classes. Notwithstanding the foregoing, (i) if any
matter affects only the interests of some but not all Series or classes,
then only the Shareholders of such affected Series or classes shall be
entitled to vote on the matter; and (ii) with respect to matters which
would otherwise be voted on by two or more Series or classes as a single
class, the Trustees may, in their sole discretion, submit such matters to
the Shareholders of any or all such Series or classes, separately.
(e) Equality. All Shares of each particular Series shall
represent an equal proportionate undivided beneficial interest in the
assets held with respect to that Series (subject to the liabilities held
with respect to that Series and such rights and preferences as may have
been established and designated with respect to classes of Shares within
such Series), and each Share of any particular Series shall be equal to
each other Share of that Series (subject to the rights and preferences
with respect to separate classes of such Series).
(f) Fractions. Any fractional Share of a Series shall carry
proportionately all the rights and obligations of a whole Share of that
Series, including rights with respect to voting, receipt of dividends and
distributions, redemption of Shares and dissolution of the Trust or that
Series.
(g) Exchange Privilege. The Board of Trustees shall have the
authority to provide that the holders of Shares of any Series or class
shall have the right to exchange said Shares for Shares of one or more
other Series or classes in accordance with such requirements and
procedures as may be established by the Board of Trustees, and in
accordance with the 1940 Act and the rules and regulations thereunder.
(h) Combination of Series or Class. The Board of Trustees shall
have the authority, without the approval of the Shareholders of any Series
or class, unless otherwise required by applicable law, to combine the
assets and liabilities held with respect to any two or more Series or two
or more classes into assets and liabilities held with respect to a single
Series or class, respectively.
(i) Elimination of Series or Class. At any time that there are no
Shares outstanding of any particular Series or class previously
established and designated, the Board of Trustees may by resolution of a
majority of the then Board of Trustees abolish that Series or class and
rescind the establishment and designation thereof.
ARTICLE IV
THE BOARD OF TRUSTEES
Section 1. Number, Election and Tenure
. The number of Trustees constituting the Board of Trustees may be fixed
from time to time by a written instrument signed, or by resolution approved at a
duly constituted meeting, by a majority of the Board of Trustees, provided,
however, that the number of Trustees shall in no event be less than one (1) nor
more than twenty (20). The Board of Trustees, by action of a majority of the
then Trustees at a duly constituted meeting, may fill vacancies in the Board of
Trustees. The Board of Trustees, by action of a two-thirds of the then Trustees
at a duly constituted meeting, may remove any trustee with or without cause.
The Shareholders may elect Trustees, including filling any vacancies in the
Board of Trustees, at any meeting of Shareholders called by the Board of
Trustees for that purpose. A meeting of Shareholders for the purpose of
electing one or more Trustees may be called by the Board of Trustees or, to the
extent provided by the 1940 Act and the rules and regulations thereunder, by the
Shareholders. Shareholders shall have the power to remove a Trustee only to the
extent provided by the 1940 Act and the rules and regulations thereunder.
Each Trustee shall serve during the continued lifetime of the Trust until
he or she dies, resigns, is declared bankrupt or incompetent by a court of
appropriate jurisdiction, or is removed, or, if sooner than any of such events,
until the next meeting of Shareholders called for the purpose of electing
Trustees and until the election and qualification of his or her successor. Any
Trustee may resign at any time by written instrument signed by him or her and
delivered to any officer of the Trust or to a meeting of the Board of Trustees.
Such resignation shall be effective upon receipt unless specified to be
effective at some later time. Except to the extent expressly provided in a
written agreement with the Trust, no Trustee resigning and no Trustee removed
shall have any right to any compensation for any period following any such event
or any right to damages on account of such events or any actions taken in
connection therewith following his or her resignation or removal.
Section 2. Effect of Death, Resignation, Removal, etc. of a Trustee
. The death, declination, resignation, retirement, removal, declaration
as bankrupt or incapacity of one or more Trustees, but not all of them, shall
not operate to dissolve the Trust or any Series or to revoke any existing agency
created pursuant to the terms of this Declaration of Trust. Whenever a vacancy
in the Board of Trustees shall occur, until such vacancy is filled as provided
in the By-Laws, the Trustee(s) in office, regardless of the number, shall have
all the powers granted to the Board of Trustees and shall discharge all the
duties imposed upon the Board of Trustees by this Declaration of Trust.
Section 3. Powers
. Subject to the provisions of this Declaration of Trust, the business of
the Trust shall be managed by the Board of Trustees, and such Board of Trustees
shall have all powers necessary or convenient to carry out that responsibility,
including, without limitation, the power to engage in securities or other
transactions of all kinds on behalf of the Trust. The Board of Trustees shall
have full power and authority to do any and all acts and to make and execute any
and all contracts and instruments that it may consider necessary or appropriate
in connection with the administration of the Trust. The Trustees shall not be
bound or limited by present or future laws or customs with regard to investment
by trustees or fiduciaries, but, subject to the other provisions of the
Declaration of Trust and By-Laws, shall have full authority and absolute power
and control over the assets of the Trust and the business of the Trust to the
same extent as if the Trustees were the sole owners of the assets of the Trust
and the business in their own right, including such authority, power and control
to do all acts and things as they, in their sole discretion, shall deem proper
to accomplish the purposes of this Trust. Without limiting the foregoing, the
Trustees may: (1) adopt, amend and repeal By-Laws not inconsistent with this
Declaration of Trust providing for the regulation and management of the affairs
of the Trust; (2) fill vacancies in or remove from their number in accordance
with this Declaration of Trust or the By-Laws, and may elect and remove such
officers and appoint and terminate such agents as they consider appropriate;
(3) to delegate such authority as they consider desirable to a committee or
committees comprised of Trustees or any officers or agents of the Trust
including, without limitation, an Executive Committee; (4) employ one or more
custodians of the Trust Property and may authorize such custodians to employ
subcustodians and to deposit all or any part of such Trust Property in a system
or systems for the central handling of securities or with a Federal Reserve
Bank; (5) retain a transfer agent, dividend disbursing agent, a shareholder
servicing agent or administrative services agent, fund accountant, or all of
them; (6) provide for the issuance and distribution of Shares by the Trust
directly or through one or more Principal Underwriters or otherwise; (7) retain
one or more Investment Adviser(s); (8) redeem, repurchase and transfer Shares
pursuant to applicable law; (9) set record dates for the determination of
Shareholders with respect to various matters, in the manner provided in
Article V, Section 5 of this Declaration of Trust; (10) declare and pay
dividends and distributions to Shareholders from the Trust Property;
(11) establish from time to time, in accordance with the provisions of
Article III, Section 6 hereof, any Series or class of Shares, each such Series
to operate as a separate and distinct investment medium and with separately
defined investment objectives and policies and distinct investment purposes; and
(12) in general delegate such authority as they consider desirable to any
officer of the Trust, to any committee of the Board of Trustees and to any agent
or employee of the Trust or to any such custodian, transfer, dividend disbursing
or shareholder servicing agent, fund accountant, legal counsel, independent
auditors for the Trust, Principal Underwriter or Investment Adviser. The powers
of the Board of Trustees set forth in the Section 3 are without prejudice to any
other powers of the Board of Trustees set forth in this Declaration of Trust and
By-Laws. Any determination as to what is in the best interests of the Trust
made by the Board of Trustees in good faith shall be conclusive.
In construing the provisions of this Declaration of Trust, the presumption
shall be in favor of a grant of power to the Trustees. Unless otherwise
specified herein or required by law, any action by the Board of Trustees shall
be deemed effective if approved or taken by a majority of the Trustees then in
office.
The Trustees shall devote to the affairs of the Trust such time as may be
necessary for the proper performance of their duties hereunder, but neither the
Trustees nor the officers, directors, shareholders or partners of the Trustees,
shall be expected to devote their full time to the performance of such duties.
The Trustees, or any Affiliate shareholder, officer, director, partner or
employee thereof, or any Person owning a legal or beneficial interest therein,
may engage in or possess an interest in any other business or venture of any
nature and description, independently or with or for the account of others.
Section 4. Payment of Fees and Expenses by the Trust
. The Board of Trustees is authorized to pay or cause to be paid out of
the principal or income of the Trust or any particular Series or class, or
partly out of the principal and partly out of the income of the Trust or any
particular Series or class, and to charge or allocate the same to, between or
among such one or more of the Series or classes that may be established or
designated pursuant to Article III, Section 6, as it deems fair, all expenses,
fees, charges, taxes and liabilities incurred by or arising in connection with
the maintenance or operation of the Trust or a particular Series or class, or in
connection with the management thereof, including, but not limited to, the
Trustees' compensation and such expenses, fees, charges, taxes and liabilities
for the services of the Trust's officers, employees, Investment Adviser,
Principal Underwriter, fund accountant, auditors, counsel, custodian, sub-
custodian (if any), transfer agent, dividend disbursing agent, shareholder
servicing agent, and such other agents or independent contractors and such other
expenses, fees, charges, taxes and liabilities as the Board of Trustees may deem
necessary or proper to incur.
Section 5. Payment of Fees and Expenses by Shareholders
. The Board of Trustees shall have the power, as frequently as it may
determine, to cause each Shareholder of the Trust, or each Shareholder of any
particular Series, to pay directly, in advance or arrears, for charges of the
Trust's custodian or transfer, dividend disbursing, fund accounting, shareholder
servicing or similar agent, an amount fixed from time to time by the Board of
Trustees, by setting off such charges due from such Shareholder from declared
but unpaid dividends or distributions 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.
Section 6. Ownership of Trust Property
. Legal title to all of the Trust Property shall at all times be
considered to be vested in the Trust, except that the Board of Trustees shall
have the power to cause legal title to any Trust Property to be held by or in
the name of any Person as nominee, on such terms as the Board of Trustees may
determine, in accordance with applicable law.
Section 7. Service Contracts
(a) Subject to such requirements and restrictions as may be set
forth in the By-Laws and/or the 1940 Act, the Board of Trustees may, at
any time and from time to time, contract for exclusive or nonexclusive
advisory, management and/or administrative services for the Trust or for
any Series with any corporation, trust, association or other organization,
including any Affiliate; and any such contract may contain such other
terms as the Board of Trustees may determine, including without
limitation, authority for the Investment Adviser or administrator to
determine from time to time without prior consultation with the Board of
Trustees what securities and other instruments or property shall be
purchased or otherwise acquired, owned, held, invested or reinvested in,
sold, exchanged, transferred, mortgaged, pledged, assigned, negotiated, or
otherwise dealt with or disposed of, and what portion, if any, of the
Trust Property shall be held uninvested and to make changes in the Trust's
or a particular Series' investments, or such other activities as may
specifically be delegated to such party.
(b) The Board of Trustees may also, at any time and from time to
time, contract with any corporation, trust, association or other
organization, including any Affiliate, appointing it or them as the
exclusive or nonexclusive distributor or Principal Underwriter for the
Shares of the Trust or one or more of the Series or classes thereof or for
other securities to be issued by the Trust, or appointing it or them to
act as the custodian, transfer agent, dividend disbursing agent, fund
accountant, and/or -shareholder servicing agent for the Trust or one or
more of the Series or classes thereof.
(c) The Board of Trustees is further empowered, at any time and
from time to time, to contract with any Persons to provide such other
services to the Trust or one or more of its Series, as the Board of
Trustees determines to be in the best interests of the Trust or one or
more of its Series.
(d) The fact that:
(i) any of the Shareholders, Trustees, employees or
officers of the Trust is a shareholder, director, officer,
partner, trustee, employee, manager, Adviser, Principal
Underwriter, distributor, or Affiliate or agent of or for any
corporation, trust, association, or other organization, or for
any parent or Affiliate of any organization with which an
Adviser's, management or administration contract, or Principal
Underwriter's or distributor's contract, or custodian,
transfer, dividend disbursing, fund accounting, shareholder
servicing or other type of service contract may have been or
may hereafter be made, or that any such organization, or any
parent or Affiliate thereof, is a Shareholder or has an
interest in the Trust, or that
(ii) any corporation, trust, association or other
organization with which an Adviser's, management or
administration contract or Principal Underwriter's or
distributor's contract, or custodian, transfer, dividend
disbursing, fund accounting, shareholder servicing or other
type of service contract may have been or may hereafter be
made also has an Adviser's, management or administration
contract, or Principal Underwriter's or distributor's
contract, or custodian, transfer, dividend disbursing,
shareholder servicing or other service contract with one or
more other 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, employee or officer of the Trust from voting upon or
executing the same, or create any liability or accountability to the Trust or
its Shareholders, provided that the establishment of and performance under each
such contract is permissible under the provisions of the 1940 Act.
Section 8. Compensation
. Except as set forth in the last sentence of this Section 8, the Board
of Trustees may, from time to time, fix a reasonable amount of compensation to
be paid by the Trust to the Trustees and officers of the Trust. 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.
ARTICLE V
SHAREHOLDERS' VOTING POWERS AND MEETINGS
Section 1. Voting Powers
. Subject to the provisions of Article III, Section 6(d), the
Shareholders shall have power to vote only (i) for the election of Trustees,
including the filling of any vacancies in the Board of Trustees, as provided in
Article IV, Section 1; (ii) with respect to such additional matters relating to
the Trust as may be required by this Declaration of Trust, the By-Laws, the
1940 Act or any registration statement of the Trust filed with the Commission;
and (iii) on such other matters as the Board of Trustees may consider necessary
or desirable. The Shareholder of record (as of the record date established
pursuant to Section 5 of this Article V) of each Share shall be entitled to one
vote for each full Share, and a fractional vote for each fractional Share.
Shareholders shall not be entitled to cumulative voting in the election of
Trustees or on any other matter. Shares may be voted in person or by proxy.
Section 2. Meetings
. Meetings of the Shareholders may be called by the Board of Trustees for
the purpose of electing Trustees as provided in Article IV, Section 1 and for
such other purposes as may be prescribed by law, by this Declaration of Trust or
by the By-Laws. Meetings of the Shareholders may also be called by the Board of
Trustees from time to time for the purpose of taking action upon any other
matter deemed by the Board of Trustees to be necessary or desirable.
Section 3. Quorum and Required Vote
. Except when a larger quorum is required by applicable law, by the By-
Laws or by this Declaration of Trust, thirty-three and one-third percent (33-
1/3%) of the Shares present in person or represented by proxy and entitled to
vote at a Shareholders' meeting shall constitute a quorum at such meeting. When
a separate vote by one or more Series or classes is required, thirty-three and
one-third percent (33-1/3%) of the Shares of each such Series or class present
in person or represented by proxy and entitled to vote shall constitute a quorum
at a Shareholders' meeting of such Series or class. Subject to the provisions
of Article III, Section 6(d), Article VIII, Section 3 and any other provision of
this Declaration of Trust, the By-Laws or applicable law which requires a
different vote: (1) in all matters other than the election of Trustees, the
affirmative vote of the majority of votes cast at a Shareholders' meeting at
which a quorum is present shall be the act of the Shareholders; (2) Trustees
shall be elected by a plurality of the votes cast at a Shareholders' meeting at
which a quorum is present.
At any meeting of shareholders of the Trust, an Eligible Institution (as
that term may from time to time be defined in the applicable then-current
prospectus) may vote any Shares as to which such Eligible Institution is the
holder or agent of record and which are not otherwise represented in person or
by proxy at the meeting, proportionately in accordance with the votes cast by
holders of all Shares otherwise represented at the meeting in person or by proxy
as to which such Eligible Institution is the holder or agent of record. Any
Shares so voted by an Eligible Institution will be deemed represented at the
meeting for all purposes, including quorum purposes.
Section 4. Shareholder Action by Written Consent without a Meeting
. Any action which may be taken at any meeting of Shareholders may be
taken without a meeting and without prior notice if a consent in writing setting
forth the action so taken is signed by the holders of Shares having not less
than the minimum number of votes that would be necessary to authorize or take
that action at a meeting at which all Shares entitled to vote on that action
were present and voted. All such consents shall be filed with the secretary of
the Trust and shall be maintained in the Trust's records. Any Shareholder giving
a written consent or the Shareholder's proxy holders or a transferee of the
Shares or a personal representative of the Shareholder or its respective proxy-
holder may revoke the consent by a writing received by the secretary of the
Trust before written consents of the number of Shares required to authorize the
proposed action have been filed with the secretary.
If the consents of all Shareholders entitled to vote have not been
solicited in writing and if the unanimous written consent of all such
Shareholders shall not have been received, the secretary shall give prompt
notice of the action taken without a meeting to such Shareholders. This notice
shall be given in the manner specified in the By-Laws.
Section 5. Record Dates
. For purposes of determining the Shareholders entitled to notice of any
meeting or to vote or entitled to give consent to action without a meeting, the
Board of Trustees may fix in advance a record date which shall not be more than
one hundred eighty (180) days nor less than seven (7) days before the date of
any such meeting.
If the Board of Trustees does not so fix a record date:
(a) The record date for determining Shareholders entitled to
notice of or to vote at a meeting of Shareholders shall be at the close of
business on the business day before the notice is given or, if notice is
waived, at the close of business on the business day which is five (5)
business days before the day on which the meeting is held.
(b) The record date for determining Shareholders entitled to give
consent to action in writing without a meeting, (i) when no prior action
by the Board of Trustees has been taken, shall be the day on which the
first written consent is given, or (ii) when prior action of the Board of
Trustees has been taken, shall be at the close of business on the day on
which the Board of Trustees adopts the resolution taking such prior
action.
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 Board of Trustees may from time to time fix a date, which shall be before
the date for the payment of such dividend or such other distribution, as the
record date for determining the Shareholders of such Series or class having the
right to receive such dividend or distribution. Nothing in this Section shall
be construed as precluding the Board of Trustees from setting different record
dates for different Series or classes.
Section 6. Additional Provisions
. The By-Laws may include further provisions for Shareholders' votes,
meetings and related matters.
ARTICLE VI
NET ASSET VALUE, DISTRIBUTIONS AND REDEMPTIONS
Section 1. Determination of Net Asset Value, Net Income and Distributions
. Subject to Article III, Section 6 hereof, the Board of Trustees shall
have the power to fix an initial offering price for the Shares of any Series or
class thereof which shall result in such Series or class being valued at not
less than the net asset value thereof, at which price the Shares of such Series
or class shall be offered initially for sale, and to determine from time to time
thereafter the offering price which shall result in such Series or class being
valued at not less than the net asset value thereof from sales of the Shares of
such Series or class; provided, however, that no Shares of a Series or class
thereof shall be issued or sold for consideration which shall result in such
Series or class being valued at less than the net asset value of the Shares of
such Series or class next determined after the receipt of the order (or at such
other times set by the Board of Trustees), except in the case of Shares of such
Series or class issued in payment of a dividend properly declared and payable.
Subject to Article III, Section 6 hereof, the Board of Trustees, in its
absolute discretion, may prescribe and shall set forth in the By-laws or in a
duly adopted vote of the Board of Trustees such bases and time for determining
the per Share or net asset value of the Shares of any Series or net income
attributable to the Shares of any Series, or the declaration and payment of
dividends and distributions on the Shares of any Series, as they may deem
necessary or desirable.
Section 2. Redemptions at the Option of a Shareholder
. Unless otherwise provided in the prospectus of the Trust relating to
the Shares, as such prospectus may be amended from time to time ("Prospectus"):
(a) The Trust shall purchase such Shares as are offered by any
Shareholder for redemption, upon the presentation of a proper instrument
of transfer together with a request directed to the Trust or a Person
designated by the Trust that the Trust purchase such Shares or in
accordance with such other procedures for redemption as the Board of
Trustees may from time to time authorize; and the Trust will pay therefore
the net asset value thereof, in accordance with the By-Laws and applicable
law. The payment of redemption proceeds may be reduced by any applicable
sales charges or fees described in the Prospectus. Payment for said
Shares shall be made by the Trust to the Shareholder within seven days
after the date on which the request is received in proper form. The
obligation set forth in this Section 2 may be suspended or postponed in
accordance with Section 22(e) of the 1940 Act and the rules and
regulations thereunder or as otherwise permitted by the Commission. If
certificates have been issued to a Shareholder, any such request by such
Shareholder must be accompanied by surrender of any outstanding
certificate or certificates for such Shares in form for transfer, together
with such proof of the authenticity of signatures as may reasonably be
required on such Shares and accompanied by proper stock transfer stamps,
if applicable.
(b) Payments for Shares so redeemed by the Trust shall be made in
cash, except payment for such Shares may, at the option of the Board of
Trustees, or such officer or officers as it may duly authorize in its
complete discretion, be made in kind or partially in cash and partially in
kind. In case of any payment in kind, the Board of Trustees, or its
delegate, shall have absolute discretion as to what security or securities
of the Trust shall be distributed in kind and the amount of the same; and
the securities shall be valued for purposes of distribution at the value
at which they were appraised in computing the then current net asset value
of the Shares, provided that any Shareholder who cannot legally acquire
securities so distributed in kind by reason of the prohibitions of the
1940 Act or the provisions of the Employee Retirement Income Security Act
("ERISA") shall receive cash. Shareholders shall bear the expenses of in-
kind transactions, including, but not limited to, transfer agency fees,
custodian fees and costs of disposition of such securities.
(c) If payment for Shares shall be made other than exclusively in
cash, any securities to be delivered as part of such payment shall be
delivered as promptly as any necessary transfers of such securities on the
books of the several corporations whose securities are to be delivered
practicably can be made, which may not necessarily occur within such seven
day period. In no case shall the Trust be liable for any delay of any
corporation or other Person in transferring securities selected for
delivery as all or part of any payment in kind.
(d) The right of Shareholders to receive dividends or other
distributions on Shares may be set forth in a Plan adopted by the Board of
Trustees and amended from time to time pursuant to Rule 18f-3 of the
1940 Act. The right of any Shareholder of the Trust to receive dividends
or other distributions on Shares redeemed and all other rights of such
Shareholder with respect to the Shares so redeemed by the Trust, except
the right of such Shareholder to receive payment for such Shares, shall
cease at the time as of which the purchase price of such Shares shall have
been fixed, as provided above.
Section 3. Redemptions at the Option of the Trust
. The Board of Trustees may, from time to time, without the vote or
consent of the Shareholders, and subject to the 1940 Act, redeem Shares or
authorize the closing of any Shareholder account, subject to such conditions as
may be established by the Board of Trustees.
ARTICLE VII
LIMITATION OF LIABILITY; INDEMNIFICATION
Section 1. Trustees, Shareholders, etc. Not Personally Liable
. The Trustees, officers, employees and agents of the Trust, in incurring
any debts, liabilities or obligations, or in limiting or omitting any other
actions for or in connection with the Trust, are or shall be deemed to be acting
as Trustees, officers, employees or agents of the Trust and not in their own
capacities. No Shareholder shall be subject to any personal liability
whatsoever in tort, contract or otherwise to any other Person or Persons in
connection with the assets or the affairs of the Trust or of any Series or
class, and subject to Sections 3 and 5 of this Article VII, no Trustee, officer,
employee or agent of the Trust shall be subject to any personal liability
whatsoever in tort, contract, or otherwise, to any other Person or Persons in
connection with the assets or affairs of the Trust or of any Series or class,
save only that arising from his or her own willful misfeasance, bad faith, gross
negligence or reckless disregard of the duties involved in the conduct of his or
her office or the discharge of his or her duties. The Trust (or if the matter
relates only to a particular Series or class, that Series or class) shall be
solely liable for any and all debts, claims, demands, judgments, decrees,
liabilities or obligations of any and every kind, against or with respect to the
Trust or such Series or class in tort, contract or otherwise in connection with
the assets or the affairs of the Trust or such Series or class, and all Persons
dealing with the Trust or any Series or class shall be deemed to have agreed
that resort shall be had solely to the Trust Property of the Trust (or if the
matter relates only to a particular Series or class, that of such Series or
class), for the payment or performance thereof.
The Trustees may provide that every note, bond, contract, instrument,
certificate or undertaking made or issued by the Trustees or by any officer or
officers shall give notice that a Certificate of Trust in respect of the Trust
is on file with the Secretary of State of the State of Delaware and may recite
to the effect that the same was executed or made by or on behalf of the Trust or
by them as Trustee or Trustees or as officer or officers, and not individually,
and that the obligations of any instrument made or issued by the Trustees or by
any officer or officers of the Trust are not binding upon any of them or the
Shareholders individually but are binding only upon the assets and property of
the Trust, or the particular Series in question, as the case may be. The
omission of any statement to such effect from such instrument shall not operate
to bind any Trustee or Trustees or officer or officers or Shareholder or
Shareholders individually, or to subject the assets of any Series or class to
the obligations of any other Series or class.
Section 2. Officers and Trustees' Good Faith Action, Expert Advice, No
Bond or Surety
. The exercise by the Trustees of their powers and discretion hereunder
shall be binding upon everyone interested. An officer or Trustee shall be
liable to the Trust and to any Shareholder solely for such officer's or
Trustee's own willful misfeasance, bad faith, gross negligence or reckless
disregard of the duties involved in the conduct of the office of such officer or
Trustee, and for nothing else, and shall not be liable for errors of judgment or
mistakes of fact or law. Subject to the foregoing, the Trustees shall not be
responsible or liable in any event for any neglect or wrongdoing of any officer,
agent, employee, consultant, investment adviser, administrator, distributor,
underwriter, custodian or transfer agent, dividend disbursing agent, shareholder
servicing agent or accounting agent of the trust, nor shall any Trustee be
responsible for the act or omission of any other Trustee. In discharging their
duties, the Trustees, when acting in good faith, shall be entitled to rely upon
the books of account of the Trust and upon written reports made to the Trustees
by an officer appointed by them, any independent public accountant or auditor,
and (with respect to the subject matter of the relevant contract involved) any
officer, partner or responsible employee of a contracting party employed by the
Trust. The officers and Trustees may obtain the advice of counsel or other
experts with respect to the meaning and operation of this Declaration of Trust
and their duties as officers or Trustees. No such officer or Trustee shall be
liable for any act or omission in accordance with such advice and no inference
concerning liability shall arise from a failure to follow such advice. The
officers and Trustees shall not be required to give any bond as such, nor any
surety if a bond is required.
Section 3. Indemnification of Shareholders
. If any Shareholder (or former Shareholder) of the Trust shall be
charged or held to be personally liable for any obligation or liability of the
Trust solely by reason of being or having been a Shareholder and not because of
such Shareholder's acts or omissions or for some other reason, the Trust (upon
proper and timely request by the Shareholder) may assume the defense against
such charge and satisfy any judgment thereon or may reimburse the Shareholder or
former Shareholder for expenses, and the Shareholder or former Shareholder (or
the heirs, executors, administrators or other legal representatives thereof, or
in the case of a corporation or other entity, its corporate or other general
successor) shall be entitled (but solely out of the assets of the Series of
which such Shareholder or former Shareholder is or was the holder of Shares) to
be held harmless from and indemnified against all loss and expense arising from
such liability.
Section 4. Indemnification of Trustees, Officers, etc
. Subject to the limitations, if applicable, hereinafter set forth in
this Section 4, the Trust shall indemnify (from the assets of one or more Series
to which the conduct in question relates) each of its Trustees, officers,
employees and agents (including Persons who serve at the Trust's request as
directors, officers or trustees of another organization in which the Trust has
any interest as a shareholder, creditor or otherwise (hereinafter, together with
such Person's heirs, executors, administrators or personal representatives,
referred to as a "Covered Person")) against all liabilities, including but not
limited to amounts paid in satisfaction of judgments, in compromise or as fines
and penalties, and expenses, including reasonable accountants' and counsel fees,
incurred by any Covered Person in connection with the defense or disposition of
any action, suit or other proceeding, whether civil or criminal, before any
court or administrative or legislative body, in which such Covered Person may be
or may have been involved as a party or otherwise or with which such Covered
Person may be or may have been threatened, while in office or thereafter, by
reason of being or having been such a Trustee or officer, director or trustee,
except with respect to any matter as to which it has been determined that such
Covered Person (i) did not act in good faith in the reasonable belief that such
Covered Person's action was in or not opposed to the best interests of the
Trust; or (ii) had acted with willful misfeasance, bad faith, gross negligence
or reckless disregard of the duties involved in the conduct of such Covered
Person's office; and (iii) for a criminal proceeding, had reasonable cause to
believe that his or her conduct was unlawful (the conduct described in (i), (ii)
and (iii) being referred to hereafter as "Disabling Conduct"). A determination
that the Covered Person is entitled to indemnification may be made by (i) a
final decision on the merits by a court or other body before whom the proceeding
was brought that the Covered Person to be indemnified was not liable by reason
of Disabling Conduct, (ii) dismissal of a court action or an administrative
proceeding against a Covered Person for insufficiency of evidence of Disabling
Conduct, or (iii) a reasonable determination, based upon a review of the facts,
that the indemnitee was not liable by reason of Disabling Conduct by (a) a vote
of a majority of a quorum of the Trustees who are neither Interested Persons of
the Trust nor parties to the proceeding (the "Disinterested Trustees"), or
(b) an independent legal counsel in a written opinion. Expenses, including
accountants' and counsel fees so incurred by any such Covered Person (but
excluding amounts paid in satisfaction of judgments, in compromise or as fines
or penalties), may be paid from time to time by one or more Series to which the
conduct in question related in advance of the final disposition of any such
action, suit or proceeding; provided that the Covered Person shall have
undertaken to repay the amounts so paid to such Series if it is ultimately
determined that indemnification of such expenses is not authorized under this
Article VII and (i) the Covered Person shall have provided security for such
undertaking, (ii) the Trust shall be insured against losses arising by reason of
any lawful advances, or (iii) a majority of a quorum of the Disinterested
Trustees, or an independent legal counsel in a written opinion, shall have
determined, based on a review of readily available facts (as opposed to a full
trial type inquiry), that there is reason to believe that the Covered Person
ultimately will be found entitled to indemnification.
Notwithstanding the foregoing, with respect to any action, suit or other
proceeding voluntarily prosecuted by any Covered Person as plaintiff,
indemnification shall be mandatory only if the prosecution of such action, suit
or other proceeding by such indemnitee (1) was authorized by a majority of the
Trustees or (2) was instituted by the indemnitee to enforce his or her rights to
indemnification hereunder in a case in which the indemnitee is found to be
entitled to such indemnification. The rights to indemnification set forth in
this Declaration shall continue as to a person who has ceased to be a Trustee or
officer of the Trust and shall inure to the benefit of his or her heirs,
executors and personal and legal representatives. No amendment or restatement
of this Declaration or repeal of any of its provisions shall limit or eliminate
any of the benefits provided to any person who at any time is or was a Trustee
or officer of the Trust or otherwise entitled to indemnification hereunder in
respect of any act or omission that occurred prior to such amendment,
restatement or repeal. In making any determination regarding any person's
entitlement of indemnification hereunder, it shall be presumed that such person
is entitled to indemnification, and the Trust shall have the burden of proving
the contrary.
Section 5. Compromise Payment
. As to any matter disposed of by a compromise payment by any such
Covered Person referred to in Section 4 of this Article VII, pursuant to a
consent decree or otherwise, no such indemnification either for said payment or
for any other expenses shall be provided unless such indemnification shall be
approved (i) by a majority of a quorum of the Disinterested Trustees or (ii) by
an independent legal counsel in a written opinion. Approval by the Trustees
pursuant to clause (i) or by independent legal counsel pursuant to clause
(ii) shall not prevent the recovery from any Covered Person of any amount paid
to such Covered Person in accordance with either of such clauses as
indemnification if such Covered Person is subsequently adjudicated by a court of
competent jurisdiction not to have acted in good faith in the reasonable belief
that such Covered Person's action was in or not opposed to the best interests of
the Trust or to have been 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 the Covered Person's office.
Section 6. Indemnification Not Exclusive, etc
. The right of indemnification provided by this Article VII shall not be
exclusive of or affect any other rights to which any such Covered Person or
shareholder may be entitled. As used in this Article VII, a "disinterested"
Person is one against whom none of the actions, suits or other proceedings in
question, and no other action, suit or other proceeding on the same or similar
grounds is then or has been pending or threatened. Nothing contained in this
Article VII shall affect any rights to indemnification to which personnel of the
Trust, other than Trustees and officers, and other Persons may be entitled by
contract or otherwise under law, nor the power of the Trust to purchase and
maintain liability insurance on behalf of any such Person.
Section 7. Insurance
. To the fullest extent permitted by applicable law, the officers and
Trustees shall be entitled and have the authority to purchase with Trust
Property, insurance for liability and for all expenses reasonably incurred or
paid or expected to be paid by a Trustee or officer in connection with any
claim, action, suit or proceeding in which such Person becomes involved by
virtue of such Person's capacity or former capacity with the Trust, whether or
not the Trust would have the power to indemnify such Person against such
liability under the provisions of this Article.
Section 8. Liability of Third Persons Dealing with Trustees
. No person dealing with the Trustees shall be bound to make any inquiry
concerning the validity of any actions made or to be made by the Trustees.
Section 9. Derivative Actions
. Subject to the requirements set forth in Section 3816 of the DSTA, a
Shareholder or Shareholders may bring a derivative action on behalf of the Trust
only if the Shareholder or Shareholders first make a pre-suit demand upon the
Board of Trustees to bring the subject action unless an effort to cause the
Board of Trustees to bring such action is excused. A demand on the Board of
Trustees shall only be excused if a majority of the Board of Trustees, or a
majority of any committee established to consider the merits of such action, has
a material personal financial interest in the action at issue. A Trustee shall
not be deemed to have a material personal financial interest in an action or
otherwise be disqualified from ruling on a Shareholder demand by virtue of the
fact that such Trustee receives remuneration from his service on the Board of
Trustees of the Trust or on the boards of one or more investment companies with
the same or an affiliated investment advisor or underwriter.
ARTICLE VIII
MISCELLANEOUS
Section 1. Dissolution and Liquidation of Trust, Series, or Class
. Unless dissolved as provided herein, the Trust shall have perpetual
existence. The Trust may be dissolved at any time by vote of a majority of the
Shares of the Trust entitled to vote or by the Board of Trustees by written
notice to the Shareholders. Any Series or class may be dissolved or liquidated
at any time by vote of a majority of the Shares of that Series or class or by
the Board of Trustees by written notice to the Shareholders of that Series or
class.
Upon dissolution of the Trust (or a particular Series or class, as the
case may be), the Trustees shall (in accordance with Section 3808 of the DSTA)
pay or make reasonable provision to pay all claims and obligations of each
Series or class (or the particular Series or class, as the case may be),
including all contingent, conditional or unmatured claims and obligations known
to the Trust, and all claims and obligations which are known to the Trust but
for which the identity of the claimant is unknown. If there are sufficient
assets held with respect to each Series or class of the Trust (or the particular
Series or class, as the case may be), such claims and obligations shall be paid
in full and any such provisions for payment shall be made in full. If there are
insufficient assets held with respect to each Series or class of the Trust (or
the particular Series or class, as the case may be), such claims and obligations
shall be paid or provided for according to their priority and, among claims and
obligations of equal priority, ratably to the extent of assets available
therefor. Any remaining assets (including without limitation, cash, securities
or any combination thereof) held with respect to each Series or class of the
Trust (or the particular Series or class, as the case may be) shall be
distributed to the Shareholders of such Series or class, ratably according to
the number of Shares of such Series or class held by the several Shareholders on
the record date for such dissolution distribution. Upon the winding up of the
Trust in accordance with Section 3808 of the DSTA and its termination, any one
(1) Trustee shall execute, and cause to be filed, a certificate of cancellation,
with the office of the Secretary of State of the State of Delaware in accordance
with the provisions of Section 3810 of the DSTA
Section 2. Merger and Consolidation; Conversion.
(a) Merger and Consolidation. Pursuant to an agreement of merger
or consolidation, the Trust, or any one or more Series or classes, may, by
act of a majority of the Board of Trustees, merge or consolidate with or
into one or more statutory trusts or other business entities formed or
organized or existing under the laws of the State of Delaware or any other
state or the United States or any foreign country or other foreign
jurisdiction. Any such merger or consolidation shall not require the vote
of the Shareholders affected thereby, unless such vote is required by the
1940 Act, or unless such merger or consolidation would result in an
amendment of this Declaration of Trust which would otherwise require the
approval of such Shareholders. In accordance with Section 3815(f) of the
DSTA, an agreement of merger or consolidation may effect any amendment to
this Declaration of Trust or the By-Laws or effect the adoption of a new
declaration of trust or by-laws of the Trust if the Trust is the surviving
or resulting statutory trust. Upon completion of the merger or
consolidation, any one (1) Trustee shall execute and cause to be filed a
certificate of merger or consolidation in accordance with Section 3815 of
the DSTA.
(b) Conversion. A majority of the Board of Trustees may, without
the vote or consent of the Shareholders, cause (i) the Trust to convert to
an "other business entity" as defined in Section 3801 of the DSTA
organized, formed or created under the laws of the State of Delaware as
permitted pursuant to Section 3821 of the DSTA; (ii) the Shares of the
Trust or any Series or class to be converted into beneficial interests in
another statutory trust (or series or class thereof) created pursuant to
this Section 2 of this Article VIII, or (iii) the Shares to be exchanged
under or pursuant to any state or federal statute to the extent permitted
by law; provided, however, that if required by the 1940 Act, no such
statutory conversion, Share conversion or Share exchange shall be
effective unless the terms of such transaction shall first have been
approved at a meeting called for that purpose by the "vote of a majority
of the outstanding voting securities," as such phrase is defined in the
1940 Act, of the Trust or Series or class, as applicable; provided,
further, that in all respects not governed by statute or applicable law,
the Board of Trustees shall have the power to prescribe the procedure
necessary or appropriate to accomplish a sale of assets, merger or
consolidation including the power to create one or more separate statutory
trusts to which all or any part of the assets, liabilities, profits or
losses of the Trust may be transferred and to provide for the conversion
of Shares of the Trust or any Series or class into beneficial interests in
such separate statutory trust or trusts (or series or class thereof).
Section 3. Reorganization.
A majority of the Board of Trustees may cause the Trust to sell, convey
and transfer all or substantially all of the assets of the Trust, or all or
substantially all of the assets associated with any one or more Series or class,
to another trust, statutory trust, partnership, limited partnership, limited
liability company, association or corporation organized under the laws of any
state, or to one or more separate series or classes thereof, or to the Trust to
be held as assets associated with one or more other Series or class of the
Trust, in exchange for cash, shares or other securities (including, without
limitation, in the case of a transfer to another Series or class of the Trust,
Shares of such other Series or class) with such transfer either (a) being made
subject to, or with the assumption by the transferee of, the liabilities
associated with each Series or class the assets of which are so transferred, or
(b) not being made subject to, or not with the assumption of, such liabilities;
provided, however, that, if required by the 1940 Act, no assets associated with
any particular Series or class shall be so sold, conveyed or transferred unless
the terms of such transaction shall first have been approved at a meeting called
for that purpose by the "vote of a majority of the outstanding voting
securities," as such phrase is defined in the 1940 Act, of that Series or class.
Following such sale, conveyance and transfer, the Board of Trustees shall
distribute such cash, shares or other securities (giving due effect to the
assets and liabilities associated with and any other differences among the
various Series or classes the assets associated with which have so been sold,
conveyed and transferred) ratably among the Shareholders of the Series or class
the assets associated with which have been so sold, conveyed and transferred
(giving due effect to the differences among the various classes within each such
Series or class); and if all of the assets of the Trust have been so sold,
conveyed and transferred, the Trust shall be dissolved.
Section 4. Amendments
. Subject to the provisions of the second paragraph of this Section 4 of
this Article VIII, this Declaration of Trust may be restated and/or amended at
any time by an instrument in writing signed by a majority of the then Board of
Trustees and, if required, by approval of such amendment by Shareholders in
accordance with Article V, Section 3 hereof. Any such restatement and/or
amendment hereto shall be effective immediately upon execution and approval or
upon such future date and time as may be stated therein. The Certificate of
Trust of the Trust may be restated and/or amended at any time by the Board of
Trustees, without Shareholder approval, to correct any inaccuracy contained
therein. Any such restatement and/or amendment of the Certificate of Trust
shall be executed by at least one (1) Trustee and shall be effective immediately
upon its filing with the office of the Secretary of State of the State of
Delaware or upon such future date as may be stated therein.
Notwithstanding the above, the Board of Trustees expressly reserves the
right to amend or repeal any provisions contained in this Declaration of Trust
or the Certificate of Trust, in accordance with the provisions of Section 5 of
Article III hereof, and all rights, contractual and otherwise, conferred upon
Shareholders are granted subject to such reservation. The Board of Trustees
further expressly reserves the right to amend or repeal any provision of the By-
Laws pursuant to Article IX of the By-Laws.
Section 5. Filing of Copies, References, Headings
. The original or a copy of this Declaration of Trust and of each
restatement and/or amendment hereto shall be kept at the principal executive
office of the Trust or at the principal offices of any administrator where the
Trust's records are maintained so that it may be inspected by any Shareholder.
Anyone dealing with the Trust may rely on a certificate by an officer of the
Trust as to whether or not any such restatements and/or amendments have been
made and as to any matters in connection with the Trust hereunder; and, with the
same effect as if it were the original, may rely on a copy certified by an
officer of the Trust to be a copy of this instrument or of any such restatements
and/or amendments. In this Declaration of Trust and in any such restatements
and/or amendments, references to this instrument, and all expressions of similar
effect to "herein," "hereof" and "hereunder," shall be deemed to refer to this
instrument as amended or affected by any such restatements and/or amendments.
Headings are placed herein for convenience of reference only and shall not be
taken as a part hereof or control or affect the meaning, construction or effect
of this instrument. Whenever the singular number is used herein, the same shall
include the plural; and the neuter, masculine and feminine genders shall include
each other, as applicable. This instrument may be executed in any number of
counterparts, each of which shall be deemed an original.
Section 6. Applicable Law
. This Declaration of Trust is created under and is to be governed by and
construed and administered according to the laws of the State of Delaware and
the applicable provisions of the 1940 Act and the Code. The Trust shall be a
Delaware statutory trust pursuant to the DSTA, and without limiting the
provisions hereof, the Trust may exercise all powers which are ordinarily
exercised by such a statutory trust.
Section 7. Provisions in Conflict with Law or Regulations.
(a) The provisions of this Declaration of Trust are severable, and
if the Board of Trustees shall determine, with the advice of counsel, that
any of such provisions is in conflict with the 1940 Act, the Code, the
DSTA, or with other applicable laws and regulations, the conflicting
provision shall be deemed not to have constituted a part of this
Declaration of Trust from the time when such provisions became
inconsistent with such laws or regulations; provided, however, that such
determination shall not affect any of the remaining provisions of this
Declaration of Trust or render invalid or improper any action taken or
omitted prior to such determination.
(b) If any provision of this Declaration of Trust shall be held
invalid or unenforceable in any jurisdiction, such invalidity or
unenforceability shall attach only to such provision in such jurisdiction
and shall not in any manner affect such provision in any other
jurisdiction or any other provision of this Declaration of Trust in any
jurisdiction.
Section 8. Statutory Trust Only
. It is the intention of the Trustees to create a statutory trust
pursuant to the DSTA, and thereby to create the relationship of trustee and
beneficial owners within the meaning of the DSTA between the Trustees and each
Shareholder. It is not the intention of the Trustees to create a general or
limited partnership, limited liability company, joint stock association,
corporation, bailment, or any form of legal relationship other than a statutory
trust pursuant to the DSTA. Nothing in this Declaration of Trust shall be
construed to make the Shareholders, either by themselves or with the Trustees,
partners or members of a joint stock association.
Section 9. Use of the Name "BBH"
. The Trust expressly agrees and acknowledges that the name "BBH" is the
sole property of ▇▇▇▇▇ Brothers ▇▇▇▇▇▇▇▇ & Co. ("BBH & Co."). BBH & Co. has
consented to the use by the Trust of the identifying words "BBH" and has granted
to the Trust a non-exclusive license to use such name as part of the name of the
Trust and the name of any Series of its Shares. The Trust further expressly
agrees and acknowledges that the non-exclusive license granted herein may be
terminated by BBH & Co. if the Trust ceases to use BBH & Co. or one of its
Affiliates as Investment Adviser or to use other Affiliates or successors of BBH
& Co. for such purposes. In such event, the non-exclusive license granted
herein may be revoked by BBH & Co. and the Trust shall cease using the name
"BBH" as part of its name or the name of any Series of Shares, unless otherwise
consented to by BBH & Co. or any successor to its interests in such name.
The Trust further understands and agrees that so long as BBH & Co. and/or
any future advisory Affiliate of BBH & Co. shall continue to serve as the
Trust's Investment Adviser, other mutual funds as may be sponsored or advised by
BBH & Co. or its Affiliates shall have the right permanently to adopt and to use
the word "BBH" in their names and in the names of any Series or class of Shares
of such funds.
IN WITNESS WHEREOF, the Trustees named below do hereby make and enter into
this Declaration of Trust as of the 8th day of December, 2006.
/s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇, ▇▇.
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇, ▇▇.
/s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
