Exhbit No. EX-99.a.1
AGREEMENT AND DECLARATION OF TRUST
of
SMA RELATIONSHIP TRUST
a Delaware Statutory Trust
TABLE OF CONTENTS
Page
ARTICLE I. NAME; OFFICES; REGISTERED AGENT; DEFINITIONS................1
SECTION 1. NAME........................................................1
SECTION 2. OFFICES OF THE TRUST........................................1
SECTION 3. REGISTERED AGENT AND REGISTERED OFFICE......................1
SECTION 4. DEFINITIONS.................................................1
ARTICLE II. PURPOSE OF TRUST............................................3
ARTICLE III. SHARES......................................................6
SECTION 1. DIVISION OF BENEFICIAL INTEREST.............................6
SECTION 2. OWNERSHIP OF SHARES.........................................8
SECTION 3. SALE OF SHARES..............................................8
SECTION 4. STATUS OF SHARES AND LIMITATION OF PERSONAL LIABILITY.......8
SECTION 5. POWER OF BOARD OF TRUSTEES TO MAKE TAX STATUS ELECTION......9
SECTION 6. ESTABLISHMENT AND DESIGNATION OF SERIES AND CLASSES.........9
(a) Assets Held with Respect to a Particular
Series..........................................9
(b) Liabilities Held with Respect to a
Particular Series or Class.....................10
(c) Dividends, Distributions and Redemptions.......11
(d) Voting.........................................11
(e) Equality.......................................11
(f) Fractions......................................11
(g) Exchange Privilege.............................11
(h) Combination of Series..........................12
(i) Dissolution or Termination.....................12
SECTION 7. INDEMNIFICATION OF SHAREHOLDERS............................12
ARTICLE IV. THE BOARD OF TRUSTEES......................................12
SECTION 1. NUMBER, ELECTION, TERM, REMOVAL AND RESIGNATION............12
SECTION 2. TRUSTEE ACTION BY WRITTEN CONSENT WITHOUT A MEETING........13
SECTION 3. POWERS; OTHER BUSINESS INTERESTS; QUORUM AND
REQUIRED VOTE..............................................13
(a) Powers............................................13
(b) Other Business Interests..........................14
(c) Quorum and Required Vote..........................15
SECTION 4. PAYMENT OF EXPENSES BY THE TRUST...........................15
SECTION 5. PAYMENT OF EXPENSES BY SHAREHOLDERS........................15
SECTION 6. OWNERSHIP OF TRUST PROPERTY................................15
SECTION 7. SERVICE CONTRACTS..........................................15
ARTICLE V. SHAREHOLDERS' VOTING POWERS AND MEETINGS...................17
SECTION 1. VOTING POWERS..............................................17
SECTION 2. QUORUM AND REQUIRED VOTE...................................17
SECTION 3. SHAREHOLDER ACTION BY WRITTEN CONSENT WITHOUT
A MEETING..................................................17
SECTION 4. RECORD DATES...............................................18
SECTION 5. ADDITIONAL PROVISIONS......................................19
ARTICLE VI. NET ASSET VALUE; DISTRIBUTIONS; REDEMPTIONS;
TRANSFERS..................................................19
SECTION 1. DETERMINATION OF NET ASSET VALUE, NET INCOME
AND DISTRIBUTIONS..........................................19
SECTION 2. REDEMPTIONS AT THE OPTION OF A SHAREHOLDER.................20
SECTION 3. REDEMPTIONS AT THE OPTION OF THE TRUST.....................21
SECTION 4. TRANSFER OF SHARES.........................................21
ARTICLE VII. LIMITATION OF LIABILITY AND INDEMNIFICATION
OF AGENT...................................................21
SECTION 1. LIMITATION OF LIABILITY....................................21
SECTION 2. INDEMNIFICATION............................................22
(a) Indemnification by Trust.......................22
(b) Exclusion of Indemnification...................22
(c) Required Approval..............................23
(d) Advancement of Expenses........................23
(e) Other Contractual Rights.......................23
(f) Fiduciaries of Employee Benefit Plan...........23
SECTION 3. INSURANCE..................................................23
SECTION 4. DERIVATIVE ACTIONS.........................................23
ARTICLE VIII. CERTAIN TRANSACTIONS.......................................24
SECTION 1. DISSOLUTION OF TRUST OR SERIES.............................24
SECTION 2. MERGER OR CONSOLIDATION; CONVERSION; REORGANIZATION........25
(a) Merger or Consolidation........................25
(b) Conversion.....................................25
(c) Reorganization.................................26
SECTION 3. MASTER FEEDER STRUCTURE....................................26
ARTICLE IX. AMENDMENTS.................................................27
SECTION 1. AMENDMENTS GENERALLY.......................................27
ARTICLE X. MISCELLANEOUS..............................................27
SECTION 1. REFERENCES; HEADINGS; COUNTERPARTS.........................27
SECTION 2. APPLICABLE LAW.............................................27
SECTION 3. PROVISIONS IN CONFLICT WITH LAW OR REGULATIONS.............28
SECTION 4. STATUTORY TRUST ONLY.......................................28
SECTION 5. USE OF THE NAME "SMA RELATIONSHIP TRUST"...................28
AGREEMENT AND DECLARATION OF TRUST
of
SMA RELATIONSHIP TRUST
AGREEMENT AND DECLARATION OF TRUST made as of this ____ day of _________,
2002, by the Trustees hereunder, and by the holders of Shares to be issued by
the Trust hereunder as hereinafter provided.
WITNESSETH:
WHEREAS, this Trust is being formed to carry on the business of an open-end
management investment company, as defined in the 1940 Act; and
WHEREAS, this Trust is authorized to issue its Shares in separate Series,
to divide Shares of any Series into two or more classes, and to issue classes of
any Series, 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 DSTA and the provisions hereinafter set forth;
NOW, THEREFORE, the Trustees hereby declare that they will hold all cash,
securities and other assets that 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 created hereunder as hereinafter set forth.
ARTICLE I.
NAME; OFFICES; REGISTERED AGENT; DEFINITIONS
Section 1. Name. This Trust shall be known as "SMA Relationship Trust" and
the Board of Trustees shall conduct the business of the Trust under that name,
or any other name as it may, from time to time, designate.
Section 2. Offices of the Trust. The Board may at any time establish
offices of the Trust at any place or places where the Trust intends to do
business.
Section 3. 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 in the Trust's Certificate of Trust.
Section 4. 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 same meaning as "affiliated person," as such
term is defined in the 1940 Act when used with reference to a specified Person,
as defined below;
(c) "Board of Trustees" shall mean the governing body of the Trust, that is
comprised of the number of Trustees of the Trust fixed, from time to time,
pursuant to Article IV hereof, having the powers and duties set forth herein;
(d) "By-Laws" shall mean By-Laws of the Trust, as amended or restated from
time to time in accordance with Article VIII therein. Such By-Laws may contain
any provision not inconsistent with applicable law or this Declaration of Trust,
relating to the governance of the Trust;
(e) "Certificate of Trust" shall mean the certificate of trust of the Trust
to be filed with the office of the Secretary of State of the State of Delaware
as required under the DSTA to form the Trust, as such certificate shall be
amended or restated from time to time and filed with such office;
(f) "Code" shall mean the Internal Revenue Code of 1986 and the rules and
regulations thereunder, all as adopted or amended from time to time;
(g) "Commission" shall have the meaning given that term in the 1940 Act;
(h) "DSTA" shall mean the Delaware Statutory Trust Act (12 Del. C. §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) "Exchange" shall mean the New York Stock Exchange;
(k) "General Liabilities" shall have the meaning given to it in Article
III, Section 6(b) of this Declaration Trust;
(l) "Interested Person" shall have the meaning given to that term in the
1940 Act;
(m) "Investment Adviser" or "Adviser" shall mean a Person, as defined
below, furnishing services to the Trust pursuant to any investment advisory or
investment management contract described in Article IV, Section 7(a) hereof;
(n) "National Financial Emergency" shall mean the whole or any part of any
period: (i) during which an emergency exists as a result of which disposal by
the Trust of securities or other assets owned by the Trust is not reasonably
practicable; (ii) during which it is not reasonably practicable for the Trust
fairly to determine the net asset value of its assets; or (iii) during such
other period as the Commission may by order permit for the protection of
investors;
(o) "Person" shall mean a natural person, partnership, limited partnership,
limited liability company, trust, estate, association, corporation,
organization, custodian, nominee or any other individual or entity in its own or
any representative capacity, in each case, whether domestic or foreign, and a
statutory trust or a foreign statutory trust;
(p) "Principal Underwriter" shall have the meaning given to that term in
the 1940 Act;
(q) "Series" shall refer to each Series of Shares established and
designated under and in accordance with the provisions of Article III hereof and
shall mean an entity such as that described in the 1940 Act;
(r) "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;
(s) "Shareholder" shall mean a record owner of Shares pursuant to the
By-Laws;
(t) "Trust" shall mean the Delaware statutory trust formed pursuant to this
Declaration of Trust and the filing of the Certificate of Trust with the office
of the Secretary of State of the State of Delaware;
(u) "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 thereof, including, without limitation, the
rights referenced in Article X, Section 5 hereof;
(v) "Trustee" or "Trustees" shall mean each Person that signs 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 and the By-Laws. Reference
herein to a Trustee or the Trustees shall refer to such Person or Persons in
such Person's or Persons' capacity as a trustee or trustees hereunder and under
the By-Laws; and
(w) "Vote of a majority of the outstanding voting securities" shall have
the meaning provided under subsection 2(a)(42) of the 1940 Act or any successor
provision thereof, which subsection, as of the date hereof, is as follows: the
vote, at a duly called meeting of the Shareholders, (i) of sixty-seven percent
(67%) or more of the voting securities present in person or represented by proxy
at such meeting, if the holders of more than fifty percent (50%) of the
outstanding voting securities of the Trust are present or represented by proxy,
or (ii) of more than fifty percent (50%) of the outstanding voting securities of
the Trust, whichever is the less.
ARTICLE II.
PURPOSE OF TRUST
The purpose of the Trust is to conduct, operate and carry on the business
of a management investment company registered under the 1940 Act directly, or if
one or more Series is established hereunder, through one or more Series,
investing primarily in securities, and to exercise all of the powers granted to
a statutory trust formed under the DSTA, including, without limitation, the
following powers and authority:
(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, 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 that arise
in any manner 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, subject in
each case to proper safeguards according to the usual practice of investment
companies or any rules or regulations applicable thereto;
(g) To consent to, or participate in, any plan for the reorganization,
consolidation or merger of any corporation or issuer of any security that 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,
depository, voting trustee or otherwise, and in that connection, to deposit any
security with, or transfer any security to, any such committee, depository or
trustee, and to delegate to them such power and authority with relation to any
security (whether or not so deposited or transferred) as the Trustees shall deem
proper, and to agree to pay, and to pay, such portion of the expenses and
compensation of such committee, depository or trustee as the Trustees shall deem
proper;
(i) To litigate, compromise, arbitrate, settle or otherwise adjust claims
in favor of or against the Trust or a Series, 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 Board of Trustees may deem necessary, desirable 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 By-Laws 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
reacquire 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. Neither the
Trust nor the Board of 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.
(a) The beneficial interest in the Trust shall at all times be divided into
outstanding shares of the Trust, all without par value. The number of shares of
beneficial interest in the Trust 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 in accordance
with the 1940 Act. The different Series and classes shall be established and
designated pursuant to Article III, Section 6 hereof. If no separate Series or
classes of Series shall be established, the Shares shall have the rights, powers
and duties 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.
(b) The Board of Trustees shall have the power to issue authorized, but
unissued shares of beneficial interest of the Trust, or any Series and class
thereof, from time to time, for such consideration paid wholly or partly in cash
or securities as may be determined from time to time by the Board of Trustees,
subject to any requirements or limitations of the 1940 Act. The Board of
Trustees, on behalf of the Trust, may acquire and hold as treasury shares,
reissue for such consideration and on such terms as it may determine, or cancel,
at its discretion from time to time, any Shares reacquired by the Trust. The
Board of Trustees may classify or reclassify any unissued shares of beneficial
interest or any shares of beneficial interest of the Trust or any Series or
class thereof, that were previously issued and are reacquired, 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 cancelled.
(c) Subject to the provisions of Section 6 of this Article III, each Share
shall entitle the holder to voting rights as provided in Article V hereof.
Shareholders shall have no preemptive or other right to subscribe for new or
additional authorized, but unissued shares or other securities issued by the
Trust or any Series thereof. The Board of Trustees may, from time to time,
divide or combine the Shares of the Trust or any particular Series thereof into
a greater or lesser number of Shares of the Trust or that Series, respectively.
Such division or combination shall not materially change the proportionate
beneficial interests of the holders of Shares of the Trust or that Series, as
the case may be, in the Trust Property at the time of such division or
combination that is held with respect to the Trust or that Series, as the case
may be, or materially affect the rights of Shares of the Trust or any other
Series.
(d) Any Trustee, officer or other agent of the Trust, and any organization
in which any such Person has an economic or other interest, may acquire, own,
hold and dispose of shares of beneficial interest in the Trust or any Series and
class thereof, whether such shares are authorized but unissued, or already
outstanding, to the same extent as if such Person were not a Trustee, officer or
other agent of the Trust; and the Trust or any Series may issue and sell and may
purchase such Shares from any such Person or any such organization, subject to
the limitations, restrictions or other provisions applicable to the sale or
purchase of such shares herein and in the 1940 Act.
Section 2. Ownership of Shares.
(a) Shares are expected to be owned primarily by Persons entering into
written contracts with certain financial intermediaries offering a combination
of services, including investment advisory services and/or brokerage services,
for a fee. For purposes of confirming that economic distinctions among Persons
and/or groups of Persons that result from these contracts are not inconsistent
with the terms of this Declaration of Trust, the terms and conditions of the
written contracts as they relate to any such distinctions are hereby ratified.
(b) 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 the Trust and
each Series and class thereof, if any, 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 the identity of the Shareholders of the Trust and
each Series and class thereof and as to the number of Shares of the Trust and
each Series and class thereof held from time to time by each such Shareholder.
Section 3. Sale of Shares. Subject to the 1940 Act and applicable law, the
Trust may sell its authorized but unissued shares of beneficial interest to such
Persons, at such times, on such terms, and for such consideration as the Board
of Trustees may from time to time authorize. Each sale shall be credited to the
individual purchaser's account in the form of full or fractional Shares of the
Trust or such Series thereof (and class thereof, if any), as the purchaser may
select, at the net asset value per Share, subject to Section 22 of the 1940 Act,
and the rules and regulations adopted thereunder; provided, however, that the
Board of Trustees may, in its sole discretion, permit the Principal Underwriter
to impose a sales charge or reimbursement fee upon any such sale. Every
Shareholder by virtue of having become a Shareholder shall be deemed to have
expressly assented and agreed to the terms of this Declaration of Trust and to
have become bound as a party hereto.
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, the By-Laws, and under applicable law.
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. Subject to Article VIII, Section 1
hereof, the death, incapacity, dissolution, termination, or bankruptcy of a
Shareholder during the existence of the Trust and any Series thereof shall not
operate to dissolve the Trust or any such Series, nor entitle the representative
of any deceased, incapacitated, dissolved, terminated or bankrupt Shareholder to
an accounting or to take any action in court or elsewhere against the Trust, the
Trustees or any such Series, but entitles such representative only to the rights
of said deceased, incapacitated, dissolved, terminated or bankrupt Shareholder
under this Declaration of Trust. 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. Each Share, when issued on
the terms determined by the Board of Trustees, shall be fully paid and
nonassessable. As provided in the DSTA, Shareholders shall be entitled to the
same limitation of personal liability as that 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 Make Tax Status Election. 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, without the vote of any Shareholder.
Section 6. Establishment and Designation of Series and Classes. The
establishment and designation of any Series or class thereof shall be effective,
without the requirement of Shareholder approval, upon the adoption of a
resolution by a majority of the then Board of Trustees, which resolution shall
set forth such establishment and designation and may provide, to the extent
permitted by the DSTA, for rights, powers and duties of such Series or class
thereof (including variations in the relative rights and preferences as between
the different Series and classes thereof) otherwise than as provided herein.
Each such resolution shall be incorporated herein by reference upon adoption.
Any such resolution may be amended by a further resolution of a majority of the
Board of Trustees, and if Shareholder approval would be required to make such an
amendment to the language set forth in this Declaration of Trust, such further
resolution shall require the same Shareholder approval that would be necessary
to make such amendment to the language set forth in this Declaration of Trust.
Each such further resolution shall be incorporated herein by reference upon
adoption.
Each Series shall be separate and distinct from any other Series, separate
and distinct records on the books of the Trust shall be maintained for each
Series, 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. Each class of a Series shall be separate and distinct from
any other class of the Series. As appropriate, in a manner determined by the
Board of Trustees, the liabilities belonging to any such class of the Series
shall be held and accounted for separately from the liabilities of the Trust,
the Series or any other class of the Series and separate and distinct records on
the books of the Trust for the class of the Series shall be maintained for this
purpose. Subject to Article II hereof, each such Series shall operate as a
separate and distinct investment medium, with separately defined investment
objectives and policies and a distinct investment purpose.
Shares of each Series (and class thereof where applicable) established and
designated pursuant to this Section 6, unless otherwise provided to the extent
permitted by the DSTA, in the resolution establishing and designating such
Series or class, shall have the following rights, powers and duties:
(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, or an appropriate
officer as determined by 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 or under the direction
of 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 a particular Series shall be charged
against the liabilities, debts, obligations, costs, charges, reserves and
expenses of the Trust incurred, contracted for or otherwise existing with
respect to such Series. Such liabilities, debts, obligations, costs, charges,
reserves and expenses incurred, contracted for or otherwise existing with
respect to a particular Series are herein referred to as "liabilities held with
respect to" that Series. Any liabilities, debts, obligations, costs, charges,
reserves and expenses of the Trust that are not readily identifiable as being
liabilities held with respect to any particular Series (collectively "General
Liabilities") shall be allocated by the Board of Trustees, or an appropriate
officer as determined 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. 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 Series for all purposes. All Persons who have extended
credit that has been allocated to a particular Series, or who have a claim or
contract that 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
shall 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 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 and Redemptions. Notwithstanding any other
provisions of this Declaration of Trust, including, without limitation, Article
VI hereof, no dividend or distribution including, without limitation, any
distribution paid upon dissolution of the Trust or of any Series with respect
to, nor any redemption of, the Shares of any Series or class of such Series,
shall be effected by the Trust other than from the assets held with respect to
such Series, nor, except as specifically provided in Section 7 of this Article
III, shall any Shareholder of any particular Series otherwise have any right or
claim against the assets held with respect to any other Series or the Trust
generally, except in the case of a right or claim against the assets held with
respect to any other Series, to the extent that such Shareholder has such a
right or claim hereunder as a Shareholder of such other Series. 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, separately by Series and, if applicable, by class, provided that:
(1) where the 1940 Act requires all Shares of the Trust to be voted in the
aggregate without differentiation between the separate Series or classes, then
all of the Trust's Shares shall vote in the aggregate; and (2) 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.
(e) Equality. Each Share of any particular Series shall be equal to each
other Share of such Series (subject to the rights and preferences with respect
to separate classes of such Series).
(f) Fractions. A fractional Share of a Series shall carry proportionately
all the rights and obligations of a whole Share of such 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 shall have the right to
exchange said Shares for Shares of one or more other Series in accordance with
such requirements and procedures as may be established by the Board of Trustees,
and in accordance with the 1940 Act.
(h) Combination of Series. The Board of Trustees shall have the authority,
without the approval of the Shareholders of any Series unless otherwise required
by applicable law, to combine the assets and liabilities held with respect to
any two or more Series into assets and liabilities held with respect to a single
Series; provided that upon completion of such combination of Series, the
proportionate interest of each Shareholder, in the assets and liabilities held
with respect to the combined Series, shall equal the proportionate interest of
each such Shareholder in the assets and liabilities held with respect to each
Series that was combined.
(i) Dissolution or Termination. Any particular Series shall be dissolved
upon the occurrence of the applicable dissolution events set forth in Article
VIII, Section 1 hereof. Upon dissolution of a particular Series, the Trustees
shall wind up the affairs of such Series in accordance with Article VIII,
Section 1 hereof, and thereafter, rescind the establishment and designation
thereof. At the discretion of the Board of Trustees, from time to time, the
Trustees, by a majority vote, may terminate any particular class and rescind the
establishment and designation thereof. In addition, at any time there are no
Shares outstanding of a particular class, the Board of Trustees may terminate
such class and rescind the establishment and designation thereof; provided,
however, that upon the rescission of the establishment and designation of any
particular Series, every class of such Series shall thereby be terminated and
its establishment and designation rescinded. Each resolution of the Board of
Trustees pursuant to this Section 6(i) shall be incorporated herein by reference
upon adoption.
Section 7. Indemnification of Shareholders. If any Shareholder or former
Shareholder shall be exposed to liability by reason of a claim or demand
relating exclusively to his or her being or having been a Shareholder of the
Trust or a Shareholder of a particular Series thereof, and not because of such
Shareholder's actions or omissions, such Shareholder or former Shareholder (or,
in the case of a natural person, his or her heirs, executors, administrators, or
other legal representatives or, in the case of a corporation or other entity,
its corporate or other general successor) shall be entitled to be held harmless
from and indemnified out of the assets of the Trust or out of the assets of such
Series thereof, as the case may be, against all loss and expense arising from
such claim or demand; provided, however, such indemnity shall not cover (i) any
taxes due or paid by reason of such Shareholder's ownership of any Shares, and
(ii) expenses charged to a Shareholder pursuant to Article IV, Section 5 hereof.
ARTICLE IV
THE BOARD OF TRUSTEES
Section 1. Number, Election, Term, Removal and Resignation.
(a) The initial Board of Trustees shall be comprised of the Trustees
entering into this Declaration of Trust on the date first written above, who
shall hold office until the initial holder of a Share executes a consent in
writing to elect a Board of Trustees that holds office in accordance with
paragraph (c) of this Section 1. The initial Trustees shall: (i) execute and
file, or cause to be filed, the Certificate of Trust with the office of the
Secretary of State of the State of Delaware, and (ii) adopt the By-Laws. Each
Trustee shall execute a counterpart to this Declaration of Trust.
(b) The number of Trustees constituting the entire Board of Trustees may be
fixed, from time to time, by the vote of a majority of the then Board of
Trustees; provided, however, that the number of Trustees shall in no event be
less than one (1) nor more than fifteen (15), and the percentage of Trustees who
are not Interested Persons of the Trust shall be no less than that permitted by
the 1940 Act. The number of Trustees shall not be reduced so as to shorten the
term of any Trustee then in office.
(c) Each Trustee shall hold office for the lifetime of the Trust or until
such Trustee's earlier death, resignation, removal or inability otherwise to
serve, or, if sooner than any of such events, until the next meeting of
Shareholders called for the purpose of electing Trustees (or the consent of
Shareholders in lieu thereof for the election of Trustees), and until the
election and qualification of his or her successor.
(d) Any Trustee may be removed, with or without cause, by the Board of
Trustees, by action of a majority of the Trustees. Shareholders shall have the
power to remove a Trustee only to the extent provided by the 1940 Act.
(e) Any Trustee may resign at any time by giving written notice 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.
Section 2. Trustee Action by Written Consent Without a Meeting. Any action
that may be taken at any meeting of the Board of Trustees or any committee
thereof may be taken without a meeting and without prior written notice if a
consent(s) in writing setting forth the action so taken is signed by the
Trustees 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 Trustees on
the Board of Trustees or any committee thereof, as the case may be, were present
and voted. A consent transmitted by electronic transmission by a Trustee shall
be deemed to be written and signed for purposes of this Section. All such
consents shall be filed with the minutes of the proceedings of the Board of
Trustees or committee of the Trust, and shall be maintained in the Trust's
records.
Section 3. Powers; Other Business Interests; Quorum and Required Vote.
(a) Powers. Subject to the provisions of this Declaration of Trust, the
business of the Trust (including every Series thereof) shall be managed by or
under the direction of the Board of Trustees, and such Board of Trustees shall
have all powers necessary or convenient to carry out that responsibility. 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 operation and administration of
the Trust (including every Series thereof). The Board of Trustees shall not be
bound or limited by present or future laws or customs with regard to investments
by trustees or fiduciaries, but, subject to the other provisions of this
Declaration of Trust and the By-Laws, shall have full authority and absolute
power and control over the assets and the business of the Trust (including every
Series thereof) to the same extent as if the Board of Trustees was the sole
owner of such assets and business in its own right, including such authority,
power and control to do all acts and things as it, in its sole discretion, shall
deem proper to accomplish the purposes of this Trust. Without limiting the
foregoing, the Board of Trustees may, subject to the requisite vote for such
actions as set forth in this Declaration of Trust and the By-Laws: (1) adopt
By-Laws not inconsistent with applicable law or this Declaration of Trust; (2)
amend, restate and repeal such By-Laws, subject to and in accordance with the
provisions of such By-Laws; (3) fill vacancies on the Board of Trustees in
accordance with this Declaration of Trust and the By-Laws; (4) elect and remove
such officers and appoint and terminate such agents as it considers appropriate,
in accordance with this Declaration of Trust and the By-Laws; (5) establish and
terminate one or more committees of the Board of Trustees pursuant to the
By-Laws; (6) place Trust Property in custody as required by the 1940 Act, employ
one or more custodians of the Trust Property and authorize such custodians to
employ sub-custodians and to place all or any part of such Trust Property with a
custodian or a custodial system meeting the requirements of the 1940 Act; (7)
retain a transfer agent, dividend disbursing agent, a shareholder servicing
agent or administrative services agent, or any number thereof or any other
service provider as deemed appropriate; (8) provide for the issuance and
distribution of shares of beneficial interest in the Trust or other securities
or financial instruments directly or through one or more Principal Underwriters
or otherwise; (9) retain one or more Investment Adviser(s); (10) re-acquire and
redeem Shares on behalf of the Trust and transfer Shares pursuant to applicable
law; (11) set record dates for the determination of Shareholders with respect to
various matters, in the manner provided in Article V, Section 4 of this
Declaration of Trust; (12) declare and pay dividends and distributions to
Shareholders from the Trust Property, in accordance with this Declaration of
Trust and the By-Laws; (13) establish and designate, from time to time, in
accordance with the provisions of Article III, Section 6 hereof, any Series or
class thereof; and (14) in general, delegate such authority as it considers
desirable to any officer of the Trust, to any committee of the Trust and to any
agent or employee of the Trust or to any such custodian, transfer, dividend
disbursing, shareholder servicing agent, Principal Underwriter, Investment
Adviser, or other service provider, to the extent authorized and in accordance
with this Declaration of Trust, the By-Laws and applicable law. The powers of
the Board of Trustees set forth in this Section 3(a) are without prejudice to
any other powers of the Board of Trustees set forth in this Declaration of Trust
and the By-Laws. Any determination as to what is in the best interests of the
Trust or any Series (or class) thereof and its Shareholders 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 Board of Trustees, and unless otherwise specified herein or required by the
1940 Act or other applicable law, any action by the Board of Trustees shall be
deemed effective if approved or taken by a majority of Trustees then in office
or a majority of any duly constituted committee of Trustees.
(b) Other Business Interests. The Trustees shall devote to the affairs of
the Trust (including every Series thereof) such time as may be necessary for the
proper performance of their duties hereunder, but neither the Trustees nor the
officers, directors, shareholders, partners or employees of the Trustees, if
any, 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 business or venture other
than the Trust or any Series thereof, of any nature and description,
independently or with or for the account of others. None of the Trust, any
Series thereof or any Shareholder shall have the right to participate or share
in such other business or venture or any profit or compensation derived
therefrom.
(c) Quorum and Required Vote. At all meetings of the Board of Trustees,
one-third of the entire Board of Trustees shall be present in person in order to
constitute a quorum for the transaction of business, provided that in no case
may a quorum be less than two Persons. A meeting at which a quorum is initially
present may continue to transact business notwithstanding the departure of
Trustees from the meeting, if any action taken is approved by at least a
majority of the required quorum for that meeting. Subject to Article III,
Sections 1 and 6 of the By-Laws, and except as otherwise provided herein or
required by applicable law, the vote of a majority of the Trustees present at a
meeting at which a quorum is present shall be the act of the Board of Trustees.
Section 4. Payment of Expenses by the Trust. An authorized officer of the
Trust shall pay or cause to be paid out of the principal or income of the Trust
or any particular Series or classes thereof, or partly out of the principal and
partly out of the income of the Trust or any particular Series or classes
thereof, and 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 hereof, as such officer 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 thereof,
or in connection with the management thereof, including, but not limited to, the
Trustees' compensation and such expenses, fees, charges, taxes and liabilities
associated with the services of the Trust's officers, employees, Investment
Adviser(s), Principal Underwriter, auditors, counsel, custodian, sub-custodian,
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 Expenses by Shareholders. The Board of Trustees shall
have the power, as frequently as it may determine, to cause any Shareholder of
the Trust, or any Shareholder of any particular Series thereof, to pay directly,
in advance or arrears, for charges of the Trust's custodian or transfer,
dividend disbursing, shareholder servicing or similar agent for services
provided to such Shareholder, an amount fixed, from time to time, by the Board
of Trustees, by setting off such amount due from such Shareholder from the
amount of: (i) declared but unpaid dividends or distributions owed such
Shareholder, or (ii) proceeds from the redemption by the Trust of Shares from
such Shareholder pursuant to Article VI hereof.
Section 6. Ownership of Trust Property. Legal title to all of the Trust
Property shall at all times 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 this Declaration of Trust, the By-Laws and the 1940 Act, the
Board of Trustees may, at any time and from time to time, contract for exclusive
or nonexclusive investment advisory or investment management services for the
Trust or for any Series thereof 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, delegation of authority to the Investment Adviser 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 to engage
in such other activities, including administrative services, 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 Person, including any Affiliate, appointing it or them as the
exclusive or nonexclusive placement agent, distributor or Principal Underwriter
for the shares of beneficial interest of the Trust or one or more of the Series
or classes thereof, or for other securities or financial instruments to be
issued by the Trust, or appointing it or them to act as the administrator,
custodian, transfer agent, dividend disbursing agent 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, such Series and its Shareholders.
(d) None of the following facts or circumstances shall affect the validity
of any of the following contracts 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, any Series thereof or the
Shareholders, provided that the establishment of and performance of each such
contract is permissible under the 1940 Act, and provided further that such
Person is authorized to vote upon such contract under the 1940 Act:
(i) the fact that any of the Shareholders, Trustees, employees or officers
of the Trust is a shareholder, director, officer, partner, trustee,
employee, manager, Adviser, placement agent, Principal Underwriter,
distributor, or Affiliate or agent of or for any Person, or for any
parent or Affiliate of any Person, with which any type of service
contract provided for in this Article IV, Section 7 may have been or
may hereafter be made, or that any such Person, or any parent or
Affiliate thereof, is a Shareholder or has an interest in the Trust;
or
(ii) the fact that any Person with which any type of service contract
provided for in this Article IV, Section 7 may have been or may
hereafter be made also has such a service contract with one or more
other Persons, or has other business or interests.
(e) Every contract referred to in this Section 7 is required to comply with
this Declaration of Trust, the By-Laws, the 1940 Act, other applicable law and
any stipulation by resolution of the Board of Trustees.
ARTICLE V.
SHAREHOLDERS' VOTING POWERS AND MEETINGS
Section 1. Voting Powers. Subject to the provisions of Article III, Section
6 hereof, the Shareholders shall have the power to vote only (i) on such matters
required by this Declaration of Trust, the By-Laws, the 1940 Act, other
applicable law and any registration statement of the Trust filed with the
Commission, the registration of which is effective; and (ii) on such other
matters as the Board of Trustees may consider necessary or desirable. Subject to
Article III hereof, the Shareholder of record (as of the record date established
pursuant to Section 4 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.
Section 2. Quorum and Required Vote.
(a) Forty percent (40%) of the Shares entitled to vote at a Shareholders'
meeting, which are present in person or represented by proxy, shall constitute a
quorum at the Shareholders' meeting, except when a larger quorum is required by
this Declaration of Trust, the By-Laws or applicable law, in which case such
quorum shall comply with such requirements. When a separate vote by one or more
Series or classes is required, forty percent (40%) of the Shares of each such
Series or class entitled to vote at a Shareholders' meeting of such Series or
class, which are present in person or represented by proxy, shall constitute a
quorum at the Shareholders' meeting of such Series or class, except when a
larger quorum is required by this Declaration of Trust, the By-Laws or
applicable law, in which case such quorum shall comply with such requirements.
(b) Subject to any provision of this Declaration of Trust, the By-Laws, the
1940 Act or other applicable law that requires a different vote: (1) in all
matters other than the election of Trustees, the affirmative Vote of a majority
of the outstanding voting securities of the Trust entitled to vote at a
Shareholders' meeting at which a quorum is present, shall be the act of the
Shareholders; and (2) Trustees shall be elected by a plurality of the votes cast
of the holders of Shares entitled to vote present in person or represented by
proxy at a Shareholders' meeting at which a quorum is present. Pursuant to
Article III, Section 6(d) hereof, where a separate vote by Series and, if
applicable, by classes is required, the preceding sentence shall apply to such
separate votes by Series and classes.
(c) Abstentions and broker non-votes will be treated as votes present at a
Shareholders' meeting, but will not be treated as votes cast. Abstentions and
broker non-votes, therefore: (i) will be included for purposes of determining
whether a quorum is present, and (ii) will have no effect on proposals which
require a plurality or majority of votes cast for approval, but (iii) will have
the same effect as a vote "against" on proposals requiring any percentage of the
outstanding voting securities of the Trust for approval.
Section 3. Shareholder Action by Written Consent Without a Meeting. Any
action that may be taken at any meeting of Shareholders may be taken without a
meeting and without prior notice if a consent or consents in writing setting
forth the action so taken is signed by the holders of all Shares entitled to
vote on that action, and is received by the secretary of the Trust. A consent
transmitted by electronic transmission by a Shareholder or by a person or
persons authorized to act for a Shareholder shall be deemed to be written and
signed for purposes of this Section. All such consents shall be filed with the
minutes of the proceedings of the Shareholders of the Trust and shall be
maintained in the Trust's records. Any Shareholder that has given a written
consent or the Shareholder's proxyholder or a personal representative of the
Shareholder or its respective proxyholder may revoke the consent by a writing
received by the secretary of the Trust before the written consents of all Shares
entitled to vote have been received by the secretary of the Trust. Such action
by written consent shall be treated for all purposes as an action taken at a
meeting of Shareholders.
Section 4. Record Dates.
(a) For purposes of determining the Shareholders entitled to notice of, and
to vote at, any meeting of Shareholders, the Board of Trustees may fix a record
date, which record date shall not precede the date upon which the resolution
fixing the record date is adopted by the Board of Trustees, and which record
date shall not be more than one hundred and twenty (120) days nor less than ten
(10) days before the date of any such meeting. For purposes of determining the
Shareholders entitled to vote on any action without a meeting, the Board of
Trustees may fix a record date, which record date shall not precede the date
upon which the resolution fixing the record date is adopted by the Board of
Trustees, and which record date shall not be more than thirty (30) days after
the date upon which the resolution fixing the record date is adopted by the
Board of Trustees.
(b) If the Board of Trustees does not so fix a record date:
(i) the record date for determining Shareholders entitled to notice of,
and to vote at, a meeting of Shareholders shall be at the close of
business on the day next preceding the day on which notice is given
or, if notice is waived, at the close of business on the day next
preceding the day on which the meeting is held.
(ii) the record date for determining Shareholders entitled to vote on any
action by consent in writing without a meeting of Shareholders, (1)
when no prior action by the Board of Trustees has been taken, shall be
the day on which the first signed written consent setting forth the
action taken is delivered to the Trust, or (2) when prior action by
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.
(c) For the purpose of determining the Shareholders of the Trust or any
Series or class thereof who are entitled to receive payment of any dividend or
of any other distribution of assets of the Trust or any Series or class thereof,
the Board of Trustees may, from time to time, fix a record date, which record
date shall not precede the date upon which the resolution fixing the record date
is adopted. Nothing in this Section shall be construed as precluding the Board
of Trustees from setting different record dates for different Series or classes.
Section 5. Additional Provisions. The By-Laws may include further
provisions for Shareholders' votes, meetings and related matters.
ARTICLE VI.
NET ASSET VALUE; DISTRIBUTIONS; REDEMPTIONS; TRANSFERS
Section 1. Determination of Net Asset Value, Net Income and Distributions.
(a) Subject to Article III, Section 6 hereof, the Board of Trustees shall
have the power to determine, from time to time, the offering price for
authorized, but unissued, shares of beneficial interest of the Trust or any
Series or class thereof, respectively, that shall yield to the Trust or such
Series or class not less than the net asset value thereof, at which price the
Shares of the Trust or such Series or class, respectively, shall be offered for
sale, subject to any other requirements or limitations of the 1940 Act.
(b) Subject to Article III, Section 6 hereof, the Board of Trustees may,
subject to the 1940 Act, prescribe and shall set forth in the By-Laws, this
Declaration of Trust or in a resolution of the Board of Trustees such bases and
time for determining the net asset value per Share of the Trust or any Series or
class thereof, or net income attributable to the Shares of the Trust or any
Series or class thereof or the declaration and payment of dividends and
distributions on the Shares of the Trust or any Series or class thereof, as it
may deem necessary or desirable.
(c) The Shareholders of the Trust or any Series or class, if any, shall be
entitled to receive dividends and distributions, when, if and as declared by the
Board of Trustees with respect thereto, provided that with respect to classes,
such dividends and distributions shall comply with the 1940 Act. The right of
Shareholders to receive dividends or other distributions on Shares of any class
may be set forth in a plan adopted by the Board of Trustees and amended from
time to time pursuant to the 1940 Act. No Share shall have any priority or
preference over any other Share of the same Series with respect to dividends or
distributions paid in the ordinary course of business or distributions upon
dissolution of the Trust or of such Series made pursuant to Article VIII,
Section 1 hereof; provided, however, that if the Shares of a Series are divided
into classes thereof, no Share of a particular class shall have any priority or
preference over any other Share of the same 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 made pursuant to Article VIII,
Section 1 hereof. All dividends and distributions shall be made ratably among
all Shareholders of the Trust or a particular Series from the Trust Property
held with respect to the Trust or such Series thereof, respectively, according
to the number of Shares of the Trust or such Series held of record by such
Shareholders on the record date for any dividend or distribution; provided,
however, that if the Shares of a Series are divided into classes thereof, all
dividends and distributions from the Trust Property held with respect to such
Series shall be distributed to each class of such Series according to the net
asset value computed for such class and within such particular class, shall be
distributed ratably to the Shareholders of such class according to the number of
Shares of such class held of record by such Shareholders on the record date for
any dividend or distribution. Dividends may be paid in cash or in kind.
(d) Before payment of any dividend, there may be set aside out of any funds
of the Trust, or the applicable Series thereof, available for dividends such sum
or sums as the Board of Trustees may, from time to time, in its absolute
discretion, think proper as a reserve fund to meet contingencies, or for
equalizing dividends, or for repairing or maintaining any property of the Trust,
or any Series thereof, or for such other lawful purpose as the Board of Trustees
shall deem to be in the best interests of the Trust, or the applicable Series,
as the case may be, and the Board of Trustees may abolish any such reserve in
the manner in which it was created.
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:
(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 and/or in accordance with such other
procedures for redemption as the Board of Trustees may from time to time
authorize. If certificates have been issued to a Shareholder, any request for
redemption 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) The Trust shall pay for such Shares the net asset value thereof, in
accordance with this Declaration of Trust, the By-Laws, the 1940 Act and other
applicable law. 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(s) 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 authorized officers, shall
have absolute discretion as to what security or securities of the Trust or the
applicable Series 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 of 1974, as amended,
or any other applicable law, 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) Payment by the Trust for such redemption of Shares shall be made by the
Trust to the Shareholder within seven days after the date on which the
redemption request is received in proper form and/or such other procedures
authorized by the Board of Trustees are complied with; provided, however, that
if payment 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 obligations of the Trust set forth in this Section 2 are subject to
the provision that such obligations may be suspended or postponed by the Board
of Trustees (1) during any time the Exchange is closed for other than weekends
or holidays; (2) if permitted by the rules of the Commission, during periods
when trading on the Exchange is restricted; or (3) during any National Financial
Emergency. The Board of Trustees may, in its discretion, declare that the
suspension relating to a National Financial Emergency shall terminate, as the
case may be, on the first business day on which the Exchange shall have reopened
or the period specified above shall have expired (as to which, in the absence of
an official ruling by the Commission, the determination of the Board of Trustees
shall be conclusive).
(e) The right of any Shareholder of the Trust or any Series or class
thereof to receive dividends or other distributions on Shares redeemed and all
other rights of such Shareholder with respect to the Shares so redeemed, except
the right of such Shareholder to receive payment for such Shares, shall cease at
the time the purchase price of such Shares shall have been fixed, as provided
above.
Section 3. Redemptions at the Option of the Trust. At the option of the
Board of Trustees, the Trust may, from time to time, without the vote of the
Shareholders, but 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.
Section 4. Transfer of Shares. Shares shall be transferable in accordance
with the provisions of the By-Laws.
ARTICLE VII.
LIMITATION OF LIABILITY AND INDEMNIFICATION OF AGENT
Section 1. Limitation of Liability.
(a) For the purpose of this Article, "Agent" means any Person who is or was
a Trustee, officer, employee or other agent of the Trust or is or was serving at
the request of the Trust as a trustee, director, officer, employee or other
agent of another foreign or domestic corporation, partnership, joint venture,
trust or other enterprise; "Proceeding" means any threatened, pending or
completed action or proceeding, whether civil, criminal, administrative or
investigative; and "Expenses" include, without limitation, attorneys' fees and
any expenses of establishing a right to indemnification under this Article.
(b) An Agent shall be liable to the Trust and to any Shareholder solely for
such Agent's own willful misfeasance, bad faith, gross negligence or reckless
disregard of the duties involved in the conduct of such Agent (such conduct
referred to herein as "Disqualifying Conduct"), and for nothing else (including
errors of judgment or mistakes of fact or law).
(c) Subject to subsection (b) of this Section 1 and to the fullest extent
that limitations on the liability of Agents are permitted by the DSTA, the
Agents shall not be responsible or liable in any event for any act or omission
of any other Agent of the Trust or any Investment Adviser or Principal
Underwriter of the Trust.
(d) No Agent, when acting in its respective capacity as such, shall be
personally liable to any Person, other than the Trust or a Shareholder to the
extent provided in subsections (b) and (c) of this Section 1, for any act,
omission or obligation of the Trust or any Trustee thereof. Every note, bond,
contract, instrument, certificate or undertaking and every other act or thing
whatsoever issued, executed or done by or on behalf of the Trust or the Trustees
or any of them in connection with the Trust shall be conclusively deemed to have
been issued, executed or done only in or with respect to their or his or her
capacity as Trustees or Trustee, and such Trustee(s) shall not be personally
liable thereon.
(e) 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,
the By-Laws, applicable law and their respective 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 hereunder, nor any surety if a bond is required by applicable
law.
(f) The limitation on liability contained in this Article applies to events
occurring at the time a Person serves as an Agent, whether or not such Person is
an Agent at the time of any Proceeding in which liability is asserted.
(g) No amendment or repeal of this Article shall adversely affect any right
or protection of an Agent that exists at the time of such amendment or repeal.
Section 2. Indemnification.
(a) Indemnification by Trust. The Trust shall indemnify, out of Trust
Property, to the fullest extent permitted under applicable law, any Person who
was or is a party or is threatened to be made a party to any Proceeding by
reason of the fact that such Person is or was an Agent of the Trust, against
Expenses, judgments, fines, settlements and other amounts actually and
reasonably incurred in connection with such Proceeding if such Person acted in
good faith, or in the case of a criminal proceeding, had no reasonable cause to
believe the conduct of such Person was unlawful. The termination of any
Proceeding by judgment, order, settlement, conviction or plea of nolo contendere
or its equivalent shall not of itself create a presumption that the Person did
not act in good faith or that the Person had reasonable cause to believe that
the Person's conduct was unlawful.
(b) Exclusion of Indemnification. Notwithstanding any provision to the
contrary contained herein, there shall be no right to indemnification for any
liability arising by reason of the Agent's Disqualifying Conduct. In respect of
any claim, issue or matter as to which that Person shall have been adjudged to
be liable in the performance of that Person's duty to the Trust or the
Shareholders, indemnification shall be made only to the extent that the court in
which that action was brought shall determine, upon application or otherwise,
that in view of all the circumstances of the case, that Person was not liable by
reason of that Person's Disqualifying Conduct.
(c) Required Approval. Any indemnification under this Article shall be made
by the Trust if authorized in the specific case on a determination that
indemnification of the Agent is proper in the circumstances by a majority vote
of Trustees, even though such number of Trustees shall be less than a quorum,
who are not parties to the Proceeding and have no economic or other interest in
connection with such specific case; a committee of such Trustees designated by
majority vote of such Trustees even though such number of Trustees shall be less
than a quorum; or by independent legal counsel in a written opinion.
(d) Advancement of Expenses. Expenses incurred by an Agent in defending any
Proceeding may be advanced by the Trust before the final disposition of the
Proceeding on receipt of an undertaking by or on behalf of the Agent to repay
the amount of the advance if it shall be determined ultimately that the Agent is
not entitled to be indemnified as authorized in this Article.
(e) Other Contractual Rights. Nothing contained in this Article shall
affect any right to indemnification to which Persons other than Trustees and
officers of the Trust or any subsidiary thereof may be entitled by contract or
otherwise.
(f) Fiduciaries of Employee Benefit Plan. This Article does not apply to
any Proceeding against any trustee, investment manager or other fiduciary of an
employee benefit plan in that Person's capacity as such, even though that Person
may also be an Agent of the Trust as defined in Section 1 of this Article.
Nothing contained in this Article shall limit any right to indemnification to
which such a trustee, investment manager, or other fiduciary may be entitled by
contract or otherwise, which shall be enforceable to the extent permitted by
applicable law other than this Article.
Section 3. Insurance. To the fullest extent permitted by applicable law,
the Board of Trustees shall 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 an Agent in connection with any Proceeding in which such
Agent becomes involved by virtue of such Agent's actions, or omissions to act,
in its capacity or former capacity with the Trust, whether or not the Trust
would have the power to indemnify such Agent against such liability.
Section 4. 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(s) 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 or on the boards of one or more investment companies with
the same or an affiliated investment adviser or principal underwriter.
ARTICLE VIII.
CERTAIN TRANSACTIONS
Section 1. Dissolution of Trust or Series. Unless dissolved as provided
herein, the Trust and each Series shall continue without limitation of time.
(a) At the discretion of the Board of Trustees, the Trust may be dissolved
by the Trustees, at any time, upon sixty (60) days' prior written notice to the
Shareholders of the Trust.
(b) At the discretion of the Board of Trustees, any Series may be dissolved
by the Trustees, at any time, upon sixty (60) days' prior written notice to the
Shareholders of that Series.
(b) The Trust (or a particular Series) shall be dissolved upon the
occurrence of a dissolution or termination event pursuant to any other provision
of this Declaration of Trust or the DSTA.
(c) With respect to any Series, such Series shall be dissolved upon any
event that causes the dissolution of the Trust.
Upon dissolution of the Trust (or a particular Series, as the case may be),
the Board of Trustees shall (in accordance with Section 3808 of the DSTA) pay or
make reasonable provision to pay all claims and obligations of the Trust and/or
each Series (or the particular Series, 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 the Trust and/or each Series of the Trust (or the particular Series,
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 the Trust and/or each Series of the Trust (or the
particular Series, 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
therefore. Any remaining assets (including, without limitation, cash, securities
or any combination thereof) held with respect to the Trust and/or each Series of
the Trust (or the particular Series, as the case may be) shall be distributed to
the Shareholders of the Trust and/or each Series of the Trust (or the particular
Series, as the case may be) ratably according to the number of Shares of the
Trust and/or such Series thereof (or the particular Series, as the case may be)
held of record by the several Shareholders on the date for such dissolution
distribution; provided, however, that if the Shares of a Series are divided into
classes thereof, any remaining assets (including, without limitation, cash,
securities or any combination thereof) held with respect to such Series shall be
distributed to each class of such Series according to the net asset value
computed for such class and within such particular class, shall be distributed
ratably to the Shareholders of such class according to the number of Shares of
such class held of record by the several Shareholders on the 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 or Consolidation; Conversion; Reorganization.
(a) Merger or Consolidation. Pursuant to an agreement of merger or
consolidation, the Board of Trustees, by vote of a majority of the Trustees, may
cause the Trust to merge or consolidate with or into one or more statutory
trusts or "other business entities" (as defined in Section 3801 of the DSTA)
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 unless such vote is required by the 1940 Act; provided, however,
that the Board of Trustees shall provide thirty (30) days' prior written notice
to the Shareholders of such merger or consolidation. By reference to Section
3815(f) of the DSTA, any agreement of merger or consolidation approved in
accordance with this Section 2(a) may, without a Shareholder vote, unless
required by the 1940 Act or any other provision of this Declaration of Trust or
the By-Laws, effect any amendment to this Declaration of Trust or the By-Laws or
effect the adoption of a new governing instrument if the Trust is the surviving
or resulting statutory trust in the merger or consolidation, which amendment or
new governing instrument shall be effective at the effective time or date of the
merger or consolidation. In all respects not governed by the DSTA, the 1940 Act
or other applicable law, the Board of Trustees shall have the power to prescribe
additional procedures necessary or appropriate to accomplish a 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 into
beneficial interests in such separate statutory trust or trusts. Upon completion
of the merger or consolidation, if the Trust is the surviving or resulting
statutory trust, 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. The Board of Trustees, by vote of a majority of the
Trustees, may cause: (i) the Trust to convert to an "other business entity" (as
defined in Section 3801 of the DSTA) formed or organized 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 to be converted into beneficial interests in
another statutory trust (or series 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. Any such statutory
conversion, Share conversion or Share exchange shall not require the vote of the
Shareholders, unless such vote is required by the 1940 Act; provided, however,
that the Board of Trustees shall provide thirty (30) days' prior written notice
to the Shareholders of the Trust of any conversion of Shares of the Trust
pursuant to subsections (b)(i) or (b)(ii) of this Section 2, or any exchange of
Shares of the Trust pursuant to subsection (b)(iii) of this Section 2, and
thirty (30) days' prior written notice to the Shareholders of a particular
Series of any conversion of Shares of such Series pursuant to subsection (b)(ii)
of this Section 2 or any exchange of Shares of such Series pursuant to
subsection (b)(iii) of this Section 2. In all respects not governed by the DSTA,
the 1940 Act or other applicable law, the Board of Trustees shall have the power
to prescribe additional procedures necessary or appropriate to accomplish a
statutory conversion, Share conversion or Share exchange, 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 thereof into
beneficial interests in such separate statutory trust(s) (or series thereof).
(c) Reorganization. The Board of Trustees, by vote of a majority of the
Trustees, may cause the Trust to sell, convey and transfer all or substantially
all of the assets of the Trust ("sale of Trust assets") or all or substantially
all of the assets associated with any one or more Series ("sale of such Series'
assets"), to another trust, statutory trust, partnership, limited partnership,
limited liability company, corporation or other association organized under the
laws of any state, or to one or more separate series thereof, or to the Trust to
be held as assets associated with one or more other Series of the Trust, in
exchange for cash, shares or other securities (including, without limitation, in
the case of a transfer to another Series of the Trust, Shares of such other
Series) with such sale, conveyance and transfer either: (i) being made subject
to, or with the assumption by the transferee of, the liabilities associated with
the Trust or the liabilities associated with the Series the assets of which are
so transferred, as applicable; or (ii) not being made subject to, or not with
the assumption of, such liabilities. Any such sale, conveyance and transfer
shall not require the vote of the Shareholders, unless such vote is required by
the 1940 Act; provided, however, that the Board of Trustees shall provide thirty
(30) days' prior written notice to the Shareholders of the Trust of any such
sale of Trust assets, and thirty (30) days prior written notice to the
Shareholders of a particular Series of any sale of such Series' assets.
Following such sale of Trust assets, the Board of Trustees shall distribute such
cash, shares or other securities ratably among the Shareholders of the Trust
(giving due effect to the assets and liabilities associated with and any other
differences among the various Series the assets associated with which have been
so sold, conveyed and transferred, and due effect to the differences among the
various classes within each such Series). Following a sale of such Series'
assets, the Board of Trustees shall distribute such cash, shares or other
securities ratably among the Shareholders of such Series (giving due effect to
the differences among the various classes within each such Series). If all of
the assets of the Trust have been so sold, conveyed and transferred, the Trust
shall be dissolved. In all respects not governed by the DSTA, the 1940 Act or
other applicable law, the Board of Trustees shall have the power to prescribe
additional procedures necessary or appropriate to accomplish such sale,
conveyance and transfer, 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 into beneficial interests in such separate statutory trust or trusts.
Section 3. Master Feeder Structure. If permitted by the 1940 Act, the Board
of Trustees, by vote of a majority of the Trustees, and without a Shareholder
vote, may cause the Trust to convert to a master feeder structure (a structure
in which a feeder fund invests all of its assets into a master fund, rather than
making investments in securities directly) and thereby cause existing Series of
the Trust to either become feeders into a master fund, or to become master funds
into which other funds are feeders.
ARTICLE IX.
AMENDMENTS
Section 1. Amendments Generally. This Declaration of Trust may be restated
and/or amended at any time by an instrument in writing signed by a majority of
the Board of Trustees and, to the extent required by this Declaration of Trust
or the 1940 Act, by approval of such amendment by the Shareholders in accordance
with Article III, Section 6 hereof and Article V 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 shall 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.
ARTICLE X.
MISCELLANEOUS
Section 1. References; Headings; Counterparts. The original or a copy of
this instrument and of each restatement and/or amendment hereto shall be kept at
the offices of the Trust where 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 was 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 restatement hereof and/or
amendment hereto, references to this instrument, and all expressions of similar
effect to "herein," "hereof' and "hereunder," shall be deemed to refer to this
instrument as so restated and/or amended. 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.
Any references herein to specific sections of the DSTA, the Code or the 1940 Act
shall refer to such sections as amended from time to time or any successor
sections thereof. This instrument may be executed in any number of counterparts,
each of which shall be deemed an original.
Section 2. 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 3. 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 4. Statutory Trust Only. It is the intention of the Trustees to
create hereby 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, respectively, 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 5. Use of the Name "SMA Relationship Trust." The Board of Trustees
expressly agrees and acknowledges that the name "SMA Relationship Trust," and
any short form or acronym thereof, is the sole property of UBS AG or its
Affiliates (together, "UBS"). UBS has granted to the Trust a non-exclusive
license to use such name(s) as part of the name of the Trust now and in the
future. The Board of Trustees further expressly agrees and acknowledges that the
non-exclusive license granted herein may be terminated by UBS if the Trust
ceases to use UBS as Investment Adviser or to use other Affiliates or successors
of UBS for such purposes. In such event, the nonexclusive license may be revoked
by UBS and the Trust shall cease using the name "SMA Relationship Trust," or any
name misleadingly implying a continuing relationship between the Trust and UBS
or any of its Affiliates, as part of its name unless otherwise consented to by
UBS or any successor to its interests in such names.
The Board of Trustees further understands and agrees that so long as UBS
and/or any future advisory Affiliate of UBS shall continue to serve as the
Investment Adviser, other registered open- or closed-end investment companies
("funds") as may be sponsored or advised by UBS or its Affiliates shall have the
right permanently to adopt and to use the name "SMA Relationship Trust" in their
names and in the names of any series or class of shares of such funds.
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IN WITNESS WHEREOF, the Trustees named below do hereby make
and enter into this Agreement and Declaration of Trust as of the date first
written above.
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