----------------------
PROVIDENT INSTITUTIONAL FUNDS AGREEMENT AND
DECLARATION OF TRUST
Dated: October 21, 1998
TABLE OF CONTENTS
Page
----
ARTICLE I NAME AND DEFINITIONS......................................... 1
Section 1.1 Name 1
Section 1.2 Definitions.................................................. 1
ARTICLE II BENEFICIAL INTEREST.......................................... 2
Section 2.1 Shares of Beneficial Interest................................ 2
Section 2.2 Issuance of Shares........................................... 3
Section 2.3 Register of Shares and Share Certificates.................... 3
Section 2.4 Transfer of Shares........................................... 3
Section 2.5 Treasury Shares.............................................. 4
Section 2.6 Establishment of Series and Classes.......................... 4
Section 2.7 Investment in the Trust...................................... 5
Section 2.8 Assets and Liabilities Belonging to Series, etc.............. 5
Section 2.9 No Preemptive Rights......................................... 6
Section 2.10 Conversion Rights............................................ 6
Section 2.11 Legal Proceedings............................................ 7
Section 2.12 Status of Shares............................................. 7
ARTICLE III THE TRUSTEES................................................. 8
Section 3.1 Management of the Trust...................................... 8
Section 3.2 Term of Office of Trustees................................... 8
Section 3.3 Vacancies and Appointment of Trustees........................ 8
Section 3.4 Temporary Absence of Trustee................................. 9
Section 3.5 Number of Trustees........................................... 9
Section 3.6 Effect of Death, Resignation, Etc. of a Trustee.............. 9
Section 3.7 Ownership of Assets of the Trust............................. 9
Section 3.8 Series Trustees.............................................. 10
Section 3.9 No Accounting................................................ 10
ARTICLE IV POWERS OF THE TRUSTEES....................................... 10
Section 4.1 Powers....................................................... 10
Section 4.2 Issuance and Repurchase of Shares............................ 14
Section 4.3 Trustees and Officers as Shareholders........................ 14
Section 4.4 Action by the Trustees and Committees........................ 14
Section 4.5 Chairman of the Trustees..................................... 15
Section 4.6 Principal Transactions....................................... 15
ARTICLE V INVESTMENT ADVISOR, INVESTMENT SUB-ADVISOR,
PRINCIPAL UNDERWRITER, ADMINISTRATOR,
TRANSFER AGENT, CUSTODIAN AND OTHER
CONTRACTORS.................................................. 15
Section 5.1 Certain Contracts............................................ 15
ARTICLE VI SHAREHOLDER VOTING POWERS AND MEETINGS....................... 17
Section 6.1 Voting....................................................... 17
Section 6.2 Meetings..................................................... 18
Section 6.3 Quorum and Required Vote..................................... 18
Section 6.4 Action by Written Consent.................................... 19
-i-
PROVIDENT INSTITUTIONAL FUNDS AGREEMENT AND
--------------------------------------------
DECLARATION OF TRUST
--------------------
AGREEMENT AND DECLARATION OF TRUST of Provident Institutional Funds, a
Delaware statutory business trust, made as of October 21, 1998, by the
undersigned Trustee.
WHEREAS, the undersigned Trustee desires to establish a trust for the
investment and reinvestment of funds contributed thereto;
WHEREAS, the Trustee desires that the beneficial interest in the trust
assets be divided into transferable shares of beneficial interest, as
hereinafter provided;
WHEREAS, the Trustee declares that all money and property contributed to
the trust established hereunder shall be held and managed in trust for the
benefit of the holders of the shares of beneficial interest issued hereunder and
subject to the provisions hereof;
NOW, THEREFORE, in consideration of the foregoing, the undersigned Trustee
hereby declares that all money and property contributed to the trust hereunder
shall be held and managed in trust under this Declaration of Trust ("Trust
Instrument") as herein set forth below.
ARTICLE I
---------
NAME AND DEFINITIONS
--------------------
Section 1.1 Name. The name of the trust established hereby is the "Provident
----
Institutional Funds."
Section 1.2 Definitions. Wherever used herein, unless otherwise required by
-----------
the context or specifically provided:
(a) "Act" means the Delaware Business Trust Act, 12 Del. C. (S)(S)
---- --
3801 et seq., as from time to time amended;
-- ---
(b) "By-laws" means the By-laws referred to in Section 4.1(e) hereof,
as from time to time amended;
(c) The terms "Affiliated Person," "Assignment," "Commission,"
"Interested Person" and "Principal Underwriter" shall have the meanings given
them in the 1940 Act. "Majority Shareholder Vote" shall have the same meaning as
the term "vote of a majority of the outstanding voting securities" is given in
the 1940 Act;
(d) "Class" means any division of Shares within a Series, which Class
is or has been established in accordance with the provisions of Article II.
(e) "Net Asset Value" means the net asset value of each Series or
Class of the Trust determined in the manner provided in Section 7.4 hereof;
(f) "Outstanding Shares" means those Shares recorded from time to
time in the books of the Trust or its transfer agent as then issued and
outstanding, but shall not include Shares which have been redeemed or
repurchased by the Trust and which are at the time held in the treasury of the
Trust;
(g) "Series" means a series of Shares of the Trust established in
accordance with the provisions of Section 2.6 hereof;
(h) "Shareholder" means a record owner of Outstanding Shares of the
Trust;
(i) "Shares" means the equal proportionate transferable units of
beneficial interest into which the beneficial interest of each Series of the
Trust or Class thereof shall be divided and may include fractions of Shares as
well as whole Shares;
(j) "Trust" refers to Provident Institutional Funds and reference to
the Trust, when applicable to one or more Series of the Trust, shall refer to
any such Series;
(k) "Trustee" or "Trustees" means the person or persons who has or
have signed this Trust Instrument, so long as such person or persons shall
continue in office in accordance with the terms hereof, and all other persons
who may from time to time be duly qualified and serving as Trustees in
accordance with the provisions of Article III hereof, and reference herein to a
Trustee or to the Trustees shall refer to the individual Trustees in their
capacity as Trustees hereunder;
(l) "Trust Property" means any and all property, real or personal,
tangible or intangible, which is owned or held by or for the account of one or
more of the Trust or any Series, or the Trustees on behalf of the Trust or any
Series.
(m) The "1940 Act" refers to the Investment Company Act of 1940 and
the Rules and Regulations thereunder, all as may be amended from time to time.
ARTICLE II
----------
BENEFICIAL INTEREST
Section 2.1 Shares of Beneficial Interest. The beneficial interest in the
-----------------------------
Trust shall be divided into such transferable Shares of one or more separate and
distinct Series and Classes within a Series as the Trustees shall from time to
time create and establish. The number of Shares of each Series and Class
authorized hereunder is unlimited. Each Share shall have no par value, unless
otherwise determined by the Trustees in connection with the creation and
establishment of a Series or Class. All Shares issued hereunder, including
without limitation,
-2-
Class Shares issued in connection with a dividend in Shares or a split or
reverse split of Shares, shall be fully paid and nonassessable.
Section 2.2 Issuance of Shares. The Trustees in their discretion may, from
------------------
time to time, without vote of the Shareholders, issue Shares of each Series and
Class to such party or parties and for such amount and type of consideration (or
for no consideration if pursuant to a Share dividend or split-up), subject to
applicable law, including cash or securities (including Shares of a different
Series or Class), at such time or times and on such terms as the Trustees may
deem appropriate, and may in such manner acquire other assets (including the
acquisitions of assets subject to, and in connection with, the assumption of
liabilities) and businesses. In connection with any issuance of Shares, the
Trustees may issue fractional Shares and Shares held in the treasury. The
Trustees may from time to time divide or combine the Shares into a greater or
lesser number without thereby changing the proportionate beneficial interests in
the Trust. The Trustees may classify or reclassify any unissued Shares or any
Shares previously issued and reacquired of any Series or Class into one or more
Series or Classes that may be established and designated from time to time.
Any Trustee, officer or other agent of the Trust, and any organization
in which any such person is interested, may acquire, own, hold and dispose of
Shares of any Series or Class of the Trust to the same extent as if such person
were not a Trustee, officer or other agent of the Trust; and the Trust may issue
and sell or cause to be issued and sold and may purchase Shares of any Series or
Class from any such person or any such organization subject only to the general
limitations, restrictions or other provisions applicable to the sale or purchase
of Shares of such Series or Class generally.
Section 2.3 Register of Shares and Share Certificates. A register shall be
-----------------------------------------
kept at the principal office of the Trust or an office of the Trust's transfer
agent which shall contain the names and addresses of the Shareholders of each
Series and Class, the number of Shares of that Series and Class thereof held by
them respectively and a record of all transfers thereof. As to Shares for which
no certificate has been issued, such register shall be conclusive as to who are
the holders of the Shares and who shall be entitled to receive dividends or
other distributions or otherwise to exercise or enjoy the rights of
Shareholders. No Shareholder shall be entitled to receive payment of any
dividend or other distribution, nor to have notice given to him as herein or in
the By-laws provided, until he has given his address to the transfer agent or
such other officer or agent of the Trust as shall keep the said register for
entry thereon. The Trustees, in their discretion, may authorize the issuance of
share certificates and promulgate appropriate rules and regulations as to their
use. In the event that one or more certificates are issued, whether in the name
of a Shareholder or a nominee, such certificate or certificates shall constitute
evidence of ownership of Shares for all purposes, including transfer, assignment
or sale of such Shares, subject to such limitations as the Trustees may, in
their discretion, prescribe.
Section 2.4 Transfer of Shares. Except as otherwise provided by the
------------------
Trustees, Shares shall be transferable on the records of the Trust only by the
record holder thereof or by his agent thereunto duly authorized in writing, upon
delivery to the Trustees or the Trust's
-3-
transfer agent of a duly executed instrument of transfer, together with a Share
certificate, if one is outstanding, and such evidence of the genuineness of each
such execution and authorization and of such other matters as may be required by
the Trustees. Upon such delivery the transfer shall be recorded on the register
of the Trust. Until such record is made, the Shareholder of record shall be
deemed to be the holder of such Shares for all purposes hereunder and neither
the Trustees nor the Trust, nor any transfer agent or registrar nor any officer,
employee or agent of the Trust shall be affected by any notice of the proposed
transfer.
Section 2.5 Treasury Shares. Shares held in the treasury shall, until
---------------
reissued pursuant to Section 2.2 hereof, not confer any voting rights on the
Trustees, nor shall such Shares be entitled to any dividends or other
distributions declared with respect to the Shares.
Section 2.6 Establishment of Series and Classes. The Trust shall consist of
-----------------------------------
one or more Series and Classes and separate and distinct records shall be
maintained by the Trust for each Series and Class. The Trustees shall have full
power and authority, in their sole discretion, and without obtaining any prior
authorization or vote of the Shareholders of any Series or Class of the Trust,
to establish and designate and to change in any manner any initial or additional
Series or Classes and to fix such preferences, voting powers, rights and
privileges of such Series or Classes as the Trustees may from time to time
determine, to divide or combine the Shares or any Series or Classes into a
greater or lesser number, to classify or reclassify any issued Shares or any
Series or Classes into one or more Series or Classes of Shares, and to take such
other action with respect to the Shares as the Trustees may deem desirable.
Unless another time is specified by the Trustees, the establishment and
designation of any Series or Class shall be effective upon the adoption of a
resolution by the Trustees setting forth such establishment and designation and
the preferences, powers, rights and privileges of the Shares of such Series or
Class, whether directly in such resolution or by reference to, or approval of,
another document that sets forth such relative rights and preferences of such
Series (or Class) including, without limitation, any registration statemet of
the Trust, or as otherwise provided in such resolution. The Trust may issue any
number of Shares of each Series or Class and need not issue certificates for any
Shares.
All references to Shares in this Trust Instrument shall be deemed to be
Shares of any or all Series or Classes as the context may require. All
provisions herein relating to the Trust shall apply equally to each Series and
Class of the Trust except as the context otherwise requires.
All Shares of each Class of a particular Series shall represent an equal
proportionate interest in the assets belonging to that Series (subject to the
liabilities belonging to the Series, and, in the case of each Class, to the
liabilities belonging to that Class), and each Share of any Class of a
particular Series shall be equal to each other Share of that Class; but the
provisions of this sentence shall not restrict any distinctions permissible
under this Section 2.6.
-4-
Section 2.7 Investment in the Trust. The Trustees shall accept investments
-----------------------
in any Series of the Trust or Class, if the Series has been divided into
Classes, from such persons and on such terms as they may from time to time
authorize. At the Trustees' discretion, such investments, subject to applicable
law, may be in the form of cash or securities in which the affected Series is
authorized to invest, valued as provided in Section 7.4 hereof. Unless the
Trustees otherwise determine, investments in a Series shall be credited to each
Shareholder's account in the form of full Shares at the Net Asset Value per
Share next determined after the investment is received. Without limiting the
generality of the foregoing, the Trustees may, in their sole discretion, (a) fix
the Net Asset Value per Share of the initial capital contribution, (b) impose
sales or other charges upon investments in the Trust or (c) issue fractional
Shares.
Section 2.8 Assets and Liabilities Belonging to Series, etc. All
------------------------------------------------
consideration received by the Trust for the issue or sale of Shares of a
particular Series, together with all assets in which such consideration is
invested or reinvested, all income, earnings, profits, and proceeds thereof,
including any proceeds derived from the sale, exchange or liquidation of such
assets, and any funds or payments derived from any reinvestment of such proceeds
in whatever form the same may be, shall be held and accounted for separately
from the other assets of the Trust and of every other Series and may be referred
to herein as "assets belonging to" that Series. The assets belonging to a
particular Series shall belong to that Series for all purposes, and to no other
Series, subject only to the rights of creditors of that Series. In addition,
any assets, income, earnings, profits or funds, or payments and proceeds with
respect thereto, which are not readily identifiable as belonging to any
particular Series shall be allocated by the Trustees between and among one or
more of the Series in such manner as the Trustees, in their sole discretion,
deem fair and equitable. If there are classes of Shares within a Series, the
assets belonging to the Series shall be further allocated to each Class in the
proportion that the "assets belonging to" the Class (calculated in the same
manner as with determination of assets "belonging to" the Series) bears to the
assets of all Classes within the Series. Each such allocation shall be
conclusive and binding upon the Shareholders of all Series and Classes for all
purposes, and such assets, income, earnings, profits or funds, or payments and
proceeds with respect thereto shall be assets belonging to that Series or Class,
as the case may be. The assets belonging to a particular Series and Class shall
be so recorded upon the books of the Trust, and shall be held by the Trustees in
trust for the benefit of the holders of Shares of that Series or Class, as the
case may be.
The assets belonging to each Series shall be charged with the
liabilities of that Series and all expenses, costs, charges and reserves
attributable to that Series. Any general liabilities, expenses, costs, charges
or reserves of the Trust which are not readily identifiable as belonging to any
particular Series shall be allocated and charged by the Trustees between or
among any one or more of the Series in such manner as the Trustees in their sole
discretion deem fair and equitable. Each such allocation shall be conclusive
and binding upon the Shareholders of all Series for all purposes. The
liabilities, expenses, costs, charges and reserves allocated and so charged to a
Series are herein referred to as "liabilities belonging to" that Series. Except
as provided in the next sentence or otherwise required or permitted by
applicable law or any rule or order of the Commission, the "liabilities
belonging to" such
-5-
Series shall be allocated to each Class of a Series in the proportion that the
assets belonging to such Class bear to the assets belonging to all Classes in
the Series. To the extent permitted by rule or order of the Commission, the
Trustees may allocate all or a portion of any liabilities belonging to a Series
to a particular Class or Classes (collectively, "Class Expenses") as the
Trustees may from time to time determine is appropriate. In addition, all
liabilities, expenses, costs, charges and reserves belonging to a Class shall be
allocated to such Class.
Without limitation of the foregoing provisions of this Section 2.8, but
subject to the right of the Trustees in their discretion to allocate general
liabilities, expenses, costs, charges or reserves as herein provided, the debts,
liabilities, obligations and expenses incurred, contracted for or otherwise
existing with respect to a particular Series shall be enforceable against the
assets belonging to such Series only, and not against the assets of the Trust
generally or any other Series. Notice of this limitation on inter-Series
liabilities shall be set forth in the certificate of trust of the Trust (whether
originally or by amendment) as filed or to be filed in the Office of the
Secretary of State of the State of Delaware pursuant to the Act, and upon the
giving of such notice in the certificate of trust, the statutory provisions of
Section 3804 of the Act relating to limitations on inter-Series liabilities (and
the statutory effect under Section 3804 of setting forth such notice in the
certificate of trust) shall become applicable to the Trust and each Series. Any
person extending credit to, contracting with or having any claim against any
Series may satisfy or enforce any debt, liability, obligation or expense
incurred, contracted for or otherwise existing with respect to that Series from
the assets of that Series only. No Shareholder or former Shareholder of any
Series shall have a claim on or any right to any assets allocated or belonging
to any other Series.
Similarly, the debts, liabilities, obligations and expenses incurred,
contracted for or otherwise existing with respect to a particular Class shall be
enforceable against the assets belonging to such Class only, and not against the
assets of the Series or the Trust generally or any other Class. Each contract
entered into by the Trust which is or may be an obligation of a Class within a
Series shall contain a provision to the effect that the parties to the contract
will look only to the assets belonging to the Class for the satisfaction of any
liability, and not to any extent to the assets of any other Class or Series or
the Trust generally. If, notwithstanding the preceding sentence, any liability
properly charged to a Class is paid from the assets of another Class, the Class
from whose assets the liability was paid shall be reimbursed from the assets of
the Class to which such liability belonged.
Section 2.9 No Preemptive Rights. Shareholders shall have no preemptive or
--------------------
other similar rights to subscribe to any additional Shares or other securities
issued by the Trust or the Trustees, whether of the same or another Series or
Class.
Section 2.10 Conversion Rights. The Trustees shall have the authority to
-----------------
provide from time to time that the holders of Shares of any Series or Class
shall have the right to convert or exchange said Shares for or into Shares of
one or more other Series or Classes in accordance with such requirements and
procedures as may be established from time to time by the Trustees.
-6-
Section 2.11 Legal Proceedings. No person, other than a Trustee, who is not
-----------------
a Shareholder of a particular Series or Class shall be entitled to bring any
derivative action, suit or other proceeding on behalf of or with respect to such
Series or Class. No Shareholder of a Series or a Class may maintain a
derivative action with respect to such Series or Class unless holders of a least
ten percent (10%) of the outstanding Shares of such Series or Class join in the
bringing of such action. Except as otherwise provided in Section 3816 of the
Act and the foregoing provisions of this Section 2.11, all matters relating to
the bringing of derivative actions in the right of the Trust shall be governed
by the General Corporation Law of the State of Delaware relating to derivative
actions, and judicial interpretations thereunder, as if the Trust were a
Delaware Corporation and the Shareholders were shareholders of a Delaware
corporation.
In addition to the requirements set forth in Section 3816 of the Act, a
Shareholder may bring a derivative action on behalf of the Trust with respect to
a Series or Class only if the following conditions are met: (a) the Shareholder
or Shareholders must make a pre-suit demand upon the Trustees to bring the
subject action unless an effort to cause the Trustees to bring such an action is
not likely to succeed; and a demand on the Trustees shall only be deemed not
likely to succeed and therefore excused if a majority of the Trustees, or a
majority of any committee established to consider the merits of such action, has
a personal financial interest in the transaction at issue, and a Trustee shall
not be deemed interested in a transaction or otherwise disqualified from ruling
on the merits of a Shareholder demand by virtue of the fact that such Trustee
receives remuneration for his service as a Trustee of the Trust or as a trustee
or director of one or more investment companies that are under common management
with or otherwise affiliated with the Trust; and (b) unless a demand is not
required under clause (a) of this paragraph, the Trustees must be afforded a
reasonable amount of time to consider such shareholder request and to
investigate the basis of such claim; and the Trustees shall be entitled to
retain counsel or other advisors in considering the merits of the request and
shall require an undertaking by the Shareholders making such request to
reimburse the Trust for the expense of any such advisors in the event that the
Trustees determine not to bring such action. For purposes of this Section 2.11,
the Trustees may designate a committee of one Trustee to consider a Shareholder
demand if necessary to create a committee with a majority of Trustees who do not
have a personal financial interest in the transaction at issue.
Section 2.12 Status of Shares. Shares shall be deemed to be personal
----------------
property giving only the rights provided in this instrument. Every Shareholder
by virtue of having become a Shareholder shall be held to have expressly
assented and agreed to the terms hereof. The death of a Shareholder during the
continuance of the Trust shall not operate to terminate the Trust nor entitle
the representative of any deceased Shareholder to an accounting or to take any
action in court or elsewhere against the Trust or the Trustees, but only to the
rights of said decedent under this Trust. Ownership of Shares shall not entitle
the Shareholder to any title in or to the whole or any part of the Trust
property or right to call for a partition or division of the same or for an
accounting, nor shall the ownership of Shares constitute the Shareholders
partners.
-7-
ARTICLE III
-----------
THE TRUSTEES
------------
Section 3.1 Management of the Trust. The Trustees shall have exclusive and
-----------------------
absolute control over the Trust Property and over the business of the Trust to
the same extent as if the Trustees were the sole owners of the Trust Property
and business in their own right, but with such powers of delegation as may be
permitted by this Trust Instrument. The Trustees shall have power to conduct
the business of the Trust and carry on its operations in any and all of its
branches and maintain offices both within and without the State of Delaware, in
any and all states of the United States of America, in the District of Columbia,
in any and all commonwealths, territories, dependencies, colonies, or
possessions of the United States of America, and in any foreign jurisdiction and
to do all such other things and execute all such instruments as they deem
necessary, proper or desirable in order to promote the interests of the Trust
although such things are not herein specifically mentioned. Any determination
as to what is in the interests of the Trust made by the Trustees in good faith
shall be conclusive. In construing the provisions of this Trust Instrument, the
presumption shall be in favor of a grant of power to the Trustees.
The enumeration of any specific power in this Trust Instrument shall not be
construed as limiting the aforesaid power. The powers of the Trustees may be
exercised without order of or resort to any court.
Except for the Trustees named herein or appointed pursuant to Section 3.8,
or Trustees appointed to fill vacancies pursuant to Section 3.3 hereof, the
Trustees shall be elected by the Shareholders owning of record a plurality of
the Shares voting at a meeting of Shareholders. The initial Trustee of the
Trust shall be ▇▇▇▇▇▇ ▇▇▇▇▇▇▇.
Section 3.2 Term of Office of Trustees. Each Trustee shall hold office
--------------------------
during the existence of this Trust, and until its termination as herein
provided; except: (a) that any Trustee may resign his trust by written
instrument signed by him and delivered to the Chairman, President, Secretary, or
other Trustee of the Trust, which shall take effect upon such delivery or upon
such later date as is specified therein; (b) that any Trustee may be removed at
any time by written instrument, signed by at least two-thirds of the number of
Trustees prior to such removal, specifying the date when such removal shall
become effective; (c) that any Trustee who requests in writing to be retired or
who has died, become physically or mentally incapacitated by reason of disease
or otherwise, or is otherwise unable to serve, may be retired by written
instrument signed by a majority of the other Trustees, specifying the date of
his retirement; and (d) that a Trustee may be removed at any meeting of the
Shareholders of the Trust by a vote of Shareholders owning at least two-thirds
of the outstanding Shares of all Series.
Section 3.3 Vacancies and Appointment of Trustees. In case of the
-------------------------------------
declination to serve, death, resignation, retirement, removal, physical or
mental incapacity by reason of disease or otherwise of a Trustee, or a Trustee
is otherwise unable to serve, or an increase in
-8-
the number of Trustees, a vacancy shall occur. Whenever a vacancy in the Board
of Trustees shall occur, until such vacancy is filled, the other Trustees shall
have all the powers hereunder and the certificate of the other Trustees of such
vacancy shall be conclusive. In the case of an existing vacancy, the remaining
Trustee or Trustees shall fill such vacancy by appointing such other person as
such Trustee or Trustees in their discretion shall see fit consistent with the
limitations under the 1940 Act, unless such Trustee or Trustees determine, in
accordance with Section 3.5, to decrease the size of the Board to the number of
remaining Trustees.
An appointment of a Trustee may be made by the Trustees then in office in
anticipation of a vacancy to occur by reason of retirement, resignation or
increase in number of Trustees effective at a later date, provided that said
appointment shall become effective only at or after the effective date of said
retirement, resignation or increase in number of Trustees.
An appointment of a Trustee shall be effective upon the acceptance of the
person so appointed to serve as trustee, except that any such appointment in
anticipation of a vacancy shall become effective at or after the date such
vacancy occurs.
Section 3.4 Temporary Absence of Trustee. Any Trustee may, by power of
----------------------------
attorney, delegate his power for a period not exceeding six months at any one
time to any other Trustee or Trustees, provided that in no case shall less than
two Trustees personally exercise the other powers hereunder except as herein
otherwise expressly provided or unless there is only one or two Trustees.
Section 3.5 Number of Trustees. The number of Trustees shall be one, or such
------------------
other number as shall be fixed from time to time by the Trustees.
Section 3.6 Effect of Death, Resignation, Etc. of a Trustee. The declination
-----------------------------------------------
to serve, death, resignation, retirement, removal, incapacity, or inability of
the Trustees, or any one of them, shall not operate to terminate the Trust or to
revoke any existing agency created pursuant to the terms of this Trust
Instrument.
Section 3.7 Ownership of Assets of the Trust. Legal title in and beneficial
--------------------------------
ownership of all of the assets of the Trust shall at all times be considered as
vested in the Trust, except that the Trustees may cause legal title in and
beneficial ownership of any Trust Property to be held by, or in the name of one
or more of the Trustees acting for and on behalf of the Trust, or in the name of
any person as nominee acting for and on behalf of the Trust. No Shareholder
shall be deemed to have a severable ownership interest in any individual asset
of the Trust or of any Series or Class, or any right of partition or possession
thereof, but each Shareholder shall have, except as otherwise provided for
herein, a proportionate undivided beneficial interest in each Series or Class
the Shares of which are owned by such Shareholders. The Shares shall be
personal property giving only the rights specifically set forth in this Trust
Instrument. The Trust, or at the determination of the Trustees, one or more of
the Trustees or a nominee acting for and on behalf of the Trust, shall be deemed
to hold legal title and beneficial ownership of any income earned on securities
of the Trust issued by any business entities formed, organized, or existing
under the laws of any jurisdiction, including the laws of any foreign country.
-9-
Section 3.8 Series Trustees. In connection with the establishment of one or
---------------
more Series or Classes, the Trustees establishing such Series or Class may
appoint, to the extent permitted by the 1940 Act, separate Trustees with respect
to such Series or Classes (the "Series Trustees"). Series Trustees may, but are
not required to, serve as Trustees of the Trust of any other Series or Class of
the Trust. To the extent provided by the Trustees in the appointment of Series
Trustees, the Series Trustees may have, to the exclusion of any other Trustee of
the Trust, all the powers and authorities of Trustees hereunder with respect to
such Series or Class, but may have no power or authority with respect to any
other Series or Class. Any provision of this Trust Instrument relating to
election of Trustees by Shareholders only shall entitle the Shareholders of a
Series or Class for which Series Trustees have been appointed to vote with
respect to the election of such Series Trustees and the Shareholders of any
other Series or Class shall not be entitled to participate in such vote. In the
event that Series Trustees are appointed, the Trustees initially appointing such
Series Trustees shall, without the approval of any Outstanding Shares, amend
either this Trust Instrument or the By-laws to provide for the respective
responsibilities of the Trustees and the Series Trustees in circumstances where
an action of the Trustees or Series Trustees affects all Series of the Trust or
two or more Series represented by different Trustees.
Section 3.9 No Accounting. Except to the extent required by the 1940 Act or,
-------------
if determined to be necessary or appropriate by the other Trustees under
circumstances which would justify his or her removal for cause, no person
ceasing to be a Trustee for reasons including, but not limited to, death,
resignation, retirement, removal or incapacity (nor the estate of any such
person) shall be required to make an accounting to the Shareholders or remaining
Trustees upon such cessation.
ARTICLE IV
----------
POWERS OF THE TRUSTEES
----------------------
Section 4.1 Powers. The Trustees in all instances shall act as principals,
------
and are and shall be free from the control of the Shareholders. The Trustees
shall have full power and authority to do any and all acts and to make and
execute any and all contracts and instruments that they may consider necessary
or appropriate in connection with the management of the Trust. The Trustees
shall have full authority and power to make any and all investments which they,
in their sole discretion, shall deem proper to accomplish the purpose of this
Trust. Subject to any applicable limitation in this Trust Instrument, the
Trustees shall have power and authority:
(a) To invest and reinvest cash and other property, and to hold cash or
other property uninvested, and to sell, exchange, lend, pledge, mortgage,
hypothecate, write options on and lease any or all of the assets of the Trust;
(b) To operate as and carry on the business of an investment company, and
exercise all the powers necessary and appropriate to the conduct of such
operators, including the power to invest all or any part of its assets in the
securities of another investment company;
-10-
(c) To borrow money and in this connection issue notes or other
evidence of indebtedness; to secure borrowings by mortgaging, pledging or
otherwise subjecting as security the Trust Property; to endorse, guarantee, or
undertake the performance of an obligation, liability or engagement of any
person and to lend Trust Property;
(d) To provide for the distribution of interests of the Trust either
through a Principal Underwriter in the manner hereinafter provided for or by the
Trust itself, or both, or otherwise pursuant to a plan of distribution of any
kind;
(e) To adopt By-laws not inconsistent with this Trust Instrument
providing for the conduct of the business of the Trust and to amend and repeal
them to the extent that they do not reserve that right to the Shareholders,
which By-laws shall be deemed a part of this Trust Instrument and are
incorporated herein by reference;
(f) To elect and remove such officers and appoint and terminate such
agents and contractors as they consider appropriate, any of whom may be a
Trustee, and may provide for the compensation of all of the foregoing;
(g) To employ one or more banks, trust companies or companies that
are members of a national securities exchange or such other entities as
custodians of any assets of the Trust, subject to the 1940 Act and to any
conditions set forth in this Trust Instrument;
(h) To retain one or more transfer agents and shareholder servicing
agents, or both;
(i) To set record dates in the manner provided herein or in the By-
laws;
(j) To delegate such authority (which delegation may include the
power to subdelegate) as they consider desirable to any officers of the Trust
and to any investment adviser, manager, administrator, custodian, underwriter or
other agent or independent contractor;
(k) To join with other holders of any securities or debt instruments
in acting through a committee, depository, voting trustee or otherwise, and in
that connection to deposit any security or debt instrument with, or transfer any
security or debt instrument to, any such committee, depository or trustee, and
to delegate to them such power and authority with relation to any security or
debt instrument (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;
(l) To enter into joint ventures, general or limited partnerships and
any other combinations or associations;
(m) To pay pensions for faithful service, as deemed appropriate by
the Trustees, and to adopt, establish and carry out pension, profit-sharing,
share bonus, share purchase, savings, thrift and other retirement, incentive and
benefit plans, trusts and
-11-
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 the extent permitted by law, indemnify any person with whom
the Trust or any Series or Class has dealings;
(o) To engage in and to prosecute, defend, compromise, abandon, or
adjust by arbitration, or otherwise, any actions, suits, proceedings, disputes,
claims and demands relating to the Trust, and out of the assets of the Trust or
any Series or Class thereof to pay or to satisfy any debts, claims or expenses
incurred in connection therewith, including those of litigation, and such power
shall include without limitation the power of the Trustees or any appropriate
committee thereof, in the exercise of their or its good faith business judgment,
to dismiss any action, suit, proceeding, dispute, claim or demand, derivative or
otherwise, brought by any person, including a Shareholder in its own name or the
name of the Trust, whether or not the Trust or any of the Trustees may be named
individually therein or the subject matter arises by reason of business for or
on behalf of the Trust;
(p) To purchase and pay for entirely out of Trust Property such
insurance as they may deem necessary or appropriate for the conduct of the
business of the Trust, including, without limitation, insurance policies
insuring the Trust Property and payment of distributions and principal on its
investments, and insurance policies insuring the Shareholders, Trustees,
officers, representatives, employees, agents, investment advisers, managers,
administrators, custodians, underwriters, or independent contractors of the
Trust individually against all claims and liabilities of every nature arising by
reason of 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 in
such capacity, including any action taken or omitted that may be determined to
constitute negligence, whether or not the Trust would have the power to
indemnify such person against such liability;
(q) To sell, exchange, lend, pledge, mortgage, hypothecate, write
options on and lease any or all of the assets of the Trust, subject to the
provisions of Section 9.4(b) hereof;
(r) To vote or give assent, or exercise any rights of ownership, with
respect to stock or other securities, debt instruments or property; and to
execute and deliver 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, debt instruments or property as the Trustees shall
deem proper;
(s) To exercise powers and rights of subscription or otherwise which
in any manner arise out of ownership of securities or debt instruments;
(t) To hold any security or property in a form not indicating any
trust, whether in bearer, book entry, unregistered or other negotiable form; or
either in the name of
-12-
the Trustees or of the Trust or in the name of a custodian, subcustodian or
other depository or a nominee or nominees or otherwise;
(u) To establish separate and distinct Series with separately defined
investment objectives and policies and distinct investment purposes in
accordance with the provisions of Article II hereof and to establish Classes
thereof having relative rights, powers and duties as they may provide consistent
with applicable law;
(v) To consent to or participate in any plan for the reorganization,
consolidation or merger of any corporation, issuer or concern, any security or
debt instrument of which is held in the Trust; to consent to any contract,
lease, mortgage, purchase or sale of property by such corporation, issuer or
concern, and to pay calls or subscriptions with respect to any security or debt
instrument held in the Trust;
(w) To compromise, arbitrate, or otherwise adjust claims in favor of
or against the Trust or any matter in controversy including, but not limited to,
claims for taxes;
(x) To make distributions of income and of capital gains to
Shareholders in the manner herein provided;
(y) To establish, from time to time, a minimum investment for
Shareholders in the Trust or in one or more Series or Classes, and to require
the redemption of the Shares of any Shareholders whose investment is less than
such minimum upon giving notice to such Shareholder;
(z) To cause each Shareholder, or each Shareholder of any particular
Series of Class, to pay directly, in advance or arrears, for charges of the
Trust's custodian or transfer, shareholder servicing or similar agent, an amount
fixed from time to time by the Trustees, by setting off such charges due from
such Shareholder from declared but unpaid dividends owed such Shareholder and/or
by reducing the number of Shares in the account of such Shareholder by that
number of full and/or fractional Shares which represents the outstanding amount
of such charges due from such Shareholder;
(aa) To establish one or more committees comprised of one or more of
the Trustees, and to delegate any of the powers of the Trustees to said
committees;
(bb) To interpret the investment policies, practices or limitations of
any Series or Class;
(cc) To establish a registered office and have a registered agent in
the State of Delaware;
(dd) To compensate or provide for the compensation of the Trustees,
officers, advisers, administrators, custodians, other agents, consultants,
contractors and employees of the Trust or the Trustees on such terms as they
deem appropriate;
-13-
(ee) To invest part or all of the Trust Property (or part or all of
the assets of any Series), or to dispose of part or all of the Trust Property
(or part or all of the assets of any Series) and invest the proceeds of such
disposition, in interests issued by one or more other investment companies or
pooled portfolios (including investment by means of transfer of part or all of
the Trust Property in exchange for an interest or interests in such one or more
investment companies or pooled portfolios) all without any requirement of
approval by Shareholders. Any such other investment company or pooled portfolio
may (but need not) be a trust (formed under the laws of any state or
jurisdiction) which is classified as a partnership for federal income tax
purposes; and
(ff) In general, to carry on any other business in connection with or
incidental to any of the foregoing powers, to do everything necessary, suitable
or proper for the accomplishment of any purpose or the attainment of any object
or the furtherance of any power herein set forth, either alone or in association
with others, and to do every other act or thing incidental or appurtenant to or
growing out of or connected with the aforesaid business or purposes, objects or
powers.
The foregoing clauses shall be construed both as objects and powers, and
the foregoing enumeration of specific powers shall not be held to limit or
restrict in any manner the general powers of the Trustees. Any action by one or
more of the Trustees in their capacity as such hereunder shall be deemed an
action on behalf of the Trust or the applicable Series or Class, and not an
action in an individual capacity.
No one dealing with the Trustees shall be under any obligation to make any
inquiry concerning the authority of the Trustees, or to see to the application
of any payments made or property transferred to the Trustees or upon their
order.
Section 4.2 Issuance and Repurchase of Shares. The Trustees shall have
---------------------------------
the power to issue, sell, repurchase, redeem, retire, cancel, acquire, hold,
resell, reissue, dispose of, exchange, and otherwise deal in Shares and, subject
to the provisions set forth in Article II and Article VII, to apply to any such
repurchase, redemption, retirement, cancellation or acquisition of Shares any
funds or property of the Trust, or the particular Series or Class of the Trust,
with respect to which such Shares are issued.
Section 4.3 Trustees and Officers as Shareholders. Any Trustee, officer
-------------------------------------
or other agent of the Trust may acquire, own and dispose of Shares to the same
extent as if such person were not a Trustee, officer or agent; and the Trustees
may issue and sell or cause to be issued and sold Shares to and buy such Shares
from any such person or any firm or company in which such person invested,
subject to the general limitations herein contained as to the sale and purchase
of such Shares.
Section 4.4 Action by the Trustees and Committees. The Trustees (and any
-------------------------------------
committee thereof) may act at a meeting held in person or in whole or in part by
conference telecommunications equipment. One-third, but not less than two, of
the Trustees shall constitute a quorum at any meeting unless there is only one
Trustee. Except as the Trustees may otherwise determine, one-third of the
members of any committee shall constitute a quorum at any meeting. The vote of
a majority of the Trustees (or committee members)
-14-
present at a meeting at which a quorum is present shall be the act of the
Trustees (or any committee thereof). The Trustees (and any committee thereof)
may also act by written consent signed by a majority of the Trustees (or
committee members). Regular meetings of the Trustees may be held at such places
and at such times as the Trustees may from time to time determine. Special
meetings of the Trustees (and meetings of any committee thereof) may be called
orally or in writing by the Chairman of the Board of Trustees (or the chairman
of any committee thereof) or by any two other Trustees. Notice of the time, date
and place of all meetings of the Trustees (or any committee thereof) shall be
given by the party calling the meeting to each Trustee (or committee member) by
telephone, telefax, or telegram sent to the person's home or business address at
least twenty-four hours in advance of the meeting or by written notice mailed to
the person's home or business address at least seventy-two hours in advance of
the meeting. Notice of all proposed written consents of Trustees (or committees
thereof) shall be given to each Trustee (or committee member) by telephone,
telefax, telegram, or first class mail sent to the person's home or business
address. Notice need not be given to any person who attends a meeting without
objecting to the lack of notice or who executes a written consent or a written
waiver of notice with respect to a meeting. Written consents or waivers may be
executed in one or more counterparts. Execution of a written consent or waiver
and delivery thereof may be accomplished by telefax or other electronic means
approved by the Trustees.
Section 4.5 Chairman of the Trustees. The Trustees may appoint one of
------------------------
their number to be Chairman of the Board of Trustees. The Chairman shall preside
at all meetings of the Trustees at which he is present and may be (but is not
required to be) the chief executive officer of the Trust.
Section 4.6 Principal Transactions. Except to the extent prohibited by
----------------------
applicable law, the Trustees may, on behalf of the Trust, buy any securities
from or sell any securities to, or lend any assets of the Trust to, any Trustee
or officer of the Trust or any firm of which any such Trustee or officer is a
member acting as principal, or have any such dealings with any Affiliated Person
of the Trust, investment adviser, investment sub-adviser, distributor or
transfer agent for the Trust or with any Interested Person of such Affiliated
Person or other person; and the Trust may employ any such Affiliated Person or
other person, or firm or company in which such Affiliated Person or other person
is an Interested Person, as broker, legal counsel, registrar, investment
advisor, investment sub-advisor, distributor, transfer agent, dividend
disbursing agent, custodian or in any other capacity upon customary terms.
ARTICLE V
---------
INVESTMENT ADVISOR, INVESTMENT SUB-ADVISOR,
PRINCIPAL UNDERWRITER, ADMINISTRATOR, TRANSFER AGENT,
CUSTODIAN AND OTHER CONTRACTORS
-------------------------------
Section 5.1 Certain Contracts. Subject to compliance with the provisions
-----------------
of the 1940 Act, but notwithstanding any limitations of present and future law
or custom in regard to delegation of powers by trustees generally, the Trustees
may, at any time and from time to
-15-
time and without limiting the generality of their powers and authority otherwise
set forth herein, enter into one or more contracts with any one or more
corporations, trusts, associations, partnerships, limited partnerships, other
type of organizations, or individuals to provide for the performance and
assumption of some or all of the following services, duties and responsibilities
to, for or of the Trust and/or the Trustees, and to provide for the performance
and assumption of such other services, duties and responsibilities in addition
to those set forth below as the Trustees may determine to be appropriate:
(a) Investment Adviser and Investment Sub-Adviser. The Trustees may
---------------------------------------------
in their discretion, from time to time, enter into an investment advisory or
management contract or contracts with respect to the Trust or any Series whereby
the other party or parties to such contract or contracts shall undertake to
furnish the Trust with such management, investment advisory, statistical and
research facilities and services and such other facilities and services, if any,
and all upon such terms and conditions, as the Trustees may in their discretion
determine. Notwithstanding any other provision of this Trust Instrument, the
Trustees may authorize any investment adviser (subject to such general or
specific instructions as the Trustees may from time to time adopt) to effect
purchases, sales or exchanges of portfolio securities, other investment
instruments of the Trust, or other Trust Property on behalf of the Trustees, or
may authorize any officer, agent, or Trustee to effect such purchases, sales or
exchanges pursuant to recommendations of the investment adviser (and all without
further action by the Trustees). Any such purchases, sales and exchanges shall
be deemed to have been authorized by the Trustees.
The Trustees may authorize, subject to applicable requirements of the 1940
Act, the investment adviser to employ, from time to time, one or more sub-
advisers to perform such of the acts and services of the investment adviser, and
upon such terms and conditions, as may be agreed upon between the investment
adviser and sub-adviser. Any reference in this Trust Instrument to the
investment adviser shall be deemed to include such sub-advisers, unless the
context otherwise requires.
(b) Principal Underwriter. The Trustees may in their discretion from
---------------------
time to time enter into an exclusive or non-exclusive underwriting contract or
contracts providing for the sale of Shares, whereby the Trust may either agree
to sell Shares to the other party to the contract or appoint such other party
its sales agent for such Shares. In either case, the contract may also provide
for the repurchase or sale of Shares by such other party as principal or as
agent of the Trust.
(c) Administrator. The Trustees may in their discretion from time to
-------------
time enter into one or more contracts whereby the other party or parties shall
undertake to furnish the Trust with administrative services. The contract or
contracts shall be on such terms and conditions as the Trustees may in their
discretion determine.
(d) Transfer Agent. The Trustees may in their discretion from time
--------------
to time enter into one or more transfer agency and Shareholder service contracts
whereby the other party or parties shall undertake to furnish the Trustees with
transfer agency and Shareholder
-16-
services. The contract or contracts shall be on such terms and conditions as the
Trustees may in their discretion determine.
(e) Administrative Service and Distribution Plans. The Trustees may,
---------------------------------------------
on such terms and conditions as they may in their discretion determine, adopt
one or more plans pursuant to which compensation may be paid directly or
indirectly by the Trust for Shareholder servicing, administration and/or
distribution services with respect to one or more Series or Classes including
without limitation, plans subject to Rule 12b-1 under the 1940 Act, and the
Trustees may enter into agreements pursuant to such plans.
(f) Fund Accounting. The Trustees may in their discretion from time
---------------
to time enter into one or more contracts whereby the other party or parties
undertakes to handle all or any part of the Trust's accounting responsibilities,
whether with respect to the Trust's properties, Shareholders or otherwise.
(g) Custodian and Depository. The Trustees may in their discretion
------------------------
from time to time enter into one or more contracts whereby the other party or
parties undertakes to act as depository for and to maintain custody of the
property of the Trust or any Series or Class and accounting records in
connection therewith.
(h) Parties to Contract. Any contract described in this Article V
-------------------
hereof may be entered into with any corporation, firm, partnership, trust or
association, although one or more of the Trustees or officers of the Trust may
be an officer, director, trustee, shareholder, or member of such other party to
the contract, and no such contract shall be invalidated or rendered void or
voidable by reason of the existence of any relationship, nor shall any person
holding such relationship be disqualified from voting on or executing the same
in his capacity as Shareholder and/or Trustee, nor shall any person holding such
relationship be liable merely by reason of such relationship for any loss or
expense to the Trust under or by reason of said contract or accountable for any
profit realized directly or indirectly therefrom, provided that the contract
when entered into was not inconsistent with the provisions of this Article V.
The same person (including a firm, corporation, partnership, trust, or
association) may be the other party to contracts entered into pursuant to this
Article V, and any individual may be financially interested or otherwise
affiliated with persons who are parties to any or all of the contracts mentioned
in this Section 5.1.
ARTICLE VI
----------
SHAREHOLDER VOTING POWERS AND MEETINGS
--------------------------------------
Section 6.1 Voting. The Shareholders shall have power to vote only: (a)
------
for the election of one or more Trustees in order to comply with the provisions
of the 1940 Act (including Section 16(a) thereof); (b) with respect to any
contract entered into pursuant to Article V to the extent required by the 1940
Act; (c) with respect to termination of the Trust or a Series or Class thereof
to the extent required by applicable law; (d) with respect to any plan adopted
pursuant to Rule 12b-1 (or any successor rule) under the 1940 Act, and related
-17-
matters, to the extent required under the 1940 Act; and (e) with respect to such
additional matters relating to the Trust as may be required by this Trust
Instrument, the By-laws or any registration of the Trust or Series as an
investment company under the 1940 Act with the Commission (or any successor
agency) or as the Trustees may consider necessary or desirable.
On each matter submitted to a vote of Shareholders, unless the Trustees
determine otherwise, all Shares of all Series and Classes shall vote as a single
class; provided, however, that: (a) as to any matter with respect to which a
separate vote of any Series or Class is required by the 1940 Act or other
applicable law or is required by attributes applicable to any Series or Class,
such requirements as to a separate vote by that Series or Class shall apply; (b)
unless the Trustees determine that this clause (b) shall not apply in a
particular case, to the extent that a matter referred to in clause (a) above
affects more than one Series or Class and the interests of each such Series or
Class in the matter are identical, then the Shares of all such affected Series
or Classes shall vote as a single class; and (c) as to any matter which does not
affect the interests of a particular Series or Class, only the holders of Shares
of the one or more affected Series or Classes shall be entitled to vote. Each
whole Share shall be entitled to one vote as to any matter on which it is
entitled to vote, and each fractional Share shall be entitled to a proportionate
fractional vote. There shall be no cumulative voting in the election of
Trustees. Shares may be voted in person or by proxy or in any manner provided
for in the By-laws. A proxy may be given in writing, by telefax, or in any
other manner provided for in the By-laws. Anything in this Trust Instrument to
the contrary notwithstanding, in the event a proposal by anyone other than the
officers or Trustees of the Trust is submitted to a vote of the Shareholders of
the Trust or one or more Series or Classes thereof, or in the event of any proxy
contest or proxy solicitation or proposal in opposition to any proposal by the
officers or Trustees of the Trust, Shares may be voted only in person or by
written proxy. Until Shares are issued, the Trustees may exercise all rights of
Shareholders and may take any action required or permitted by law, this Trust
Instrument or any of the By-laws of the Trust to be taken by Shareholders.
Section 6.2 Meetings. Meetings of Shareholders (including meetings
--------
involving only the holders of Shares of one or more but less than all Series or
Classes) may be called by the Trustees from time to time to be held at such
place within or without the State of Delaware, and on such date as may be
designated in the call thereof for the purpose of taking action upon any matter
as to which the vote or authority of the Shareholders is required or permitted
as provided in Section 6.1. Special meetings of the Shareholders of any Series
may be called by the Trustees and shall be called by the Trustees upon the
written request of Shareholders owning at least twenty-five percent (25%) of the
Outstanding Shares entitled to vote, except to the extent that a lesser
percentage is prescribed by the 1940 Act. Notice shall be sent, postage prepaid,
by mail or such other means determined by the Trustees, at least 7 days prior to
any such meeting.
Section 6.3 Quorum and Required Vote. Unless a larger percentage is
------------------------
required by law, by any provision of this Trust Instrument or by the Trustees,
one-third of the Shares entitled to vote in person or by proxy on a particular
matter shall be a quorum for the transaction of business at a Shareholders'
meeting with respect to that matter. Any lesser
-18-
number shall be sufficient for adjournments. Any adjourned session or sessions
may be held without the necessity of further notice. Except when a larger vote
is required by law, by any provision of this Trust Instrument or by the
Trustees, a majority of the Shares voted in person or by proxy on a particular
matter at a meeting at which a quorum is present shall decide any questions with
respect to that matter and a plurality shall elect a Trustee.
Section 6.4 Action by Written Consent. Subject to the provisions of the
-------------------------
1940 Act and other applicable law, any action taken by Shareholders may be taken
without a meeting if a majority of the Shares entitled to vote on the matter (or
such larger proportion thereof as shall be required by law, by any provision of
this Trust Instrument or by the Trustees) consent to the action in writing. Such
consent shall be treated for all purposes as a vote taken at a meeting of
Shareholders. The Trustees may adopt additional rules and procedures regarding
the taking of Shareholder action by written consents.
ARTICLE VII
-----------
DISTRIBUTIONS AND REDEMPTIONS
-----------------------------
Section 7.1 Distributions.
-------------
(a) The Trustees may from time to time declare and pay dividends or
other distributions with respect to any Series or Class. The amount of such
dividends or distributions and the payment of them and whether they are in cash
or any other Trust Property shall be wholly in the discretion of the Trustees.
(b) Dividends and other distributions may be paid or made to the
Shareholders of record at the time of declaring a dividend or other distribution
or among the Shareholders of record at such other date or time or dates or times
as the Trustees shall determine, which dividends or distributions, at the
election of the Trustees, may be paid pursuant to a standing resolution or
resolutions adopted only once or with such frequency as the Trustees may
determine. All dividends and other distributions on Shares of a particular
Class shall be distributed pro rata to the Shareholders of that Series or Class
in proportion to the number of Shares of that Series or Class they held on the
record date established for such payment, except that in connection with any
dividend or distribution program or procedure the Trustees may determine that no
dividend or distribution shall be payable on Shares as to which the
Shareholder's purchase order and/or payment in the prescribed form has not been
received by the time or times established by the Trustees under such program or
procedure. The Trustees may adopt and offer to Shareholders such dividend
reinvestment plans, cash dividend payout plans or related plans as the Trustees
shall deem appropriate.
(c) Anything in this Trust Instrument to the contrary
notwithstanding, the Trustees may at any time declare and distribute a stock
dividend pro rata among the Shareholders of a particular Series, or Class
thereof, as of the record date of that Series or Class fixed as provided in
Section (b) hereof. The Trustees shall have full discretion, to the extent not
inconsistent with the 1940 Act, to determine which items shall be treated as
income
-19-
and which items as capital; and each such determination and allocation shall be
conclusive and binding upon the Shareholders.
Section 7.2 Redemption by Shareholder.
-------------------------
(a) Unless the Trustees otherwise determine with respect to a
particular Series or Class at the time of establishing and designating the same,
each holder of Shares of a particular Series or Class thereof shall have the
right at such times as may be permitted by the Trust, but no less frequently
than once each week, to require the Trust to redeem (out of the assets belonging
to the applicable Series or Class) all or any part of his Shares at a redemption
price equal to the Net Asset Value per Share of that Series or Class next
determined in accordance with Section 7.4 after the Shares are properly tendered
for redemption, less such redemption fee or other charge, if any, as may be
fixed by the Trustees. Except as otherwise provided in this Trust Instrument,
payment of the redemption price shall be in cash; provided, however, that to the
extent permitted by applicable law, the Trustees may authorize the Trust to make
payment wholly or partly in securities or other assets belonging to the
applicable Series at the value of such securities or assets used in such
determination of Net Asset Value.
(b) Notwithstanding the foregoing, the Trust may postpone payment of
the redemption price and may suspend the right of the holders of Shares of any
Series or Class to require the Trust to redeem Shares of that Series or Class
during any period or at any time when and to the extent permissible under the
1940 Act.
(c) In the event that a Shareholder shall submit a request for the
redemption of a greater number of Shares than are then allocated to such
Shareholder, such request shall not be honored.
Section 7.3 Redemption by Trust. Unless the Trustees otherwise determine
-------------------
with respect to a particular Series or Class at the time of establishing and
designating the same, each Share of each Series or Class thereof that has been
established and designated is subject to redemption (out of the assets belonging
to the applicable Series or Class) by the Trust at the redemption price which
would be applicable if such Share was then being redeemed by the Shareholder
pursuant to Section 7.2 at any time if the Trustees determine in their sole
discretion that failure to so redeem may have materially adverse consequences to
the holders of the Shares, or any Series or Class of the Trust, and upon such
redemption the holders of the Shares so redeemed shall have no further right
with respect thereto other than to receive payment of such redemption price. In
addition, the Trustees, in their sole discretion, may cause the Trust to redeem
(out of the assets belonging to the applicable Series or Class) all of the
Shares of one or more Series or Classes held by (a) any Shareholder if the value
of such Shares held by such Shareholder is less than the minimum amount
established from time to time by the Trustees, (b) all Shareholders of one or
more Series or Classes if the value of such Shares held by all Shareholders is
less than the minimum amount established from time to time by the Trustees or
(c) any Shareholder to reimburse the Trust for any loss or expense it has
sustained or incurred by reason of the failure of such Shareholder to make full
payment for Shares purchased by such Shareholder, or by reason of any defective
redemption request, or by reason of indebtedness incurred because of such
Shareholder as described in Section 9.11 or to
-20-
collect any charge relating to a transaction effected for the benefit of such
Shareholder or as provided in the prospectus relating to such Shares.
Section 7.4 Net Asset Value. The Net Asset Value per Share of any Series
---------------
or Class thereof shall be the quotient obtained by dividing the value of the net
assets of that Series or Class (being the value of the assets belonging to that
Series or Class less the liabilities belonging to that Series or Class) by the
total number of Shares of that Series or Class outstanding, all determined in
accordance with the methods and procedures, including without limitation those
with respect to rounding, established by the Trustees from time to time.
The Trustees may determine to maintain the Net Asset Value per Share
of any Series at a designated constant dollar amount and in connection therewith
may adopt procedures not inconsistent with the 1940 Act for the continuing
declarations of income attributable to that Series or Class thereof as dividends
payable in additional Shares of that Series or Class thereof at the designated
constant dollar amount and for the handling of any losses attributable to that
Series or Class thereof. Such procedures may, among other things, provide that
in the event of any loss each Shareholder of a Series or Class thereof shall be
deemed to have contributed to the capital of the Trust attributable to that
Series or Class thereof his pro rata portion of the total number of Shares
required to be cancelled in order to permit the Net Asset Value per Share of
that Series or Class thereof to be maintained, after reflecting such loss, at
the designated constant dollar amount. Each Shareholder of the Trust shall be
deemed to have agreed, by his investment in the Trust, to make the contribution
referred to in the preceding sentence in the event of any such loss.
ARTICLE VIII
------------
LIMITATION OF LIABILITY AND INDEMNIFICATION
-------------------------------------------
Section 8.1 Limitation of Liability. Neither a Trustee nor an officer of
-----------------------
the Trust, when acting in such capacity, shall be personally liable to any
person other than the Trust or a beneficial owner for any act, omission or
obligation of the Trust, any Trustee or any officer of the Trust. Neither a
Trustee nor an officer of the Trust shall be liable for any act or omission in
his capacity as Trustee or as an officer of the Trust, or for any act or
omission of any other officer or any employee of the Trust or of any other
person or party, provided that nothing contained herein or in the Act shall
protect any Trustee or officer against any liability to the Trust or to
Shareholders to which he would otherwise be subject by reason of willful
misfeasance, bad faith, gross negligence or reckless disregard of the duties
involved in the conduct of the office of Trustee or the duties of such officer
hereunder.
Section 8.2 Indemnification. The Trust shall indemnify each of its
---------------
Trustees and officers and persons who serve at the Trust's request as directors,
officers or trustees of another organization in which the Trust has any interest
as a shareholder, creditor, or otherwise, and may indemnify any trustee,
director or officer of a predecessor organization (each a "Covered Person"),
against all liabilities and expenses (including amounts paid in satisfaction of
judgments, in compromise, as fines and penalties, and expenses including
-21-
reasonable accountants' and counsel fees) reasonably incurred in connection with
the defense or disposition of any action, suit or other proceeding, whether
civil or criminal, before any court or administrative or legislative body, in
which he may be involved or with which he may be threatened, while as a Covered
Person or thereafter, by reason of being or having been such a Covered Person,
except that no Covered Person shall be indemnified against any liability to the
Trust or its Shareholders to which such Covered Person would otherwise be
subject by reason of bad faith, willful misfeasance, gross negligence or
reckless disregard of his duties involved in the conduct of such Covered
Person's office (such willful misfeasance, bad faith, gross negligence or
reckless disregard being referred to herein as "Disabling Conduct"). Expenses,
including accountants' and counsel fees so incurred by any such Covered Person
(but excluding amounts paid in satisfaction of judgments, in compromise or as
fines or penalties), may be paid from time to time by the Trust in advance of
the final disposition of any such action, suit or proceeding upon receipt of (a)
an undertaking by or on behalf of such Covered Person to repay amounts so paid
to the Trust if it is ultimately determined that indemnification of such
expenses is not authorized under this Article VIII and either (b) such Covered
Person provides security for such undertaking, (c) the Trust is insured against
losses arising by reason of such payment, or (d) a majority of a quorum of
disinterested, non-party Trustees, or independent legal counsel in a written
opinion, determines, based on a review of readily available facts, that there is
reason to believe that such Covered Person ultimately will be found entitled to
indemnification.
Section 8.3 Indemnification Determinations. Indemnification of a Covered
------------------------------
Person pursuant to Section 8.2 shall be made if (a) the court or body before
whom the proceeding is brought determines, in a final decision on the merits,
that such Covered Person was not liable by reason of Disabling Conduct or (b) in
the absence of such a determination, a majority of a quorum of disinterested,
non-party Trustees or independent legal counsel in a written opinion make a
reasonable determination, based upon a review of the facts, that such Covered
Person was not liable by reason of Disabling Conduct.
Section 8.4 Indemnification Not Exclusive. The right of indemnification
-----------------------------
provided by this Article VIII shall not be exclusive of or affect any other
rights to which any such Covered Person may be entitled. As used in this
Article VIII, "Covered Person" shall include such person's heirs, executors and
administrators, and a "disinterested, non-party Trustee" is a Trustee who is
neither an Interested Person of the Trust nor a party to the proceeding in
question.
Section 8.5 Shareholders. Each Shareholder of the Trust and of each Series
------------
or Class shall not be personally liable for the debts, liabilities, obligations
and expenses incurred by, contracted for, or otherwise existing with respect to,
the Trust or by or on behalf of any Series or Class. The Trustees shall have no
power to bind any Shareholder personally or to call upon any Shareholder for the
payment of any sum of money or assessment whatsoever other than such as the
Shareholder may at any time personally agree to pay pursuant to terms hereof or
by way of subscription for any Shares or otherwise.
In case any Shareholder or former Shareholder of any Series or Class shall
be held to be personally liable solely by reason of his being or having been a
Shareholder of such Series
-22-
or Class and not because of his acts or omissions or for some other reason, the
Shareholder or former Shareholder (or his heirs, executors, administrators or
other legal representatives, or, in the case of a corporation or other entity,
its corporate or other general successor) shall be entitled out of the assets
belonging to the applicable Series or Class to be held harmless from and
indemnified against all loss and expense arising from such liability. The Trust,
on behalf of the affected Series, shall, upon request by the Shareholder, assume
the defense of any claim made against the Shareholder for any act or obligation
of the Series or Class and satisfy any judgment thereon from the assets of the
Series or Class. The indemnification and reimbursement required by the preceding
sentence shall be made only out of assets of the one or more Series or Classes
whose Shares were held by said Shareholder at the time the act or event occurred
which gave rise to the claim against or liability of said Shareholder. The
rights accruing to a Shareholder under this Section shall not impair any other
right to which such Shareholder may be lawfully entitled, nor shall anything
herein contained restrict the right of the Trust or any Series or Class thereof
to indemnify or reimburse a Shareholder in any appropriate situation even though
not specifically provided herein.
ARTICLE IX
----------
MISCELLANEOUS
-------------
Section 9.1 Trust Not a Partnership. It is hereby expressly declared that
-----------------------
a trust and not a partnership is created hereby. All persons extending credit
to, contracting with or having any claim against any Series of the Trust or any
Class within any Series shall look only to the assets of such Series or Class
for payment under such credit, contract or claim; and neither the Shareholders
nor the Trustees, nor any of the Trust's officers, employees or agents, whether
past, present or future, shall be personally liable therefor. Every note, bond,
contract or other undertaking issued by or on behalf of the Trust or the
Trustees relating to the Trust or to a Series or Class shall include a
recitation limiting the obligations represented thereby to the Trust or to one
or more Series or Classes and its or their assets (but the omission of such a
recitation shall not operate to bind any Shareholder, Trustee, officer, employee
or agent of the Trust).
Section 9.2 Trustees' Good Faith Action, Expert Advice, No Bond or Surety.
-------------------------------------------------------------
The exercise by the Trustees of their powers and discretions hereunder shall be
binding upon everyone interested. Subject to the provisions of Article VIII:
(i) the Trustees shall not be responsible or liable in any event for any neglect
or wrongdoing of any officer, agent, employee, consultant, adviser,
administrator, distributor or principal underwriter, custodian or transfer,
dividend disbursing, Shareholder servicing or accounting agent of the Trust, nor
shall any Trustee be responsible for the act or omission of any other Trustee;
(ii) the Trustees may take advice of counsel or other experts with respect to
the meaning and operation of this Trust Instrument and their duties as Trustees,
and shall be under no liability for any act or omission in accordance with such
advice or for failing to follow such advice; and (iii) in discharging
-23-
their duties, the Trustees, when acting in good faith, shall be entitled to rely
upon the books of account of the Trust and upon written reports made to the
Trustees by any officer appointed by them, any independent public accountant,
and (with respect to the subject matter of the contract involved) any officer,
partner or responsible employee of a contracting party appointed by the
Trustees. The Trustees as such shall not be required to give any bond or surety
or any other security for the performance of their duties.
Section 9.3 Establishment of Record Dates. The Trustees may close the
-----------------------------
Share transfer books of the Trust for a period not exceeding one hundred twenty
(120) days preceding the date of any meeting of Shareholders, or the date for
the payment of any dividends or other distributions, or the date for the
allotment of rights, or the date when any change or conversion or exchange of
Shares shall go into effect; or in lieu of closing the stock transfer books as
aforesaid, the Trustees may fix in advance a date, not exceeding one hundred
twenty (120) days preceding the date of any meeting of Shareholders, or the date
for payment of any dividend or other distribution, or the date for the allotment
of rights, or the date when any change or conversion or exchange of Shares shall
go into effect, as a record date for the determination of the Shareholders
entitled to notice of, and to vote at, any such meeting, or entitled to receive
payment of any such dividend or other distribution, or to any such allotment of
rights, or to exercise the rights in respect of any such change, conversion or
exchange of Shares, and in such case such Shareholders and only such
Shareholders as shall be Shareholders of record on the date so fixed shall be
entitled to such notice of, and to vote at, such meeting, or to receive payment
of such dividend or other distribution, or to receive such allotment or rights,
or to exercise such rights, as the case may be, notwithstanding any transfer of
any Shares on the books of the Trust after any such record date fixed as
aforesaid.
Section 9.4 Dissolution and Termination of Trust or Series.
----------------------------------------------
(a) This Trust shall continue without limitation of time but subject
to the provisions of sub-sections (b) and (c) of this Section 9.4.
(b) Notwithstanding anything in Section 9.5 to the contrary, the
Trustees may without Shareholder approval (unless such approval is required by
the ▇▇▇▇ ▇▇▇) in dissolution of the Trust or an applicable Series or Class,
(i) sell and convey all or substantially all of the assets of
the Trust or any Series or Class to another trust,
partnership, limited liability company, association or
corporation, or to a separate Series or Class of shares
thereof, organized under the laws of any state or
jurisdiction, for adequate consideration which may
include the assumption of all outstanding obligations,
taxes and other liabilities, accrued or contingent, of
the Trust or any Series or Class, and which may include
shares of beneficial interest, stock or other ownership
interests of such trust, partnership, limited liability
company, association or corporation or of a series
thereof; or
-24-
(ii) at any time sell and convert into money all of the assets
of the Trust or any Series or Class.
Following a sale or conversion in accordance with the foregoing sub-section
9.4(b)(i) or (ii), and upon making reasonable provision, in the determination of
the Trustees, for the payment of all liabilities of the Trust or the affected
Series or Class as required by applicable law, by such assumption or otherwise,
the Shareholders of each Class of a Series involved in such sale or conversion
shall be entitled to receive, as a Class, when and as declared by the Trustees,
the excess of the assets belonging to that Series that are allocated to such
Class over the liabilities belonging to that Series that are allocated to such
Class. The assets so distributable to the Shareholders of any particular Class
of a Series shall be distributed among such Shareholders in proportion to the
number of Shares of that Class held by them and recorded on the books of the
Trust. In the event a Series is not divided into Classes, the foregoing
provisions shall be applied on a Series by Series basis.
(c) Upon completion of the distribution of the remaining proceeds or
the remaining assets as provided in sub-section (b), the Trust (in the case of a
sale or conversion with respect to the Trust as a whole or the last remaining
Series) or any affected Series or Class shall terminate and the Trustees and the
Trust or any affected Series or Class shall be discharged of any and all further
liabilities and duties hereunder and the right, title and interest of all
parties with respect to the Trust or such affected Series or Class shall be
cancelled and discharged.
Upon termination of the Trust, following completion of winding up of its
business, the Trustees shall cause a certificate of cancellation of the Trust's
certificate of trust to be filed in accordance with the Act, which certificate
of cancellation may be signed by any one Trustee.
Section 9.5 Merger, Consolidation, Incorporation. Anything in this Trust
------------------------------------
Instrument to the contrary notwithstanding, the Trustees, in order to change the
form of organization and/or domicile of the Trust, may, without prior
Shareholder approval, (i) cause the Trust to merge or consolidate with or into
one or more trusts, partnerships, limited liability companies, associations or
corporations which is or are formed, organized or existing under the laws of a
state, commonwealth possession or colony of the United States, or (ii) cause the
Trust to incorporate under the laws of Delaware. Any agreement of merger or
consolidation or certificate of merger may be signed by a majority of the
Trustees. Pursuant to and in accordance with the provisions of Section 3815(f)
of the Act, and notwithstanding anything to the contrary contained in this Trust
Instrument, an agreement of any merger or consolidation approved in accordance
with this Section 9.5 may effect any amendment to the Trust Instrument or effect
the adoption of a new trust instrument of the Trust if it is the surviving or
resulting trust in the merger or consolidation. Any merger or consolidation of
the Trust other than as described in the foregoing provisions of this Section
9.5 shall, in addition to the approval of the Trustees, require a Majority
Shareholder Vote. Nothing in this Section 9.5 shall require, however,
Shareholder approval of any transaction whereby the Trust or any Series thereof
acquires or assumes all or any part of the assets and liabilities of any other
entity.
-25-
Section 9.6 Filing of Copies, References, Headings. The original or a copy
--------------------------------------
of this Trust Instrument and of each amendment hereof or Trust Instrument
supplemental hereto shall be kept at the office of the Trust where it may be
inspected by any Shareholder. Anyone dealing with the Trust may rely on a
certificate by an officer or Trustee of the Trust as to whether or not any such
amendments or supplements have been made and as to any matters in connection
with the Trust hereunder, and with the same effect as if it were the original,
may rely on a copy certified by an officer or Trustee of the Trust to be a copy
of this Trust Instrument or of any such amendment or supplemental Trust
Instrument. In this Trust Instrument or in any such amendment or supplemental
Trust Instrument, references to this Trust Instrument, and all expressions like
"herein," "hereof" and "hereunder," shall be deemed to refer to this Trust
Instrument as amended or affected by any such supplemental Trust Instrument.
All expressions like "his", "he" and "him", shall be deemed to include the
feminine and neuter, as well as masculine, genders. Headings are placed herein
for convenience of reference only and in case of any conflict, the text of this
Trust Instrument rather than the headings, shall control. This Trust Instrument
may be executed in any number of counterparts each of which shall be deemed an
original.
Section 9.7 Applicable Law. The trust set forth in this instrument is made
--------------
in the State of Delaware, and the Trust and this Trust Instrument, and the
rights and obligations of the Trustees and Shareholders hereunder, are to be
governed by and construed and administered according to the Act and the laws of
said State; provided, however, that there shall not be applicable to the Trust,
the Trustees or this Trust Instrument (a) the provisions of Section 3540 of
Title 12 of the Delaware Code or (b) any provisions of the laws (statutory or
common) of the State of Delaware (other than the Act) pertaining to trusts which
relate to or regulate: (i) the filing with any court or governmental body or
agency of trustee accounts or schedules of trustee fees and charges, (ii)
affirmative requirements to post bonds for trustees, officers, agents or
employees of a trust, (iii) the necessity for obtaining court or other
governmental approval concerning the acquisition, holding or disposition of real
or personal property, (iv) fees or other sums payable to trustees, officers,
agents or employees of a trust, (v) the allocation of receipts and expenditures
to income or principal, (vi) restrictions or limitations on the permissible
nature, amount or concentration of trust investments or requirements relating to
the titling, storage or other manner of holding of trust assets, or (vii) the
establishment of fiduciary or other standards or responsibilities or limitations
on the acts or powers of trustees, which are inconsistent with the limitations
or liabilities or authorities and powers of the Trustees set forth or referenced
in this Trust Instrument. The Trust shall be of the type commonly called a
"business trust", and without limiting the provisions hereof, the Trust may
exercise all powers which are ordinarily exercised by such a trust under
Delaware law. The Trust specifically reserves the right to exercise any of the
powers or privileges afforded to trusts or actions that may be engaged in by
trusts under the Act, and the absence of a specific reference herein to any such
power, privilege or action shall not imply that the Trust may not exercise such
power or privilege or take such actions.
Section 9.8 Amendments. Except as specifically provided herein, the
----------
Trustees may, without Shareholder vote, amend or otherwise supplement this Trust
Instrument by making an amendment, a Trust Instrument supplemental hereto or an
amended and restated trust
-26-
instrument. Shareholders shall have the right to vote: (i) on any amendment
which would affect their right to vote granted in Section 6.1, (ii) on any
amendment to this Section 9.8, (iii) on any amendment for which such vote is
required by law and (iv) on any amendment submitted to them by the Trustees. Any
amendment required or permitted to be submitted to Shareholders which, as the
Trustees determine, shall affect the Shareholders of one or more Series or
Classes shall be authorized by vote of the Shareholders of each Series or Class
affected and no vote of shareholders of a Series or Class not affected shall be
required. Anything in this Trust Instrument to the contrary notwithstanding, any
amendment to Article VIII hereof shall not limit the rights to indemnification
or insurance provided therein with respect to action or omission of any persons
protected thereby prior to such amendment.
Section 9.9 Fiscal Year. The fiscal year of the Trust shall end on a
-----------
specified date as determined from time to time by the Trustees.
Section 9.10 Provisions in Conflict with Law. The provisions of this Trust
-------------------------------
Instrument are severable, and if the Trustees shall determine, with the advice
of counsel, that any of such provisions is in conflict with the 1940 Act, the
regulated investment company provisions of the Internal Revenue Code or with
other applicable laws and regulations, the conflicting provision shall be deemed
never to have constituted a part of this Trust Instrument; provided, however,
that such determination shall not affect any of the remaining provisions of this
Trust Instrument or render invalid or improper any action taken or omitted prior
to such determination. If any provision of this Trust Instrument 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 provisions in any other jurisdiction or any
other provision of this Trust Instrument in any jurisdiction.
Section 9.11 Allocation of Certain Expenses. Each Shareholder will, at the
------------------------------
discretion of the Trustees, indemnify the Trust against all expenses and losses
resulting from indebtedness incurred in connection with facilitating (i)
requests pending receipt of the collected funds from investments sold on the
date of such Shareholder's redemption request; (ii) redemption requests from
such Shareholder who has also notified the Trust of its intention to deposit
funds in its accounts on the date of said redemption request; or (iii) the
purchase of investments pending receipt of collected funds from such Shareholder
who has notified the Trust of its intention to deposit funds in its accounts on
the date of the purchase of the investments.
IN WITNESS WHEREOF, the undersigned, being the Trustee of the Trust, has
executed this Declaration of Trust as of the 21st day of October, 1998.
/s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
-27-