Exhibit (a)(19)
AGREEMENT AND DECLARATION OF TRUST
OF
NORTHERN FUNDS
Dated: February 7, 2000
AGREEMENT AND DECLARATION OF TRUST (the "Declaration") made this
seventh day of February 2000 by the undersigned Trustee (together with all other
persons from time to time duly elected, qualified and serving as Trustees in
accordance with the provisions of Article II hereof, the "Trustees");
WHEREAS, the Trustees desire to establish a trust for the investment and
reinvestment of funds contributed thereto;
WHEREAS, the Trustees desire that the beneficial interest in the trust
assets be divided into transferable shares of beneficial interest, as
hereinafter provided;
WHEREAS, the Trustees declare that all money and property contributed
to the trust established hereunder shall be held and managed in trust for the
benefit of the holders, from time to time, of the shares of beneficial interest
issued hereunder and subject to the provisions hereof;
NOW, THEREFORE, in consideration of the foregoing premises and the
agreements contained herein, the undersigned, being all of the Trustees of the
Trust, hereby declare as follows:
NAME AND DEFINITIONS
Name. The name of the Trust created by this Agreement and Declaration of Trust
is "Northern Funds."
Definitions. Unless otherwise provided or required by the context:
"Administrator" or "Administrators" means the party or parties, other than the
Trust, to the contract described in Article III, Section 3 hereof.
"By-laws" means the By-laws of the Trust adopted by the Trustees, as amended
from time to time, which By-laws are expressly herein incorporated by reference
as part of the "governing instrument" within the meaning of the Delaware Act;
provided that in the event of a conflict between the provisions of this
Declaration and the By-laws, the provisions of this Declaration shall control.
"Class" means any class of Shares of a Series established pursuant to Article V.
"Commission," "Interested Person" and "Principal Underwriter" have the meanings
provided in the 1940 Act. Except as such term may be otherwise defined by the
Trustees in conjunction with the establishment of any Series of Shares, the term
"vote of a majority of the Shares outstanding and entitled to vote" or "Shares
representing a majority of the votes entitled to be cast" shall have the same
meaning as is assigned to the term "vote of a majority of the outstanding voting
securities" in the 1940 Act (except as shall be necessary to give effect to
voting on a net asset basis in accordance with Article VII, Section 1).
"Covered Person" means a person so defined in Article IV, Section 3.
"Custodian" means any Person other than the Trust who has custody of any Trust
Property as required by Section 17(f) of the 1940 Act, but does not include a
system for the central handling of securities described in said Section 17(f).
"Declaration" shall mean this Agreement and Declaration of Trust, as amended or
restated from time to time. Reference in this Agreement and Declaration of Trust
to "Declaration," "hereof," "herein," and "hereunder" shall be deemed to refer
to this Declaration rather than exclusively to the article or section in which
such words appear.
"Delaware Act" means Chapter 38 of Title 12 of the Delaware Code entitled
"Treatment of Delaware Business Trusts," as amended from time to time.
"Distributor" means the party, other than the Trust, to the contract described
in Article III, Section 1 hereof.
"His" shall include the feminine and neuter, as well as the masculine, genders.
"Investment Adviser" or Investment Advisers" means the party or parties, other
than the Trust, to the contract described in Article III, Section 2 hereof.
"Net Asset Value" means the net asset value of each Series of the Trust,
determined as provided in Article VI, Section 3.
"Person" means and includes individuals, corporations, partnerships, trusts,
associations, joint ventures, estates and other entities, and governments and
agencies and political subdivisions, thereof, whether domestic or foreign.
"Series" means a series of Shares established pursuant to Article V.
"Shareholder" means a record owner of Outstanding Shares.
"Shares" means the equal proportionate transferable units of interest into which
the beneficial interest of each Series or Class is divided from time to time
(including whole Shares and fractions of Shares). "Outstanding Shares" means
Shares shown in the books of the Trust or its transfer agent as then issued and
outstanding, but does not include Shares which have been repurchased or redeemed
by the Trust and which are held in the treasury of the Trust.
"Transfer Agent" means any Person other than the Trust who maintains the
Shareholder records of the Trust, such as the list of Shareholders, the number
of Shares credited to each account, and the like.
"Trust" means Northern Funds established hereby, and reference to the Trust,
when applicable to one or more Series, refers to such Series.
"Trustees" means the person who has signed this Declaration of Trust, so long as
he or she shall continue in office in accordance with the terms hereof, and all
other persons who may from time to time be duly qualified and serving as
Trustees in accordance with Article II, in all cases in their capacities as
Trustees hereunder.
"Trust Property" means any and all property, real or personal, tangible or
intangible, which is owned or held by or for the Trust or any Series or the
Trustees on behalf of the Trust or any Series.
The "1940 Act" means the Investment Company Act of 1940, as amended from time to
time.
THE TRUSTEES
Management of the Trust. The business and affairs of the Trust shall be managed
by or under the direction of the Trustees, and they shall have all powers
necessary or desirable to carry out that responsibility. The Trustees may
execute all instruments and take all action they deem necessary or desirable to
promote the interests of the Trust. Any determination made by the Trustees in
good faith as to what is in the interests of the Trust shall be conclusive. In
construing the provisions of this Declaration, the presumption shall be in favor
of a grant of power to the Trustees.
Powers. The Trustees in all instances shall act as principals, free of the
control of the Shareholders. The Trustees shall have full power and authority to
take or refrain from taking any action and to execute any contracts and
instruments that they may consider necessary or desirable in the management of
the Trust. The Trustees shall not in any way be bound or limited by current or
future laws or customs applicable to trust investments, but shall have full
power and authority to make any investments which they, in their sole
discretion, deem proper to accomplish the purposes of the Trust. The Trustees
may exercise all of their powers without recourse to any court or other
authority. Subject to any applicable limitation herein or in the By-laws or
resolutions of the Trust, the Trustees shall have power and authority, without
limitation:
To operate as and carry on the business of an investment company, and exercise
all the powers necessary and appropriate to the conduct of such operations.
To invest in, hold for investment, or reinvest in, cash, including foreign
currencies; securities, including common, preferred and preference stocks;
warrants; subscription rights; profit-sharing interests or participation and all
other contracts for or evidence of equity interests; bonds, debentures, bills,
time notes and all other evidences of indebtedness; negotiable or non-negotiable
instruments; government securities, including securities of any state,
municipality or other political subdivision thereof, or any governmental or
quasi-governmental agency or instrumentality; and money market instruments
including bank certificates of deposit, finance paper, commercial paper,
bankers' acceptances and all kinds of repurchase agreements, of any corporation,
company, trust, association, firm or other business organization however
established, and of any country, state, municipality or other political
subdivision, or any governmental or quasi-governmental agency or
instrumentality; or any other security, property or instrument in which the
Trust or any of its Series shall be authorized to invest.
To acquire (by purchase, subscription or otherwise), to hold, to trade in and
deal in, to acquire any rights or options to purchase or sell, to sell or
otherwise dispose of, to lend and to pledge any such securities, to enter into
repurchase agreements, reverse repurchase agreements, firm commitment agreements
and forward foreign currency exchange contracts, to purchase and sell options on
securities, securities indices, currency and other financial assets, futures
contracts and options on futures contracts of all descriptions and to engage in
all other types of transactions in which the Trust or any of its Series shall be
authorized to engage.
To exercise all rights, powers and privileges of ownership or interest in all
securities, repurchase agreements and other property and instruments included in
the Trust Property, including the right to vote thereon and otherwise act with
respect thereto and to do all acts for the preservation, protection, improvement
and enhancement in value of all such securities and repurchase agreements.
To acquire (by purchase, lease or otherwise) and to hold, use, maintain, develop
and dispose of (by sale or otherwise) any property, real or personal, including
cash or foreign currency, and any interest therein.
To borrow money or other property in the name of the Trust or any of its Series
exclusively for Trust purposes and in this connection issue notes or other
evidence of indebtedness; to secure borrowings by mortgaging, pledging or
otherwise subjecting as security the Trust Property; and to endorse, guarantee,
or undertake the performance of any obligation or engagement of any other Person
and to lend Trust Property.
To aid by further investment any corporation, company, trust, association or
firm, any obligation of or interest in which is included in the Trust Property
or in the affairs of which the Trustees have any direct or indirect interest; to
do all acts and things designed to protect, preserve, improve or enhance the
value of such obligation or interest; and to guarantee or become surety on any
or all of the contracts, stocks, bonds, notes, debentures and other obligations
of any such corporation, company, trust, association or firm.
To adopt By-laws not inconsistent with this Declaration providing for the
conduct of the business of the Trust and to amend and repeal them to the extent
such right is not reserved to the Shareholders.
To elect and remove such officers and appoint and terminate such agents as they
deem appropriate.
To employ as custodian of any assets of the Trust, subject to any provisions
herein or in the By-laws, one or more banks, trust companies or companies that
are members of a national securities exchange, or other entities permitted by
the Commission to serve as such.
To retain one or more transfer agents and shareholder servicing agents, or both.
To provide for the distribution of Shares either through a Principal Underwriter
as provided herein or by the Trust itself, or both, or pursuant to a
distribution plan of any kind and to adopt on behalf of any Series or Class
distribution, authorized dealer service, administration, service or other plans
providing for the compensation by such Series or Class for distribution,
administration, shareholder liaison or similar services.
To set record dates in the manner provided for herein or in the By-laws.
To delegate such authority as they consider desirable to any officers of the
Trust and to any agent, independent contractor, manager, investment adviser,
custodian, underwriter or other Person.
To hold any security or other property (i) in a form not indicating any trust,
whether in bearer, book entry, unregistered or other negotiable form, or (ii)
either in the Trust's or Trustees' own name or in the name of a custodian or a
nominee or nominees, subject to safeguards according to the usual practice of
business trusts or investment companies.
To establish separate and distinct Series with separately defined investment
objectives and policies and distinct investment purposes, and with separate
Shares representing beneficial interests in such Series, and to establish
separate Classes, all in accordance with the provisions of Article V.
To the full extent permitted by Section 3804 of the Delaware Act, to allocate
assets, liabilities and expenses of the Trust to a particular Series and assets,
liabilities and expenses to a particular Class or to apportion the same between
or among two or more Series or Classes, provided that any liabilities or
expenses incurred by a particular Series or Class shall be payable solely out of
the assets belonging to that Series or Class as provided for in Article V,
Section 4.
To consent to or participate in any plan for the reorganization, consolidation
or merger of any corporation or concern whose securities are held by the Trust;
to consent to any contract, lease, mortgage, purchase, or sale of property by
such corporation or concern; and to pay calls or subscriptions with respect to
any security held in the Trust.
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.
To make distributions of income, capital gains, returns of capital (if any) and
redemption proceeds to Shareholders in the manner hereinafter provided for.
To establish committees for such purposes, with such membership, and with such
responsibilities as the Trustees may consider proper.
To issue, sell, repurchase, redeem, cancel, retire, acquire, hold, resell,
reissue, dispose of and otherwise deal in Shares; to establish terms and
conditions regarding the issuance, sale, repurchase, redemption, cancellation,
retirement, acquisition, holding, resale, reissuance, disposition of or dealing
in Shares; and, subject to Articles V and VI, to apply to any such repurchase,
redemption, retirement, cancellation or acquisition of Shares any funds or
property of the Trust or of the particular Series or Class with respect to which
such Shares are issued.
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.
To sell or exchange any or all of the assets of the Trust, subject to Article
IX, Section 4.
To enter into joint ventures, partnerships and other combinations and
associations.
To join with other security holders in acting through a committee, depositary,
voting trustee or otherwise, and in that connection to deposit any security
with, or transfer any security to, any such committee, depositary or trustee,
and to delegate to them such power and authority with relation to any security
(whether or not so deposited or transferred) as the Trustees shall deem proper,
and to agree to pay, and to pay, such portion of the expenses and compensation
of such committee, depositary or trustee as the Trustees shall deem proper;
To purchase and pay for entirely out of Trust Property such insurance as the
Trustees may deem necessary or appropriate for the conduct of the business,
including, without limitation, insurance policies insuring the assets of the
Trust or payment of distributions and principal on its portfolio investments,
and, subject to applicable law and any restrictions set forth in the By-laws,
insurance policies insuring the Shareholders, Trustees, officers, employees,
agents, investment advisers, Principal Underwriters, or independent contractors
of the Trust, individually, against all claims and liabilities of every nature
arising by reason of holding Shares, holding, being or having held any such
office or position, or by reason of any action alleged to have been taken or
omitted by any such Person as Trustee, officer, employee, agent, investment
adviser, Principal Underwriter, or independent contractor, including any action
taken or omitted that may be determined to constitute negligence, whether or not
the Trust would have the power to indemnify such Person against liability.
To adopt, establish and carry out pension, profit-sharing, share bonus, share
purchase, savings, thrift and other retirement, incentive and benefit plans and
trusts, including the purchasing of life insurance and annuity contracts as a
means of providing such retirement and other benefits, for any or all of the
Trustees, officers, employees and agents of the Trust.
To enter into contracts of any kind and description.
To interpret the investment policies, practices or limitations of any Series or
Class.
To guarantee indebtedness and contractual obligations of others.
To take any other action that may be taken by a Board of Directors of a business
corporation organized under the laws of the State of Delaware.
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
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.
To carry on any other business in connection with or incidental to any of the
foregoing powers, to do everything necessary or desirable to accomplish any
purpose or to further any of the foregoing powers, and to take every other
action incidental to the foregoing business or purposes, objects or powers.
The clauses above shall be construed as objects and powers, and the
enumeration of specific powers shall not limit in any way the general powers of
the Trustees. Any action by one or more of the Trustees in their capacity as
such hereunder shall be deemed an action on behalf of the Trust or the
applicable Series, and not an action in an individual capacity. No one dealing
with the Trustees shall be under any obligation to make any inquiry concerning
the authority of the Trustees, or to see to the application of any payments made
or property transferred to the Trustees or upon their order. In construing this
Declaration, the presumption shall be in favor of a grant of power to the
Trustees.
Certain Transactions. Except as 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 investment adviser, administrator, distributor or
transfer agent for the Trust or with any Interested Person of such person. The
Trust may employ any such person or entity in which such person is an Interested
Person, as broker, legal counsel, registrar, investment adviser, administrator,
distributor, transfer agent, dividend disbursing agent, custodian or in any
other capacity upon customary terms.
Initial Trustees; Election and Number of Trustees. The initial Trustees shall be
the persons initially signing this Declaration. The number of Trustees (other
than the initial Trustees) shall be fixed from time to time by a majority of the
Trustees; provided, that there shall be at least one (1) Trustee. The Trustee
(other than the initial Trustees) shall be appointed by the Trustees pursuant to
Section 6 of this Article II, provided that the Trustees shall be elected by the
Shareholders as and to the extent required under the 1940 Act on such dates as
the Trustees may fix from time to time. The Trustees are sometimes referred to
in this Declaration as the "Board of Trustees."
Term of Office of Trustees. Each Trustee shall hold office for life (or until
the attainment of any mandatory retirement age or term limits established by a
majority of the Trustees) or until his successor is elected or the Trust
terminates; except that (a) any Trustee may resign by delivering to the other
Trustees or to any Trust officer a written resignation effective upon such
delivery or a later date specified therein; (b) any Trustee may be removed with
or without cause at any time by a written instrument signed by at least a
majority of the then Trustees, specifying the effective date of removal; (c) any
Trustee who requests to be retired, or who is declared bankrupt or has become
physically or mentally incapacitated or is otherwise unable to serve, may be
retired either by a written instrument signed by a majority of the other
Trustees or in accordance with a by-law or other action approved by a majority
of the other Trustees, in each case, specifying the effective date of
retirement; and (d) any Trustee may be removed at any meeting of the
Shareholders by a vote of at least two-thirds of the Outstanding Shares.
Vacancies; Appointment of Trustees. Whenever a vacancy shall exist in the Board
of Trustees, regardless of the reason for such vacancy, the remaining Trustees
may appoint any person as they determine in their sole discretion to fill that
vacancy, consistent with the limitations under the 1940 Act, unless the
remaining Trustees determine to decrease the size of the Board to the number of
remaining Trustees. Such appointment shall be made by a written instrument
signed by a majority of the Trustees or by a resolution of the Trustees, duly
adopted and recorded in the records of the Trust, specifying the effective date
of the appointment. The Trustees may appoint a new Trustee as provided above in
anticipation of a vacancy expected to occur because of the retirement,
resignation or removal of a Trustee, or an increase in number of Trustees,
provided that such appointment shall become effective only at or after the
expected vacancy occurs. Upon acceptance of his appointment, the trust estate
shall vest in the new Trustee, together with the continuing Trustees, without
any further act or conveyance, and he shall be deemed a Trustee hereunder. The
Trustees' power of appointment is subject to Section 16(a) of the 1940 Act.
Whenever a vacancy in the number of Trustees shall occur, until such vacancy is
filled as provided in this Article II, the Trustees in office, regardless of
their number, shall have all the powers granted to the Trustees and shall
discharge all the duties imposed upon the Trustees by the Declaration.
Temporary Vacancy or Absence. Whenever a vacancy in the Board of Trustees shall
occur, until such vacancy is filled, or while any Trustee is absent from his
domicile (unless that Trustee has made arrangements to be informed about, and to
participate in, the affairs of the Trust during such absence), or is physically
or mentally incapacitated, the remaining Trustees shall have all the powers
hereunder and their certificate as to such vacancy, absence, or incapacity shall
be conclusive. Any Trustee may, by power of attorney, delegate his powers as
Trustee for a period not exceeding six (6) months at any one time to any other
Trustee or Trustees.
Chairman. The Trustees may, but need not, appoint from among their number a
Chairman. When present he may preside at the meetings of the Shareholders and of
the Trustees. He may call meetings of the Trustees and of any committee thereof
whenever he deems it necessary. The Chairman shall have such other powers and
duties as from time to time may be conferred upon or assigned to him by this
Declaration, the By-laws or the Trustees, but shall not by reason of performing
and executing those powers and duties be deemed an officer or employee of the
Trust.
Action by the Trustees. Except as otherwise provided by law or as provided below
with respect to action taken by any Trustee or Trustees or committee pursuant to
delegation by a majority vote of the Trustees, the Trustees shall act by
majority vote at a meeting duly called at which a quorum is present, including a
meeting held by conference telephone, teleconference or other electronic media
or communication equipment by means of which all persons participating in the
meeting can communicate with each other; or by written consent of a majority of
Trustees (or such greater number as may be required by applicable law) without a
meeting. A majority of the Trustees shall constitute a quorum at any meeting.
Meetings of the Trustees may be called orally or in writing by the President or
by any one of the Trustees. Notice of the time, date and place of all Trustees'
meetings shall be given to each Trustee as set forth in the By-laws. In the
absence of a quorum, a majority of the Trustees present may adjourn the meeting
from time to time until a quorum shall be present. Notice of an adjourned
meeting need not be given. Subject to applicable law, the Trustees by majority
vote may delegate to any Trustee or Trustees or committee (which may, in
addition to or in lieu of Trustees, include officers of the Trust) authority to
approve particular matters or take any particular actions on behalf of the Trust
including action for and binding upon the Trustees and the Trust with respect to
the institution, prosecution, dismissal, settlement, review or investigation of
any legal action, suit or proceeding pending or threatened. Approval of any
particular matter or the taking of any particular action on behalf of the Trust
pursuant to any such delegation shall be taken by a majority of the Trustees or
committee to whom the authority is delegated (unless a single Trustee is
delegated to act with respect thereto or unless the Trustees in delegating such
responsibility shall specify a different standard or a different standard is
otherwise required by applicable law). Any written consent or waiver may be
provided and delivered to the Trust by facsimile or other similar electronic
mechanism.
Ownership of Trust Property. The Trust Property of the Trust and of each Series
shall be held separate and apart from any assets now or hereafter held in any
capacity other than as Trustee hereunder by the Trustees or any successor
Trustees. Legal title in and beneficial ownership of all of the assets of the
Trust shall at all times be considered as vested in the Trust, except that the
Trustees may cause legal title in and beneficial ownership of any Trust Property
to be held by, or in the name of one or more of the Trustees acting for and on
behalf of the Trust, or in the name of any person as nominee acting for and on
behalf of the Trust. No Shareholder shall be deemed to have a severable
ownership in any individual asset of the Trust or of any Series or any right of
partition or possession thereof, but each Shareholder shall have, as provided in
Article V, a proportionate undivided beneficial interest in the Trust or Series
or Class thereof represented by Shares. The Shares shall be personal property
giving only the rights specifically set forth in this Declaration. The Trust, or
at the determination of the Trustees one or more of the Trustees or a nominee
acting for and on behalf of the Trust, shall be deemed to hold legal title and
beneficial ownership of any income earned on securities of the Trust issued by
any business entities formed, organized, or existing, under the laws of any
jurisdiction, including the laws of any foreign country. Upon the resignation or
removal of a Trustee, or his otherwise ceasing to be a Trustee (other than as a
result of his death or incapacity), he shall execute and deliver such documents
as the remaining Trustees shall require for the purpose of conveying to the
Trust or the remaining Trustees any Trust Property held in the name of the
resigning or removed Trustee. Upon the incapacity or death of any Trustee, his
legal representative shall execute and deliver on his behalf such documents as
the remaining Trustees shall require as provided in the preceding sentence.
Effect of Trustees Not Serving. The death, resignation, retirement, removal,
incapacity or inability or refusal to serve of the Trustees, or any one or more
or all of them, shall not operate to annul the Trust or to revoke any existing
agency created pursuant to the terms of this Declaration.
Trustees, etc. as Shareholders. Subject to any restrictions in the By-laws, any
Trustee, officer, agent or independent contractor of the Trust may acquire, own
and dispose of Shares to the same extent as any other Shareholder; and the
Trustees may issue and sell Shares to and buy Shares from any such person or any
firm or company in which such person is interested, subject only to any general
limitations herein.
Series of 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 Delaware Act, separate Trustees with respect to such
Series or Classes (the "Series Trustees"). To the extent provided by the
Trustees in the appointment of Series Trustees, the Series Trustees: (a) may,
but are not required to, serve as Trustees of the Trust or any other Series or
Class of the Trust; (b) 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, including, without limitation, the power to appoint additional
or successor Series Trustees; and/or (c) may have no power or authority with
respect to any other Series or Class. Any provision of this Declaration relating
to election of Trustees by Shareholders only shall entitle the Shareholders of a
Series or Class for which Series Trustees have been appointed to vote with
respect to the election of such Series Trustees and the Shareholders of any
other Series or Class shall not be entitled to participate in such vote. In the
event that Series Trustees are appointed, the Trustees initially appointing such
Series Trustees shall, without the approval of any Outstanding Shares, amend
either the Declaration or the By-laws to provide for the respective rights,
duties, powers, authorities and 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.
CONTRACTS WITH SERVICE PROVIDERS
Underwriting Contract. The Trustees may in their discretion from time to time
approve an exclusive or non-exclusive distribution contract or contracts
providing for the sale of the Shares whereby the Trust may either agree to sell
the Shares to the other party to the contract or appoint such other party as the
Trust's sales agent for the Shares, and in either case on such terms and
conditions, if any, as may be prescribed in the By-laws, and such further terms
and conditions as the Trustees may in their discretion determine not
inconsistent with the provisions of this Article III or of the By-laws; and such
contract may also provide for the repurchase of the Shares by such other party
as agent of the Trust.
Advisory or Management Contract. The Trustees may in their discretion from time
to time approve one or more investment advisory or management contracts or, if
the Trustees establish multiple Series, separate investment advisory or
management contracts with respect to one or more Series whereby the other party
or parties to any such contracts shall undertake to furnish the Trust or such
Series management, investment advisory, administration, accounting, legal,
statistical and research facilities and services, promotional or marketing
activities, and such other facilities and services, if any, as the Trustees
shall from time to time consider desirable and all upon such terms and
conditions as the Trustees may in their discretion determine. Notwithstanding
any provisions of the Declaration, the Trustees may authorize the Investment
Advisers or persons to whom the Investment Adviser delegates certain or all of
their duties, or any of them, under any such contracts (subject to such general
or specific instructions as the Trustees may from time to time adopt), including
duties relating to purchases, sales, loans or exchanges of portfolio securities
and other investments of the Trust or may authorize any officer, employee or
Trustee to effect such duties, including those relating to purchases, sales,
loans or exchanges pursuant to recommendations of such Investment Advisers, or
any of them (and all without further action by the Trustees). Any such
purchases, sales, loans and exchanges shall be deemed to have been authorized by
all of the Trustees.
Administration Agreement. The Trustees may in their discretion from time to time
approve an administration agreement or, if the Trustees establish multiple
Series or Classes, separate administration agreements with respect to each
Series or Class, whereby the other party or parties to such agreement shall
undertake to manage the business affairs of the Trust or of a Series or Class
thereof of the Trust and furnish the Trust or a Series or a Class thereof with
office facilities, and shall be responsible for the ordinary clerical,
bookkeeping and recordkeeping services at such office facilities, and other
facilities and services, if any, and all upon such terms and conditions as the
Trustees may in their discretion determine.
Service Agreements. The Trustees may in their discretion from time to time
approve service agreements with respect to one or more Series or Classes of
Shares whereby the other parties to such service agreements will provide or
arrange for the provision of distribution, administration and/or support
services pursuant to distribution, authorized dealer service, administration,
service or similar plans, including without limitation plans subject to Rule
12b-1 under the 1940 Act, and all upon such terms and conditions as the Trustees
in their discretion may determine.
Transfer Agent. The Trustees may in their discretion from time to time approve
one or more transfer agency and shareholder service contracts whereby the other
party to such contracts shall undertake to furnish transfer agency and
shareholder services to the Trust or one or more Classes of Shares. The
contracts shall have such terms and conditions as the Trustees may in their
discretion determine not inconsistent with the Declaration. Such services may be
provided by one or more Persons.
Custodian. The Trustees may appoint or otherwise engage one or more banks or
trust companies, or any other entity, to serve as Custodian with authority as
the Trust's agent, but subject to such restrictions, limitations and other
requirements, if any, as may be contained in the By-laws of the Trust. The
Trustees may also authorize the Custodian to employ one or more sub-custodians,
including such foreign banks and securities depositories, upon such terms and
conditions as may be agreed upon between the Custodian and such sub-custodian,
to hold securities and other assets of the Trust and to perform the acts and
services of the Custodian, subject to applicable provisions of law and
resolutions adopted by the Trustees.
Other 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 time and without limiting the generality of their powers and
authority otherwise set forth herein, approve other 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 such other services, duties and responsibilities in addition to
those set forth above as the Trustees may determine to be appropriate.
Affiliations of Trustees or Officers, Etc. The fact that:
any of the Shareholders, Trustees or officers of the Trust or any Series thereof
is a shareholder, director, officer, partner, trustee, employee, manager,
adviser or distributor of or for any partnership, corporation, trust,
association or other organization or of or for any parent or affiliate of any
organization, with which a contract of the character described in Sections 1, 2,
3, or 4 of this Article III, or for services as Custodian, Transfer Agent,
disbursing agent or for any other services approved by the Trustees with respect
to any Series or Class may have been or may hereafter be made, or that any such
organization, or any parent or affiliate thereof, is a Shareholder of or has an
interest in the Trust, or that
any partnership, corporation, trust, association or other organization with
which a contract of the character described in Sections 1, 2, 3 or 4 of this
Article III or for services as Custodian, Transfer Agent or disbursing agent or
for any other services approved by the Trustees with respect to any Series or
Class may have been or may hereafter be made also has any one or more of such
contracts with one or more other partnerships, corporations, trusts,
associations or other organizations, or has other business or interests,
shall not affect the validity of any such contract or disqualify any
Shareholder, Trustee or officer of the Trust from voting upon or executing the
same or create any liability or accountability to the Trust or its Shareholders.
COMPENSATION, LIMITATION OF LIABILITY AND INDEMNIFICATION
Compensation. The Trustees as such shall be entitled to reasonable compensation
from the Trust, and they may fix the amount of such compensation. Nothing herein
shall in any way prevent the employment of any Trustee for advisory, management,
legal, accounting, investment banking or other services and payment for the same
by the Trust.
Limitation of Liability. A Trustee, when acting in such capacity, shall not be
personally liable to any Person other than the Trust or a Shareholder of the
Trust for any act, omission or obligation of the Trust or any Trustee. All
persons contracting with or having any claim against the Trust or a particular
Series shall look only to the assets of the Trust or such particular Series for
payment under such contract or claim; and neither the Trustees nor, when acting
in such capacity, any of the Trust's officers, employees or agents, whether
past, present or future, shall be personally liable therefor. The Trustees and
officers of the Trust shall not be responsible or liable for any act or omission
or for neglect or wrongdoing of themselves or any officer, agent, employee,
investment adviser or independent contractor of the Trust, or of any other
Person, but nothing contained in this Declaration or in the Delaware Act shall
protect any Trustee or officer of the Trust against liability to the Trust or to
Shareholders to which he would otherwise be subject by reason of willful
misfeasance, bad faith, gross negligence or reckless disregard of the duties
involved in the conduct of his office.
Indemnification. Subject to the exceptions and limitations contained in
subsection (b) below:
every person who is, or has been, a Trustee or an officer of the Trust or any
Series (including any individual who serves at its request as director, officer,
partner, trustee or the like of another organization in which it has any
interest as a shareholder, creditor or otherwise) and such person's heirs,
executors, administrators and other legal representatives ("Covered Person")
shall be indemnified by the Trust or the appropriate Series to the fullest
extent permitted by law against liability and against all expenses reasonably
incurred or paid by him in connection with any claim, action, suit or proceeding
in which he becomes involved as a party or otherwise by virtue of his being or
having been a Covered Person and against amounts paid or incurred by him in the
settlement thereof; and
as used herein, the words "claim," "action," "suit," or "proceeding" shall apply
to all claims, actions, suits or proceedings (civil, criminal or other,
including appeals before any court or administrative or legislative body),
actual or threatened, and the words "liability" and "expenses" shall include,
without limitation, reasonable attorneys' fees, costs, judgments, amounts paid
in settlement, fines, penalties and other liabilities.
No indemnification shall be provided hereunder to a Covered Person:
who shall have been adjudicated by a court or body before which the proceeding
was brought (A) to be liable to the Trust or its Shareholders by reason of
willful misfeasance, bad faith, gross negligence or reckless disregard of the
duties involved in the conduct of his office, or (B) not to have acted in good
faith in the reasonable belief that his action was in the best interest of the
Trust; or
in the event of a settlement, unless there has been a determination that such
Covered Person did not engage in willful misfeasance, bad faith, gross
negligence or reckless disregard of the duties involved in the conduct of his
office, (A) by the court or other body approving the settlement; (B) by at least
a majority of those Trustees who are neither Interested Persons of the Trust nor
are parties to the matter based upon a review of readily available facts (as
opposed to a full trial-type inquiry); (C) by written opinion of independent
legal counsel based upon a review of readily available facts (as opposed to a
full trial-type inquiry); or (D) by a vote of a majority of the Outstanding
Shares entitled to vote (excluding any Outstanding Shares owned of record or
beneficially by such individual).
The rights of indemnification herein provided may be insured against by policies
maintained by the Trust, shall be severable, shall not be exclusive of or affect
any other rights to which any Covered Person may now or hereafter be entitled,
and shall inure to the benefit of the heirs, executors and administrators of a
Covered Person.
To the maximum extent permitted by applicable law, expenses in connection with
the preparation and presentation of a defense to any claim, action, suit or
proceeding of the character described in subsection (a) of this Section may be
paid by the Trust or applicable Series from time to time prior to final
disposition thereof upon receipt of an under-taking by or on behalf of such
Covered Person that such amount will be paid over by him to the Trust or
applicable Series if it is ultimately determined that he is not entitled to
indemnification under this Section; provided, however, that either (i) such
Covered Person shall have provided appropriate security for such undertaking,
(ii) the Trust is insured against losses arising out of any such advance
payments or (iii) either a majority of the Trustees who are neither Interested
Persons of the Trust nor parties to the matter, or independent legal counsel in
a written opinion, shall have determined, based upon a review of readily
available facts (as opposed to a full trial-type inquiry) that there is reason
to believe that such Covered Person will not be disqualified from
indemnification under this Section.
Any repeal or modification of this Article IV by the Shareholders, or adoption
or modification of any other provision of the Declaration or By-laws
inconsistent with this Article, shall be prospective only, to the extent that
such repeal, or modification would, if applied retrospectively, adversely affect
any limitation on the liability of any Covered Person or indemnification
available to any Covered Person with respect to any act or omission which
occurred prior to such repeal, modification or adoption.
The right of indemnification provided by this Section 3 shall not be exclusive
of or affect any other rights to which any Covered Person may be entitled.
Indemnification of Shareholders. If any Shareholder or former Shareholder of any
Series shall be held personally liable solely by reason of his being or having
been a Shareholder and not because of his acts or omissions or for some other
reason, the Shareholder or former Shareholder (or his heirs, executors,
administrators or other legal representatives or in the case of any entity, its
general successor) shall be entitled to be held harmless from and indemnified
against all loss and expense arising from such liability out of the assets
belonging to the applicable Series whose Shares were held by such Shareholder at
the time the act or event occurred and to which the liability against the
Shareholder relates. The Trust, on behalf of the affected Series, shall, upon
request by such Shareholder, assume the defense of any claim made against such
Shareholder for any act or obligation of the Series and satisfy any judgment
thereon from the assets of such Series.
No Bond Required of Trustees. No Trustee shall be obligated to give any bond or
other security for the performance of any of his duties hereunder.
No Duty of Investigation, Notice in Trust Instruments, Etc. No purchaser,
lender, transfer agent or other Person dealing with the Trustees or any officer,
employee or agent of the Trust or a Series thereof shall be bound to make any
inquiry concerning the validity of any transaction purporting to be made by the
Trustees or by said officer, employee or agent or be liable for the application
of money or property paid, loaned, or delivered to or on the order of the
Trustees or of said officer, employee or agent. Every obligation, contract,
instrument, certificate, Share, other security of the Trust or a Series thereof
or undertaking, and every other act or thing whatsoever executed in connection
with the Trust shall be conclusively presumed to have been executed or done by
the executors thereof only in their capacity as Trustees under this Declaration
or in their capacity as officers, employees or agents of the Trust or a Series
thereof. Every written obligation, contract, instrument, certificate, Share,
other security of the Trust or a Series or Class thereof or undertaking made or
issued by the Trustees may recite that the same is executed or made by them not
individually, but as Trustees under the Declaration, and that the obligations of
the Trust or a Series or Class thereof under any such instrument are not binding
upon any of the Trustees, officers or Shareholders individually, but bind only
the Trust Property or the Trust Property of the applicable Series or Class, and
may contain any further recital which they may deem appropriate, but the
omission of such recital shall not operate to bind the Trustees, officers or
Shareholders individually. The Trustees may maintain insurance for the
protection of the Trust Property or the Trust Property of the applicable Series,
its Shareholders, Trustees, officers, employees and agents in such amount as the
Trustees, officers or Shareholders shall deem adequate to cover possible tort
liability, and such other insurance as the Trustees in their sole judgment shall
deem advisable and as required by the 1940 Act.
Reliance on Experts, Etc. Each Trustee, officer or employee of the Trust or a
Series thereof shall, in the performance of his duties, powers and discretion
hereunder be fully and completely justified and protected with regard to any act
or any failure to act resulting from reliance in good faith upon the books of
account or other records of the Trust or a Series or Class thereof, upon an
opinion of counsel, or upon reports made to the Trust or a Series or Class
thereof by any of its officers or employees or by the Investment Adviser, the
Administrator, the Distributor, Transfer Agent, selected dealers, accountants,
appraisers or other experts or consultants selected with reasonable care by the
Trustees, officers or employees of the Trust, regardless of whether such counsel
or other Person may also be a Trustee.
No Accounting. Except to the extent required by the 1940 Act, or by the other
Trustees if determined by them to be necessary or appropriate under
circumstances which would justify his 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.
SERIES; CLASSES, SHARES
Establishment of Series or Class. The Trust shall consist of one or more Series.
Without limiting the authority of the Trustees to establish and designate any
further Series, the Trustees hereby establish the following thirty-one (31)
Series: Money Market Fund, U.S. Government Money Market Fund, U.S. Government
Select Money Market Fund, Tax-Exempt Money Market Fund, Municipal Money Market
Fund, California Municipal Money Market Fund, U.S. Government Fund,
Short-Intermediate U.S. Government Fund, Intermediate Tax- Exempt Fund,
California Intermediate Tax-Exempt Fund, Florida Intermediate Tax- Exempt Fund,
Fixed Income Fund, Tax-Exempt Fund, Arizona Tax-Exempt Fund, California
Tax-Exempt Fund, International Fixed Income Fund, High Yield Municipal Fund,
High Yield Fixed Income Fund, Income Equity Fund, Stock Index Fund, Growth
Equity Fund, Select Equity Fund, MarketCommand Fund, Mid Cap Growth Fund, Small
Cap Index Fund, Small Cap Fund, Small Cap Growth Fund, International Growth
Equity Fund, International Select Equity Fund, Technology Fund and Global
Communications Fund (the "Existing Series"). Each additional Series shall be
established and is effective upon the adoption of a resolution of a majority of
the Trustees or any alternative date specified in such resolution. The Trustees
may designate the relative rights and preferences of the Shares of each Series.
The Trustees may divide the Shares of any Series into Classes. Without limiting
the authority of the Trustees to establish and designate any further Classes of
any Existing Series or future Series, the Trustees hereby establish the
following Classes of Shares with respect to the Series set forth below:
Shares: Money Market Fund, U.S. Government Money Market Fund, U.S.
Government Select Money Market Fund, Tax-Exempt Money Market Fund, Municipal
Money Market Fund, California Municipal Money Market Fund, U.S. Government Fund,
Short-Intermediate U.S. Government Fund, Intermediate Tax-Exempt Fund,
California Intermediate Tax-Exempt Fund, Florida Intermediate Tax-Exempt Fund,
Fixed Income Fund, Tax-Exempt Fund, Arizona Tax-Exempt Fund, California Tax-
Exempt Fund, International Fixed Income Fund, High Yield Municipal Fund, High
Yield Fixed Income Fund, Income Equity Fund, Stock Index Fund, Growth Equity
Fund, Select Equity Fund, MarketCommand Fund, Mid Cap Growth Fund, Small Cap
Index Fund, Small Cap Fund, Small Cap Growth Fund, International Growth Equity
Fund, International Select Equity Fund, Technology Fund and Global
Communications Fund
(the "Existing Classes"). The Shares of the Existing Series and each Class
thereof herein established and designated and any Shares of any further Series
and Classes that may from time to time be established and designated by the
Trustees shall be established and designated, and the variations in the relative
rights and preferences as between the different Series shall be fixed and
determined, by the Trustees; provided, that all Shares shall be identical except
for such variations as shall be fixed and determined between different Series or
Classes by the Trustees in establishing and designating such Class or Series. In
connection therewith with respect to the Existing Classes, the purchase price,
the method of determining the net asset value and allocating expenses, and the
relative dividend and voting rights of holders shall be as set forth in the
Trust's Registration Statement under the Securities Act of 1933 and/or the 1940
Act, as amended from time to time.
All references to Shares in this Declaration shall be deemed to be
Shares of any or all Series or Classes as the context may require. The Trust
shall maintain separate and distinct records for each Series and hold and
account for the assets thereof separately from the other assets of the Trust and
of any other Series. A Series may issue any number of Shares or any Class
thereof and need not issue Shares. Each Share of a Series shall represent a
proportionate beneficial interest in the net assets of such Series, subject to
the liabilities charged to a particular Class. Each holder of Shares of a Series
or a Class thereof shall be entitled to receive his pro rata share of all
distributions made with respect to such Series or Class. Upon redemption of his
Shares, such Shareholder shall be paid solely out of the funds and property of
such Series. The Trustees may adopt and change the name of any Series or Class.
Shares. The beneficial interest in the Trust shall be divided into transferable
Shares of one or more separate and distinct Series or Classes established by the
Trustees. The number of Shares of each Series and Class is unlimited and each
Share shall have $.0001 par value per Share or such other amount as the Trustees
may establish. All Shares issued hereunder shall be fully paid and
nonassessable. Shareholders shall have no preemptive or other right to subscribe
to any additional Shares or other securities issued by the Trust. The Trustees
shall have full power and authority, in their sole discretion and without
obtaining Shareholder approval, to issue original or additional Shares at such
times and on such terms and conditions and for such consideration as they deem
appropriate; to issue fractional Shares; to establish and to change in any
manner Shares of any Series or Classes with such preferences, terms of
conversion, voting powers, rights and privileges as the Trustees may determine;
to divide or combine the Shares of any Series or Classes into a greater or
lesser number; to classify or reclassify any unissued Shares of any Series or
Classes into one or more Series or Classes of Shares; to abolish any one or more
Series or Classes of Shares; to issue Shares to acquire other assets (including
assets subject to, and in connection with, the assumption of liabilities) and
businesses; and to take such other action with respect to the Shares as the
Trustees may deem desirable.
Investment in the Trust. Subject to applicable law, the Trustees shall accept
investments in any Series or Class from such persons and on such terms as they
may from time to time authorize. Without limiting the generality of the
foregoing, at the Trustees' discretion, such investments may be in the form of
cash or securities in which that Series is authorized to invest, valued as
provided in Article VI, Section 3. The value of an investment in a Class or a
Series shall be credited to each Shareholder's account in the form of full
Shares at the Net Asset Value per Share next determined after the investment is
received or accepted as may be determined by the Trustees; provided, however,
that the Trustees may, in their sole discretion, (a) impose a sales charge or
purchase price adjustment upon investments in any Series or Class, (b) issue
fractional Shares, (c) determine the Net Asset Value per Share of the initial
capital contribution or (d) authorize the issuance of Shares at a price other
than Net Asset Value to the extent permitted by the 1940 Act or any rule, order
or interpretation of the Commission thereunder. The Trustees shall have the
right to refuse to accept investments in any Series at any time without any
cause or reason therefor whatsoever.
Assets and Liabilities of Series. All consideration received by the Trust for
the issue or sale of Shares of a particular Series, together with all assets in
which such consideration is invested or reinvested, all income, earnings,
profits, and proceeds thereof (including any proceeds derived from the sale,
exchange or liquidation of such assets, and any funds or payments derived from
any reinvestment of such proceeds in whatever form the same may be), shall be
held and accounted for separately from the assets of every other Series and the
Trust generally and are referred to as "assets belonging to" that Series. The
assets belonging to a Series shall belong only to that Series for all purposes,
and to no other Series, subject only to the rights of creditors of that Series.
Any assets, income, earnings, profits, and proceeds thereof, funds, or payments
which are not readily identifiable as belonging to any particular Series shall
be allocated by the Trustees between and among one or more Series as the
Trustees deem fair and equitable. Each such allocation shall be conclusive and
binding upon the Shareholders of all Series for all purposes, and such assets,
earnings, income, profits or funds, or payments and proceeds thereof shall be
referred to as assets belonging to that Series. The assets belonging to a Series
shall be so recorded upon the books of such Series in a manner that is separate
and distinct from the records of any other Series of the Trust generally and
such assets shall be held by the Trustees in trust for the benefit of the
Shareholders of that Series. The assets belonging to a Series shall be charged
with the liabilities of that Series and all expenses, costs, charges and
reserves attributable to that Series, except that liabilities, expenses, costs,
charges and reserves allocated by the Trustees solely to a particular Class
shall be borne by that Class. Any general liabilities, expenses, costs, charges
or reserves of the Trust which are not readily identifiable as belonging to any
particular Series or Class shall be allocated and charged by the Trustees
between or among any one or more of the Series or Classes in such manner as the
Trustees deem fair and equitable. Each such allocation shall be conclusive and
binding upon the Shareholders of all Series and Classes for all purposes.
Without limiting the foregoing, but subject to the right of the
Trustees to allocate general liabilities, expenses, costs, charges or reserves
as herein provided, the debts, liabilities, obligations and expenses incurred,
contracted for or otherwise existing with respect to a particular Series shall
be enforceable against the assets of such Series only, and not against the
assets of the Trust generally, including the assets of any other Series. Notice
of this contractual limitation on liabilities among Series may, in the Trustees'
discretion, be set forth in the certificate of trust of the Trust (whether
originally or by amendment) as filed or to be filed in the Office of the
Secretary of State of the State of Delaware pursuant to the Delaware Act, and
upon the giving of such notice in the certificate of trust, the statutory
provisions of Section 3804 of the Delaware Act relating to limitations on
liabilities among Series (and the statutory effect under Section 3804 of setting
forth such notice in the certificate of trust) shall become applicable to the
Trust and each Series. Any person extending credit to, contracting with or
having any claim against any Series may look only to the assets of that Series
to satisfy or enforce any debt, with respect to that Series. No Shareholder or
former Shareholder of any Series shall have a claim on or any right to any
assets allocated or belonging to any other Series.
Ownership and Transfer of Shares. The Trust or a transfer or similar agent for
the Trust shall maintain a register containing the names and addresses of the
Shareholders of each Series and Class thereof, the number of Shares of each
Series and Class held by such Shareholders, and a record of all Share transfers.
The register shall be conclusive as to the identity of Shareholders of record
and the number of Shares held by them from time to time. The Trustees may
authorize the issuance of certificates representing Shares and adopt rules
governing their use. The Trustees may make rules governing the transfer of
Shares, whether or not represented by certificates. Except as otherwise provided
by the Trustees, Shares shall be transferable on the books of the Trust only by
the record holder thereof or by his duly authorized agent upon delivery to the
Trustees or the Trust's Transfer Agent of a duly executed instrument of
transfer, together with a Share certificate if one is outstanding, and such
evidence or the genuineness of each such execution and authorization and of such
other matters as may be required by the Trustees. Upon such delivery, and
subject to any further requirements specified by the Trustees or contained in
the By-laws, the transfer shall be recorded on the books of the Trust. Until a
transfer is so recorded, the Shareholder of record of Shares shall be deemed to
be the holder of such Shares for all purposes hereunder and neither the Trustees
nor the Trust, nor any transfer agent or registrar or any officer, employee or
agent of the Trust, shall be affected by any notice of a proposed transfer.
Status of Shares; Limitation of Shareholder Liability. Shares shall be deemed to
be personal property giving Shareholders only the rights provided in this
Declaration. Every Shareholder, by virtue of having acquired a Share, shall be
held expressly to have assented to and agreed to be bound by the terms of this
Declaration and to have become a party hereto. No Shareholder shall be
personally liable for the debts, liabilities, obligations and expenses incurred
by, contracted for, or otherwise existing with respect to, the Trust or any
Series. The death, incapacity, dissolution, termination or bankruptcy of a
Shareholder during the existence of the Trust shall not operate to terminate the
Trust, nor entitle the representative of any such Shareholder to an accounting
or to take any action in court or elsewhere against the Trust or the Trustees,
but entitles such representative only to the rights of such Shareholder under
this Trust. Ownership of Shares shall not entitle the Shareholder to any title
in or to the whole or any part of the Trust Property or right to call for a
partition or division of the same or for an accounting, nor shall the ownership
of Shares constitute the Shareholders as partners. Neither the Trust nor the
Trustees shall have any power to bind any Shareholder personally or to demand
payment from any Shareholder for anything, other than as agreed by the
Shareholder. Shareholders shall have the same limitation of personal liability
as is extended to shareholders of a private corporation for profit incorporated
in the State of Delaware.
DISTRIBUTIONS AND REDEMPTIONS
Distributions. The Trustees or a committee of one or more Trustees and/or one or
more officers may declare and pay dividends and other distributions, including
dividends on Shares of a particular Series and other distributions from the
assets belonging to that Series. No dividend or distribution, including, without
limitation, any distribution paid upon termination of the Trust or of any Series
(or Class) with respect to, nor any redemption or repurchase of, the Shares of
any Series (or Class) shall be effected by the Trust other than from the assets
held with respect to such Series, nor shall any Shareholder of any particular
Series otherwise have any right or claim against the assets held with respect to
any other Series except to the extent that such Shareholder has such a right or
claim hereunder as a Shareholder of such other Series. The Trustees shall have
full discretion to determine which items shall be treated as income and which
items as capital; and each such determination and allocation shall be conclusive
and binding upon the Shareholders. The amount and payment of dividends or
distributions and their form, whether they are in cash, Shares or other Trust
Property, shall be determined by the Trustees. Dividends and other distributions
may be paid pursuant to a standing resolution adopted once or more often as the
Trustees determine. All dividends and other distributions on Shares of a
particular Class shall be distributed pro rata to the Shareholders of that Class
in proportion to the number of Shares of that 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 similar plans as the Trustees deem appropriate.
Redemptions. Unless the Trustees otherwise determine with respect to a
particular Series or Class at the time of establishing and designating the same,
each Shareholder of a Series shall have the right at such times as may be
permitted by the Trustees to require the Series to redeem all or any part of his
Shares at such redemption price and at such times as the Trustees shall
prescribe by resolution to the extent permitted by the 1940 Act. In the absence
of such resolution, the redemption price per Share shall be the Net Asset Value
next determined after receipt by the Series of a request for redemption in
proper form less such charges as are determined by the Trustees and described in
the Trust's Registration Statement for that Series, as from time to time in
effect, under the Securities Act of 1933. The Trustees may specify conditions,
prices, and places of redemption, may specify binding requirements for the
proper form or forms of requests for redemption and may specify the amount of
any deferred sales charge to be withheld from redemption proceeds. Payment of
the redemption price may be wholly or partly in securities or other assets, or
may be in cash, as determined in the sole discretion of the Trustees or their
delegate. Upon redemption, Shares may be reissued from time to time. Unless the
Trustees otherwise determine with respect to a particular Series or Class at the
time of establishing and designating the same, the Trustees may require
Shareholders to redeem Shares for any reason at the redemption price which would
be applicable if such Shares were then being redeemed by the Shareholder
pursuant to this Section 2 under terms set by the Trustees, including, but not
limited to: (a) the failure of a Shareholder to supply a taxpayer identification
number, or to have the minimum investment required (which may vary by Series or
Class), or to pay when due for the purchase of Shares issued to him or to pay
any charge relating to a transaction effected for the benefit of such
Shareholder as provided in the prospectus relating to such Shares; or (b) the
determination by the Trustees in their sole discretion that failure to so redeem
may have materially adverse consequences to the Shareholders of any Series or
Class of the Trust. To the extent permitted by law, the Trustees may retain the
proceeds of any redemption of Shares required by them for payment of amounts due
and owing by a Shareholder to the Trust or any Series or Class or any
governmental authority. Notwithstanding the foregoing, the Trustees may postpone
payment of the redemption price and may suspend the right of the Shareholders to
require any Series or Class to redeem Shares during any period of time when and
to the extent permissible under the 1940 Act.
Determination of Net Asset Value. The Trustees shall cause the Net Asset Value
of Shares of each Series or Class to be determined from time to time in a manner
consistent with applicable laws and regulations. The Trustees may delegate the
power and duty to determine Net Asset Value per Share to one or more Trustees or
officers of the Trust or to a custodian, depository or other agent appointed for
such purpose. The Net Asset Value of Shares shall be determined separately for
each Series or Class at such times as may be prescribed by the Trustees or, in
the absence of action by the Trustees, as of the close of regular trading on the
New York Stock Exchange on each day for all or part of which such Exchange is
open for unrestricted trading.
The Trustees may determine to maintain the Net Asset Value per Share of
any Series or Class 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 as
dividends payable in additional Shares of that Series or Class at the designated
constant dollar amount and for the handling of any losses attributable to that
Series or Class. Such procedures may provide that in the event of any loss each
Shareholder of a Series or Class shall be deemed to have contributed to the
capital of the Trust attributable to that Series or Class 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 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.
Suspension of Right of Redemption. If, as referred to in Section 2 of this
Article, the Trustees suspend the right of Shareholders to redeem their Shares,
such suspension shall take effect at the time the Trustees shall specify.
Thereafter, Shareholders shall have no right of redemption or payment until the
Trustees declare the end of the suspension. If the right of redemption is
suspended, any Shareholder having tendered a redemption request may either
withdraw his request for redemption or receive payment based on the Net Asset
Value per Share next determined after the suspension terminates.
Repurchase by Agreement. In addition to the redemption of Shares otherwise
provided in this Article VII, the Trust may repurchase Shares directly, or
through the Distributor or another agent designated for the purpose, by
agreement with the owner thereof at a price not exceeding the Net Asset Value
per Share determined as of the time when the purchase or contract of purchase is
made or the Net Asset Value as of any time which may be later determined.
SHAREHOLDERS' VOTING POWERS AND MEETINGS
Voting Powers. The Shareholders shall have power to vote only with respect to
(a) the election of Trustees to the extent and as provided in Section 4 of
Article II; (b) the removal of Trustees as provided in Article II, Section 5(d);
(c) any matter required to be approved by Shareholders of the Trust or any
Series or Class thereof under the 1940 Act; (d) any termination of the Trust to
the extent and as provided in Article IX, Section 4; (e) the amendment of this
Declaration to the extent and as provided in Article IX, Section 8; (f) the
matters referred to in Article IX, Section 12; and (g) such additional matters
relating to the Trust as may be required or authorized by law, this Declaration,
or the By-laws or any registration of the Trust with the Commission or any
State, or as the Trustees may consider desirable.
On any matter submitted to a vote of the Shareholders, unless the
Trustees determine otherwise, all Shares shall be voted in the aggregate and not
by individual Series or Class, except (a) when required by the 1940 Act, other
applicable law or the attributes applicable to any Series or Class, Shares shall
be voted by individual Series or Class, and (b) when the Trustees have
determined that the matter affects the interests of only one or more Series or
Class, then only the Shareholders of all such Series or Classes shall be
entitled to vote thereon. As determined by the Trustees without the vote or
consent of Shareholders, on any matter submitted to a vote of Shareholders,
either (i) each whole Share shall be entitled to one vote as to such matter on
which it is entitled to vote and each fractional Share shall be entitled to a
proportionate fractional vote or (ii) each dollar of Net Asset Value (number of
Shares owned times Net Asset Value per share of such Series or Class, as
applicable) shall be entitled to one vote on such matter on which such Shares
are entitled to vote and each fractional dollar amount shall be entitled to a
proportionate fractional vote. Without limiting the power of the Trustees in any
way to designate otherwise in accordance with the preceding sentence, the
Trustees hereby establish that each whole Share shall be entitled to one vote as
to any matter on which it is entitled to vote and each fractional Share shall be
entitled to a proportionate fractional vote. There shall be no cumulative voting
in the election of Trustees. Shares may be voted in person or by proxy or in any
manner provided for in the By-laws. The By-laws may provide that proxies may be
given by any electronic or telecommunications device or in any other manner, but
if a proposal by anyone other than the officers or Trustees is submitted to a
vote of the Shareholders of any Series or Class, or if there is a proxy contest
or proxy solicitation or proposal in opposition to any proposal by the officers
or Trustees, Shares may be voted only in person or by written proxy. Until
Shares of a Series are issued, as to that Series the Trustees may exercise all
rights of Shareholders and may take any action required or permitted to be taken
by Shareholders by law, this Declaration or the By-laws. Meetings of
Shareholders (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 this Declaration. Special
meetings of the Shareholders shall be called by the Trustees upon the written
request of Shareholders owning at least a majority of the Shares outstanding and
entitled to vote, except to the extent that a lesser percentage is prescribed by
the 1940 Act. Notice thereof and record dates therefor shall be given and set as
provided in the By-laws.
Quorum, Required Vote. Except when a larger vote is required by law, this
Declaration, the By-laws or the Trustees, holders of Shares of the Trust, Series
or Class, as applicable, representing one-third of the votes entitled to be cast
at the meeting in person or by proxy shall be a quorum for the transaction of
business at a Shareholders' meeting. Any lesser number shall be sufficient for
adjournments. Any adjourned session of a Shareholders' meeting may be held
within a reasonable time without further notice. Except when a larger vote is
required by law, this Declaration, the By-laws or the Trustees, holders of
Shares representing a majority of votes present and voted at a Shareholders'
meeting in person or by proxy shall decide any matters to be voted upon with
respect to the entire Trust except that a plurality of such votes shall elect a
Trustee; provided, that if this Declaration or applicable law permits or
requires that Shares be voted on any matter by individual Series or Classes,
then holders, except when a larger vote is required by law, this Declaration,
the By-laws or the Trustees, of Shares of that Series or Class representing a
majority of the votes present and voted at a Shareholders' meeting in person or
by proxy on the matter shall decide that matter insofar as that Series or Class
is concerned, except that a plurality of such votes shall elect a Series
Trustee. With respect to any matter presented to the Shareholders for approval,
the Shareholders may act as to the Trust or any Series or Class by the written
consent of holders of Shares of the Trust, Series or Class, as the case may be,
representing a majority (or such other amount as may be required by applicable
law) of the votes entitled to be cast on the matter subject to such consent.
Such consent shall be treated for all purposes as a vote taken at a meeting of
Shareholders.
Additional Provisions. The By-laws may include further provisions for
Shareholders' votes and meetings and related matters.
EXPENSES OF THE TRUST AND SERIES
Payment of Expenses by the Trust. Subject to Article IV, Section 4, and Article
IV, Section 3, the Trust or a particular Series shall pay, or shall reimburse
the Trustees from the assets belonging to all Series or the particular Series,
for their expenses (or the expenses of a Class of such Series) and
disbursements, including, but not limited to, interest charges, taxes, brokerage
fees and commissions; expenses of issue, repurchase and redemption of Shares;
insurance premiums; applicable fees, interest charges and expenses of third
parties, including the Trust's investment advisers, managers, administrators,
distributors, custodians, transfer agents and fund accountants; fees of pricing,
interest, dividend, credit and other reporting services; costs of membership in
trade associations; telecommunications expenses; funds transmission expenses;
auditing, legal and compliance expenses (including, if approved by the Trustees,
an allocated portion of the legal, accounting and compliance expenses incurred
by the Investment Adviser, Administrator or other service provider to the
Trust); costs of forming the Trust and its Series and maintaining its existence;
costs of preparing and printing the prospectuses of the Trust and each Series,
statements of additional information and Shareholder reports and delivering them
to Shareholders; expenses of meetings of Shareholders and proxy solicitations
therefor; costs of maintaining books and accounts; costs of reproduction,
stationery and supplies; fees and expenses of the Trustees; compensation of the
Trust's officers and employees and costs of other personnel performing services
for the Trust or any Series; costs of Trustee meetings; Commission registration
fees and related expenses; state or foreign securities laws registration fees
and related expenses; and for such non-recurring items as may arise, including
litigation to which the Trust or a Series (or a Trustee or officer of the Trust
acting as such) is a party, and for all losses and liabilities by them incurred
in administering the Trust. The Trustees shall have a lien on the assets
belonging to the appropriate Series, or in the case of an expense allocable to
more than one Series, on the assets of each such Series, prior to any rights or
interests of the Shareholders thereto, for the reimbursement to them of such
expenses, disbursements, losses and liabilities.
Payment of Expenses by Shareholders. The Trustees shall have the power, as
frequently as they may determine, to cause each Shareholder, or each Shareholder
of any particular Series or Class thereof, 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.
MISCELLANEOUS
Trust Not a Partnership. This Declaration creates a trust and not a
partnership. No Trustee shall have any power to bind personally either the
Trust's officers or any Shareholder.
Trustee Action. The exercise by the Trustees of their powers and discretion
hereunder in good faith and with reasonable care under the circumstances then
prevailing shall be binding upon everyone interested. Subject to the provisions
of Article IV, the Trustees shall not be liable for errors of judgment or
mistakes of fact or law.
Record Dates. The Trustees may close the Share transfer books of the Trust or
any Series or Class 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
before the scheduled date of any Shareholders' meeting, or the date for the
payment of any dividends or other distributions, or the date for the allotment
of rights, or the date when any change or conversion or exchange of Shares shall
go into effect as a record date for the determination of the Shareholders
entitled to notice of, and to vote at, any such meeting, or entitled to receive
payment of such dividend or other distribution, or to receive any such allotment
of rights, or to exercise such rights in respect of any such change, conversion
or exchange of Shares, and in such case such Shareholders and only such
Shareholders shall be Shareholders of record on the date so fixed and 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 of 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.
Nothing in this Section shall be construed as precluding the Trustees from
setting different record dates for, or from closing the register or transfer
books with respect to, different Series (or Classes).
Termination of the Trust. This Trust shall have perpetual existence. Subject to
the provisions of subsection (b) below, upon the vote of a majority of the
Outstanding Shares entitled to vote of the Trust or of each Series or Class to
be affected, the Trustees may:
sell and convey all or substantially all of the assets of all Series or any
affected Series or Class to another Series or to another trust, partnership,
association, corporation or other entity, or to a separate series or class
thereof, organized under the laws of any 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 affected
Series or Class, and which may include shares of or interests in such Series,
trust, partnership, association, corporation or other entity, or series or class
thereof; or
at any time sell and convert into money all or substantially all of the assets
of all Series or any affected Series or Class.
Subject to the provisions of Article IX, Section 12, upon paying or
making reasonable provision for the payment of all known liabilities of all
Series or any affected Series or Class in either (i) or (ii), 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.
Subject to the provisions of Article IX, Section 12, the Trustees may take any
of the actions specified in subsection (a) (i) and (ii) above without obtaining
the vote of a majority of the Outstanding Shares entitled to vote of the Trust
or any Series or Class if a majority of the Trustees determines, in their sole
discretion, that the continuation of the Trust or such Series or Class is not in
the best interests of the Trust, such Series, such Class or their respective
Shareholders. In reaching such determination, the Trustees may consider such
factors as the Trustees, in their sole discretion, deem to be appropriate, which
factors may include the inability of the Trust or a Series or Class to maintain
its assets at an appropriate size, changes in laws or regulations governing the
Trust or the Series or Class or affecting assets of the type in which the Trust
or such Series invests, or economic developments or trends having a significant
adverse impact on the business or operations of the Trust or such Series or
Class.
Upon completion of the distribution of the remaining proceeds or assets pursuant
to subsection (a), the Trust or any affected Series or Class shall terminate and
the Trustees and the Trust shall be discharged of any and all further
liabilities and duties hereunder with respect thereto and the right, title and
interest of all parties therein shall be canceled and discharged. Upon
termination of the Trust, following completion of winding up of its business,
the Trustees shall cause a certificate of cancellation of the Trust's
certificate of trust to be filed in accordance with the Delaware Act, which
certificate of cancellation may be signed by any one Trustee.
Reorganization and Master/Feeder. Notwithstanding anything else herein other
than the provisions of Article IX, Section 12, a majority of the Trustees may,
without Shareholder approval unless such approval is required by applicable
federal law, (i) cause the Trust to merge or consolidate with or into one or
more trusts, partnerships, associations, corporations or other entities
organized under the laws of any jurisdiction, (ii) cause the Shares to be
exchanged under or pursuant to any state or federal statute to the extent
permitted by law, or (iii) cause the Trust to incorporate under the laws of
Delaware or any other jurisdiction. Any agreement of merger or consolidation or
certificate of merger may be signed by a majority of Trustees and facsimile
signatures conveyed by electronic or telecommunication means shall be valid.
Pursuant to and in accordance with the provisions of Section 3815(f) of the
Delaware Act, an agreement of merger or consolidation approved by the Trustees
in accordance with this Section 5 may effect any amendment to the Declaration or
effect the adoption of a new trust instrument of the Trust if it is the
surviving or resulting trust in the merger or consolidation.
The Trustees may cause to be organized or assist in organizing a corporation or
corporations under the laws of any jurisdiction or any other trust, partnership,
association or other organization to take over all or portion of the Trust
Property or the Trust Property allocated or belonging to any one or more Series
or to carry on any business in which the Trust shall directly or indirectly have
any interest, or to sell, convey and transfer all or a portion of the Trust
Property or the Trust Property allocated or belonging to such Series to any such
corporation, trust, association or organization in exchange for the shares or
securities thereof or otherwise, and to lend money to, subscribe for the shares
or securities of, and enter into any contracts with any such corporation, trust,
partnership, association, or organization or any corporation, partnership,
trust, association or organization in which the Trust or such Series holds or is
about to acquire shares or any other interest. The Trustees may also cause a
merger or consolidation between the Trust or any successor thereto and any such
corporation, trust, partnership, association or other organization if and to the
extent permitted by law, as provided under the law then in effect. Nothing
contained herein shall be construed as requiring approval of Shareholders for
the Trustees to organize or assist in organizing one or more corporations,
trusts, partnerships, associations or other organizations and to sell, convey or
transfer all or a portion of the Trust Property to such organizations or
entities.
Notwithstanding anything else herein, the Trustees may, without Shareholder
approval unless such approval is required by applicable law, invest all or a
portion of the Trust Property of any Series, or dispose of all or a portion of
the Trust Property of any Series, and invest the proceeds of such disposition in
interests issued by one or more other investment companies or pooled portfolios.
Any such other investment company or pooled portfolio may (but need not) be a
trust (formed under the laws of any state or jurisdiction) (or subtrust thereof)
which is classified as a partnership for federal income tax purposes.
Notwithstanding anything else herein, the Trustees may, without Shareholder
approval unless such approval is required by applicable law, cause a Series that
is organized in the master/feeder fund structure to withdraw or redeem its Trust
Property from the master fund and cause such Series to invest its Trust Property
directly in securities and other financial instruments or in another master
fund.
Declaration of Trust. The original or a copy of this Declaration of Trust and of
each amendment hereto or Declaration of Trust supplemental shall be kept at the
office of the Trust where it may be inspected by any Shareholder. Anyone dealing
with the Trust may rely on a certificate by a Trustee or an officer of the Trust
as to the authenticity of the Declaration of Trust or any such amendments or
supplements and as to any matters in connection with the Trust. Headings herein
are for convenience only and shall not affect the construction of this
Declaration of Trust. This Declaration of Trust may be executed in any number of
counterparts, each of which shall be deemed an original.
Applicable Law. This Declaration and the Trust created hereunder are governed by
and construed and administered according to the Delaware Act and the applicable
laws of the State of Delaware; provided, however, that there shall not be
applicable to the Trust, the Trustees or this Declaration of Trust (a) the
provisions of Section 3540 of Title 12 of the Delaware Code, or (b) any
provisions of the laws (statutory or common) of the State of Delaware pertaining
to trusts which relate to or regulate (i) the filing with any court or
governmental body or agency of trustee accounts or schedules of trustee fees and
charges, (ii) affirmative requirements to post bonds for trustees, officers,
agents or employees of a trust, (iii) the necessity for obtaining court or other
governmental approval concerning the acquisition, holding or disposition of real
or personal property, (iv) fees or other sums payable to trustees, officers,
agents or employees of a trust, (v) the allocation of receipts and expenditures
to income or principal, (vi) restrictions or limitations on the permissible
nature, amount or concentration of trust investments or requirements relating to
the titling, storage or other manner of holding of trust assets, or (vii) the
establishment of fiduciary or other standards of responsibilities or limitations
on the acts or powers of trustees, which are inconsistent with the limitations
or liabilities or authorities and powers of the Trustees set forth or referenced
in this Declaration. The Trust shall be of the type commonly called a Delaware
business trust, and, without limiting the provisions hereof, the Trust may
exercise all powers which are ordinarily exercised by such a trust under
Delaware law. The Trust specifically reserves the right to exercise any of the
powers or privileges afforded to trusts or actions that may be engaged in by
trusts under the Delaware Act, and the absence of a specific reference herein to
any such power, privilege or action shall not imply that the Trust may not
exercise such power or privilege or take such actions.
Amendments. The Trustees may, without any Shareholder vote, amend or otherwise
supplement this Declaration by making an amendment, a Declaration of Trust
supplemental hereto or an amended and restated trust instrument; provided, that
Shareholders shall have the right to vote on any amendment (a) which would
adversely affect the voting rights of Shareholders granted in Article VII,
Section 1, (b) to this Section 8, (c) required to be approved by Shareholders by
law or by the Trust's registration statements filed with the Commission, and (d)
submitted to them by the Trustees in their discretion. Any amendment submitted
to Shareholders which the Trustees determine would affect the Shareholders of
one or more Series or Classes shall be authorized by vote of the Shareholders of
each Series or Class affected and no vote shall be required of Shareholders of a
Series or Class not affected. Notwithstanding anything else herein, any
amendment to Article IV which would have the effect of reducing the
indemnification and other rights provided thereby to Trustees or officers of the
Trust or to Shareholders or former Shareholders, and any repeal or amendment of
this sentence shall each require the affirmative vote of the holders of
two-thirds of the Outstanding Shares of the Trust entitled to vote thereon.
Derivative Actions. In addition to the requirements set forth in Section 3816 of
the Delaware Act, a Shareholder may bring a derivative action on behalf of the
Trust only if the following conditions are met:
Shareholders eligible to bring such derivative action under the Delaware Act who
hold at least 10% of the Outstanding Shares of the Trust, or 10% of the
Outstanding Shares of the Series or Class to which such action relates, shall
join in the request for the Trustees to commence such action; and
the Trustees must be afforded a reasonable amount of time to consider such
Shareholder request and to investigate the basis of such claim. The Trustees
shall be entitled to retain counsel or other advisers in considering the merits
of the request and shall require an undertaking by the Shareholders making such
request to reimburse the Trust for the expense of any such advisers in the event
that the Trustees determine not to bring such action.
No person, other than the Trustees, 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.
Fiscal Year. The fiscal year of the Series shall end on a specified date as set
forth in the By-laws; provided that different Series may have different fiscal
years. The Trustees may change the fiscal year of any Series without Shareholder
approval.
Severability. The provisions of this Declaration are severable. If the Trustees
determine, with the advice of counsel, that any provision hereof conflicts with
the 1940 Act, the regulated investment company provisions of the Internal
Revenue Code or with other applicable laws and regulations, the conflicting
provision shall be deemed never to have constituted a part of this Declaration;
provided, however, that such determination shall not affect any of the remaining
provisions of this Declaration or render invalid or improper any action taken or
omitted prior to such determination. If any provision hereof shall be held
invalid or unenforceable in any jurisdiction, such invalidity or
unenforceability shall attach only to such provision only in such jurisdiction
and shall not affect any other provision of this Declaration.
Special Treatment of Holders of Shares of Same Class. Notwithstanding anything
else herein, in connection with the termination or reorganization of the Trust
or any Series or Class by way of merger, consolidation, the sale of all or
substantially all of the assets, or otherwise, the Trustees may classify the
holders of Shares of a Class into one or more separate groups by reference to
any facts or circumstances that the Trustees deem relevant in their sole
discretion and may provide for the mandatory treatment for Shares of the Class
held by particular groups of Shareholders that differs materially from the
treatment accorded other groups of Shareholders holding Shares of the same
Class, provided that (a) each group of holders of any Shares of a Class so
classified who are to receive the same treatment shall be entitled to vote as a
special class in respect of such termination or reorganization regardless of any
limitations stated in this Declaration or the By-laws on the voting rights of
any Class, and (b) such termination or reorganization shall be approved by a
majority of the outstanding voting securities (as defined in the ▇▇▇▇ ▇▇▇) of
each such special class.
IN WITNESS WHEREOF, the undersigned has executed this instrument as of
the date first written above.
/s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
as sole initial Trustee and not individually