AMENDED AND RESTATED
AGREEMENT AND DECLARATION OF TRUST
OF
OPTIMUM FUND TRUST,
A DELAWARE STATUTORY TRUST
AMENDED AND RESTATED AGREEMENT AND DECLARATION OF TRUST made and entered
into as of July 17, 2003 by the Trustees named hereunder.
WHEREAS, the Trustees desire to amend and restate this Agreement and
Declaration of Trust for the sole purpose of supplementing the Agreement and
Declaration of Trust to incorporate amendments duly adopted; and
WHEREAS, this Trust was initially made on April 21, 2003 by ▇▇▇▇ ▇. ▇▇▇▇▇▇
and ▇▇▇▇▇ ▇. ▇▇▇▇▇▇ in order to create a statutory trust pursuant to the
Delaware Act for the investment and reinvestment of funds contributed thereto;
NOW, THEREFORE, the Trustees do hereby declare that they will hold in
trust all cash, securities, and other assets that the Trust now possesses or
will acquire from time to time in any manner and manage and dispose of same
under the terms and conditions of this Amended and Restated Agreement and
Declaration of Trust for the benefit of the Shareholders as set forth below.
ARTICLE I
NAME AND DEFINITIONS
SECTION 1.1. NAME. The name of the Trust is "Optimum Fund Trust" and the
Trustees shall conduct the business of the Trust under that name or any other
name as they may from time to time determine.
SECTION 1.2. DEFINITIONS. Wherever used herein, unless otherwise required by the
context or specifically provided:
(a) "AFFILIATED PERSON," "ASSIGNMENT," "INTERESTED PERSON," "PERSON," and
"PRINCIPAL UNDERWRITER" have the meanings given them in the 1940 Act, as
modified by or interpreted by any applicable order or orders of the Commission
or any rules or regulations adopted or interpretive releases or other guidance
of the Commission or its staff thereunder;
(b) "AGREEMENT" means this Agreement and Declaration of Trust, as it may
be amended, supplemented or restated from time to time;
(c) "BYLAWS" means the Bylaws of the Trust, as amended from time to time;
(d) "CERTIFICATE OF TRUST" means the Certificate of Trust, as amended,
supplemented, restated or corrected from time to time, filed by the Trustees in
the Office of the Secretary of State of the State of Delaware in accordance with
the Delaware Act;
(e) "CLASS" means a class of Shares of a Series of the Trust established
in accordance with the provisions of Article III, Section 3.6 of this Agreement;
(f) "COMMISSION" has the meaning given it in the 1940 Act;
(g) "DELAWARE ACT" refers to Chapter 38 of Title 12 of the Delaware Code
titled "Treatment of Delaware Statutory Trusts," as it may be amended from time
to time;
(h) "MAJORITY SHAREHOLDER VOTE" has the same meaning as the term "vote of
a majority of the outstanding voting securities" is given in the 1940 Act, as
modified by or interpreted by any applicable order or orders of the Commission
or any rules or regulations adopted or interpretive releases or other guidance
of the Commission or its staff thereunder;
(i) "NET ASSET VALUE" means the net asset value of each Series of the
Trust determined in the manner provided in Article IX, Section 9.3 of this
Agreement;
(j) "1940 ACT" refers to the Investment Company Act of 1940, as amended
from time to time;
(k) "OUTSTANDING SHARES" means those Shares shown from time to time on the
books of the Trust or its Transfer Agent as then issued and outstanding, but
does not include Shares that have been redeemed or repurchased by the Trust and
that are at the time held in the treasury of the Trust;
(l) "SERIES" means a series of Shares of the Trust established in
accordance with the provisions of Article III, Section 3.6 of this Agreement and
reference to a Series, when applicable to one or more Classes of the Series,
shall refer to each such Class;
(m) "SHAREHOLDER" means a record owner of Outstanding Shares of the Trust;
(n) "SHARES" means the equal proportionate transferable units of
beneficial interest into which the beneficial interest of each Series of the
Trust or Class thereof shall be divided and may include fractions of Shares as
well as whole Shares;
(o) "TRUST" refers to Optimum Fund Trust and reference to the Trust, when
applicable to one or more Series of the Trust, shall refer to each such Series;
(p) "TRUSTEES" means the Person or Persons who has or have signed this
Agreement, so long as he or they shall continue in office in accordance with the
terms hereof, and all other Persons who may from time to time be duly qualified
and serving as Trustees in accordance with the provisions of Article IV of this
Agreement and reference herein to a Trustee or to the Trustees shall refer to
the individual Trustees in their capacity as Trustees under this Agreement; and
(q) "TRUST PROPERTY" means any and all property, real or personal,
tangible or intangible, that is owned or held by or for the account of one or
more of the Trust or any Series, or the Trustees on behalf of the Trust or any
Series.
2
ARTICLE II
PURPOSE
The purpose of the Trust is to conduct, operate and carry on the business of a
management investment company registered under the 1940 Act through one or more
Series investing primarily in securities and to carry on such other business as
the Trustees may from time to time determine pursuant to their authority under
this Agreement.
ARTICLE III
BENEFICIAL INTEREST
SECTION 3.1. SHARES OF BENEFICIAL INTEREST. The beneficial interest in the Trust
shall be divided into such transferable Shares of one or more separate and
distinct Series or Classes of a Series as the Trustees shall from time to time
create and establish. The number of Shares of each Series, and Class thereof,
authorized hereunder is unlimited. Each Share shall have no par value. All
Shares issued hereunder, including without limitation, Shares issued in
connection with a dividend or other distribution in Shares or a split or reverse
split of Shares, shall be fully paid and nonassessable.
SECTION 3.2. ISSUANCE OF SHARES. The Trustees in their discretion may, from time
to time, without vote of the Shareholders, issue Shares, in addition to the then
issued and outstanding Shares and Shares held in the treasury, to such party or
parties and for such amount and type of consideration, subject to applicable
law, including cash or securities, at such time or times and on such terms as
the Trustees may deem appropriate, and may in such manner acquire other assets
(including the acquisition of assets subject to, and in connection with, the
assumption of liabilities) and businesses. In connection with any issuance of
Shares, the Trustees may issue fractional Shares and Shares held in the
treasury. The Trustees may from time to time divide or combine the Shares into a
greater or lesser number without thereby changing the proportionate beneficial
interests in the Trust. Contributions to the Trust may be accepted for, and
Shares shall be redeemed as, whole Shares and/or 1/1,000th of a Share or
integral multiples thereof.
SECTION 3.3. OWNERSHIP OF SHARES AND SHARE CERTIFICATES. A record shall be kept
at the principal office of the Trust or an office of the Trust's transfer agent
containing the names and addresses of the Shareholders of each Series, the
number of Shares of that Series (or any Class or Classes thereof) held by them
respectively and a record of all transfers thereof. The Trust shall maintain
separate books for the Shares of each Series or Class of the Trust. No
certificates certifying the ownership of Shares shall be issued except as the
Trustees may otherwise determine from time to time. The Trustees may make such
rules as they consider appropriate for the issuance of Share certificates, the
transfer of Shares of each Series or Class, and similar matters. The record
books of the Trust as kept by the Trust or the Trust's transfer agent shall be
conclusive as to the identity of the Shareholders of each Series or Class and as
to the number of Shares of each Series or Class held from time to time by each
Shareholder.
SECTION 3.4. TRANSFER OF SHARES. Except as otherwise provided by the Trustees,
Shares shall be transferable on the records of the Trust only by the record
holder thereof or by his 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 of 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
3
further requirements specified by the Trustees or contained in the Bylaws, the
transfer shall be recorded on the books of the Trust. Until the transfer is so
recorded, the Shareholder of record shall be deemed to be the holder of such
Shares for all purposes hereunder and neither the Trustees nor the Trust, nor
any transfer agent or registrar or any officer, employee or agent of the Trust
shall be affected by any notice of the proposed transfer.
SECTION 3.5. TREASURY SHARES. Shares held in the treasury shall, until reissued
pursuant to Section 3.2 of this Agreement, not confer any voting rights on the
Trustees, nor shall such Shares be entitled to any dividends or other
distributions declared with respect to the Shares.
SECTION 3.6. ESTABLISHMENT OF SERIES AND CLASSES.
(a) The Trust shall consist of one or more separate and distinct Series,
each with an unlimited number of Shares unless otherwise specified. The Shares
of each Series shall have the relative rights and preferences provided for
herein and such rights and preferences as may be designated by the Trustees. The
establishment and designation of any Series shall be effective upon the adoption
of a resolution by a majority of the Trustees setting forth such establishment
and designation and the relative rights and preferences of the Shares of each
such Series, whether directly in such resolution or by reference to, or approval
of, another document that sets forth such relative rights and preferences of the
Shares of such Series including, without limitation, any registration statement
of the Trust, or as otherwise provided in such resolution. The Trust shall
maintain separate and distinct records for each Series and shall hold and
account for the assets belonging thereto separately from the other Trust
Property and the assets belonging to any other Series. Each Share of a Series
shall represent an equal beneficial interest in the net assets belonging to that
Series, except to the extent of expenses separately allocated to Classes thereof
as permitted herein. A Series may have exclusive voting rights with respect to
matters affecting only that Series.
(b) The Trustees may divide the Shares of any Series into two or more
Classes, each with an unlimited number of Shares unless otherwise specified.
Each Class so established and designated shall represent a proportionate
interest in the net assets belonging to that Series and shall have identical
voting, dividend, liquidation, and other rights and be subject to the same terms
and conditions, except that (i) liabilities, expenses, costs, charges, and
reserves allocated to a Class in accordance with Article III, Section 3.8 of
this Agreement may be borne solely by that Class, (ii) dividends declared and
payable to a Class pursuant to Article IX, Section 9.1 of this Agreement shall
reflect the items separately allocated thereto, (iii) each Class may have
separate rights to convert to another Class, exchange rights, and similar
rights, each as determined by the Trustees, and (iv) each Class may have
exclusive voting rights with respect to matters affecting only that Class. The
establishment and designation of each Class for any or all Series shall be
effective upon the adoption of a resolution by a majority of the Trustees
setting forth such establishment and designation and the relative rights and
preferences of the Shares of each such Class, whether directly in such
resolution or by reference to, or approval of, another document that sets forth
such relative rights and preferences of the Shares of such Class including,
without limitation, any registration statement of the Trust, or as otherwise
provided in such resolution.
(c) The Trustees shall have full power and authority, in their sole
discretion without obtaining any prior authorization or vote of the Shareholders
of any Series, or Class thereof, (i) to establish and designate and to change in
any manner any Series of Shares, or any Class or Classes thereof, (ii) to fix
such preferences, voting powers, rights, and privileges of any Series, or
Classes thereof, as the Trustees may from time to time determine (but the
Trustees may not change the preferences, voting powers, rights, and privileges
4
of Outstanding Shares in a manner materially adverse to the Shareholders of such
Shares without the prior approval of the affected Shareholders), (iii) to divide
or combine the Shares of any Series, or Classes thereof, into a greater or
lesser number, (iv) to classify or reclassify any issued Shares of any Series,
or Classes thereof, into one or more Series or Classes of Shares of a Series,
and (v) to take such other action with respect to the Shares as the Trustees may
deem desirable. A Series and any Class thereof may issue any number of Shares
but need not issue any Shares. Subject to applicable federal and state law, the
Trustees may by a resolution of a majority of the Trustees abolish any Series or
Class previously established and designated and rescind the establishment and
designation thereof.
SECTION 3.7. INVESTMENT IN THE TRUST. The Trustees may accept investments in any
Series of the Trust from such persons, at such times, and on such terms as they
may from time to time authorize. At the Trustees' discretion, such investments,
subject to applicable law, may be in the form of cash or securities in which the
affected Series is authorized to invest, valued as provided in Article IX,
Section 9.3 hereof. Investments in a Series shall be credited to each
Shareholder's account in the form of full Shares at the Net Asset Value per
Share next determined after the investment is received; provided, however, that
the Trustees may, in their sole discretion, (a) fix the Net Asset Value per
Share of the initial capital contribution or (b) issue fractional Shares; and
provided further, however, that the principal underwriter may, in its sole
discretion, impose a sales charge or other fee upon investments in the Trust.
SECTION 3.8. 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 other assets of the Trust and of
every other Series and may be referred to herein as "assets belonging to" that
Series. The assets belonging to a particular Series shall belong to that Series
for all purposes, and to no other Series, subject only to the rights of
creditors of that Series. In addition, any assets, income, earnings, profits or
funds, or payments and proceeds with respect thereto, which are not readily
identifiable as belonging to any particular Series shall be allocated by the
Trustees between and among one or more of the Series in such manner as the
Trustees, in their sole discretion, deem fair and equitable. Each such
allocation shall be conclusive and binding upon the Shareholders of all Series
for all purposes, and such assets, income, earnings, profits or funds, or
payments and proceeds with respect thereto shall be assets belonging to that
Series.
The assets belonging to a particular Series shall be so recorded upon the books
of the Trust, and shall be held by the Trustees in trust for the benefit of the
holders of Shares of that Series. The assets belonging to each particular Series
shall be charged with the liabilities, expenses, costs, charges and reserves
attributable to that Series, except that liabilities, expenses, costs, charges
and reserves attributable solely to a particular Class shall be allocated to
that Class.
Any general liabilities, expenses, costs, charges or reserves of the Trust that
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 in their sole discretion
deem fair and equitable. Each such allocation shall be conclusive and binding
upon the Shareholders of all Series or Classes for all purposes.
5
Without limitation of the foregoing provisions of this Section 3.8, but subject
to the right of the Trustees in their discretion to allocate general
liabilities, expenses, costs, charges or reserves as herein provided, the debts,
liabilities, obligations and expenses incurred, contracted for or otherwise
existing with respect to a particular Series shall be enforceable against the
assets of such Series only, and not against the assets of the Trust generally.
Notice of this limitation on inter-Series liabilities may, in the Trustee's sole
discretion, be set forth in the Certificate of Trust (whether originally or by
amendment), 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 inter-Series liabilities (and the statutory effect under Section 3804 of
setting forth such notice in the Certificate of Trust) shall become applicable
to the Trust and each Series. Any person extending credit to, contracting with
or having any claim against any Series may look only to the assets of that
Series to satisfy or enforce any debt, liability, obligation or expense
incurred, contracted for or otherwise existing with respect to that Series. No
Shareholder or former Shareholder of any Series shall have a claim on or any
right to any assets allocated or belonging to any other Series.
SECTION 3.9. PREEMPTIVE RIGHTS. Shareholders shall have no preemptive or other
right to subscribe to any additional Shares or other securities issued by the
Trust or the Trustees, whether of the same or other Series or Class.
SECTION 3.10. PERSONAL LIABILITY OF SHAREHOLDERS. As provided by applicable law,
no Shareholder of the Trust 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 or Class thereof. Neither the
Trust nor the Trustees, nor any officer, employee, or agent of the Trust shall
have any power to bind personally any Shareholder or, except as provided herein
or by applicable law, to call upon any Shareholder for the payment of any sum of
money or assessment whatsoever other than such as the Shareholder may at any
time personally agree to pay by way of subscription for any Shares or otherwise.
The Shareholders shall be entitled, to the fullest extent permitted by
applicable law, to the same limitation of personal liability as is extended
under the Delaware General Corporation Law to stockholders of private
corporations for profit. Every note, bond, contract, or other undertaking issued
by or on behalf of the Trust or the Trustees relating to the Trust or to any
Series shall include a recitation limiting the obligation represented thereby to
the Trust and its assets or to one or more Series and the assets belonging
thereto (but the omission of such a recitation shall not operate to bind any
Shareholder or Trustee of the Trust).
SECTION 3.11. ASSENT TO AGREEMENT. Every Shareholder, by virtue of having
purchased a Share shall become a Shareholder and shall be held to have expressly
assented and agreed to be bound by the terms hereof.
6
ARTICLE IV
TRUSTEES
SECTION 4.1. MANAGEMENT OF THE TRUST. The Trustees shall have exclusive and
absolute control over the Trust Property and over the business of the Trust to
the same extent as if the Trustees were the sole owners of the Trust Property
and business in their own right, but with such powers of delegation as may be
permitted by this Agreement. The Trustees shall have power to conduct the
business of the Trust and carry on its operations in any and all of its branches
and maintain offices both within and without the State of Delaware, in any and
all states of the United States of America, in the District of Columbia, in any
and all commonwealths, territories, dependencies, colonies, or possessions of
the United States of America, and in any foreign jurisdiction and to do all such
other things and execute all such instruments as they deem necessary, proper or
desirable in order to promote the interests of the Trust although such things
are not herein specifically mentioned. Any determination as to what is in the
interests of the Trust made by the Trustees in good faith shall be conclusive.
In construing the provisions of this Agreement, the presumption shall be in
favor of a grant of power to the Trustees.
The enumeration of any specific power in this Agreement shall not be construed
as limiting the aforesaid power. The powers of the Trustees may be exercised
without order of or resort to any court.
Except for the Trustees named herein or appointed to fill vacancies pursuant to
Section 4.5 of this Article IV, the Trustees shall be elected by the
Shareholders owning of record a plurality of the Shares voting at a meeting of
Shareholders. Such a meeting shall be held on a date fixed by the Trustees. In
the event that less than a majority of the Trustees holding office have been
elected by Shareholders, the Trustees then in office will call a Shareholders'
meeting for the election of Trustees.
SECTION 4.2. INITIAL TRUSTEES. The initial Trustees shall be the persons named
in this Agreement. On a date fixed by the Trustees, the Shareholders shall elect
at least three (3) but not more than fourteen (14) Trustees, as specified by the
Trustees pursuant to Section 4.3 of this Article IV.
SECTION 4.3. NUMBER OF TRUSTEES. The number of Trustees shall be at least three
(3), and thereafter shall be such number as shall be fixed from time to time by
a majority of the Trustees, provided, however, that the number of Trustees shall
in no event be more than fourteen (14).
SECTION 4.4. TERM OF OFFICE. The Trustees shall hold office during the lifetime
of this Trust and until its termination as herein provided; except that:
(a) Any Trustee may resign his trust by written instrument signed by him
and delivered to the other Trustees, which shall take effect upon such delivery
or upon such later date as specified therein;
(b) Any Trustee who requests in writing to be retired or who has died,
become physically or mentally incapacitated by reason of disease or otherwise,
or is otherwise unable to serve, may be retired by written instrument signed by
a majority of the other Trustees, specifying the date of his retirement;
7
(c) Any Trustee may be removed at any time by written instrument, signed
by at least two-thirds (?) of the number of Trustees prior to such removal,
specifying the date when such removal shall become effective; and
(d) A Trustee may be removed at any meeting of the Shareholders of the
Trust by a vote of Shareholders owning at least two-thirds (?) of the
outstanding Shares.
Upon the resignation or removal of a Trustee, or his otherwise ceasing to be a
Trustee, 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 death of any Trustee or upon removal or resignation due to any
Trustee's incapacity to serve as trustee, his legal representative shall execute
and deliver on his behalf such documents as the remaining Trustees shall require
as provided in the preceding sentence.
SECTION 4.5. VACANCIES AND APPOINTMENT OF TRUSTEES. In case of the declination
to serve, death, resignation, retirement, removal, physical or mental incapacity
by reason of disease or otherwise, or a Trustee is otherwise unable to serve, or
an increase in the number of Trustees, a vacancy shall occur. Whenever a vacancy
in the Board of Trustees shall occur, until such vacancy is filled, the other
Trustees shall have all the powers hereunder and the certificate of the other
Trustees of such vacancy shall be conclusive. In the case of an existing
vacancy, the remaining Trustees shall fill such vacancy by appointing such other
person as they in their discretion shall see fit consistent with the limitations
under the 1940 Act. Such appointment shall be evidenced by a written instrument
signed by a majority of the Trustees in office or by resolution of the Trustees,
duly adopted, which shall be recorded in the minutes of a meeting of the
Trustees, whereupon the appointment shall take effect.
An appointment of a Trustee may be made by the Trustees then in office in
anticipation of a vacancy to occur by reason of retirement, resignation or
increase in number of Trustees effective at a later date, provided that said
appointment shall become effective only at or after the effective date of said
retirement, resignation or increase in number of Trustees. As soon as any
Trustee appointed pursuant to this Section 4.5 shall have accepted this trust,
or at such date as may be specified in the acceptance whenever made, the trust
estate shall vest in the new Trustee or Trustees, together with the continuing
Trustees, without any further act or conveyance, and he shall be deemed a
Trustee hereunder. The power to appoint a Trustee pursuant to this Section 4.5
is subject to the provisions of Section 16(a) of the 1940 Act.
SECTION 4.6. TEMPORARY ABSENCE OF TRUSTEE. Any Trustee may, by power of
attorney, delegate his power for a period not exceeding six (6) months at any
one time to any other Trustee or Trustees, provided that in no case shall less
than two Trustees personally exercise the other powers hereunder except as
herein otherwise expressly provided.
SECTION 4.7. INABILITY TO SERVE FULL TERM. The declination to serve, death,
resignation, retirement, removal, incapacity, or inability of the Trustees, or
any one of them, shall not operate to terminate the Trust or to revoke any
existing agency created pursuant to the terms of this Agreement.
SECTION 4.8. OWNERSHIP OF ASSETS OF THE TRUST. The assets 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 all of the assets of the Trust and the right
to conduct any business shall at all times be considered as vested in the
8
Trustees on behalf of the Trust, except that the Trustees may cause legal title
to any Trust Property to be held by, or in the name of the Trust, or in the name
of any person as nominee. 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, except as
otherwise provided for herein, a proportionate undivided beneficial interest in
the Trust or Series. The Shares shall be personal property giving only the
rights specifically set forth in this Agreement.
SECTION 4.9. POWERS. The Trustees in all instances shall act as principals, and
are and shall be free from the control of the Shareholders. The Trustees shall
have full power and authority to do any and all acts and to make and execute any
and all contracts and instruments that they may consider necessary or
appropriate in connection with the management of the Trust. The Trustees shall
not in any way be bound or limited by present or future laws or customs in
regard to trust investments, but shall have full authority and power to make any
and all investments that they, in their sole discretion, shall deem proper to
accomplish the purpose of this Trust without recourse to any court or other
authority. Subject to any applicable limitation in this Agreement or the Bylaws
of the Trust, the Trustees shall have power and authority:
(a) To invest and reinvest cash and other property, and to hold cash or
other property uninvested, without in any event being bound or limited by any
present or future law or custom in regard to investments by Trustees, and to
sell, exchange, lend, pledge, mortgage, hypothecate, write options on and lease
any or all of the assets of the Trust;
(b) To operate as and carry on the business of an investment company, and
exercise all the powers necessary and appropriate to the conduct of such
operations;
(c) To borrow money and in this connection issue notes or other evidence
of indebtedness; to secure borrowings by mortgaging, pledging or otherwise
subjecting as security the Trust Property; to endorse, guarantee, or undertake
the performance of an obligation or engagement of any other Person and to lend
Trust Property;
(d) To provide for the distribution of interests of the Trust either
through a principal underwriter in the manner hereinafter provided for or by the
Trust itself, or both, or otherwise pursuant to a plan of distribution of any
kind;
(e) To adopt Bylaws not inconsistent with this Agreement providing for the
conduct of the business of the Trust and to amend and repeal them to the extent
that they do not reserve that right to the Shareholders; such Bylaws shall be
deemed incorporated and included in this Agreement;
(f) To elect and remove such officers and appoint and terminate such
agents as they consider appropriate;
(g) To employ one or more banks, trust companies or companies that are
members of a national securities exchange or such other domestic or foreign
entities as the Commission may permit as custodians of any assets of the Trust
subject to any conditions set forth in this Agreement or in the Bylaws;
(h) To retain one or more transfer agents or shareholder servicing agents,
or both;
(i) To set record dates in the manner provided herein or in the Bylaws;
9
(j) To delegate such authority as they consider desirable to any officers
of the Trust and to any investment adviser, manager, administrator, custodian,
underwriter or other agent or independent contractor;
(k) To sell or exchange any or all of the assets of the Trust, subject to
the provisions of Article XI, Sections 11.5, 11.6, and 11.7 of this Agreement;
(l) To vote or give assent, or exercise any rights of ownership, with
respect to stock or other securities or property; and to execute and deliver
powers of attorney to such person or persons as the Trustees shall deem proper,
granting to such person or persons such power and discretion with relation to
securities or property as the Trustees shall deem proper;
(m) To exercise powers and rights of subscription or otherwise which in
any manner arise out of ownership of securities;
(n) To hold any security or property in a form not indicating any trust,
whether in bearer, book entry, unregistered, or other negotiable form; or either
in the name of the Trust or in the name of a custodian or a nominee or nominees,
subject in either case to proper safeguards according to the usual practice of
Delaware statutory trusts or investment companies;
(o) To establish separate and distinct Series with separately defined
investment objectives and policies and distinct investment purposes in
accordance with the provisions of Article III hereof and to establish Classes of
such Series having relative rights, powers and duties as they may provide
consistent with applicable law;
(p) 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 or
Class thereof or to apportion the same between or among two or more Series or
Classes thereof, provided that any liabilities or expenses incurred by a
particular Series or Class thereof shall be payable solely out of the assets
belonging to that Series or Class as provided for in Article III, Section 3.8 of
this Agreement;
(q) To consent to or participate in any plan for the reorganization,
consolidation or merger of any corporation or concern, any security of which is
held in 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;
(r) 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;
(s) To make distributions of income and of capital gains to Shareholders
in the manner hereinafter provided;
(t) To establish, from time to time, a minimum investment for Shareholders
in the Trust or in one or more Series or Classes, and to require the redemption
of the Shares of any Shareholder whose investment is less than such minimum upon
giving notice to such Shareholder;
10
(u) To establish one or more committees, to delegate any of the powers of
the Trustees to said committees and to adopt a committee charter providing for
such responsibilities, membership (including Trustees, officers or other agents
of the Trust therein) and any other characteristics of said committees as the
Trustees may deem proper. Notwithstanding the provisions of this Article IV, and
in addition to such provisions or any other provision of this Agreement or of
the Bylaws, the Trustees may by resolution appoint a committee consisting of
less than the whole number of Trustees then in office, which committee may be
empowered to act for and bind the Trustees and the Trust, as if the acts of such
committee were the acts of all the Trustees then in office, with respect to the
institution, prosecution, dismissal, settlement, review or investigation of any
action, suit or proceeding which shall be pending or threatened to be brought
before any court, administrative agency or other adjudicatory body;
(v) To interpret the investment policies, practices or limitations of any
Series;
(w) Notwithstanding any other provision hereof, to invest all or a portion
of the assets of any series in one or more open-end investment companies,
including investment by means of a transfer of such assets in an exchange for an
interest or interests in such investment company or companies or by any other
method approved by the Trustees;
(x) To establish a registered office and have a registered agent in the
State of Delaware; and
(y) In general to carry on any other business in connection with or
incidental to any of the foregoing powers, to do everything necessary, suitable
or proper for the accomplishment of any purpose or the attainment of any object
or the furtherance of any power hereinbefore set forth, either alone or in
association with others, and to do every other act or thing incidental or
appurtenant to or growing out of or connected with the aforesaid business or
purposes, objects or powers.
The foregoing clauses shall be construed both as objects and powers, and the
foregoing enumeration of specific powers shall not be held to limit or restrict
in any manner the general powers of the Trustees. Any action by one or more of
the Trustees in their capacity as such hereunder shall be deemed an action on
behalf of the Trust or the applicable Series, and not an action in an individual
capacity.
The Trustees shall not be limited to investing in obligations maturing before
the possible termination of the Trust.
No one dealing with the Trustees shall be under any obligation to make any
inquiry concerning the authority of the Trustees, or to see to the application
of any payments made or property transferred to the Trustees or upon their
order.
SECTION 4.10. ISSUANCE AND REPURCHASE OF SHARES. The Trustees shall have the
power to issue, sell, repurchase, redeem, retire, cancel, acquire, hold, resell,
reissue, dispose of, and otherwise deal in Shares and, subject to the provisions
set forth in Article III and Article IX, to apply to any such repurchase,
redemption, retirement, cancellation or acquisition of Shares any funds or
property of the Trust, or any assets belonging to the particular Series or any
assets allocable to the particular Class, with respect to which such Shares are
issued.
11
SECTION 4.11. TRUSTEES AND OFFICERS AS SHAREHOLDERS. Any Trustee, officer or
other agent of the Trust may acquire, own and dispose of Shares to the same
extent as if he were not a Trustee, officer or agent; and the Trustees may issue
and sell or cause to be issued and sold Shares to and buy such Shares from any
such person or any firm or company in which he is interested, subject only to
the general limitations herein contained as to the sale and purchase of such
Shares; and all subject to any restrictions which may be contained in the
Bylaws.
SECTION 4.12. ACTION BY THE TRUSTEES. The Trustees shall act by majority vote at
a meeting duly called or by written consent of a majority of the Trustees
without a meeting or by telephone meeting provided a quorum of Trustees
participate in any such telephone meeting, unless the 1940 Act requires that a
particular action be taken only at a meeting at which the Trustees are present
in person. Any meeting conducted by telephone shall be deemed to take place at
the principal office of the Trust, as determined by the Bylaws or by the
Trustees. Subject to the requirements of the 1940 Act, the Trustees by majority
vote may delegate to any one or more of their number their authority to approve
particular matters or take particular actions on behalf of the Trust.
SECTION 4.13. QUORUM. At any meeting of the Trustees, a majority of the Trustees
shall constitute a quorum.
SECTION 4.14. NOTICE. Meetings of the Trustees may be called orally or in
writing by the Chairman of the Board of Trustees or by any two other Trustees.
Notice of the time, date and place of all meetings of the Trustees shall be
given by the party calling the meeting, or by the Secretary of the Trust at the
direction of the party calling the meeting, to each Trustee by telephone,
telefax, telegram, or electronic-mail sent to or overnight or hand delivery
received at his home or business address at least twenty-four (24) hours in
advance of the meeting, or by written notice mailed to his home or business
address at least seventy-two (72) hours in advance of the meeting. Notice need
not be given to any Trustee who attends the meeting without objecting to the
lack of notice or who executes a written waiver of notice with respect to the
meeting. Written consents or waivers of the Trustees may be executed in one or
more counterparts. Execution of a written consent or waiver and delivery thereof
to the Trust may be accomplished by telefax.
SECTION 4.15. CHAIRMAN. The Trustees shall appoint one of their number to be
Chairman of the Board of Trustees. The Chairman shall preside at all meetings of
the Trustees, shall be responsible for the execution of policies established by
the Trustees and the administration of the Trust, and may be (but is not
required to be) the chief executive, financial and/or accounting officer of the
Trust.
SECTION 4.16. PRINCIPAL TRANSACTIONS. Except to the extent prohibited by
applicable law, the Trustees may, on behalf of the Trust, buy any securities
from or sell any securities to, or lend any assets of the Trust to, any Trustee
or officer of the Trust or any firm of which any such Trustee or officer is a
member acting as principal, or have any such dealings with any investment
adviser, distributor or transfer agent for the Trust or with any Interested
Person of such person; and the Trust may employ any such person, or firm or
company in which such person is an Interested Person, as broker, legal counsel,
registrar, investment adviser, distributor, transfer agent, dividend disbursing
agent, custodian or in any other capacity upon customary terms.
12
ARTICLE V
EXPENSES OF THE TRUST
Subject to the provisions of Article III, Section 3.8 of this Agreement, the
Trustees shall be reimbursed from the Trust estate or the assets belonging to
the appropriate Series for their expenses and disbursements, including, without
limitation, fees and expenses of Trustees who are not Interested Persons of the
Trust, interest expense, taxes, fees and commissions of every kind, expenses of
pricing Trust portfolio securities, expenses of issue, repurchase and redemption
of Shares, including expenses attributable to a program of periodic repurchases
or redemptions, expenses of registering and qualifying the Trust and its Shares
under Federal and State laws and regulations or under the laws of any foreign
jurisdiction, charges of third parties, including investment advisers, managers,
custodians, transfer agents, portfolio accounting and/or pricing agents, and
registrars, expenses of preparing and setting up in type prospectuses and
statements of additional information and other related Trust documents, expenses
of printing and distributing prospectuses sent to existing Shareholders,
auditing and legal expenses, reports to Shareholders, expenses of meetings of
Shareholders and proxy solicitations therefor, insurance expenses, association
membership dues and for such non-recurring items as may arise, including
litigation to which the Trust (or a Trustee acting as such) is a party, and for
all losses and liabilities by them incurred in administering the Trust, and for
the payment of such expenses, disbursements, losses and liabilities 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. This
section shall not preclude the Trust from directly paying any of the
aforementioned fees and expenses.
ARTICLE VI
CONTRACTS WITH SERVICE PROVIDERS
SECTION 6.1. INVESTMENT ADVISER. Subject to applicable requirements of the 1940
Act, as modified by or interpreted by any applicable order or orders of the
Commission or any rules or regulations adopted or interpretive releases or other
guidance of the Commission or its staff thereunder, the Trustees may in their
discretion, from time to time, enter into one or more investment advisory or
management contracts with respect to the Trust or any Series whereby the other
party or parties to such contract or contracts shall undertake to furnish the
Trustees with such management, investment advisory, statistical and research
facilities and services and such other facilities and services, if any, and all
upon such terms and conditions, as the Trustees may in their discretion
determine. Notwithstanding any other provision of this Agreement, the Trustees
may authorize any investment adviser (subject to such general or specific
instructions as the Trustees may from time to time adopt) to effect purchases,
sales or exchanges of portfolio securities, other investment instruments of the
Trust, or other Trust Property on behalf of the Trustees, or may authorize any
officer, agent, or Trustee to effect such purchases, sales or exchanges pursuant
to recommendations of the investment adviser (and all without further action by
the Trustees). Any such purchases, sales and exchanges shall be deemed to have
been authorized by all of the Trustees.
The Trustees may authorize, subject to applicable requirements of the 1940 Act,
including those relating to Shareholder approval, the investment adviser to
employ, from time to time, one or more sub-advisers to perform such of the acts
and services of the investment adviser, and upon such terms and conditions, as
may be agreed upon between the investment adviser and sub-adviser. Any reference
in this Agreement to the investment adviser shall be deemed to include such
sub-advisers, unless the context otherwise requires.
13
SECTION 6.2. PRINCIPAL UNDERWRITER. The Trustees may in their discretion from
time to time enter into an exclusive or non-exclusive underwriting contract or
contracts providing for the sale of Shares, whereby the Trust may either agree
to sell Shares to the other party to the contract or appoint such other party
its sales agent for such Shares. In either case, the contract shall be on such
terms and conditions, if any, as may be prescribed in the Bylaws, and such
further terms and conditions as the Trustees may in their discretion determine
not inconsistent with the provisions of this Article VI, or of the Bylaws; and
such contract may also provide for the repurchase or sale of Shares by such
other party as principal or as agent of the Trust.
SECTION 6.3. TRANSFER AGENT AND SHAREHOLDER SERVICES AGENT. The Trustees may in
their discretion from time to time enter into one or more transfer agency
contracts or Shareholder services contracts or both whereby the other party or
parties shall undertake to furnish the Trustees with transfer agency and
Shareholder services. The contract or contracts shall be on such terms and
conditions as the Trustees may in their discretion determine not inconsistent
with the provisions of this Agreement or of the Bylaws.
SECTION 6.4. PARTIES TO CONTRACTS WITH SERVICE PROVIDERS. Any contract of the
character described in Sections 6.1, 6.2 and 6.3 of this Article VI or any
contract of the character described in Article VIII of this Agreement may be
entered into with any corporation, firm, partnership, trust or association,
although one or more of the Trustees or officers of the Trust may be an officer,
director, trustee, shareholder, or member of such other party to the contract,
and no such contract shall be invalidated or rendered void or voidable by reason
of the existence of any relationship, nor shall any person holding such
relationship be disqualified from voting on or executing the same in his
capacity as Shareholder and/or Trustee, nor shall any person holding such
relationship be liable merely by reason of such relationship for any loss or
expense to the Trust under or by reason of said contract or accountable for any
profit realized directly or indirectly therefrom, provided that the contract
when entered into was not inconsistent with the provisions of this Article VI or
Article VIII of this Agreement or of the Bylaws. The same person (including a
firm, corporation, partnership, trust, or association) may be the other party to
contracts entered into pursuant to Sections 6.1, 6.2 and 6.3 of this Article VI
or pursuant to Article VIII of this Agreement, and any individual may be
financially interested or otherwise affiliated with persons who are parties to
any or all of the contracts mentioned in this Section 6.4.
SECTION 6.5. PROVISIONS AND AMENDMENTS. Any contract entered into pursuant to
Section 6.1 or 6.2 of this Article VI shall be consistent with and subject to
the requirements of Section 15 of the 1940 Act or other applicable Act of
Congress hereafter enacted with respect to its continuance in effect, its
termination, and the method of authorization and approval of such contract or
renewal thereof, and no amendment to any contract, entered into pursuant to
Section 6.1 or 6.2 of this Article VI shall be effective unless assented to in a
manner consistent with the requirements of said Section 15, as modified by any
applicable rule, regulation or order of the Commission.
ARTICLE VII
SHAREHOLDERS' VOTING POWERS AND MEETINGS
SECTION 7.1. VOTING POWERS. The Shareholders shall have power to vote only (a)
for the election of Trustees as provided in Article IV, Sections 4.1 and 4.2
hereof, (b) for the removal of Trustees as provided in Article IV, Section
4.4(d) hereof, (c) with respect to any investment advisory or management
contract as provided in Article VI, Sections 6.1 and 6.5 hereof, and (d) with
14
respect to such additional matters relating to the Trust as may be required by
law, this Agreement, or the Bylaws, or as the Trustees may consider desirable.
On any matter submitted to a vote of the Shareholders, all Shares shall be voted
separately by individual Series, except (a) when required by the 1940 Act,
Shares shall be voted in the aggregate and not by individual Series; and (b)
when the Trustees have determined that the matter affects the interests of more
than one Series, then the Shareholders of all such Series shall be entitled to
vote thereon. The Trustees may also determine that a matter affects only the
interests of one or more Classes of a Series, in which case any such matter
shall be voted on by such Class or Classes. A Shareholder of each Series shall
be entitled to one vote for each dollar of Net Asset Value (number of Shares
owned times Net Asset Value per share) of such Series on any matter on which
such Shareholder is entitled to vote and each fractional dollar amount 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
Bylaws. A proxy may be given in writing. The Bylaws may provide that proxies may
also, or may instead, be given by any electronic or telecommunications device or
in any other manner. Notwithstanding anything else herein or in the Bylaws, in
the event a proposal by anyone other than the officers or Trustees of the Trust
is submitted to a vote of the Shareholders of one or more Series or Classes or
of the Trust, or in the event of any proxy contest or proxy solicitation or
proposal in opposition to any proposal by the officers or Trustees of the Trust,
Shares may be voted only in person or by written proxy. Until Shares are issued,
the Trustees may exercise all rights of Shareholders and may take any action
required or permitted by law, this Agreement or any of the Bylaws of the Trust
to be taken by Shareholders.
SECTION 7.2. MEETINGS. The first Shareholders' meeting shall be held in order to
elect Trustees as specified in Section 4.2 of Article IV hereof at the principal
office of the Trust or such other place as the Trustees may designate. Meetings
may be held within or without the State of Delaware. Special meetings of the
Shareholders of any Series may be called by the Trustees and shall be called by
the Trustees upon the written request of Shareholders owning at least one-tenth
of the Outstanding Shares entitled to vote. Whenever ten or more Shareholders
meeting the qualifications set forth in Section 16(c) of the 1940 Act, as the
same may be amended from time to time, seek the opportunity of furnishing
materials to the other Shareholders with a view to obtaining signatures on such
a request for a meeting, the Trustees shall comply with the provisions of said
Section 16(c) with respect to providing such Shareholders access to the list of
the Shareholders of record of the Trust or the mailing of such materials to such
Shareholders of record, subject to any rights provided to the Trust or any
Trustees provided by said Section 16(c). Shareholders shall be entitled to at
least seven (7) days' notice of any meeting.
SECTION 7.3. QUORUM AND REQUIRED VOTE. One-third (?) of Shares entitled to vote
in person or by proxy shall be a quorum for the transaction of business at a
Shareholders' meeting, except that where any provision of law or of this
Agreement permits or requires that the holders of any Series shall vote as a
Series (or that the holders of any Class shall vote as a Class), then one-third
(?) of the aggregate number of Shares of that Series (or that Class) entitled to
vote shall be necessary to constitute a quorum for the transaction of business
by that Series (or that Class). Any lesser number shall be sufficient for
adjournments. Except when a larger vote is required by law or by any provision
of this Agreement or the Bylaws, a majority of the Shares voted in person or by
proxy shall decide any questions and a plurality shall elect a Trustee, provided
that where any provision of law or of this Agreement permits or requires that
15
the holders of any Series shall vote as a Series (or that the holders of any
Class shall vote as a Class), then a majority of the Shares present in person or
by proxy of that Series (or that Class) or, if required by law, a Majority
Shareholder Vote of that Series (or that Class), voted on the matter in person
or by proxy shall decide that matter insofar as that Series (or that Class) is
concerned. Shareholders may act by unanimous written consent. Actions taken by
Series (or Class) may be consented to unanimously in writing by Shareholders of
that Series (or that Class).
SECTION 7.4. DERIVATIVE ACTIONS. In addition to the requirements set forth in
Section 3816 of the Delaware Act, a Shareholder may bring derivative action on
behalf of the Trust only if the Shareholder or Shareholders first make a
pre-suit demand upon the Trustees to bring the subject action unless an effort
to cause the Trustees to bring such action is excused. A demand on the Trustees
shall only be excused if a majority of the Board of Trustees, or a majority of
any committee established to consider the merits of such action, has a personal
financial interest in the action at issue. A Trustee shall not be deemed to have
a personal financial interest in an action or otherwise be disqualified from
ruling on a Shareholder demand by virtue of the fact that such Trustee receives
remuneration from his service on the Board of Trustees of the Trust or on the
boards of one or more investment companies with the same or an affiliated
investment adviser or underwriter.
ARTICLE VIII
CUSTODIAN
SECTION 8.1. APPOINTMENT AND DUTIES. The Trustees shall at all times employ a
bank, a company that is a member of a national securities exchange, or a trust
company, each having capital, surplus and undivided profits of at least two
million dollars ($2,000,000) as custodian with authority as its agent, but
subject to such restrictions, limitations and other requirements, if any, as may
be contained in the Bylaws of the Trust:
(a) to hold the securities owned by the Trust and deliver the same upon
written order or oral order confirmed in writing, or by such electro-mechanical
or electronic devices as are agreed to by the Trust and the custodian, if such
procedures have been authorized in writing by the Trust;
(b) to receive and receipt for any moneys due to the Trust and deposit the
same in its own banking department or elsewhere as the Trustees may direct;
(c) to disburse such funds upon orders or vouchers;
and the Trust may also employ such custodian as its agent:
(d) to keep the books and accounts of the Trust or of any Series or Class
and furnish clerical and accounting services; and
(e) to compute, if authorized to do so by the Trustees, the Net Asset
Value of any Series, or Class thereof, in accordance with the provisions hereof;
all upon such basis of compensation as may be agreed upon between the Trustees
and the custodian.
16
The Trustees may also authorize the custodian to employ one or more
sub-custodians from time to time to perform such of the acts and services of the
custodian, and upon such terms and conditions, as may be agreed upon between the
custodian and such sub-custodian and approved by the Trustees, provided that in
every case such sub-custodian shall be a bank, a company that is a member of a
national securities exchange, or a trust company organized under the laws of the
United States or one of the states thereof and having capital, surplus and
undivided profits of at least two million dollars ($2,000,000) or such other
person as may be permitted by the Commission, or otherwise in accordance with
the 1940 Act.
SECTION 8.2. CENTRAL CERTIFICATE SYSTEM. Subject to such rules, regulations and
orders as the Commission may adopt, the Trustees may direct the custodian to
deposit all or any part of the securities owned by the Trust in a system for the
central handling of securities established by a national securities exchange or
a national securities association registered with the Commission under the
Securities Exchange Act of 1934, as amended, or such other person as may be
permitted by the Commission, or otherwise in accordance with the 1940 Act,
pursuant to which system all securities of any particular class or series of any
issuer deposited within the system are treated as fungible and may be
transferred or pledged by bookkeeping entry without physical delivery of such
securities, provided that all such deposits shall be subject to withdrawal only
upon the order of the Trust or its custodians, subcustodians or other agents.
ARTICLE IX
DISTRIBUTIONS AND REDEMPTIONS
SECTION 9.1. DISTRIBUTIONS.
(a) The Trustees may from time to time declare and pay dividends or other
distributions with respect to any Series. The amount of such dividends or
distributions and the payment of them and whether they are in cash or any other
Trust Property shall be wholly in the discretion of the Trustees.
(b) Dividends and other distributions may be paid or made to the
Shareholders of record at the time of declaring a dividend or other distribution
or among the Shareholders of record at such other date or time or dates or times
as the Trustees shall determine, which dividends or distributions, at the
election of the Trustees, may be paid pursuant to a standing resolution or
resolutions adopted only once or with such frequency as the Trustees may
determine. The Trustees may adopt and offer to Shareholders such dividend
reinvestment plans, cash dividend payout plans or related plans as the Trustees
shall deem appropriate.
(c) Anything in this Agreement to the contrary notwithstanding, the
Trustees may at any time declare and distribute a dividend of stock or other
property pro rata among the Shareholders of a particular Series, or Class
thereof, as of the record date of that Series fixed as provided in sub-section
(b) of this Section 9.1 of this Article IX.
SECTION 9.2. REDEMPTIONS. A holder of record of Shares of a particular Series
may deposit at the office of the transfer agent or other authorized agent of
that Series a written request or such other form of request as the Trustees may
from time to time authorize, requesting that the Series purchase the Shares in
accordance with this Section 9.2; and the Shareholder so requesting shall be
entitled to require the Series to purchase, and the Series or the principal
underwriter of the Series shall purchase his said Shares, but only at the Net
Asset Value thereof (as described in Section 9.3 of this Article IX). The Series
shall make payment for any such Shares to be redeemed, as aforesaid, in cash or
property from the assets of that Series and payment for such Shares less any
17
applicable deferred sales charge and/or fees shall be made by the Series or the
principal underwriter of the Series to the Shareholder of record within seven
(7) days after the date upon which the request is effective, or within such
other time as the Trustees shall determine in accordance with the 1940 Act and
the rules, regulations and interpretations thereof promulgated or issued by the
Commission or its staff, or as otherwise required or permitted by the
Commission. Upon redemption, Shares shall become Treasury Shares and may be
re-issued from time to time.
SECTION 9.3. DETERMINATION OF NEW ASSET VALUE AND VALUATION OF SERIES ASSETS.
The term "Net Asset Value" of any Series shall mean that amount by which the
assets of that Series exceed its liabilities, all as determined by or under the
direction of the Trustees. Such value shall be determined separately for each
Series and shall be determined on such days and at such times as the Trustees
may determine. Such determination shall be made with respect to securities for
which market quotations are readily available, at the market value of such
securities; and with respect to other securities and assets, at the fair value
as determined in good faith by the Trustees; provided, however, that the
Trustees, without Shareholder approval, may alter the method of valuing
portfolio securities insofar as permitted under the 1940 Act and the rules,
regulations and interpretations thereof promulgated or issued by the Commission
or its staff or insofar as permitted by any order or orders of the Commission
applicable to the Series. The Trustees may delegate any of their powers and
duties under this Section 9.3 with respect to valuation of assets and
liabilities. The resulting amount, which shall represent the total Net Asset
Value of the particular Series, shall be divided by the total number of Shares
of that Series outstanding at the time and the quotient so obtained shall be the
Net Asset Value per Share of that Series. At any time, the Trustees may cause
the Net Asset Value per Share last determined to be determined again in similar
manner and may fix the time when such redetermined value shall become effective.
If, for any reason, the net income of any Series, determined at any time, is a
negative amount, the Trustees shall have the power with respect to that Series
(a) to offset each Shareholder's pro rata share of such negative amount from the
accrued dividend account of such Shareholder; (b) to reduce the number of
Outstanding Shares of such Series by reducing the number of Shares in the
account of each Shareholder by a pro rata portion of that number of full and
fractional Shares which represents the amount of such excess negative net
income; (c) to cause to be recorded on the books of such Series an asset account
in the amount of such negative net income (provided that the same shall
thereupon become the property of such Series with respect to such Series and
shall not be paid to any Shareholder), which account may be reduced by the
amount of dividends declared thereafter upon the Outstanding Shares of such
Series on the day such negative net income is experienced, until such asset
account is reduced to zero; (d) to combine the methods described in clauses (a),
(b) and (c) of this sentence; or (e) to take any other action they deem
appropriate, in order to cause (or in order to assist in causing) the Net Asset
Value per Share of such Series to remain at a constant amount per Outstanding
Share immediately after each such determination and declaration. The Trustees
shall also have the power not to declare a dividend out of net income for the
purpose of causing the Net Asset Value per Share to be increased. The Trustees
shall not be required to adopt, but may at any time adopt, discontinue or amend
the practice of maintaining the Net Asset Value per Share of the Series at a
constant amount.
SECTION 9.4. SUSPENSION OF THE RIGHT OF REDEMPTION. Notwithstanding Section 9.2
of this Article IX, the Trustees may declare a suspension of the right of
redemption or postpone the date of payment as permitted under the 1940 Act or by
action of the Commission. Such suspension shall take effect at such time as the
Trustees shall specify but not later than the close of business on the business
day next following the declaration of suspension, and thereafter there shall be
no right of redemption or payment until the Trustees shall declare the
18
suspension at an end. In the case of a suspension of the right of redemption, a
Shareholder may either withdraw his request for redemption or receive payment
based on the Net Asset Value per Share next determined after the termination of
the suspension. In the event that any Series is divided into Classes, the
provisions of this Section 9.4, to the extent applicable as determined in the
discretion of the Trustees and consistent with applicable law, may be equally
applied to each such Class.
SECTION 9.5. REDEMPTION OF SHARES. The Trustees may require Shareholders to
redeem Shares for any reason under terms set by the Trustees, including, but not
limited to, (a) the determination of the Trustees that direct or indirect
ownership of Shares of any Series has or may become concentrated in such
Shareholder to an extent that would disqualify any Series as a regulated
investment company under the Internal Revenue Code of 1986, as amended (the
"Code") (or any successor statute thereto); (b) the failure of a Shareholder to
supply a tax identification number if required to do so; (c) the failure of a
Shareholder to pay when due for the purchase of Shares issued to him; or (d) the
failure of a Shareholder to maintain such minimum investment for Shareholders in
the Trust or in one or more Series or Classes as the Trustees may establish,
from time to time, in accordance with Section 4.9(t) of Article IV hereof. The
redemption shall be effected at the redemption price and in the manner provided
in this Article IX.
The holders of Shares shall upon demand disclose to the Trustees in writing such
information with respect to direct and indirect ownership of Shares as the
Trustees deem necessary to comply with the provisions of the Code, or to comply
with the requirements of any other taxing authority.
ARTICLE X
LIMITATION OF LIABILITY AND INDEMNIFICATION
SECTION 10.1. LIMITATION OF LIABILITY. Neither a Trustee nor an officer of the
Trust when acting in such capacity, shall be personally liable to any person
other than the Trust or a beneficial owner for any act, omission or obligation
of the Trust, any Trustee or any officer of the Trust. Neither a Trustee nor an
officer of the Trust shall be liable for any act or omission or any conduct
whatsoever in his capacity as Trustee or officer of the Trust, provided that
nothing contained herein or in the Delaware Act shall protect any Trustee or any
officer of the Trust against any liability to the Trust or to Shareholders to
which he would otherwise be subject by reason of willful misfeasance, bad faith,
gross negligence or reckless disregard of the duties involved in the conduct of
the office of Trustee or Officer hereunder.
SECTION 10.2. INDEMNIFICATION.
(a) Subject to the exceptions and limitations contained in Section (b)
below:
(i) every Person who is, or has been, a Trustee or officer of the
Trust (hereinafter referred to as a "Covered Person") shall be indemnified by
the Trust 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 Trustee or officer and against amounts
paid or incurred by him in the settlement thereof;
(ii) the words "claim," "action," "suit," or "proceeding" shall apply
to all claims, actions, suits or proceedings (civil, criminal or other,
including appeals), actual or threatened while in office or thereafter, and the
19
words "liability" and "expenses" shall include, without limitation, attorneys'
fees, costs, judgments, amounts paid in settlement, fines, penalties and other
liabilities.
(b) No indemnification shall be provided hereunder to a Covered Person:
(i) who shall have been adjudicated by a court or body before which
the proceeding was brought
(A) to be liable to the Trust or its Shareholders by reason of
willful misfeasance, bad faith, gross negligence or reckless disregard of the
duties involved in the conduct of his office; or
(B) not to have acted in good faith in the reasonable belief
that his action was in the best interest of the Trust; or
(ii) in the event of a settlement, unless there has been a
determination that such Trustee or officer 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); or
(C) by written opinion of independent legal counsel based upon a
review of readily available facts (as opposed to a full trial-type inquiry);
provided, however, that any Shareholder may, by appropriate legal proceedings,
challenge any such determination by the Trustees or by independent counsel.
(c) The rights of indemnification herein provided may be insured against
by policies maintained by the Trust, shall be severable, shall not be exclusive
of or affect any other rights to which any Covered Person may now or hereafter
be entitled, shall continue as to a person who has ceased to be a Covered Person
and shall inure to the benefit of the heirs, executors and administrators of
such a person. Nothing contained herein shall affect any rights to
indemnification to which Trust personnel, other than Covered Persons, and other
persons may be entitled by contract or otherwise under law.
(d) Expenses in connection with the preparation and presentation of a
defense to any claim, action, suit or proceeding of the character described in
paragraph (a) of this Section 10.2 may be paid by the Trust or Series from time
to time prior to final disposition thereof upon receipt of an undertaking by or
on behalf of such Covered Person that such amount will be paid over by him to
the Trust or Series if it is ultimately determined that he is not entitled to
indemnification under this Section 10.2; 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 trial-type inquiry or full investigation), that
20
there is reason to believe that such Covered Person will be found entitled to
indemnification under this Section 10.2.
SECTION 10.3. SHAREHOLDERS. In case any Shareholder or former Shareholder of any
Series shall be held to be personally liable solely by reason of his being or
having been a Shareholder of such Series and not because of his acts or
omissions or for some other reason, the Shareholder or former Shareholder (or
his heirs, executors, administrators or other legal representatives, or, in the
case of a corporation or other entity, its corporate or other general successor)
shall be entitled out of the assets belonging to the applicable Series to be
held harmless from and indemnified against all loss and expense arising from
such liability. The Trust, on behalf of the affected Series, shall, upon request
by the Shareholder, assume the defense of any claim made against the Shareholder
for any act or obligation of the Series and satisfy any judgment thereon from
the assets of the Series.
ARTICLE XI
MISCELLANEOUS
SECTION 11.1. TRUST NOT A PARTNERSHIP. It is the intention of the Trustees to
create a statutory trust pursuant to the Delaware Act. It is not the intention
of the Trustees to create a general partnership, limited partnership, joint
stock association, corporation, bailment, or any form of legal relationship
other than a statutory trust pursuant to the Delaware Act. No Trustee hereunder
shall have any power to bind personally either the Trust's officers or any
Shareholder. All persons extending credit to, contracting with or having any
claim against the Trust or the Trustees shall look only to the assets of the
appropriate Series or (if the Trustees shall have yet to have established
Series) of the Trust for payment under such credit, contract or claim; and
neither the Shareholders nor the Trustees, nor any of their agents, whether
past, present or future, shall be personally liable therefor. Nothing in this
Agreement shall protect a Trustee against any liability to which the Trustee
would otherwise be subject by reason of willful misfeasance, bad faith, gross
negligence or reckless disregard of the duties involved in the conduct of the
office of Trustee hereunder.
SECTION 11.2. TRUSTEE'S GOOD FAITH ACTION, EXPERT ADVICE, NO BOND OR SURETY. The
exercise by the Trustees or the officers of the Trust of their powers and
discretions 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 X of this Agreement and Section 11.1 of this
Article XI, the Trustees or the officers of the Trust shall not be liable for
errors of judgment or mistakes of fact or law. The Trustees and the officers of
the Trust may take advice of counsel or other experts with respect to the
meaning and operation of this Agreement, and subject to the provisions of
Article X of this Agreement and Section 11.1 of this Article XI, shall be under
no liability for any act or omission in accordance with such advice or for
failing to follow such advice. The Trustees and the officers of the Trust shall
not be required to give any bond as such, nor any surety if a bond is obtained.
SECTION 11.3. ESTABLISHMENT OF RECORD DATES.
(a) The Trustees may close the Share transfer books of the Trust for a
period not exceeding one hundred eighty (180) days preceding the date of any
meeting of Shareholders, or the date for the payment of any dividend or other
distribution, or the date for the allotment of rights, or the date when any
change or conversion or exchange of Shares shall go into effect; or in lieu of
closing the stock transfer books as aforesaid, the Trustees may fix in advance a
date, not exceeding one hundred eighty (180) days preceding the date of any
meeting of Shareholders, or the date for the payment of any dividend or other
21
distribution, or the date for the allotment of rights, or the date when any
change or conversion or exchange of Shares shall go into effect, as a record
date for determining Shareholders entitled to notice of, and to vote at, any
such meeting, or entitled to receive payment of any such dividend or other
distribution, or to any such allotment of rights, or to exercise the rights in
respect of any such change, conversion or exchange of Shares, and in such case
such Shareholders and only such Shareholders as shall be Shareholders of record
on the date so fixed shall be entitled to such notice of, and to vote at, such
meeting, or to receive payment of such dividend or other distribution, or to
receive such allotment 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.
(b) If the Trustees do not so fix a record date:
(i) The record date for determining Shareholders entitled to notice
of, and to vote at, a meeting of Shareholders shall be at the close of business
on the business day next preceding the day on which notice is given or, if
notice is waived, at the close of business on the business day that is five (5)
business days next preceding to the day on which the meeting is held.
(ii) The record date for determining Shareholders entitled to give
consent to action in writing without a meeting, (A) when no prior action by the
Trustees has been taken, shall be the day on which the first written consent is
given, or (B) when prior action of the Trustees has been taken, shall be at the
close of business on the day on which the Trustees adopt the resolution taking
such prior action or the seventy-fifth (75th) day before the date of such other
action, whichever is later.
Nothing in this Section 11.3 shall be construed as precluding the Trustees from
setting different record dates for different Series or Classes.
SECTION 11.4. DURATION OF THE TRUST. This Trust shall continue without
limitation of time but subject to the provisions of this Article XI.
SECTION 11.5. TERMINATION OF THE TRUST, A SERIES OR A CLASS.
(a) Subject to applicable Federal and state law, the Trust or any Series
or Class thereof may be terminated (i) by Majority Shareholder Vote of the
Trust, each Series affected, or each Class affected, as the case may be; or (ii)
without the vote or consent of Shareholders by a majority of the Trustees either
at a meeting or by written consent. The Trustees shall provide written notice to
the affected Shareholders of a termination effected under clause (ii) above.
Upon the termination of the Trust or the Series or Class, (i) the Trust or the
Series or Class shall carry on no business except for the purpose of winding up
its affairs; (ii) the Trustees shall proceed to wind up the affairs of the Trust
or the Series or Class, and all of the powers of the Trustees under this
Agreement shall continue until the affairs of the Trust shall have been wound
up, including the power to fulfill or discharge the contracts of the Trust or
the Series or Class thereof; collect its assets; sell, convey, assign, exchange,
transfer, or otherwise dispose of all or any part of the remaining Trust
property or Trust property allocated or belonging to such Series or Class to one
or more persons at public or private sale for consideration that may consist in
whole or in part of cash, securities, or other property of any kind; discharge
or pay its liabilities; and do all other acts appropriate to liquidate its
business; provided that any sale, conveyance, assignment, exchange, transfer, or
other disposition of all or substantially all the Trust property or Trust
property allocated or belonging to such Series or Class (other than as provided
22
in (iii) below) shall require Shareholder approval in accordance with Section
11.6 below; and (iii) after paying or adequately providing for the payment of
all liabilities, and upon receipt of such releases, indemnities, and refunding
agreements as they deem necessary for their protection, the Trustees may
distribute the remaining Trust property or the remaining property of the
terminated Series or Class, in cash or in kind or partly each, among the
Shareholders of the Trust or the Series or Class according to their respective
rights; and
(b) Upon completion of the distribution of the remaining proceeds or the
remaining assets as provided in sub-section (a) of this Section 11.5 of this
Article XI, the Trust or any affected Series or Class thereof shall terminate
and the Trustees and the Trust shall be discharged of any and all further
liabilities and duties hereunder and the right, title and interest of all
parties with respect to the Trust, Series or Class shall be cancelled and
discharged. Upon termination of the Trust, following completion of winding up of
its business, the Trustees shall cause a certificate of cancellation of the
Trust's Certificate of Trust to be filed in accordance with the Delaware Act,
which certificate of cancellation may be signed by any one Trustee.
SECTION 11.6. MERGER, CONSOLIDATION AND SALE OF ASSETS. Subject to applicable
Federal and state law and except as otherwise provided in Section 11.7 below,
the Trust or any Series or Class thereof may merge or consolidate with any other
corporation, association, trust, or other organization or may sell, lease, or
exchange all or a portion of the Trust property or Trust property allocated or
belonging to such Series or Class, including its good will, upon such terms and
conditions and for such consideration when and as authorized at any meeting of
Shareholders called for such purpose by a Majority Shareholder Vote of the Trust
or affected Series or Class, as the case may be. Such transactions may be
effected through share-for-share exchanges, transfers or sale of assets,
shareholder in-kind redemptions and purchases, exchange offers, or any other
method approved by the Trustees. 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, and notwithstanding anything to the contrary contained in this
Agreement, an agreement of merger or consolidation approved by the Trustees in
accordance with this Section 11.6 may effect any amendment to the Agreement or
effect the adoption of a new Agreement of the Trust if it is the surviving or
resulting trust in the merger or consolidation.
SECTION 11.7. INCORPORATION AND REORGANIZATION. Subject to applicable Federal
and state law, the Trustees may without the vote or consent of Shareholders
cause to be organized or assist in organizing a corporation or corporations
under the laws of any jurisdiction or any other trust, partnership, limited
liability company, association, or other organization to take over all or a
portion of the Trust property or all or a portion of the Trust property
allocated or belonging to such Series or Class or to carry on any business in
which the Trust shall directly or indirectly have any interest, and to sell,
convey and transfer the Trust property or the Trust property allocated or
belonging to such Series or Class to any such corporation, trust, limited
liability company, partnership, 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, limited liability company, association, or
organization, or any corporation, partnership, limited liability company, trust,
association, or organization in which the Trust or such Series holds or is about
to acquire shares or any other interest. Subject to applicable Federal and state
law, the Trustees may also cause a merger or consolidation between the Trust or
any successor thereto or any Series or Class thereof and any such corporation,
trust, partnership, limited liability company, association, or other
organization. Nothing contained herein shall be construed as requiring approval
of Shareholders for the Trustees to organize or assist in organizing one or more
23
corporations, trusts, partnerships, limited liability companies, associations,
or other organizations and selling, conveying, or transferring the Trust
property or a portion of the Trust property to such organization or entities;
provided, however, that the Trustees shall provide written notice to the
affected Shareholders of any transaction whereby, pursuant to this Section 11.7,
the Trust or any Series or Class thereof sells, conveys, or transfers all or a
portion of its assets to another entity or merges or consolidates with another
entity. Such transactions may be effected through share-for-share exchanges,
transfers or sale of assets, shareholder in-kind redemptions and purchases,
exchange offers, or any other method approved by the Trustees. Pursuant to and
in accordance with the provisions of Section 3815(f) of the Delaware Act, and
notwithstanding anything to the contrary contained in this Agreement, an
agreement of merger or consolidation approved by the Trustees in accordance with
this Section 11.7 may effect any amendment to the Agreement or effect the
adoption of a new Agreement of the Trust if it is the surviving or resulting
trust in the merger or consolidation.
SECTION 11.8. FILING OF COPIES, REFERENCES AND HEADINGS. The original or a copy
of this Agreement and of each amendment or restatement hereof or Agreement
supplemental hereto shall be kept at the office of the Trust where it may be
inspected by any Shareholder. A supplemental trust instrument executed by any
one Trustee may be relied upon as a Supplement hereof. Anyone dealing with the
Trust may rely on a certificate by an officer or Trustee of the Trust as to
whether or not any such amendments, restatements or supplemental Agreements have
been made and as to any matters in connection with the Trust hereunder, and with
the same effect as if it were the original, may rely on a copy certified by an
officer or Trustee of the Trust to be a copy of this Agreement or of any such
amendment, restatement or supplemental Agreement. In this Agreement or in any
such amendment, restatement or supplemental Agreement, references to this
Agreement, and all expressions like "herein," "hereof," and "hereunder" shall be
deemed to refer to this Agreement as amended, restated or affected by any such
supplemental Agreement. All expressions like "his," "he," and "him" shall be
deemed to include the feminine and neuter, as well as masculine, genders.
Headings are placed herein for convenience of reference only and in case of any
conflict, the text of this Agreement, rather than the headings, shall control.
This Agreement may be executed in any number of counterparts each of which shall
be deemed an original.
SECTION 11.9. APPLICABLE LAW. The trust set forth in this instrument is made in
the State of Delaware, and the Trust and this Agreement, and the rights and
obligations of the Trustees and Shareholders hereunder, are to be governed by
and construed and administered according to the Delaware Act and the laws of
said State; provided, however, that there shall not be applicable to the Trust,
the Trustees or this Agreement (a) the provisions of Section 3540 of Title 12 of
the Delaware Code or (b) any provisions of the laws (statutory or common) of the
State of Delaware (other than the Delaware Act) pertaining to trusts that relate
to or regulate (i) the filing with any court or governmental body or agency of
trustee accounts or schedules of trustee fees and charges, (ii) affirmative
requirements to post bonds for trustees, officers, agents or employees of a
trust, (iii) the necessity for obtaining court or other governmental approval
concerning the acquisition, holding or disposition of real or personal property,
(iv) fees or other sums payable to trustees, officers, agents or employees of a
trust, (v) the allocation of receipts and expenditures to income or principal,
(vi) restrictions or limitations on the permissible nature, amount or
concentration of trust investments or requirements relating to the titling,
storage or other manner of holding of trust assets, or (vii) the establishment
of fiduciary or other standards or responsibilities or limitations on the acts
or powers of trustees, which are inconsistent with the limitations or
liabilities or authorities and powers of the Trustees set forth or referenced in
this Agreement. The Trust shall be of the type commonly called a "statutory
trust", and without limiting the provisions hereof, the Trust may exercise all
24
powers that are ordinarily exercised by such a trust under Delaware law. The
Trust specifically reserves the right to exercise any of the powers or
privileges afforded to trusts or actions that may be engaged in by trusts under
the Delaware Act, and the absence of a specific reference herein to any such
power, privilege or action shall not imply that the Trust may not exercise such
power or privilege or take such actions.
SECTION 11.10. AMENDMENTS. Except as specifically provided herein, the Trustees
may, without Shareholder vote, amend, restate or otherwise supplement this
Agreement by making an amendment, an Agreement supplemental hereto or an amended
and restated Agreement. Shareholders shall have the right to vote (a) on any
amendment which would affect their right to vote granted in Section 7.1 of
Article VII hereof, (b) on any amendment to this Section 11.10, (c) on any
amendment as may be required by law or by the Trust's registration statement
filed with the Commission, and (d) on any amendment submitted to them by the
Trustees. Any amendment required or permitted to be submitted to Shareholders
which, as the Trustees determine, shall affect the Shareholders of one or more
Series (or one or more Classes) shall be authorized by vote of the Shareholders
of each Series (or Class) affected and no vote of Shareholders of a Series (or
Class) not affected shall be required. Notwithstanding anything else herein, any
amendment to Article X hereof shall not limit the rights to indemnification or
insurance provided therein with respect to action or omission of Covered Persons
prior to such amendment.
SECTION 11.11. FISCAL YEAR. The fiscal year of the Trust shall end on a
specified date as set forth in the Bylaws, provided, however, that the Trustees
may, without Shareholder approval, change the fiscal year of the Trust.
SECTION 11.12. USE OF THE NAME "OPTIMUM." Delaware Management Holdings, Inc.
("DMH") has consented to, and granted a non-exclusive license for, the use by
any Series or by the Trust of the identifying word "Optimum" in the name of any
Series or of the Trust. Such consent is subject to revocation by DMH in its
discretion, if DMH or a subsidiary or affiliate thereof is not employed as the
investment adviser of each Series of the Trust. As between the Trust and DMH,
DMH controls the use of the name of the Trust insofar as such name contains the
identifying word "Optimum." DMH may, from time to time, use the identifying word
"Optimum" in other connections and for other purposes, including, without
limitation, in the names of other investment companies, corporations or
businesses which it may manage, advise, sponsor or own or in which it may have a
financial interest. DMH may require the Trust or any Series thereof to cease
using the identifying word "Optimum" in the name of the Trust or any Series
thereof if the Trust or any Series thereof ceases to employ DMH or a subsidiary
or affiliate thereof as investment adviser.
SECTION 11.13. PROVISIONS IN CONFLICT WITH LAW. The provisions of this Agreement
are severable, and if the Trustees shall determine, with the advice of counsel,
that any of such provisions is in conflict with the 1940 Act, the regulated
investment company provisions of the Internal Revenue Code or with other
applicable laws and regulations, the conflicting provision shall be deemed never
to have constituted a part of this Agreement; provided, however, that such
determination shall not affect any of the remaining provisions of this Agreement
or render invalid or improper any action taken or omitted prior to such
determination. If any provision of this Agreement shall be held invalid or
unenforceable in any jurisdiction, such invalidity or unenforceability shall
attach only to such provision in such jurisdiction and shall not in any manner
affect such provisions in any other jurisdiction or any other provisions of this
Agreement in any jurisdiction.
25
IN WITNESS WHEREOF, the undersigned, being all of the Trustees of the
Trust, have executed this instrument on this 17th day of July, 2003.
/s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇
----------------------------
▇▇▇▇ ▇. ▇▇▇▇▇▇, as Trustee
/s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
----------------------------
▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇, as Trustee
/s/ ▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
----------------------------
▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, as Trustee
/s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
----------------------------
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, as Trustee
/s/ ▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
----------------------------
▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, as Trustee
/s/ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
----------------------------
▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇, as Trustee
/s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
----------------------------
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, as Trustee
/s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
----------------------------
▇▇▇▇▇▇▇ ▇▇▇▇▇▇, as Trustee
/s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
----------------------------
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, as Trustee
/s/ ▇▇▇ ▇▇▇▇▇▇▇▇▇▇
----------------------------
▇▇▇ ▇▇▇▇▇▇▇▇▇▇, as Trustee
26