AMENDED AND RESTATED
AGREEMENT AND DECLARATION OF TRUST
OF
GALLERY TRUST
WHEREAS, THIS AGREEMENT AND DECLARATION OF TRUST is made and entered
into as of the date set forth below by the Trustees named hereunder, for the
purpose of amending and restating that certain Agreement and Declaration of
Trust, dated August 25, 2015, of the Trust (the "Original Declaration of
Trust").
WHEREAS, the Trust was formed upon the filing of the Certificate of
Trust, dated August 25, 2015, with the Secretary of State of the State of
Delaware on August 25, 2015;
WHEREAS, the Trustees desire to continue the statutory trust formed
pursuant to the Original Declaration of Trust for the investment and
reinvestment of funds contributed thereto; and
WHEREAS, the Trustees are authorized to amend and restate the
Original Declaration of Trust pursuant to the power of the Trustees set forth
in Article VIII, Section 4 of the Original Declaration of Trust.
NOW, THEREFORE, the Trustees agree that the Original Declaration of
Trust is hereby amended and restated in its entirety and do hereby declare that
the Trustees will hold IN TRUST all cash, securities and other assets which the
Trust now possesses or may hereafter acquire from time to time in any manner
and manage and dispose of the same upon the following terms and conditions for
the pro rata benefit of the holders of Shares of this Trust.
ARTICLE I
NAMES AND DEFINITIONS
SECTION 1. NAME. This Trust shall be known as Gallery 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. Any name change shall become
effective on the execution by a majority of the Trustees of an instrument
setting forth the new name and the filing of a certificate of amendment
pursuant to Section 3810(b)(1) of the Delaware Act. Any such instrument shall
not require the approval of the Shareholders but shall have the status of an
amendment to this Declaration of Trust.
SECTION 2. DEFINITIONS. Whenever used herein, unless otherwise
required by the context or specifically provided:
(a) The term "Advisory Board" shall have the meaning given
such term in the 1940 Act;
(b) The "1940 Act" shall mean the Investment Company Act of
1940, the rules and regulations thereunder or any exemption therefrom, as such
statute, rules or regulations may be amended or interpreted from time to time,
and any successor statute thereto;
(c) "By-Laws" shall mean the By-Laws of the Trust 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 (defined herein);
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(d) "Class" means a class of Shares in a Series of the
Trust established in accordance with the provisions of Article III hereof;
(e) "Code" means the Internal Revenue Code of 1986 (or any
successor statute), as amended from time to time, and the rules and regulations
thereunder, as adopted or amended from time to time;
(f) The term "Commission" shall have the meaning given such
term in the 1940 Act;
(g) "Declaration of Trust" shall mean this Amended and
Restated Agreement and Declaration of Trust, as amended or restated from time to
time;
(h) "Delaware Act" shall mean the Delaware Statutory Trust
Act (12 DEL. C. [section] 3801 ET SEQ.), as such statute may be amended or
interpreted from time to time, and any legislative enactment which may replace
or supersede such Act;
(i) The term "Interested Person" has the meaning given it in
Section 2(a)(19) of the 1940 Act;
(j) "Investment Adviser" or "Adviser" means a party
furnishing services to the Trust pursuant to any contract described in Article
IV, Section 7(a) hereof;
(k) "Outstanding Shares" means Shares shown on the books of
the Trust or its transfer agent as then- issued and outstanding, but shall not
include shares which have been redeemed, repurchased, cancelled or terminated
by the Trust;
(l) "Person" means and includes individuals, corporations,
partnerships, trusts, associations, joint ventures, estates and other entities,
whether or not legal entities, and governments and agencies and political
subdivisions thereof, whether domestic or foreign;
(m) "Principal Underwriter" shall have the meaning given
such term in the 1940 Act;
(n) "Series" refers to each Series of Shares established and
designated under or in accordance with the provisions of Article III hereof;
(o) "Shareholder" means a record owner of outstanding
Shares;
(p) "Shares" shall mean the equal proportionate units of
beneficial interest into which the beneficial interest of each Series or Class
thereof shall be divided. "Shares" includes fractions of Shares as well as whole
Shares, and will be rounded to the nearest thousandth;
(q) The "Trust" refers to the Delaware statutory trust
established under the Delaware Act by this Declaration of Trust and the filing
of the Certificate of Trust in the Office of the Secretary of State of the
State of Delaware, as it may be amended from time to time, inclusive of each
and every Series established hereunder;
(r) The "Trust Property" means any and all property, real
or personal, tangible or intangible, which is owned or held by or for the
account of the Trust or any Series or by the Trustees on behalf of the Trust or
any Series; and
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(s) "Trustee" or "Trustees" refer to the person or persons
who has or have signed this Declaration of Trust, so long as he, she or they
shall continue in office in accordance with the terms hereof, and all other
persons who may from time to time be duly elected or appointed to serve on the
Board of Trustees in accordance with the provisions hereof, and reference
herein to a Trustee or the Trustees shall refer to such person or persons in
their capacity as trustees hereunder.
ARTICLE II
PURPOSE OF THE TRUST
The purpose of the Trust is to conduct, operate and carry on the
business of a management investment company registered under the 1940 Act
through one or more Series investing primarily in securities (including
options), debt instruments, money market instruments, commodities, commodity
contracts and options thereon and other instruments and rights of a financial
character and to exercise all of the powers and privileges granted to a
statutory trust formed under the laws of the State of Delaware and a management
investment company registered under the 1940 Act, now or hereafter in force.
ARTICLE III
SHARES
SECTION 1. DIVISION OF BENEFICIAL INTEREST. The beneficial interest
in the Trust shall be divided into one or more Series. Each Series may be
divided into two or more Classes. Subject to the further provisions of this
Article III and any applicable requirements of the 1940 Act, the Trustees shall
have full power and authority, in their sole discretion, and without obtaining
any authorization or vote of the Shareholders of any Series or Class thereof,
(i) to divide the beneficial interest in each Series or Class thereof into an
unlimited amount of Shares, with or without par value, as the Trustees shall
determine, (ii) to issue Shares without limitation as to number (including
fractional Shares), to such Persons and for such amount and type of
consideration, subject to any restriction set forth in the By-Laws, including
cash or securities, at such time or times and on such terms as the Trustees may
deem appropriate, (iii) to establish and designate and to change in any manner
any Series or Class thereof and to fix such preferences, voting powers, rights,
duties and privileges and business purpose of each Series or Class thereof as
the Trustees may from time to time determine, which preferences, voting powers,
rights, duties and privileges may be senior or subordinate to (or in the case
of business purpose, different from) any existing Series or Class thereof and
may be limited to specified property or obligations of the Trust or profits and
losses associated with specified property or obligations of the Trust, (iv) to
divide or combine the Shares or any Series or Class thereof into a greater or
lesser number without thereby materially changing the proportionate beneficial
interest of the Shares of such Series or Class in the assets held with respect
to that Series or Class, (v) to classify or reclassify any issued Shares of any
Series or Class thereof into shares of one or more Series or Classes thereof,
(vi) to dissolve and terminate any one or more Series or Classes and (vii) to
take such other action with respect to the Shares as the Trustees may deem
desirable.
Subject to the distinctions permitted among Classes of the same
Series as established by the Trustees consistent with the requirements of the
1940 Act, each Share of a Series of the Trust shall represent an equal
beneficial interest in the net assets of such Series, and each holder of Shares
of a Series shall be entitled to receive such holder's pro rata share of
distributions of income and capital gains, if any, made with respect to such
Series. Upon redemption of the Shares of any Series, the applicable Shareholder
shall be paid solely out of the funds and property of such Series of the
Trust.
All references to Shares in this Declaration of Trust shall be deemed
to be references to Shares of any or all Series or Classes thereof, as the
context may require. All provisions herein relating to the Trust
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shall apply equally to each Series of the Trust and each Class thereof, except
as otherwise provided or the context otherwise requires.
All Shares issued hereunder, including, without limitation, Shares
issued in connection with a dividend paid in Shares or a split or reverse split
of Shares, shall be fully paid and non-assessable. No Share shall have any
priority or preference over any other Share of the same Series with respect to
dividends or distributions of the Trust or otherwise. All dividends and
distributions shall be made ratably among all Shareholders of a Series (or
Class) from the assets held with respect to such Series according to the number
of Shares of such Series (or Class) held of record by such Shareholders on the
record date for any dividend or distribution or on the date of termination of
the Trust, as the case may be. Except as otherwise provided by the Trustees,
Shareholders shall have no preemptive or other right to subscribe to any
additional Shares or other securities issued by the Trust.
SECTION 2. OWNERSHIP OF SHARES. The ownership of Shares shall be
recorded on the books of the Trust or a transfer or similar agent for the
Trust, which books shall be maintained separately for the Shares of each Series
(or Class). No certificates certifying the ownership of Shares shall be issued
except as the Board of Trustees may otherwise determine from time to time. The
Trustees may make such rules as they consider appropriate for the issuance of
Share certificates, transfer of Shares of each Series (or Class) and similar
matters. The record books of the Trust as kept by the Trust, or any transfer or
similar agent, as the case may be, shall be conclusive as to 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.
SECTION 3. TRANSFER OF SHARES. 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, the Trust's transfer or similar agent or other Person designated by
the Trustees 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 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 any proposed transfer.
SECTION 4. INVESTMENTS IN THE TRUST. Investments may be accepted by
the Trust from such Persons, at such times, on such terms, and for such
consideration as the Trustees from time to time may authorize. Each investment
shall be credited to the individual Shareholder's account in the form of full
and fractional Shares of the Trust, in such Series (or Class) as the purchaser
shall select, at the net asset value per Share next determined for such Series
(or Class) after receipt of the investment; provided, however, that the
Trustees may, in their sole discretion, impose a sales charge or transaction
fee upon investments in any Series or Class, issue fractional Shares, or
determine the Net Asset Value per Share of the initial capital contribution.
The Trustees, and any duly authorized person, shall have the right to refuse to
accept investments in any Series or Class at any time without any cause or
reason therefor whatsoever.
SECTION 5. STATUS OF SHARES AND LIMITATION OF PERSONAL LIABILITY. The
ownership of the Trust Property of every description and the right to conduct
any business herein before described are vested exclusively in the Trustees,
and the Shareholders shall have no interest therein other than the beneficial
interest conferred by their Shares, and they shall have no right to call for
any partition or division of any property, profits, rights or interests of the
Trust nor can they be called upon to share or assume any losses of the Trust
or, subject to the right of the Trustees to charge certain expenses directly to
Shareholders,
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suffer an assessment of any kind by virtue of their ownership of Shares. 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 and to have become a party hereto. 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 deceased 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
Declaration of Trust. Ownership of Shares shall not constitute the Shareholders
as partners. Neither the Trust nor the Trustees, nor any officer, employee or
agent of the Trust shall have any power to bind personally any Shareholder. The
Shares shall not entitle the holder to preference, preemptive, appraisal,
conversion or exchange rights (except as specified in this Declaration of Trust
or as specified by the Trustees when creating the Shares). No Shareholder of
the Trust shall be subject in such capacity to any personal liability
whatsoever to any Person in connection with Trust Property or the acts,
obligations or affairs of the Trust, except by reason of his or her own acts or
conduct. Shareholders shall have the same limitation of personal liability as
is extended to stockholders of a private corporation for profit incorporated
under the Delaware General Corporation Law.
SECTION 6. POWER OF BOARD OF TRUSTEES TO CHANGE PROVISIONS RELATING
TO SHARES. Notwithstanding any other provision of this Declaration of Trust and
without limiting the power of the Board of Trustees to amend this Declaration
of Trust and the Certificate of Trust, the Board of Trustees shall have the
power to amend this Declaration of Trust and the Certificate of Trust, at any
time and from time to time, in such manner as the Board of Trustees may
determine in its sole discretion, without the need for Shareholder action, so
as to add to, delete, replace or otherwise modify any provision relating to the
Shares contained in this Declaration of Trust; provided that before adopting
any such amendment without Shareholder approval, the Board of Trustees shall
determine that it is consistent with the fair and equitable treatment of all
Shareholders and that Shareholder approval is not otherwise required by the
1940 Act or other applicable federal or state law; provided, however that if
Shares have been issued, Shareholder approval shall be required to adopt any
amendment to this Declaration of Trust that would adversely affect to a
material degree the rights and preferences of the Shares of any Series already
issued or the rights and preferences of any Class of Shareholders associated
with any such Series or as otherwise required by the 1940 Act. Subject to the
foregoing, the Board of Trustees may amend any provision set forth in
paragraphs (a) through (i) of Section 7 of this Article III.
SECTION 7. ESTABLISHMENT AND DESIGNATION OF SHARES. The establishment
and designation of any Series (or Class) of Shares shall be effective upon the
resolution by a majority of the then Trustees, adopting a resolution which sets
forth such establishment and designation and the relative rights and
preferences of such Series (or Class) whether directly in such resolution or by
reference to another document including, without limitation, any registration
statement of the Trust, or as otherwise provided in such resolution. Each such
resolution shall be incorporated herein by reference upon adoption.
Each Series shall be separate and distinct from any other Series,
separate and distinct records on the books of the Trust shall be maintained for
each Series, and the assets and liabilities belonging to any such Series shall
be held and accounted for separately from the assets and liabilities of the
Trust or any other Series. Shares of each Series (or Class) established
pursuant to this Section 7, unless otherwise provided in the resolution
establishing such Series (or Class), shall have the following relative rights
and preferences:
(a) ASSETS HELD WITH RESPECT TO A PARTICULAR SERIES. All
consideration received by the Trust for the issue or sale of Shares of a
particular Series, including dividends and distributions paid by, and
reinvested in such Series together with all assets in which such consideration
is invested or reinvested, all income, earnings, profits, and proceeds thereof
from whatever source derived, including,
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without limitation, any proceeds derived from the sale, exchange or liquidation
of such assets, and any funds or payments derived from any reinvestment of such
proceeds in whatever form the same may be, shall irrevocably be held separately
with respect to that Series for all purposes, subject only to the rights of
creditors of such Series, from the assets of the Trust and every other Series,
and shall be so recorded upon the books of account of the Trust. Such
consideration, assets, income, earnings, profits and proceeds thereof, from
whatever source derived, including, without limitation, any proceeds derived
from the sale, exchange or liquidation of such assets, and any funds or
payments derived from any reinvestment of such proceeds, in whatever form the
same may be, are herein referred to as "assets held with respect to" that
Series. In the event that there are any assets, income, earnings, profits and
proceeds thereof, funds or payments which are not readily identifiable as
assets held with respect to any particular Series (collectively "General
Assets"), the Trustees shall allocate such General Assets to, between or among
any one or more of the Series in such manner and on such basis as the Trustees,
in their sole discretion, deem fair and equitable, and any General Assets as
allocated to a particular Series shall be held with respect to that Series.
Each such allocation by the Trustees shall be conclusive and binding upon the
Shareholders of all Series for all purposes. Separate and distinct records
shall be maintained for each Series and the assets held with respect to each
Series shall be held and accounted for separately from the assets held with
respect to all other Series and General Assets of the Trust not allocated to
such Series.
(b) LIABILITIES HELD WITH RESPECT TO A PARTICULAR SERIES.
The assets of the Trust held with respect to each particular Series shall be
charged against the liabilities of the Trust held with respect to that Series
and all expenses, costs, charges and reserves attributable to that Series,
except that liabilities and expenses allocated solely to a particular Class
shall be borne by the Class, and any general liabilities of the Trust which are
not readily identifiable as being held with respect to any particular Series
(or Class) shall be allocated and charged by the Trustees to and among any one
or more of the Series (or Classes) in such manner and on such basis as the
Trustees in their sole discretion deem fair and equitable. The liabilities,
expenses, costs, charges, and reserves so charged to a Series (or Class) are
herein referred to as "liabilities held with respect to" that Series (or
Class). Any liabilities, debts, obligations, expenses, costs, charges and
reserves of the Trust that are not readily identifiable as being liabilities
held with respect to any particular Series (collectively "General Liabilities")
shall be allocated and charged by the Board of Trustees to and among any one or
more of the Series in such manner and on such basis as the Board of Trustees in
its sole discretion deems fair and equitable. Each allocation of liabilities,
expenses, costs, charges and reserves by the Trustees shall be conclusive and
binding upon the Shareholders of all Series (or Classes) for all purposes. All
Persons who have extended credit which has been allocated to a particular
Series (or Class), or who have a claim or contract which has been allocated to
any particular Series (or Class), shall look, and shall be required by contract
to look, exclusively to the assets of that particular Series (or Class) for
payment of such credit, claim, or contract. In the absence of an express
contractual agreement so limiting the claims of such creditors, claimants and
contract providers, each creditor, claimant and contract provider will be
deemed nevertheless to have impliedly agreed to such limitation unless an
express provision to the contrary has been incorporated in the written contract
or other document establishing the claimant relationship.
Subject to the right of the Board of Trustees in its
discretion to allocate General Liabilities as provided herein, the debts,
liabilities, obligations and expenses incurred, contracted for or otherwise
existing with respect to a particular Series (or Class), whether such Series
(or Class) is now authorized and existing pursuant to this Declaration of Trust
or is hereafter authorized and existing pursuant to this Declaration of Trust,
shall be enforceable against the assets held with respect to such particular
Series (or Class) only, and not against the assets of any other Series (or
Class) or the General Assets of the Trust and none of the General Liabilities
of the Trust or the debts, liabilities, obligations and expenses incurred,
contracted for or otherwise existing with respect to any other Series (or
Class) thereof shall be enforceable against the assets held with respect to
such particular Series (or Class). Notice of this limitation on liabilities
between and among Series (or Classes) is set forth in the Certificate of Trust,
and
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by giving such notice in the Certificate of Trust, the statutory provisions of
Section 3804 of the Delaware Act relating to limitations on liabilities between
and among Series (or Classes) (and the statutory effect under Section 3804 of
setting forth such notice in the Certificate of Trust) are applicable to the
Trust and each Series (or Class).
(c) DIVIDENDS, DISTRIBUTIONS, REDEMPTIONS, AND REPURCHASES.
Notwithstanding any other provisions of this Declaration of Trust, including,
without limitation, Article VI, no dividend or distribution including, without
limitation, any distribution paid upon termination of the Trust or paid on or
in respect to any Series (or Class), nor any redemption or repurchase of the
Shares of any Series (or Class), shall be effected by the Trust other than from
the assets held with respect to such Series (or Class), nor, except as
specifically provided in Section 8 of this Article III, shall any Shareholder
of any particular Series (or Class), otherwise have any right or claim against
the assets held with respect to any other Series (or Class) except to the
extent that such Shareholder has such a right or claim hereunder as a
Shareholder of such other Series (or Class). The Trustees shall have full
discretion, to the extent not inconsistent with the 1940 Act, to determine
which items shall be treated as income and which items as capital; and each
such determination and allocation shall be conclusive and binding upon the
Shareholders.
(d) VOTING. All Shares of the Trust entitled to vote on a
matter shall vote without differentiation between the separate Series or
Classes on a one vote per each Share (including fractional votes for fractional
shares) basis; provided, however, if a matter to be voted on affects only the
interests of some but not all Series or Classes of Shareholders or as otherwise
required by the 1940 Act, then only the Shareholders of such affected Series
(or Class(es)) shall be entitled to vote on the matter, separately by Series
and, if applicable, by Class, on the same one vote per each Share (including
fractional votes for fractional shares) basis.
(e) EQUALITY. All the Shares of each particular Series
shall represent an equal proportionate undivided interest in the assets held
with respect to that Series (subject to the liabilities held with respect to
that Series and such rights and preferences as may have been established and
designated with respect to Classes of Shares within such Series), and each
Share of any particular Series shall be equal to each Share of that Series.
With respect to any Class of a Series, each such Class shall represent
interests in the assets of that Series and have the same voting, dividend,
liquidation and other rights and terms and conditions as each other Class of
that Series, except that expenses allocated to a Class may be borne solely by
such Class as determined by the Trustees and a Class may have exclusive voting
rights with respect to matters affecting only that Class.
(f) FRACTIONS. Any fractional Share of a Series shall
carry proportionately all the rights and obligations of a whole Share of that
Series, including rights with respect to voting, receipt of dividends and
distributions, redemption of Shares and termination of the Trust.
(g) EXCHANGE AND CONVERSION PRIVILEGE. The Trustees shall
have the authority to provide that the holders of Shares of any Series or Class
shall have the right to exchange or convert their Shares for Shares of one or
more other Series of Shares or Class of Shares of the Trust in accordance with
such requirements and procedures as may be established by the Trustees.
(h) COMBINATION OF SERIES. The Trustees shall have the
authority, without the approval of the Shareholders of any Series or Class
unless otherwise required by applicable law, to combine the assets and
liabilities held with respect to any two or more Series or Classes into assets
and liabilities held with respect to a single Series or Class.
(i) DISSOLUTION OR TERMINATION OF A SERIES. Any particular
Series shall be dissolved upon the occurrence of the applicable dissolution
events set forth in Article VIII, Section 2. In addition,
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the Trustees shall have the authority, without the approval of Shareholders of
any Series, unless otherwise required by applicable law, to adopt a resolution
dissolving any such Series and rescinding the establishment and designation
thereof. In addition, the Trustees shall have the authority, without the
approval of Shareholders of any Class, unless otherwise required by applicable
law, to adopt a resolution terminating any such Class and rescinding the
establishment and designation thereof; provided, however, that upon the
dissolution of any particular Series, every Class of such Series shall thereby
be terminated. Each such resolution shall constitute a part of this Declaration
of Trust upon adoption.
SECTION 8. INDEMNIFICATION OF SHAREHOLDERS. If any Shareholder or
former Shareholder shall be exposed to liability by reason of a claim or demand
relating solely to his or her being or having been a Shareholder, and not
because of such Person's acts or omissions, the Shareholder or former
Shareholder (or, in the case of a natural person, his or her heirs, executors,
administrators, or other legal representatives or, in the case of a corporation
or other entity, its corporate or other general successor) shall be entitled to
be held harmless from, and indemnified, but only out of the assets held with
respect to the particular Series or Class of which such Person is or was a
Shareholder and from or in relation to which such liability arose, against all
loss and expense arising from such claim or demand; provided, however, that
there shall be no liability or obligation of the Trust, or any particular
Series, as the case may be, arising hereunder to reimburse any Shareholder for
taxes paid by reason of such Shareholder's ownership of any Shares. The Trust
may, upon request of a Shareholder or former Shareholder, assume the defense of
any action made against any Shareholder for any obligation of the Trust or any
Series and satisfy any judgment thereof.
ARTICLE IV
THE BOARD OF TRUSTEES
SECTION 1. NUMBER, ELECTION AND TENURE. The initial Trustee shall be
the person named herein. For the avoidance of doubt, such initial Trustee shall
constitute the initial Board of Trustees of the Trust and may exercise all
powers and authority granted to a Trustee and the Board of Trustees hereunder.
Thereafter, the number of Trustees constituting the initial Board of Trustees
shall be such other persons as the initial Trustee shall, prior to the first
date on which Persons are admitted as Shareholders of the Trust, appoint,
either by a written instrument signed by the initial Trustee or by resolution
approved at a duly constituted meeting. Thereafter, the number shall be fixed
from time to time by a written instrument signed, or by resolution approved at
a duly constituted meeting, by a majority of the Board of Trustees, provided,
however, that the number of Trustees shall in no event be less than three (3)
nor more than fifteen (15). The Board of Trustees, by action of a majority of
the then Trustees, may fill vacancies, including vacancies created by an
increase in the number of Trustees, in the Board of Trustees or remove Trustees
with or without cause. An appointment of a Trustee may be made by the Trustees
then in office in anticipation of a vacancy to occur by reason of death,
declination, resignation, retirement, removal, incapacity, 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 death,
declination, resignation, retirement, removal, incapacity, or increase in
number of Trustees. Subject to any retirement or similar policy adopted by the
Board of Trustees, each Trustee shall serve during the existence of the Trust
until he or she dies, resigns, is declared bankrupt or incompetent by a court
or appropriate jurisdiction, or is removed, or until the next meeting of
Shareholders called for the purpose of electing Trustees and until the election
and qualification of his or her successor. In the event that less than a
majority of the Trustees holding office have been elected by the Shareholders,
the Trustees then in office shall call a Shareholders' meeting for the election
of Trustees. Any Trustee may resign at any time by written instrument signed by
him or her and delivered to any officer of the Trust or to a meeting of the
Trustees. Such resignation shall be effective upon receipt, unless specified to
be effective at some other time. Any Trustee who requests in writing to be
retired or who has become mentally or physically incapacitated may be retired
by written
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instrument signed by a majority of the other Trustees, specifying the date of
his or her retirement. Except to the extent expressly provided in a written
agreement with the Trust, no Trustee resigning and no Trustee removed shall
have any right to any compensation or expense reimbursement for any period
following his or her resignation or removal, or any right to damages on account
of such removal. The Shareholders may elect or remove Trustees at any meeting
of Shareholders called by the Trustees for that purpose. A meeting of
Shareholders for the purpose of electing or removing one or more Trustees may
be called (i) by the Trustees upon their own vote, or (ii) upon the demand of
Shareholders owning 10% or more of the Shares of the Trust in the aggregate.
SECTION 2. EFFECT OF DEATH, RESIGNATION, ETC. OF A TRUSTEE. The
death, declination, resignation, retirement, removal, or incapacity of one or
more Trustees, or all of them, shall not operate to annul the Trust or any
Series or to revoke any existing agency created pursuant to the terms of this
Declaration of Trust. Whenever a vacancy in the Board of Trustees shall occur,
until such vacancy is filled as provided in this Declaration of Trust, or while
any Trustee is physically or mentally incapacitated, the Trustee(s) in office,
regardless of the number, shall have all the powers granted to the Board of
Trustees and shall discharge all the duties imposed upon the Board of Trustees
by this Declaration of Trust, and a certificate signed by a majority of the
other Trustee(s) (or an officer of the Trust under authority of the other
Trustees) of such vacancy, absence or incapacity, shall be conclusive. In the
event of the death, declination, resignation, retirement, removal, or
incapacity of all the then Trustees within a short period of time and without
the opportunity for at least one Trustee being able to appoint additional
Trustees to replace those no longer serving, the Trust's Investment Adviser is
empowered to appoint new Trustees subject to the provisions of the 1940 Act.
SECTION 3. POWERS. Subject to the provisions of this Declaration of
Trust, the business of the Trust shall be managed by the Board of Trustees, and
such Board shall have all powers necessary or convenient to carry out that
responsibility including the power to engage in securities transactions of all
kinds on behalf of the Trust. 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 administration of the Trust.
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, and not an action in an
individual capacity. Without limiting the foregoing, the Trustees may: (i)
adopt By-Laws not inconsistent with this Declaration of Trust providing for the
regulation and management of the affairs of the Trust and may amend and repeal
them to the extent that such By-Laws do not reserve that right to the
Shareholders; (ii) fill vacancies in or remove from its number in accordance
with this Declaration of Trust, and may elect and remove, with or without
cause, such officers and appoint and terminate such agents as they consider
appropriate; (iii) appoint from their own number and establish and terminate
one or more committees consisting of two or more Trustees which may exercise
the powers and authority of the Board of Trustees to the extent that the
Trustees determine; (iv) employ one or more custodians of the assets of the
Trust and may authorize such custodians to employ subcustodians and to deposit
all or any part of such assets in a system or systems for the central handling
of securities or with a Federal Reserve Bank, retain a transfer agent,
distribution disbursing agent, a shareholder servicing agent or administrative
services agent, or all of them; (v) employ auditors, counsel or other agents of
the Trust, subject to the conditions set forth in this Declaration of Trust or
in the By-Laws; (vi) provide for the issuance and distribution of Shares by the
Trust directly or through one or more Principal Underwriters or otherwise;
(vii) retain one or more Investment Advisers and authorize such Investment
Advisers to retain sub-advisers; (viii) redeem, repurchase and transfer Shares
pursuant to applicable law; (ix) set record dates for the determination of
Shareholders with respect to various matters; (x) declare and pay dividends and
distributions to Shareholders of each Series from the assets of such Series;
(xi) establish from time to time, in accordance with the provisions of Article
III, hereof, any Series (or Class) of Shares, each such Series (or Class) to
operate as a separate and distinct investment medium and with separately
defined
9
investment objectives and policies and distinct investment purpose; and (xii)
in general delegate such authority as they consider desirable to any officer of
the Trust, to any committee of the Trustees and to any agent or employee of the
Trust or to any such administrator, custodian, transfer or shareholder
servicing agent, Investment Adviser, sub-adviser or Principal Underwriter.
Without limiting the foregoing, the Board of Trustees shall have all the powers
granted to a board of directors under the 1940 Act. 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 Declaration of Trust, the
presumption shall be in favor of a grant of power to the Trustees. The powers
delegated to the Trustees in this Section 3 are without prejudice to the
delegated powers of the Trustees set forth in the other provisions of this
Declaration of Trust and the By-Laws. Unless otherwise specified herein or in
the By-Laws or required by law, any action by the Board of Trustees shall be
deemed effective if approved or taken by a majority of the Trustees then in
office, present at a meeting of Trustees at which a quorum of Trustees is
present, or a majority of any duly constituted committee of Trustees within or
without the State of Delaware. Any action required or permitted to be taken at
any meeting of the Board of Trustees, or any committee thereof, may be taken
without a meeting, without prior notice, if a majority of the Trustees or
committee (as the case may be) (or such larger proportion thereof as shall be
required by any express provision of this Declaration of Trust or the By-Laws)
consent thereto in writing (manually or electronically), and the writing or
writings are filed with the minutes of the proceedings of the Board of
Trustees, or committee, except as otherwise provided in the 1940 Act. Such
action by written consent shall have the same force and effect as a majority
vote at a meeting of the Board of Trustees, or committee thereof, as the case
may be.
The Trustees shall devote to the affairs of the Trust such time as
may be necessary for the proper performance of their duties hereunder, but the
Trustees are not expected to devote their full time to the performance of such
duties. The Trustees or any affiliate, partner or employee thereof, may engage
in, or possess an interest in, any other business or venture of any nature and
description, independently or with or for the account of others. Neither the
Trust nor any Shareholder shall have the right to participate or share in such
business or venture or any profit or compensation derived therefrom.
Without limiting the foregoing, the Trustees shall have the power and
authority to cause the Trust (or to act on behalf of the Trust):
(a) To invest and reinvest cash and other property, to hold
cash or other property uninvested, and to subscribe for, invest in, reinvest
in, purchase or otherwise acquire, own, hold, pledge, sell, assign, transfer,
exchange, distribute, write options on, lend or otherwise deal in or dispose of
or enter into contracts for the future acquisition or delivery of securities or
other instruments, and property of every nature and kind, including, without
limitation, all types of bonds, debentures, stocks, preferred stocks,
negotiable or non-negotiable instruments, loans, obligations, participations,
other evidences of indebtedness, certificates of deposit or indebtedness,
commercial paper, repurchase agreements, bankers acceptances, derivative
instruments and other securities or property of any kind, issued, created
guaranteed, or sponsored by any and all Persons, including, without limitation,
states, territories, and possessions of the United States and the District of
Columbia and any political subdivision, agency, or instrumentality thereof, any
foreign government or any political subdivision of the U.S. Government or any
foreign government, or any international instrumentality, or by any bank or
savings institution, or by any corporation or organization organized under the
laws of the United States or of any state, territory, or possession thereof, or
by any corporation or organization organized under any foreign law, or engage
in "when issued" contracts for any such securities, or such other instruments
or interests as the Trustees deem appropriate which are referred to as
securities or commodity interests under the federal securities and commodity
laws, or otherwise; to change the investments of the assets of the Trust; and
to exercise any and all rights, powers, and privileges of ownership or interest
in respect of any and all such investments of every kind and description,
including, without limitation, the right to consent and
10
otherwise act with respect thereto, with power to designate one or more
Persons, to exercise any of said rights, powers and privileges in respect of
any of said instruments, and to do any and all acts and things for the
preservation, protection, improvement and enhancement in value of any of such
securities and other instruments or property;
(b) To sell, exchange, lend, pledge, mortgage, hypothecate,
lease, or write options with respect to or otherwise deal in any property
rights relating to any or all of the assets of the Trust or any Series, subject
to any requirements of the 1940 Act;
(c) To vote or give assent, or exercise any rights of
ownership, with respect to stock or other securities or property; and to
execute and deliver proxies or powers of attorney to such Person or Persons as
the Trustees shall deem proper, granting to such Person or Persons such power
and discretion with relation to securities or property as the Trustees shall
deem proper;
(d) To exercise powers and right of subscription or
otherwise which in any manner arise out of ownership of securities or other
property;
(e) To hold any security or property in a form not
indicating that it is Trust Property, whether in bearer, unregistered or other
negotiable form, or in its own name or in the name of a custodian or
subcustodian or a nominee or nominees or otherwise or to authorize the
custodian or a subcustodian or a nominee or nominees to deposit the same in a
securities depository;
(f) To consent to, or participate in, any plan for the
reorganization, consolidation or merger of any corporation or issuer of any
security or property of which is held in the Trust; to consent to any contract,
lease, mortgage, purchase or sale of property by such corporation or issuer;
and to pay calls or subscriptions with respect to any security held in the
Trust;
(g) To join with other security holders in acting through a
committee, depositary, voting trust or otherwise, and in that connection to
deposit any security with, or transfer any security to, any such committee,
depositary or voting trust, 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 voting trust
as the Trustees shall deem proper;
(h) To litigate, compromise, arbitrate, settle or otherwise
adjust claims in favor of or against the Trust or a Series, or any matter in
controversy, including, but not limited to, claims for taxes;
(i) To enter into joint ventures, general or limited
partnerships and any other combinations or associations;
(j) To borrow funds or other property in the name of the
Trust or Series exclusively for Trust purposes;
(k) To endorse or guarantee the payment of any notes or
other obligations of any Person; to make contracts of guaranty or suretyship,
or otherwise assume liability for payment thereof and to mortgage and pledge
the Trust Property or any part thereof to secure any of or all such
obligations;
(l) To purchase and pay for entirely out of Trust Property
such insurance as the Trustees may deem necessary or appropriate for the
conduct of the Trust's business, including, without limitation, insurance
policies insuring the assets of the Trust or payment of distributions and
principal on its portfolio investments, and insurance policies insuring the
Shareholders, Trustees, officers, employees,
11
agents, administrators, 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, administrator, 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;
(m) To authorize the Trust to indemnify any Person with
whom the Trust has dealings, including, without limitation, any investment
adviser or sub-adviser, distributor, administrator or sub-administrator,
custodian or sub-custodian, transfer agent or sub-transfer agent, selected
dealers, other agents or independent contractors, to such extent as the
Trustees shall determine;
(n) To adopt, establish and carry out pension,
profit-sharing, share bonus, share purchase, savings, thrift and other
retirement, incentive and benefit plans, trusts and provisions, including the
purchasing of life insurance and annuity contracts as a means of providing such
retirement and other benefits, for any or all of the Trustees, officers,
employees and agents of the Trust;
(o) To employ one or more banks, trust companies or
companies that are members of a national securities exchange or such other
entities as the Commission may permit as custodians of any assets of the Trust
subject to any conditions set forth in this Declaration of Trust or in the
By-Laws;
(p) To interpret the investment policies, practices or
limitations of any Series or Class;
(q) 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 securities issued by one or more other investment companies
registered under the 1940 Act (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) all without any requirement of approval by
Shareholders unless required by the 1940 Act. Any such other investment company
may (but need not) be a trust (formed under the laws of the State of Delaware or
of any other state) which is classified as a partnership for federal income tax
purposes;
(r) To select brokers, dealers, futures commission
merchants, banks or any agents or other entities, as appropriate, with which to
effect transactions in securities and other instruments or investments
including, but not limited to, stocks, bonds, currencies, futures, forwards,
swaps and other instruments, including money market instruments;
(s) To execute and enter into brokerage contracts, risk
disclosure and other agreements reasonable, necessary or convenient in order to
transact in the foregoing instruments;
(t) To appoint one or more Advisory Board members to serve
the role provided for in Section 2(a)(1) of the 1940 Act and to cause the Trust
to pay compensation to such persons for serving in such capacity; and
(u) To engage in any other lawful act or activity in which
corporations organized as Delaware statutory trusts may engage.
The Trust shall not be limited to investing in obligations maturing
before the possible termination of the Trust or one or more of its Series. The
Trust shall not in any way be bound or limited by any
12
present or future law or custom in regard to investment by fiduciaries. The
Trust shall not be required to obtain any court order to deal with any assets
of the Trust or take any other action hereunder.
The foregoing clauses shall each be construed as purposes, objects
and powers, and it is hereby expressly provided that the foregoing enumeration
of specific purposes, objects and powers shall not be held to limit or restrict
in any manner the powers of the Trust, and that they are in furtherance of, and
in addition to, and not in limitation of, the general powers conferred upon the
Trust by the Delaware Act and the other laws of the State of Delaware or
otherwise; nor shall the enumeration of one thing be deemed to exclude another,
although it be of like nature, not expressed.
SECTION 4. PAYMENT OF EXPENSES BY THE TRUST. The Trustees are
authorized to pay or cause to be paid out of the principal or income of the
Trust or any Series (or Class), or partly out of the principal and partly out
of the income, and to charge or allocate the same to, between or among such one
or more of the Series (or Classes) that may be established or designated
pursuant to Article III, as they deem fair, all expenses, fees, charges, taxes
and liabilities incurred or arising in connection with the Trust or Series (or
Class), or in connection with the management thereof, including, but not
limited to, the Trustees' compensation and such expenses and charges for the
services of the Trust's officers, employees, Investment Advisers, Principal
Underwriter, auditors, counsel, custodian, transfer agent, shareholder
servicing agent, and such other agents or independent contractors and such
other expenses and charges as the Trustees may deem necessary or proper to
incur.
SECTION 5. 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, to pay directly, in advance or
arrears, for charges of the Trust's custodian or transfer agent, 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.
SECTION 6. OWNERSHIP OF ASSETS OF THE TRUST. Title to all of the
assets of the Trust shall at all times be considered as vested in the Trust,
except that the Trustees shall have power to cause legal title to any Trust
Property to be held by or in the name of one or more of the Trustees, or in the
name of the Trust, or in the name of any other Person as nominee, on such terms
as the Trustees may determine. The right, title and interest of the Trustees in
the Trust Property shall vest automatically in each Person who may hereafter
become a Trustee. Upon the resignation, removal or death of a Trustee he or she
shall automatically cease to have any right, title or interest in any of the
Trust Property, and the right, title and interest of such Trustee in the Trust
Property shall vest automatically in the remaining Trustees. Such vesting and
cessation of right, title and interest shall be effective whether or not
conveyancing documents have been executed and delivered. No Shareholder shall
be deemed to have a severable ownership in any individual asset of the Trust or
any right of partition or possession thereof, but each Shareholder shall have a
proportionate undivided beneficial ownership in the Trust or Series.
SECTION 7. SERVICE CONTRACTS.
(a) Subject to such requirements and restrictions as may be
set forth in the By-Laws, the Trustees may, at any time and from time to time,
contract for exclusive or nonexclusive advisory (and sub-advisory), management
and/or administrative services for the Trust or for any Series with any Person,
including any affiliate, and any such contract may contain such other terms as
the Trustees may determine, including without limitation, authority for an
Investment Adviser to determine from time to time without prior consultation
with the Trustees what investments shall be purchased or otherwise acquired,
owned, held, invested or reinvested in, sold, exchanged, transferred,
mortgaged, pledged,
13
assigned, negotiated, or otherwise dealt with or disposed of, and what portion,
if any, of the Trust Property shall be held uninvested and to make changes in
the Trust's or a particular Series' investments, or such other activities as
may specifically be delegated to such Person.
(b) The Trustees may also, at any time and from time to
time, contract with any Persons, including any affiliate, appointing such
Person(s) exclusive or nonexclusive distributor or Principal Underwriter for
the Shares of one or more of the Series (or Classes) or other securities to be
issued by the Trust. Every such contract shall comply with such requirements
and restrictions as may be set forth in the By-Laws; and any such contract may
contain such other terms as the Trustees may determine.
(c) The Trustees are also empowered, at any time and from
time to time, to contract with any Persons appointing such Person(s), including
any affiliate, to serve as custodians, transfer agents and/or shareholder
servicing agents or other agents for the Trust or one or more of its Series or
Classes. Every such contract shall comply with such requirements and
restrictions as may be set forth in the By-Laws or stipulated by resolution of
the Trustees.
(d) The Trustees are further empowered, at any time and
from time to time, to contract with any Persons, including any affiliate, to
provide such other services to the Trust or one or more of the Series, as the
Trustees determine to be in the best interests of the Trust and the applicable
Series. The authority of the Trustees hereunder to authorize the Trust to enter
into contracts or other agreements or arrangements shall include the authority
of the Trustees to modify, amend, waive any provision of, supplement, assign
all or a portion of, novate, or terminate such contracts, agreements or
arrangements. The enumeration of any specific contracts in this Section shall
in no way be deemed to limit the power and authority of the Trustees as set
forth in Article IV hereof to authorize the Trust to employ, contract with or
make payments to such Persons as the Trustees may deem desirable for the
transaction of the business of the Trust.
(e) The fact that:
(i) any of the Shareholders, Trustees, or officers
of the Trust is a shareholder, director, officer,
partner, trustee, employee, manager, Investment
Adviser, Principal Underwriter, distributor, or
affiliate or agent of or for any corporation,
trust, association, or other organization or for
any parent or affiliate of any organization with
which an advisory, management or administration
contract, or Principal Underwriter's or
distributor's contract, or transfer agent,
shareholder servicing agent or other type of
service contract may have been or may hereafter be
made, or that any such organization, or any parent
or affiliate thereof, is a Shareholder or has an
interest in the Trust, or that
(ii) any Person with which an advisory, management
or administration contract or Principal
Underwriter's or distributor's contract, or
transfer agent, shareholder servicing agent or
other type of service contract may have been or
may hereafter be made also has an advisory,
management or administration contract, or
Principal Underwriter's or distributor's contract,
or transfer agent, shareholder servicing agent or
other service contract or has other business or
interests with any other Person
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
14
accountability to the Trust or its Shareholders, provided approval of each such
contract is made pursuant to the requirements of the 1940 Act.
SECTION 8. EFFECT OF APPOINTMENT, DESIGNATION OR IDENTIFICATION OF
TRUSTEES. The appointment, designation or identification (including in any
proxy or registration statement or other document) of a Trustee as chair of the
Trustees, a member or chair of a committee of the Trustees, an expert on any
topic or in any area (including an audit committee financial expert), or the
lead independent Trustee or as having experience, attributes or skills in any
area, or any other appointment, designation or identification of a Trustee,
shall not impose on that person any standard of care or liability that is
greater than that imposed on that person as a Trustee in the absence of the
appointment, designation or identification, and no Trustee who has special
attributes, skills, experience or expertise, or is appointed, designated or
identified as aforesaid, shall be held to a higher standard of care by virtue
thereof. In addition, no appointment, designation or identification of a
Trustee as aforesaid shall affect in any way that Trustee's rights or
entitlement to indemnification or advancement of expenses.
ARTICLE V
SHAREHOLDERS' VOTING POWERS AND MEETINGS
SECTION 1. VOTING POWERS. Subject to the provisions of Article III,
Section 7(d), Shareholders shall have power to vote only (i) for the election
or removal of Trustees as provided in Article IV, Section 1, and (ii) with
respect to such additional matters relating to the Trust as may be required by
this Declaration of Trust, the By-Laws, the 1940 Act or any registration
statement of the Trust filed with the Commission (or any successor agency) or
any state, or as the Trustees may consider necessary or desirable. 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 as to any matter on which it is entitled to vote. To the extent that the
1940 Act or Delaware law is amended by rule, regulation, order, or no-action
letter to eliminate or limit Shareholders' right to vote on any specific
matter, the Shareholders' right to vote shall be deemed to be amended, modified
or interpreted in accordance therewith without further approval by the Trustees
or the Shareholders. Shares may be voted in person or by proxy or by any manner
authorized by the Trustees. Unless the Trustees declare otherwise, proxies may
be given by any electronic or telecommunications device, including telefax,
telephone or through the Internet or any other means permissible under the
Delaware Act, 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 unless the Trustees specifically authorize other permissible
methods of transmission. Until Shares of a Series are issued, the Trustees may
exercise all of the rights of the Shareholders of such Series with respect to
the Trust or such particular Series required or permitted by law or this
Declaration of Trust and the By-Laws to be taken by Shareholders. A proxy with
respect to Shares held in the name of two or more persons shall be valid if
executed by any one of them unless at or prior to exercise of the proxy the
Trust receives a specific written notice to the contrary from any one of them.
A proxy purporting to be executed by or on behalf of a Shareholder shall be
deemed valid unless challenged at or prior to its exercise and the burden of
proving invalidity shall rest on the challenger.
SECTION 2. ADDITIONAL PROVISIONS. The By-Laws may include further
provisions for Shareholders' votes and meetings and related matters.
15
ARTICLE VI
NET ASSET VALUE, DISTRIBUTIONS, AND REDEMPTIONS
SECTION 1. DETERMINATION OF NET ASSET VALUE, NET INCOME, AND
DISTRIBUTIONS. Subject to Article III, Section 7 hereof, the Trustees, in their
absolute discretion, may prescribe and shall set forth in the By-Laws or in a
duly adopted vote of the Trustees such bases and time for determining the per
Share or net asset value of the Shares of any Series (or Class) or net income
attributable to the Shares of any Series (or Class), or the declaration and
payment of dividends and distributions on the Shares of any Series (or Class),
as they may deem necessary or desirable.
SECTION 2. REDEMPTIONS AND REPURCHASES. The Trust shall purchase such
Shares as are offered by any Shareholder for redemption, upon the presentation
of a proper instrument of transfer together with a request in proper form
directed to the Trust or a Person designated by the Trust that the Trust
purchase such Shares or in accordance with such other procedures for redemption
as the Trustees may from time to time authorize; and the Trust will pay
therefor the net asset value thereof, in accordance with the By-Laws and
applicable law. Payment for said Shares shall be made by the Trust to the
Shareholder within seven days after the date on which the request is made in
proper form. The obligation set forth in this Section 2 is subject to the
provision that in the event that any time the New York Stock Exchange (the
"Exchange") is closed for other than weekends or holidays, or if permitted by
the Commission during periods when trading on the Exchange is restricted or
during any emergency which makes it impracticable for the Trust to dispose of
the investments of the applicable Series or to determine fairly the value of
the net assets held with respect to such Series or during any other period
permitted by order of the Commission for the protection of investors, such
obligations may be suspended or postponed by the Trustees.
The redemption price may in any case or cases be paid wholly or
partly in kind if the Trustees determine that such payment is advisable in the
interest of the remaining Shareholders of the Series for which the Shares are
being redeemed. Subject to the foregoing, the fair value, selection and
quantity of securities or other property so paid or delivered as all or part of
the redemption price may be determined by or under authority of the Trustees.
In no case shall the Trust be liable for any delay of any corporation or other
Person in transferring securities selected for delivery as all or part of any
payment in kind.
SECTION 3. REDEMPTIONS AT THE OPTION OF THE TRUST. The Trustees may
require Shareholders to redeem Shares for any reason under terms set by the
Trustees, including, but not limited to: (i) 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 Code; (ii) the failure of a
Shareholder to supply a tax identification number if required to do so, or to
have the minimum investment required (which may vary by Series or Class); (iii)
the Shareholder's account balance, due to redemptions, falls below the minimum
investment amount as described in the applicable Series' prospectus; (iv) the
failure of a Shareholder to pay when due for the purchase of Shares issued to
him; (v) in connection with the termination of any Series or Class of Shares;
(vi) the determination by the Trustees that redemption is appropriate or
necessary to prevent harm to the Trust or its Shareholders and such redemption
is permitted under applicable law; or (vii) the failure by a Shareholder to
disclose to the Trustees in writing such information with respect to the direct
and indirect ownership of Shares and the beneficial owner(s) thereof as the
Trustees may deem necessary to comply with the provisions of the Code, or to
comply with the requirements of any governmental authority or applicable law or
regulation. Any such redemption shall be effected at the redemption price and
in the manner provided in this Article VI.
16
ARTICLE VII
COMPENSATION AND LIMITATION OF LIABILITY OF TRUSTEES
SECTION 1. COMPENSATION. The Trustees as such shall be entitled to
reasonable compensation from the Trust, and they may fix the amount of such
compensation from time to time. However, the Trust will not compensate those
Trustees who are otherwise compensated by the Investment Adviser, any
sub-adviser or the Principal Underwriter or any of their affiliates under the
terms of any contract between the Trust and the Investment Adviser, any
sub-adviser or the Principal Underwriter, as applicable. Nothing herein shall
in any way prevent the employment of any Trustee to provide investment
advisory, management, legal, accounting, investment banking or other services
and to be compensated for such services by the Trust.
SECTION 2. INDEMNIFICATION AND LIMITATION OF LIABILITY.
(a) A Trustee, when acting in such capacity, shall not be
personally liable to any person other than the Trust or a beneficial owner for
any act, omission or obligation of the Trust or any Trustee all as contemplated
by Section 3803(b) of the Delaware Act. A Trustee shall not be liable for any
act or omission or any conduct whatsoever in his capacity as Trustee, including
for errors of judgment or mistakes of fact or law, provided that nothing
contained herein or in the Delaware Act shall protect any Trustee 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 hereunder. No Trustee who has been determined to be an "audit
committee financial expert" (for purposes of Section 407 of the ▇▇▇▇▇▇▇▇-▇▇▇▇▇
Act of 2002 or any successor provision thereto) by the Trustees shall be
subject to any greater liability or duty of care in discharging such Trustee's
duties and responsibilities by virtue of such determination than is any Trustee
who has not been so designated.
The Trust shall indemnify each Person who is, or has been,
a Trustee, officer, employee or agent of the Trust, any Person who is serving
or has served at the Trust's request as a trustee, director, officer, employee
or agent of another Person (including, but not limited to, a wholly-owned
subsidiary) in which the Trust or a Series has any interest as a shareholder,
creditor or otherwise to the fullest extent permitted by law and in the manner
provided in the By-Laws.
(b) The officers, employees, Advisory Board members and
agents of the Trust shall be entitled to the protection against personal
liability for the obligations of the Trust under Section 3803(c) of the
Delaware Act. No officer, employee, Advisory Board member or agent of the Trust
shall be liable to the Trust, its Shareholders, or to any Trustee, officer,
employee, or agent thereof for any action or failure to act (including, without
limitation, the failure to compel in any way any former or acting Trustee to
redress any breach of trust) except for his own bad faith, willful misconduct,
gross negligence or reckless disregard of his duties.
SECTION 3. FIDUCIARY DUTY.
(a) To the extent that, at law or in equity, a Trustee or
officer of the Trust (each a "Fiduciary Covered Person") has duties (including
fiduciary duties) and liabilities relating thereto to the Trust, the
Shareholders or to any other Person, a Fiduciary Covered Person acting under
this Declaration of Trust shall not be liable to the Trust, the Shareholders or
to any other Person for its good faith reliance on the provisions of this
Declaration of Trust. The provisions of this Declaration of Trust, to the
extent that they restrict or eliminate the duties (including fiduciary duties)
and liabilities of Fiduciary Covered Persons otherwise existing at law or in
equity, are agreed by the parties hereto to replace such other duties
(including fiduciary duties) and liabilities of such Fiduciary Covered Persons.
To the fullest extent permitted by law, no Person other than a Trustee or
officer of the Trust shall have any fiduciary duties (or liability therefor) to
the Trust or any Shareholder.
17
(b) Unless otherwise expressly provided herein:
(i) whenever a conflict of interest exists or
arises between any Fiduciary Covered Person or any
of its affiliates, on the one hand, and the Trust
or any Shareholders or any other Person, on the
other hand; or
(ii) whenever this Declaration of Trust or any
other agreement contemplated herein or therein
provides that a Fiduciary Covered Person shall act
in a manner that is, or provides terms that are,
fair and reasonable to the Trust, any Shareholders
or any other Person, a Fiduciary Covered Person
shall resolve such conflict of interest, take such
action or provide such terms, considering in each
case the relative interest of each party
(including its own interest) to such conflict,
agreement, transaction or situation and the
benefits and burdens relating to such interests,
any customary or accepted industry practices, and
any applicable generally accepted accounting
practices or principles. In the absence of bad
faith by a Fiduciary Covered Person, the
resolution, action or terms so made, taken or
provided by a Fiduciary Covered Person shall not
constitute a breach of this Declaration of Trust
or any other agreement contemplated herein or of
any duty or obligation of a Fiduciary Covered
Person at law or in equity or otherwise.
(c) To the fullest extent permitted by law and
notwithstanding any other provision of this Declaration of Trust or in any
agreement contemplated herein or applicable provisions of law or equity or
otherwise, whenever in this Declaration of Trust Fiduciary Covered Persons are
permitted or required to make a decision (i) in their "sole discretion" or
"discretion" or under a grant of similar authority or latitude, the Fiduciary
Covered Persons shall be entitled to consider only such interests and factors
as they desire, including their own interests, and shall have no duty or
obligation to give any consideration to any interest of or factors affecting
the Trust, the Shareholders or any other Person; or (ii) in its "good faith" or
under another express standard, the Fiduciary Covered Persons shall act under
such express standard and shall not be subject to any other or different
standard. The term "good faith" as used in this Declaration of Trust shall mean
subjective good faith as such term is understood and interpreted under Delaware
law.
(d) Any Fiduciary Covered Person and any affiliate of any
Fiduciary Covered Person may engage in or possess an interest in other
profit-seeking or business ventures of any nature or description, independently
or with others, whether or not such ventures are competitive with the Trust and
the doctrine of corporate opportunity, or any analogous doctrine, shall not
apply to any Fiduciary Covered Person. No Fiduciary Covered Person who
acquires knowledge of a potential transaction, agreement, arrangement or other
matter that may be an opportunity for the Trust shall have any duty to
communicate or offer such opportunity to the Trust, and such Fiduciary Covered
Person shall not be liable to the Trust or to the Shareholders for breach of
any fiduciary or other duty by reason of the fact that such Fiduciary Covered
Person pursues or acquires for, or directs such opportunity to another Person
or does not communicate such opportunity or information to the Trust. Neither
the Trust nor any Shareholders shall have any rights or obligations by virtue
of this Declaration of Trust or the trust relationship created hereby in or to
such independent ventures or the income or profits or losses derived therefrom,
and the pursuit of such ventures, even if competitive with the activities of
the Trust, shall not be deemed wrongful or improper. Any Fiduciary Covered
Person may engage or be interested in any financial or other transaction with
the Trust, the Shareholders or any affiliate of the Trust or the Shareholders.
SECTION 4. TRUSTEE'S GOOD FAITH ACTION, EXPERT ADVICE, NO BOND OR
SURETY. To the fullest extent permitted by law, the exercise by the Trustees of
their powers and discretions hereunder in good faith,
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shall be binding upon everyone interested. To the fullest extent permitted by
law, each Trustee, officer or employee of the Trust shall, in the performance
of his or her duties, powers and discretions 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, upon an opinion of counsel, or upon reports made to the Trust thereof by
any of its officers or employees or by the Investment Adviser, the
administrator, the Principal Underwriter, transfer agent, custodian, 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 expert may also be a Trustee. The officers and
Trustees may take advice of counsel or other experts with respect to the
meaning and operation of this Declaration of Trust and the By-Laws and their
duties as officers or Trustees, and shall be under no liability for any act or
omission in accordance with such advice and no inference concerning liability
shall arise from a failure to follow such advice. The Trustees shall not be
required to give any bond as such, nor any surety if a bond is required.
SECTION 5. INSURANCE. The Trustees shall be entitled and empowered
to the fullest extent permitted by law to purchase with Trust Property
insurance for liability and for all expenses reasonably incurred or paid or
expected to be paid by a Trustee, officer or agent of the Trust in connection
with any claim, action, suit or proceeding in which he or she may become
involved by virtue of his or her capacity or former capacity as a Trustee,
officer or agent of the Trust, whether or not the Trust would have the power to
indemnify him or her against such liability or expenses under the provisions of
this Declaration of Trust. For purposes of this Section 5, "agent" means any
Person who is, was or becomes an employee or other agent of the Trust who is
not a Covered Person.
SECTION 6. NOT EXPERTS. The appointment, designation or
identification (including in any proxy or registration statement or other
document) of a Trustee as Chairman of the Trustees, a member or chair of a
committee of the Trustees, an expert on any topic or in any area (including an
audit committee financial expert for purposes of Section 407 of the
▇▇▇▇▇▇▇▇-▇▇▇▇▇ Act of 2002 or any successor provision thereto), or the lead
independent Trustee, or as having experience, attributes or skills in any area,
or any other appointment, designation or identification of a Trustee, shall not
impose on that Person any standard or liability that is greater than that
imposed pursuant to this Article VII on that Person as a Trustee in the absence
of the appointment, designation or identification, and no Trustee who has
special attributes, skills, experience or expertise, or is appointed,
designated or identified as aforesaid, shall be held to a higher standard by
virtue thereof. In addition, no appointment, designation or identification of a
Trustee as aforesaid shall affect in any way that Trustee's rights or
entitlement to exculpation, indemnification or advancement of expenses.
ARTICLE VIII
MISCELLANEOUS
SECTION 1. LIABILITY OF THIRD PERSONS DEALING WITH TRUSTEES. No
Person dealing with the Trustees shall be bound to make any inquiry concerning
the validity of any transaction made or to be made by the Trustees or to see to
the application of any payments made or property transferred to the Trust or
upon its order.
SECTION 2. TERMINATION OF TRUST OR SERIES.
(a) Unless terminated as provided herein, the Trust shall
continue without limitation of time. The Trust may be terminated at any time by
vote of a majority of the Shares of each Series entitled to vote, voting
separately by Series, or by the Trustees by written notice to the Shareholders.
Any
19
Series or Class may be terminated at any time by vote of a majority of the
Shares of that Series or Class entitled to vote, or by the Trustees by written
notice to the Shareholders of that Series or Class.
(b) Upon the requisite Shareholder vote or action by the
Trustees to terminate the Trust or any one or more Series of Shares or any
Class thereof, after paying or otherwise providing for all charges, taxes,
expenses and liabilities, whether due or accrued or anticipated, of the Trust
or of the particular Series or any Class thereof as may be determined by the
Trustees, the Trust shall, in accordance with such procedures as the Trustees
consider appropriate, reduce the remaining assets of the Trust or of the
affected Series or Class to distributable form in cash or Shares (if any Series
remain) or other securities, or any combination thereof, and distribute the
proceeds to the Shareholders of the Series or Classes involved, ratably
according to the number of Shares of such Series or Class held by the several
Shareholders of such Series or Class on the date of distribution. Thereupon,
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
relating thereto or arising therefrom, and the right, title and interest of all
parties with respect to the Trust or such Series or Class shall be canceled and
discharged.
(c) 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 3. MERGER, CONSOLIDATION AND REORGANIZATION.
(a) Notwithstanding anything else herein, the Trustees may,
without Shareholder vote or approval unless such approval or vote is required
by applicable federal and state law, (i) cause the Trust to convert or merge,
reorganize or consolidate with or into one or more trusts, partnerships,
limited liability companies, associations, corporations or other business
entities (or a segregated portfolio of assets ("series") of any of the
foregoing to the extent permitted by law) (including trusts, partnerships,
limited liability companies, associations, corporations or other business
entities created by the Trustees to accomplish such conversion, merger,
reorganization or consolidation) so long as the surviving or resulting entity
is an open-end management investment company under the 1940 Act, or is a series
thereof, to the extent permitted by law, and that, in the case of any trust,
partnership, limited liability company, association, corporation or other
business entity created by the Trustees to accomplish such conversion, merger,
reorganization or consolidation, may succeed to or assume the Trust's
registration under the 1940 Act and that, in any case, is formed, organized or
existing under the laws of the United States or of a state, commonwealth,
possession or territory of the United States, (ii) cause the Shares to be
exchanged under or pursuant to any state or federal statute to the extent
permitted by law, (iii) cause the Trust to incorporate or reorganize as a
corporation, limited liability company or limited liability partnership under
the laws of Delaware or any other state, commonwealth, possession or territory
of the United States, (iv) sell or convey all or substantially all of the
assets of the Trust or any Series or Class to another Series or Class of the
Trust or to another trust, partnership, limited liability company, association,
corporation or other business entity (or a series of any of the foregoing to
the extent permitted by law) (including a trust, partnership, limited liability
company, association, corporation or other business entity created by the
Trustees to accomplish such sale and conveyance), organized under the laws of
the United States or of any state, commonwealth, possession or territory of the
United States so long as such trust, partnership, limited liability company,
association, corporation or other business entity is an open-end management
investment company under the 1940 Act and, in the case of any trust,
partnership, limited liability company, association, corporation or other
business entity created by the Trustees to accomplish such sale and conveyance,
may succeed to or assume the Trust's registration under the 1940 Act, for
adequate consideration as determined by the Trustees 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 such other Series or Class of the Trust or shares of
beneficial interest,
20
stock or other ownership interest of such trust, partnership, limited liability
company, association, corporation or other business entity (or series thereof)
or (v) at any time sell or convert into money all or any part of the assets of
the Trust or any Series or Class thereof. Any agreement of merger,
reorganization, consolidation or conversion or exchange or certificate of
merger, certificate of conversion or other applicable certificate may be signed
by a majority of the Trustees and facsimile signatures conveyed by electronic
or telecommunication means shall be valid.
(b) 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 Declaration of Trust, an agreement of merger or
consolidation approved by the Trustees in accordance with this Section 3 may
effect any amendment to this Declaration of Trust or effect the adoption of a
new governing instrument of the Trust if the Trust is the surviving or
resulting entity in the merger or consolidation.
(c) The approval of the Trustees shall be sufficient to
cause the Trust, or any Series thereof, to sell and convey all or substantially
all of the assets of the Trust or any affected Series to another Series of the
Trust or to another entity to the extent permitted under the 1940 Act, 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, and which may include Shares or interests in such other
Series of the Trust or other entity or series thereof.
(d) Notwithstanding anything else herein, the Trustees may,
without Shareholder vote or approval unless such approval or vote is required
by applicable federal and state 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 registered under the 1940 Act. Any such
other investment company may (but need not) be a trust (formed under the laws
of the State of Delaware or any other state or jurisdiction) (or subtrust
thereof) which is classified as a partnership for federal income tax purposes.
SECTION 4. AMENDMENTS. Except as specifically provided herein, the
Trustees, without Shareholder vote, may amend or otherwise supplement this
Declaration of Trust by making an amendment, a Declaration of Trust
supplemental hereto, or an amended and restated Declaration of Trust. Any such
restatement, amendment and/or supplement hereto shall be effective immediately
upon execution and approval. Shareholders shall have the right to vote (i) on
any amendment which would affect their right to vote granted in Section 1 of
Article V hereof, (ii) on any amendment to this Section 4 of Article VIII,
(iii) on any amendment as may be required by law, and (iv) on any amendment
submitted to the Shareholders 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 Class) 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, no amendment hereof shall limit the
rights to insurance provided by Article VII, Section 5 hereof with respect to
any acts or omissions of Persons covered thereby prior to such amendment nor
shall any such amendment limit the rights to indemnification referenced in
Article VII, Section 2 hereof with respect to any acts or omissions of Persons
covered thereby prior to such amendment. The Trustees may, without Shareholder
vote, restate, amend, or otherwise supplement the Certificate of Trust as they
deem necessary or desirable, any such restatement, amendment and/or supplement
shall be effective immediately upon filing with the Office of the Secretary of
State of the State of Delaware or upon such future date as may be stated
therein.
SECTION 5. FILING OF COPIES, REFERENCES, HEADINGS. The original or a
copy of this Declaration of Trust and of each restatement and/or amendment
hereto shall be kept at the office of the Trust where it may be inspected by
any Shareholder. Anyone dealing with the Trust may rely on a certificate by an
21
officer of the Trust as to whether or not any such restatements and/or
amendments have been made and as to any matters in connection with the Trust
hereunder; and, with the same effect as if it were the original, may rely on a
copy certified by an officer of the Trust to be a copy of this Declaration of
Trust or of any such restatements and/or amendments. Headings are placed herein
for convenience of reference only and shall not be taken as a part hereof or
control or affect the meaning, construction or effect of this instrument.
Whenever the singular number is used herein, the same shall include the plural;
and the neuter, masculine and feminine genders shall include each other, as
applicable. This instrument may be executed in any number of counterparts each
of which shall be deemed an original.
SECTION 6. APPLICABLE LAW.
(a) The Trust set forth in this Declaration of Trust is
made in the State of Delaware, and the Trust and this Declaration of Trust, 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 the State of Delaware. The Trust shall be of the type commonly
called a statutory trust, and without limiting the provisions hereof, the Trust
specifically reserves the right to exercise any of the powers or privileges
afforded to statutory trusts or actions that may be engaged in by statutory
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.
(b) Notwithstanding the first sentence of Section 6(a) of
this Article VIII, there shall not be applicable to the Trust, the Trustees, or
this Declaration of Trust either the provisions of Section 3540 of Title 12 of
the Delaware Code or 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 a court or other
governmental approval concerning the acquisition, holding, or disposition of
real or personal property; (iv) fees or other sums applicable 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 or liabilities or
authorities and powers of trustees that are inconsistent with the limitations
or liabilities or authorities and powers of the Trustees set forth or
referenced in this Declaration of Trust.
SECTION 7. DERIVATIVE ACTIONS.
(a) To the fullest extent permitted by law, Shareholders of the Trust
or any Series may not bring a derivative action to enforce the right of the
Trust or an affected Series or Class, as applicable, unless each of the
following conditions is met:
(i) Each complaining Shareholder was a Shareholder of the Trust or
the affected Series or Class, as applicable, at the time of the action or
failure to act complained of, or acquired the Shares afterwards by operation of
law from a Person who was a Shareholder at that time;
(ii) Each complaining Shareholder was a Shareholder of the Trust or
the affected Series or Class, as applicable, as of the time the demand required
by subparagraph (iii) below was made;
(iii) Prior to the commencement of such derivative action, the
complaining Shareholders have made a written demand to the Board of Trustees
requesting that they cause the
22
Trust or affected Series or Class, as applicable, to file the action itself.
In order to warrant consideration, any such written demand must include at
least the following:
(1) a detailed description of the action or failure to act
complained of and the facts upon which each such allegation
is made;
(2) a statement to the effect that the complaining
Shareholders believe that they will fairly and adequately
represent the interests of similarly situated Shareholders
in enforcing the right of the Trust or the affected Series
or Class, as applicable, and an explanation of why the
complaining Shareholders believe that to be the case;
(3) a certification that the requirements of sub-paragraphs
(i) and (ii) above have been met, as well as information
reasonably designed to allow the Trustees to verify that
certification; and
(4) a certification that each complaining Shareholder will
be a Shareholder of the Trust or the affected Series or
Class, as applicable, as of the commencement of the
derivative action; and
(iv) A copy of the derivative complaint must be served on the Trust,
assuming the requirements of sub-paragraphs (i)-(iv) above have already been met
and the derivative action has not been barred in accordance with paragraph
(b)(ii) below.
(b) Demands for derivative action submitted in accordance with the
requirements above will be considered by those Trustees who are not deemed to
be Interested Persons of the Trust. Within 30 calendar days of the receipt of
such demand by the Board of Trustees, those Trustees who are not deemed to be
Interested Persons of the Trust will consider the merits of the claim and
determine whether maintaining a suit would be in the best interests of the
Trust or the affected Series or Class, as applicable. Trustees that are not
deemed to be Interested Persons of the Trust are deemed independent for all
purposes, including for the purpose of approving or dismissing a derivative
action.
(i) If the demand for derivative action has not been considered
within 30 calendar days of the receipt of such demand by the Board of Trustees,
a decision has not been communicated to the complaining Shareholder(s) within
the time permitted by sub-paragraph (ii) below, and sub-paragraphs (i)-(iv) of
paragraph (a) above have been met, the complaining Shareholders shall not be
barred by this Declaration of Trust or the By-Laws from commencing a derivative
action.
(ii) If the demand for derivative action has been considered by the
Board of Trustees, and a majority of those Trustees who are not deemed to be
Interested Persons of the Trust, after considering the merits of the claim, has
determined that maintaining a suit would not be in the best interests of the
Trust or the affected Series or Class, as applicable, the complaining
Shareholders shall be barred from commencing the derivative action. If upon
such consideration the appropriate members of the Board of Trustees determine
that such a suit should be maintained, then the appropriate officers of the
Trust shall commence initiation of that suit and such suit shall proceed
directly rather than derivatively. The Board of Trustees, or the appropriate
officers of the Trust, shall inform the complaining Shareholders of any
decision reached under this sub-paragraph (ii) in writing within five business
days of such decision having been reached.
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(c) A Shareholder of a particular Series or Class of the Trust shall
not be entitled to participate in a derivative action on behalf of any other
Series or Class of the Trust.
(d) Under no circumstances shall any derivative action be authorized
or permitted unless Shareholders owning Shares representing at least 10% of the
voting power of the Trust or the affected Series, as applicable, join in
bringing of such derivative action.
SECTION 8. JURISDICTION AND FORUM. Each Trustee, each officer, each
Shareholder and each Person beneficially owning an interest in a Share of the
Trust (whether through a broker, dealer, bank, trust company or clearing
corporation or an agent of any of the foregoing or otherwise), to the fullest
extent permitted by law, including Section 3804(e) of the Delaware Act, (i)
irrevocably agrees that any claims, suits, actions or proceedings arising out
of or relating in any way to the Trust, the Delaware Act, this Declaration of
Trust or the By-Laws or asserting a claim governed by the internal affairs (or
similar) doctrine (including, without limitation, any claims, suits, actions or
proceedings to interpret, apply or enforce (A) the provisions of this
Declaration of Trust or the By-Laws, or (B) the duties (including fiduciary
duties), obligations or liabilities of the Trust to the Shareholders or the
Trustees, or of officers or the Trustees to the Trust, to the Shareholders or
each other, or (C) the rights or powers of, or restrictions on, the Trust, the
officers, the Trustees or the Shareholders, or (D) any provision of the
Delaware Act or other laws of the State of Delaware pertaining to trusts made
applicable to the Trust pursuant to Section 3809 of the Delaware Act, or (E)
any other instrument, document, agreement or certificate contemplated by any
provision of the Delaware Act, this Declaration of Trust or the By-Laws
relating in any way to the Trust (regardless, in each case, of whether such
claims, suits, actions or proceedings (x) sound in contract, tort, fraud or
otherwise, (y) are based on common law, statutory, equitable, legal or other
grounds, or (z) are derivative or direct claims)), shall be exclusively brought
in the Court of Chancery of the State of Delaware or, if such court does not
have subject matter jurisdiction thereof, any other court in the State of
Delaware with subject matter jurisdiction, (ii) irrevocably submits to the
exclusive jurisdiction of such courts in connection with any such claim, suit,
action or proceeding, (iii) irrevocably agrees not to, and waives any right to,
assert in any such claim, suit, action or proceeding that (A) it is not
personally subject to the jurisdiction of such courts or any other court to
which proceedings in such courts may be appealed, (B) such claim, suit, action
or proceeding is brought in an inconvenient forum, or (C) the venue of such
claim, suit, action or proceeding is improper, (iv) expressly waives any
requirement for the posting of a bond by a party bringing such claim, suit,
action or proceeding, (v) consents to process being served in any such claim,
suit, action or proceeding by mailing, certified mail, return receipt
requested, a copy thereof to such party at the address in effect for notices
hereunder, and agrees that such service shall constitute good and sufficient
service of process and notice thereof; provided, nothing in clause (v) hereof
shall affect or limit any right to serve process in any other manner permitted
by law, and (vi) irrevocably waives any and all right to trial by jury in any
such claim, suit, action or proceeding. Any Person or entity purchasing or
otherwise acquiring any Shares of any Series or Class shall be deemed to have
notice of and consented to the provisions of this provision.
SECTION 9. PROVISIONS IN CONFLICT WITH LAW OR REGULATIONS.
(a) The provisions of this Declaration of Trust 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 Code, the
Delaware Act or with other applicable laws and regulations, the conflicting
provision shall be deemed never to have constituted a part of this Declaration
of Trust; provided, however, that such determination shall not affect any of
the remaining provisions of this Declaration of Trust or render invalid or
improper any action taken or omitted prior to such determination.
(b) If any provision of this Declaration of Trust shall be
held invalid or unenforceable in any jurisdiction, such invalidity or
unenforceability shall attach only to such provision in
24
such jurisdiction and shall not in any manner affect such provision in any
other jurisdiction or any other provision of this Declaration of Trust in any
jurisdiction.
SECTION 10. STATUTORY TRUST ONLY. It is the intention of the Trustees
to create a statutory trust pursuant to the Delaware Act, and thereby to create
only the relationship of Trustee and beneficial owners within the meaning of
such Delaware Act between the Trustees and each Shareholder. 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 such Delaware Act.
Nothing in this Declaration of Trust shall be construed to make the
Shareholders, either by themselves or with the Trustees, partners or members of
a joint stock association.
SECTION 11. APPLICABILITY OF 1940 ACT AND REGISTRATION STATEMENT. The
Trustees acknowledge that this Declaration of Trust is not intended to, and
does not, set forth the substantive provisions contained in the 1940 Act and
the Trust's registration statement that affect numerous aspects of the conduct
of the Trust's business and of the rights, privileges and obligations of the
Shareholders. Each provision of this Declaration of Trust shall be subject to
and interpreted in a manner consistent with the applicable provisions of the
1940 Act and such registration statement.
SECTION 12. TRUSTEES MAY RESOLVE AMBIGUITIES. The Trustees may
construe any of the provisions of this Declaration of Trust insofar as the same
may appear to be ambiguous or inconsistent with any other provisions hereof,
and any such construction hereof by the Trustees in good faith shall be
conclusive as to the meaning to be given to such provisions.
SECTION 13. DELIVERY BY ELECTRONIC TRANSMISSION OR OTHERWISE.
Notwithstanding any provision in this Declaration of Trust to the contrary, any
notice, proxy, vote, consent, instrument or writing of any kind referenced in,
or contemplated by, this Declaration of Trust or the By-Laws may, in the sole
discretion of the Trustees, be given, granted or otherwise delivered by
electronic transmission (within the meaning of the Delaware Act), including via
the internet, or in any other manner permitted by applicable law. All
requirements in this Declaration of Trust that any writing be signed shall be
deemed to be satisfied by any electronic transmission in such form that is
acceptable to the Trustees.
SECTION 14. USE OF THE NAME "GALLERY TRUST." The name "Gallery Trust"
and all rights to the use of the name "Gallery Trust" belong to Mondrian
Investment Partners Limited and its affiliates (together, "Mondrian"). Mondrian
has consented to the use by the Trust of the name "Gallery Trust" and has
granted to the Trust a non-exclusive license to use the name "Gallery Trust."
In the event that Mondrian or one of its affiliates is not appointed as
Investment Adviser or ceases to be the Investment Adviser of a Series of the
Trust, the non-exclusive license granted herein may be revoked by Mondrian and
the Trust shall cease using the name "Gallery Trust," unless otherwise
consented to by Mondrian or any successor to its interests in such name.
[THE REMAINDER OF THIS PAGE LEFT INTENTIONALLY BLANK.]
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IN WITNESS WHEREOF, the undersigned, being the initial
Trustee of the Trust, has executed this Amended and Restated Agreement and
Declaration of Trust as of the 17th day of September, 2015.
/s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
----------------------
Name: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
Title: Initial Trustee
THE PRINCIPAL PLACE OF BUSINESS OF THE TRUST IS:
▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
26