EXHIBIT 1(A)
AGREEMENT AND DECLARATION OF TRUST
of
787 Trust
a Delaware Business Trust
Principal Place of Business:
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TABLE OF CONTENTS
AGREEMENT AND DECLARATION OF TRUST
Page
ARTICLE I Name and Definitions............................1
1. Name ....................................................1
2. Definitions..............................................1
(a) By-Laws.........................................1
(b) Certificate of Trust............................1
(c) Class...........................................2
(d) Commission .....................................2
(e) Declaration of Trust............................2
(f) Delaware Act....................................2
(g) Interested Person ..............................2
(h) Manager.........................................2
(i) 1940 Act........................................2
(j) Person .........................................2
(k) Principal Underwriter...........................2
(l) Series..........................................2
(m) Shareholder.....................................2
(n) Shares..........................................2
(o) Trust...........................................2
(p) Trust Property..................................2
(q) Trustees........................................3
ARTICLE II Purpose of Trust................................3
ARTICLE III Shares..........................................3
1. Division of Beneficial Interest..........................3
2. Ownership of Shares......................................4
3. Transfer of Shares.......................................4
4. Investments in the Trust.................................5
5. Status of Shares and Limitation of
Personal Liability .............................5
6. Establishment and Designation of Series or Class.........5
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(a) Assets Held with Respect to a
Particular Series...............................5
(b) Liabilities Held with Respect to a
Particular Series...............................6
(c) Dividends, Distributions, Redemptions,
and Repurchases.................................6
(d) Equality .......................................7
(e) Fractions.......................................7
(f) Exchange Privilege..............................7
(g) Combination of Series...........................7
(h) Elimination of Series...........................7
7. Indemnification of Shareholders..........................7
ARTICLE IV Trustees.................................................8
1. Number, Election, and Tenure.............................8
2. Effect of Death, Resignation, etc.
of a Trustee....................................8
3. Powers...................................................8
4. Payment of Expenses by the Trust........................12
5. Payment of Expenses by Shareholders.....................12
6. Ownership of Assets of the Trust........................12
7. Service Contracts.......................................13
8. Trustees and Officers as Shareholders...................14
ARTICLE V Shareholders' Voting Powers and Meetings................15
1. Voting Powers, Meetings, Notice and Record Dates........15
2. Quorum and Required Vote................................15
3. Record Dates............................................15
4. Additional Provisions...................................15
ARTICLE VI Net Asset Value, Distributions and
Redemptions....................................16
1. Determination of Net Asset Value,
Net Income and Distributions...................16
2. Redemptions and Repurchases.............................16
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ARTICLE VII Compensation and Limitation of
Liability of Trustees............................18
1. Compensation .............................................18
2. Indemnification and Limitation of Liability ..............18
3. Trustee's Good Faith Act, Expert Advice,
No Bond or Surety ...............................19
4. Insurance ................................................19
ARTICLE VIII Miscellaneous....................................19
1. Liability of Third Persons Dealing with Trustees..........19
2. Termination of the Trust or Any Series or Class...........19
3. Reorganization............................................20
4. Amendments................................................21
5. Filing of Copies, References, Headings....................21
6. Applicable Law............................................21
7. Provisions in Conflict with Law or Regulations............22
8. Business Trust Only ......................................22
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AGREEMENT AND DECLARATION OF TRUST
OF
787 Trust
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
forming a Delaware business trust in accordance with the provisions
hereinafter set forth.
NOW, THEREFORE, the Trustees hereby direct that the Certificate of
Trust be filed with the Office of the Secretary of State of the State of
Delaware 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 benefit of the holders of
Shares of this Trust.
ARTICLE I
Name and Definitions
Section 1. Name. This Trust shall be known as the 787 Trust and the
Trustees shall conduct the business of the Trust under that name or any other
name as they may from time to time determine.
Section 2. Definitions. Whenever used herein, unless otherwise
required by the context or specifically provided:
(a) "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;
(b) "Certificate of Trust" means the certificate of trust, as amended
or restated from time to time, filed by the Trustees in the Office of the
Secretary of State of the State of Delaware in accordance with the Delaware
Act;
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(c) "Class" means a class of Shares of a Series of the Trust
established in accordance with the provisions of Article III hereof;
(d) "Commission" shall have the meaning given such term in the 1940
Act;
(e) "Declaration of Trust" means this Agreement and Declaration of
Trust, as amended or restated from time to time;
(f) "Delaware Act" means the Delaware Business Trust Act 12 Del.
▇.▇▇.▇▇. 3801 et seq., as amended from time to time;
(g) "Interested Person" shall have the meaning given it in Section
2(a)(19) of the 1940 Act;
(h) "Manager" means a party furnishing services to the Trust pursuant
to any contract described in Article IV, Section 7(a) hereof;
(i) "1940 Act" means the Investment Company Act of 1940 and the rules
and regulations thereunder, all as amended from time to time;
(j) "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;
(k) "Principal Underwriter" shall have the meaning given such term in
the 1940 Act;
(l) "Series" means each Series of Shares established and designated
under or in accordance with the provisions of Article III hereof;
(m) "Shareholder" means a record owner of outstanding Shares;
(n) "Shares" means the shares of beneficial interest into which the
beneficial interest in the Trust shall be divided from time to time and
includes fractions of Shares as well as whole Shares;
(o) "Trust" means the Delaware Business 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;
(p) "Trust Property" means any and all property, real or personal,
tangible or intangible, which is from time to time owned or held by or for the
account of the Trust; and
(q) "Trustees" means the "Person" or "Persons" who have signed this
Declaration of
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Trust and all other Persons who may from time to time be duly elected or
appointed to serve as Trustees in accordance with the provisions hereof, in
each case so long as such Person shall continue in office in accordance with
the terms of this Declaration of Trust, and reference herein to a Trustee or
the Trustees shall refer to such Person or Persons in his or her or their
capacity as Trustees hereunder.
ARTICLE II
Purpose of Trust
The purpose of the Trust is to conduct, operate and carry on the
business of a management investment company registered under the 1940 Act
through one or more Series investing primarily in securities, and to carry on
such other business as the Trustees may from time to time determine pursuant
to their authority under this Declaration of Trust.
ARTICLE III
Shares
Section 1. Division of Beneficial Interest. The beneficial interest
in the Trust shall be divided into one or more Series. The Trustees may divide
each Series 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 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 of 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 thereof in the
assets held with respect to that Series, (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 change the name of any Series or Class thereof;
(vii) to abolish any one or more Series or Classes thereof; and (viii) to take
such other action with respect to the Shares as the
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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 Shares of any or all Series or Classes thereof, as the context may
require. All provisions herein relating to the Trust shall apply equally to
each Series of the Trust and each Class thereof, except as the context
otherwise requires.
All Shares issued hereunder, including, without limitation, Shares
issued in connection with a dividend in Shares or a split or reverse split of
Shares, shall be fully paid and non-assessable. 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 those of a transfer or similar agent for
the Trust, which books shall be maintained separately for the Shares of each
Series or Class of the Trust. No certificates certifying the ownership of
Shares shall be issued except as the Trustees may otherwise determine from
time to time. The Trustees may make such rules as they consider appropriate
for the issuance of Share certificates, the transfer of Shares of each Series
or Class of the Trust 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
of the Trust and as to the number of Shares of each Series or Class of the
Trust held from time to time by each Shareholder.
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 or her duly authorized agent upon delivery to
the Trustees or the Trust's transfer agent of a duly executed instrument of
transfer, together with a Share certificate if one is outstanding, and such
evidence of the genuineness of each such execution and authorization and of
such other matters as may be required by the Trustees. Upon such delivery, and
subject to any further requirements specified by the Trustees or contained in
the By-Laws, the transfer shall be recorded on the books of the Trust. Until a
transfer is so recorded, the Shareholder of record of Shares shall be deemed
to be the holder of such Shares for all purposes hereunder and neither the
Trustees nor the Trust, nor any transfer agent or registrar or any officer,
employee, or agent of the Trust, shall be affected by any notice of a proposed
transfer.
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Section 4. Investments in the Trust. Investments may be accepted by
the Trust from Persons, at such times, on such terms, and for such
consideration as the Trustees from time to time may authorize.
Section 5. Status of Shares and Limitation of Personal Liability.
Shares shall be deemed to be personal property giving only the rights provided
in this instrument. Every Shareholder by virtue of having become a Shareholder
shall be held to have expressly assented and agreed to the terms hereof. The
death, incapacity, dissolution, termination, or bankruptcy of a Shareholder
during the existence of the Trust shall not operate to terminate the Trust,
nor entitle the representative of any such Shareholder to an accounting or to
take any action in court or elsewhere against the Trust or the Trustees, but
entitles such representative only to the rights of such Shareholder under this
Trust. Ownership of Shares shall not entitle the Shareholder to any title in
or to the whole or any part of the Trust Property or right to call for a
participation or division of the same or for an accounting, nor shall the
ownership of Shares constitute the Shareholders as partners. No Shareholder
shall be personally liable for the debts, liabilities, obligations and
expenses incurred by, contracted for, or otherwise existing with respect to,
the Trust or any Series. Neither the Trust nor the Trustees, nor any officer,
employee, or agent of the Trust shall have any power to bind personally any
Shareholders, nor, except as specifically provided herein, to call upon any
Shareholder for the payment of any sum of money or assessment whatsoever other
than such as the Shareholder may at any time personally agree to pay.
Section 6. Establishment and Designation of Series or Class. The
establishment and designation of any Series or Class of Shares of the Trust
shall be effective upon the adoption by a majority of the then Trustees of a
resolution that sets forth such establishment and designation and the relative
rights and preferences of such Series or Class of the Trust, whether directly
in such resolution or by reference to another document including, without
limitation, any registration statement of Trust, or as otherwise provided in
such resolution.
Shares of each Series or Class of the Trust established pursuant to
this Article III, 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, together with all assets in which such consideration is
invested or reinvested, all income, earnings, profits, and proceeds thereof
from whatever source derived (including, without limitation, any proceeds
derived from the sale, exchange or liquidation of such assets and any funds or
payments derived from any reinvestment of such proceeds in whatever form the
same may be) shall irrevocably be held 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
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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 so 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 the 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 that Class. 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. All 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. 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. Without limiting the foregoing, but subject to
the right of the Trustees to allocate general liabilities, expenses, costs,
charges or reserves as herein provided, the debts, liabilities, obligations
and expenses incurred, contracted for or otherwise existing with respect to a
particular Series shall be enforceable against the assets held with respect to
such Series only and not against the assets of the Trust generally or against
the assets held with respect to any other Series. Notice of this contractual
limitation on liabilities among Series may, in the Trustees' discretion, be
set forth in the certificate of trust of the Trust (whether originally or by
amendment) as filed or to be filed in the Office of the Secretary of State of
the State of Delaware pursuant to the Delaware Act, and upon the giving of
such notice in the certificate of trust, the statutory provisions of Section
3804 of the Delaware Act relating to limitations on liabilities among Series
(and the statutory effect under Section 3804 of setting forth such notice in
the certificate of trust) shall become applicable to the Trust and each
Series. Any person extending credit to, contracting with or having any claim
against any Series may look only to the assets of that Series to satisfy or
enforce any debt, with respect to that Series. No Shareholder or former
Shareholder of any Series shall have a claim on or any right to any assets
allocated or belonging to any other Series.
(c) Dividends, Distributions, Redemptions, and Repurchases.
Notwithstanding any
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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 of any Series or Class with
respect to, nor any redemption or repurchase of, the Shares of any Series or
Class, shall be effected by the Trust other than from the assets held with
respect to such Series, nor shall any Shareholder or any particular Series or
Class otherwise have any right or claim against the assets held with respect
to any other Series except to the extent that such Shareholder has such a
right or claim hereunder as a Shareholder of such other Series. The Trustees
shall have full discretion, to 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) Equality. All the Shares of each particular Series shall
represent an equal proportionate interest in the assets held with respect to
that Series (subject to the liabilities held with respect to that Series or
Class thereof and such rights and preferences as may have been established and
designated with respect to any Class within such Series), and each Share of
any particular Series shall be equal to each other 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 identical voting, dividend, liquidation and
other rights and the same terms and conditions, 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.
(e) Fractions. Any fractional Share of a Series or Class thereof,
shall carry proportionately all the rights and obligations of a whole Share of
that Series or Class, including rights with respect to voting, receipt of
dividends and distributions, redemption of Shares and termination of the
Trust.
(f) Exchange 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 said Shares for Shares of one or more other Series of Shares or
Class of Shares of the Trust or of other investment companies registered under
the 1940 Act in accordance with such requirements and procedures as may be
established by the Trustees.
(g) 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.
Section 7. Indemnification of Shareholders. If any Shareholder or
former Shareholder shall be exposed to liability by reason of a claim or
demand relating to such Person being or having been a Shareholder, and not
because of such Person's acts or omissions, the Shareholder or former
Shareholder (or such Person's heirs, executors, administrators, or other legal
representatives or in the case of a corporation or other entity, its corporate
or other general successor) shall be entitled to be held harmless from and
indemnified out of the assets of the
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Trust against all loss and expense arising from such claim or demand, but only
out of the assets held with respect to the particular Series of Shares of
which such Person is or was a Shareholder and from or in relation to which
such liability arose.
ARTICLE IV
Trustees
Section 1. Number, Election and Tenure. The number of Trustees shall
initially be one, who shall be ▇▇▇▇▇ ▇. ▇▇▇▇▇. Hereafter, the number of
Trustees shall at all times be at least one and no more than ten as
determined, from time to time, by the Trustees pursuant to Section 3 of this
Article IV. Each Trustee shall serve during the lifetime of the Trust until he
or she dies, resigns, has reached the mandatory retirement age as set by the
Trustees, is declared bankrupt or incompetent by a court of appropriate
jurisdiction, or is removed, or, if sooner, 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 the 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. 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 for any period
following his or her resignation or removal, or any right to damages on
account of such removal. The Shareholders may elect Trustees at any meeting of
Shareholders called by the Trustees for that purpose. Any Trustee may be
removed at any meeting of Shareholders by a vote of two-thirds of the
outstanding Shares of the Trust.
Section 2. Effect of Death, Resignation, etc. of a Trustee. The
death, declination to serve, resignation, retirement, removal or incapacity of
one or more Trustees, or all of them, shall not operate to annul the Trust or
to revoke any existing agency created pursuant to the terms of this
Declaration of Trust. Whenever there shall be fewer than the designated number
of Trustees, until additional Trustees are elected or appointed as provided
herein to bring the total number of Trustees equal to the designated number,
the Trustees in office, regardless of their number, shall have all the powers
granted to the Trustees and shall discharge all the duties imposed upon the
Trustees by this Declaration of Trust. As conclusive evidence of such vacancy,
a written instrument certifying the existence of such vacancy may be executed
by an officer of the Trust or by a majority of the Trustees. 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 Manager(s) are empowered to appoint new
Trustees subject to the provisions of Section 16(a) of the 1940 Act.
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Section 3. Powers. Subject to the provisions of this Declaration of
Trust, the business of the Trust shall be managed by the Trustees, and the
Trustees 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. Without limiting the foregoing, the Trustees
may: adopt By-Laws not inconsistent with this Declaration of Trust providing
for the management of the affairs of the Trust and may amend and repeal such
By-Laws to the extent that such By-laws do not reserve that right to the
Shareholders; enlarge or reduce the number of Trustees; remove any Trustee
with or without cause at any time by written instrument signed by a least
two-thirds of the number of Trustees prior to such removal, specifying the
date when such removal shall become effective, and fill vacancies caused by
enlargement of their number or by the death, resignation, retirement or
removal of a Trustee; elect and remove, with or without cause, such officers
and appoint and terminate such agents as they consider appropriate; appoint
from their own number and establish and terminate one or more committees,
consisting of two or more Trustees, that may exercise the powers and authority
of the Board of Trustees to the extent that the Trustees so determine; 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; employ an administrator for the Trust and may authorize
such administrator to employ subadministrators; employ a Manager to the Trust
and may authorize such Manager to employ subadvisers; retain a transfer agent
or a shareholder servicing agent, or both; provide for the issuance and
distribution of Shares by the Trust directly or through one or more Principal
Underwriters or otherwise; redeem, repurchase and transfer Shares pursuant to
applicable law; set record dates for the determination of Shareholders with
respect to various matters; declare and pay dividends and distributions to
Shareholders of each Series from the assets of such Series; and 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 custodian, transfer or shareholder servicing agent, or
Principal Underwriter. 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. Unless otherwise specified herein or in
the By-Laws or required by law, any action by the Trustees shall be deemed
effective if approved or taken by a majority of the Trustees present at a
meeting of Trustees at which a quorum of Trustees is present, within or
without the State of Delaware.
Without limiting the foregoing, the Trustees shall have the power and
authority to cause the Trust (or to act on behalf of the Trust):
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(a) To invest and reinvest cash, to hold cash uninvested, and to
subscribe for, invest in, reinvest in, purchase or otherwise acquire, own,
hold, pledge, sell, assign, transfer, exchange, distribute, write options on,
lend or otherwise deal in or dispose of contracts for the future acquisition
or delivery of fixed income or other securities, and securities of every
nature and kind, including, without limitation, all types of bonds,
debentures, stocks, negotiable or non-negotiable instruments, obligations,
evidences of indebtedness, certificates of deposit or indebtedness, commercial
papers, repurchase agreements, bankers' acceptances, and other securities of
any kind, issued, created, guaranteed, or sponsored by any and all Persons,
including without limitation, states, territories, and possessions of the
United States and the District of Columbia and any political subdivision,
agency, or instrumentality thereof, and foreign government or any political
subdivision of the United States Government or any foreign government, or any
international instrumentality, or by any bank or savings institution, or by
any corporation or organization organized under the laws of the United States
or of any state, territory, or possession thereof, or by any corporation or
organization organized under any foreign law, or in "when issued" contracts
for any such securities, to change the investments of the assets of the Trust;
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 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;
(b) To sell, exchange, lend, pledge, mortgage, hypothecate, lease, or
write options (including, options on futures contracts) with respect to or
otherwise deal in any property rights relating to any or all of the assets of
the Trust or any Series;
(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 or securities;
(e) To hold any security or property in a form not indicating any
trust, 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;
(f) To consent to or participate in any plan for the reorganization,
consolidation or merger of any corporation or issuer of any security 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,
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voting trustee or otherwise, and in that connection to deposit any security
with, or transfer any security to, any such committee, depositary or trustee,
and to delegate to them such power and authority with relation to any security
(whether or not so deposited or transferred) as the Trustees shall deem
proper, and to agree to pay, and to pay, such portion of the expenses and
compensation of such committee, depositary or trustee as the Trustees shall
deem proper;
(h) To compromise, arbitrate or otherwise adjust claims in favor of
or against the Trust or any matter in controversy, including, but not limited
to, claims for taxes;
(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
exclusively for Trust purposes and in connection therewith issue notes or
other evidence of indebtedness; and to mortgage and pledge the Trust Property
or any part thereof to secure any or all of such indebtedness;
(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 of such
obligations;
(l) To purchase any pay for entirely out of Trust Property such
insurance as the Trustees may deem necessary or appropriate for the conduct of
the business, including, without limitation, insurance policies insuring the
assets of the Trust or payment of distributions and principal on its portfolio
investments, and insurance polices insuring the Shareholders, Trustees,
officers, employees, agents, investment advisers, principal underwriters, or
independent contractors of the Trust, individually against all claims and
liabilities of every nature arising by reason of holding, being or having held
any such office or position, or by reason of any action alleged to have been
taken or omitted by any such Person as Trustee, officer, employee, agent,
investment adviser, principal underwriter, or independent contractor,
including any action taken or 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 adopt, establish and carry out pension, profit-sharing, share
bonus, share purchase, savings, thrift and other retirement, incentive and
benefit plans and trusts, including the purchasing of life insurance and
annuity contracts as a means of providing such retirement and other benefits,
for any or all of the Trustees, officers, employees and agents of the Trust;
(n) To operate as and carry out the business of an investment
company, and exercise all the powers necessary or appropriate to the conduct
of such operations;
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(o) To enter into contracts of any kind and description;
(p) To employ as custodian of any assets of the Trust 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
the Trust, subject to any conditions set forth in this Declaration of Trust or
in the By-Laws;
(q) To employ auditors, counsel or other agents of the Trust, subject
to any conditions set forth in this Declaration of Trust or in the By-Laws;
(r) To interpret the investment policies, practices, or limitations
of any Series or Class; and
(s) To establish separate and distinct Series with separately defined
investment objectives and policies and distinct investment purposes, and with
separate Shares representing beneficial interests in such Series, and to
establish separate Classes, all in accordance with the provisions of Article
III;
(t) To the full extent permitted by Section 3804 of the Delaware Act,
to allocate assets, liabilities and expenses of the Trust to a particular
Series and liabilities and expenses to a particular Class or to apportion the
same between or among two or more Series or Classes, provided that any
liabilities or expenses incurred by a particular Series or Class shall be
payable solely out of the assets belonging to that Series or Class as provided
for in Article III;
(u) Subject to the 1940 Act, to engage in any other lawful act or
activity in which a business trust organized under the Delaware Act 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 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.
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 partly out of the principal and partly out of income, as they deem
fair, all expenses, fees, charges, taxes and liabilities incurred or arising
in connection with the Trust, 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
adviser or Manager, 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, which expenses, fees, charges, taxes
and liabilities shall be allocated in accordance with Article III, Section 6
hereof.
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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, expenses of the Trust as described in Section 4 of this
Article IV ("Expenses"), in an amount fixed from time to time by the Trustees,
by setting off such Expenses 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 Expenses due from such
Shareholder, provided that the direct payment of such Expenses by Shareholders
is permitted under applicable law.
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 title shall be effective whether or
not conveyancing documents have been executed and delivered.
Section 7. Service Contracts.
(a) Subject to such requirements and restrictions as may be set forth
under federal and/or state law and in the By-Laws, including, without
limitation, the requirements of Section 15 of the 1940 Act, the Trustees may,
at any time and from time to time, contract for exclusive or nonexclusive
advisory, management and/or administrative services for the Trust or for any
Series (or Class thereof) with any corporation, trust, association, or other
organization; and any such contract may contain such other terms as the
Trustees may determine, including, without limitation, authority for the
Manager(s) or administrator to delegate certain or all of its duties under
such contracts to qualified investment advisers and administrators and to
determine from time to time without prior consultation with the Trustees what
investments shall be purchased, held sold or exchanged and what portion, if
any, of the assets of the Trust shall be held uninvested and to make changes
in the Trust's investments, or such other activities as may specifically be
delegated to such party.
(b) The Trustees may also, at any time and from time to time,
contract with any corporation, trust, association, or other organization,
appointing it 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 under federal and/or state
law and in the ByLaws, including, without limitation, the requirements of
Section 15 of the 1940 Act; and any
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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 corporations, trusts, associations or other
organizations, appointing it or them the custodian, transfer agent and/or
shareholder servicing agent for the Trust or one or more of its Series. Every
such contract shall comply with such requirements and restrictions as may be
set forth under federal and/or state law and in the By-Laws or stipulated by
resolution of the Trustees.
(d) Subject to applicable law, the Trustees are further empowered, at
any time and from time to time, to contract with any entity 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.
(e) The fact that:
(i) any of the Shareholders, Trustees, or officers of
the Trust is a shareholder, director, officer,
partner, trustee, employee, Manager, 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 corporation, trust, association or other
organization with which an advisory, management, or
administration contract or Principal Underwriter's
or distributor's contract, or transfer agent or
shareholder servicing agent contract may have been
or may hereafter be made also has an advisory,
management, or administration contract, or
Principal Underwriter's or distributor's or other
service contract with one or more other
corporations, trusts, associations, or other
organizations, or has other business or interests,
shall not affect the validity of any such contract or disqualify any
Shareholder, Trustee or officer of the Trust from voting upon or executing the
same, or create any liability or accountability to the Trust or its
Shareholders, provided approval of each such contract is made pursuant to the
requirements of the 1940 Act.
Section 8. Trustees and Officers as Shareholders. Any Trustee,
officer or agent of the Trust may acquire, own and dispose of Shares to the
same extent as if he were not a Trustee,
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officer or agent; and the Trustees may issue and sell and cause to be issued
and sold Shares to, and redeem such Shares from, any such Person or any firm
or company in which such Person is interested, subject only to the general
limitations contained herein or in the By-Laws relating to the sale and
redemption of such Shares.
ARTICLE V
Shareholders' Voting Powers and Meetings
Section 1. Voting Powers, Meetings, Notice, and Record Dates. The
Shareholders shall have power to vote only: (i) for the election or removal of
Trustees as provided in Article IV, Section 1 hereof, and (ii) with respect to
such additional matters relating to the Trust as may be required by applicable
law, this Declaration of Trust, the By-Laws or any registration of the Trust
with the Commission (or any successor agency), or as the Trustees may consider
necessary or desirable. Each whole Share shall be entitled to one vote as any
matter on which it is entitled to vote and each fractional Share shall be
entitled to a proportionate fractional vote. Notwithstanding any other
provision of this Declaration of Trust, on any matters submitted to a vote of
the Shareholders, all Shares of the Trust then entitled to vote shall be voted
in aggregate, except: (i) when required by the 1940 Act, Shares shall be voted
by individual Series; (ii) when the matter involves the termination of a
Series or any other action that the Trustees have determined will affect only
the interests of one or more Series, then only Shareholders of such Series
shall be entitled to vote thereon; and (iii) when the matter involves any
action that the Trustees have determined will affect only the interests of one
or more Classes, then only the Shareholders of such Class or Classes shall be
entitled to vote thereon. There shall be no cumulative voting in the election
of Trustees. Shares may be voted in person or by proxy. A proxy may be given
in writing. The By-Laws may provide that proxies may also, or may instead, be
given by an electronic or telecommunications device or in any other manner.
Notwithstanding anything else contained herein or in the By-Laws, in the event
a proposal by anyone other than the officers or Trustees of the Trust is
submitted to a vote of the Shareholders of one or more Series or Classes
thereof or of the Trust, or in the event of any proxy contest or proxy
solicitation or proposal in opposition to any proposal by the officers or
Trustees of the Trust, Shares may be voted only by written proxy or in person
at a meeting. Until Shares are issued, the Trustees may exercise all rights of
Shareholders and may take any action required by law, this Declaration of
Trust or the By-Laws to be taken by the Shareholders. Meetings of the
Shareholders shall be called and notice thereof and record dates therefor
shall be given and set as provided in the By-Laws.
Section 2. Quorum and Required Vote. Except when a larger quorum is
required by applicable law, by the By-Laws or by this Declaration of Trust,
thirty-three and one-third percent (33-1/3%) of the Shares entitled to vote
shall constitute a quorum at a Shareholders' meeting. When any one or more
Series (or Classes) is to vote as a single Class separate from any other
Shares, thirty-three and one-third percent (33-1/3%) of the Shares of each
such Series
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(or Class) entitled to vote shall constitute a quorum at a Shareholders'
meting of that Series (or Class). Except when a larger vote is required by any
provision of this Declaration of Trust or the By-Laws or by applicable law,
when a quorum is present at any meeting, a majority of the Shares voted shall
decide any questions and a plurality of the Shares voted shall elect a
Trustee, provided that where any provision of law or of this Declaration of
Trust requires that the holders of any Series shall vote as a Series (or that
holders of a Class shall vote as a Class), then a majority of the Shares of
that Series (or Class) voted on the matter (or a plurality with respect to the
election of a Trustee) shall decide that matter insofar as that Series (or
Class) is concerned.
Section 3. Record Dates. For the purpose of determining the
Shareholders of any Series (or Class) who are entitled to receive payment of
any dividend or of any other distribution, the Trustees may from time to time
fix a date, which shall be before the date for the payment of such dividend or
such other payment, as the record date for determining the Shareholders of
such Series (or Class) having the right to receive such dividend or
distribution. Without fixing a record date, the Trustees may for distribution
purposes close the register or transfer books for one or more Series (or
Classes) at any time prior to the payment of a distribution. Nothing in this
Section shall be construed as precluding the Trustees from setting different
record dates for different Series (or Classes).
Section 4. Additional Provisions. The By-Laws may include further
provisions for Shareholders' votes and meetings and related matters.
ARTICLE VI
Net Asset Value, Distributions and Redemptions
Section 1. Determination of Net Asset Value, Net Income, and
Distributions. Subject to applicable law and Article III, Section 6 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.
(a) The Trust shall purchase such Shares as are offered by any
Shareholder for redemption, upon the presentation of a proper instrument of
transfer together with a request directed to the Trust, or a Person designated
by the Trust, that the Trust purchase such Shares 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 as
determined by the
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Trustees (or on their behalf), in accordance with any applicable provisions of
the By-Laws and applicable law. Unless extraordinary circumstances exist,
payment for said Shares shall be made by the Trust to the Shareholder in
accordance with the 1940 Act and any rules and regulations thereunder or as
otherwise required by the Commission. 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 rules and regulations or an order of 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
obligation may be suspended or postponed by the Trustees. In the case of a
suspension of the right of redemption as provided herein, a Shareholder may
either withdraw the request for redemption or receive payment based on the net
asset value per share next determined after the termination of such
suspension.
(b) 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 or Class thereof 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
Manager or other Person in transferring securities selected for delivery as
all or part of any payment-in-kind.
(c) If the Trustees shall, at any time and in good faith, determine
that direct or indirect ownership of Shares of any Series or Class thereof has
or may become concentrated in any Person to an extent that would disqualify
any Series as a regulated investment company under the Internal Revenue Code
of 1986, as amended (or any successor statute thereto), then the Trustees
shall have the power (but not the obligation) by such means as they deem
equitable (i) to call for the redemption by any such Person of a number, or
principal amount, of Shares sufficient to maintain or bring the direct or
indirect ownership of Shares into conformity with the requirements for such
qualification, (ii) to refuse to transfer or issue Shares of any Series or
Class thereof to such Person whose acquisition of the Shares in question would
result in such disqualification, or (iii) to take such other actions as they
deem necessary and appropriate to avoid such disqualification. Any such
redemption shall be effected at the redemption price and in the manner
provided in this Article VI.
(d) The holders of Shares shall upon demand disclose to the Trustees
in writing such information with respect to direct and indirect ownership of
Shares as the Trustees deem necessary to comply with the provisions of the
Internal Revenue Code of 1986, as amended (or any successor statute thereto),
or to comply with the requirements of any other taxing authority.
ARTICLE VII
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Compensation and Limitation of Liability of Trustees
Section 1. Compensation. The Trustees in such capacity shall be
entitled to reasonable compensation from the Trust and they may fix the amount
of such compensation. However, the Trust will not compensate those Trustees
who are Interested Persons of the Trust, its Manager, subadvisers, distributor
or Principal Underwriter. Nothing herein shall in any way prevent the
employment of any Trustee for advisory, management, legal, accounting,
investment banking or other services and payment for such services by the
Trust.
Section 2. Indemnification and Limitation of Liability. A Trustee,
when acting in such capacity, shall not be personally liable to any Person,
other than the Trust or a Shareholder to the extent provided in this Article
VII, for any act, omission or obligation of the Trust, of such Trustee or of
any other Trustee. The Trustees shall not be responsible or liable in any
event for any neglect or wrongdoing of any officer, agent, employee, Manager,
or Principal Underwriter of the Trust. The Trust shall indemnify each Person
who is serving or has served at the Trust's request as a director, officer,
trustee, employee, or agent of another organization in which the Trust has any
interest as a shareholder, creditor, or otherwise to the extent and in the
manner provided in the By-Laws.
All persons extending credit to, contracting with or having any claim
against the Trust of the Trustees shall look only to the assets of the
appropriate Series of the Trust for payment under such credit, contract, or
claim; and neither the Trustees nor the Shareholders, nor any of the Trust's
officers, employees, or agents, whether past, present, or future, shall be
personally liable therefor.
Every note, bond, contract, instrument, certificate or undertaking
and every other act or thing whatsoever executed or done by or on behalf of
the Trust or the Trustees by any of them in connection with the Trust shall
conclusively be deemed to have been executed or done only in or with respect
to his or their capacity as Trustee or Trustees, and such Trustee or Trustees
shall not be personally liable thereon. At the Trustees' discretion, any note,
bond, contract, instrument, certificate or undertaking made or issued by the
Trustees or by any officer or officers may give notice that the Certificate of
Trust is on file in the Office of the Secretary of State of the State of
Delaware and that a limitation on liability of Series exists and such note,
bond, contract, instrument, certificate or undertaking may, if the Trustees so
determine, recite that the same was executed or made on behalf of the Trust by
a Trustee or Trustees in such capacity and not individually and that the
obligations of such instrument are not binding upon any of them or the
Shareholders individually but are binding only on the assets and property of
the Trust or a Series thereof, and may contain such further recital as such
Person or Persons may deem appropriate. The omission of any such notice or
recital shall in no way operate to bind any Trustees, officer, or Shareholders
individually.
Section 3. Trustee's Good Faith Action, Expert Advice, No Bond or
Surety. The
18
exercise by the Trustees of their powers and discretions hereunder shall be
binding upon everyone interested. A Trustee shall be liable to the Trust and
to any Shareholder solely for his or her own willful misfeasance, bad faith,
gross negligence or reckless disregard of the duties involved in the conduct
of the office of Trustee, and shall not be liable for errors of judgment or
mistakes of fact or law. The Trustees may take advice of counsel or other
experts with respect to the meaning and operation of this Declaration of
Trust, and shall be under no liability for any act or omission in accordance
with such advice nor for failing 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 4. Insurance. The Trustees shall be entitled and empowered to
the fullest extent permitted by law to purchase with Trust assets insurance
for liability and for all expenses reasonably incurred or paid or expected to
be paid by a Trustee, officer, employee, 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 of
the Trust.
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 the Trust or Any Series or Class.
(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 Series
of Shares or Class thereof may be terminated at any time by vote of a majority
of the Shares of such Series or Class entitled to vote or by the Trustees by
written notice to the Shareholders of such 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 may
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
19
involved, ratably according to the number of Shares of such Series or Class
held by the 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. Reorganization.
(a) Notwithstanding anything else herein, the Trustees may, without
Shareholder approval unless such approval is required by applicable law, (i)
cause the Trust to merge or consolidate with or into one or more trusts (or
series thereof to the extent permitted by law), partnerships, associations,
corporations or other business entities (including trusts, partnerships,
associations, corporations or other business entities created by the Trustees
to accomplish such merger or consolidation) so long as the surviving or
resulting entity is an investment company as defined in the 1940 Act, or is a
series thereof, that will succeed to or assume the Trust's registration under
the 1940 Act and that is formed, organized, or existing under the laws of the
United States or of a state, commonwealth, possession or colony of the United
States, unless otherwise permitted under the 1940 Act, (ii) cause any one or
more Series (or Classes) of the Trust to merge or consolidate with or into any
one or more other Series (or Classes) of the Trust, one or more trusts (or
series or classes thereof to the extent permitted by law), partnerships,
associations, corporations, (iii) cause the Shares to be exchanged under or
pursuant to any state or federal statute to the extent permitted by law or
(iv) cause the Trust to reorganize as a corporation, limited liability company
or limited liability partnership under the laws of Delaware or any other state
or jurisdiction. Any agreement of merger or consolidation or exchange or
certificate or merger 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
(i) effect any amendment to the governing instrument of the Trust or (ii)
effect the adoption of a new governing instrument of the Trust if the Trust is
the surviving or resulting trust in the merger or consolidation.
(c) The Trustees may create one or more business trusts to which all
or any part of the assets, liabilities, profits, or losses of the Trust or any
Series or Class thereof may be transferred and may provide for the conversion
of Shares in the Trust or any Series or Class
20
thereof into beneficial interests in any such newly created trust or trusts or
any series of classes thereof.
Section 4. Amendments. Except as specifically provided in this
Section 4, the Trustees may, without Shareholder vote, restate, amend, or
otherwise supplement this Declaration of Trust. Shareholders shall have the
right to vote on (i) any amendment that would affect their right to vote
granted in Article V, Section 1 hereof, (ii) any amendment to this Section 4
of Article VIII; (iii) any amendment that may require their vote under
applicable law or by the Trust's registration statement, as filed with the
Commission, and (iv) any amendment submitted to them for their vote by the
Trustees. Any amendment required or permitted to be submitted to the
Shareholders that, as the Trustees determine, shall affect the Shareholders of
one or more Series shall be authorized by a vote of the Shareholders of each
Series affected and no vote of Shareholders of a Series not affected shall be
required. Notwithstanding anything else herein, no amendment hereof shall
limit the rights to insurance provided by Article VII, Section 4 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 as provided in the By-Laws with
respect to any actions 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.
Section 5. Filing of Copies, References, Headings. The original or a
copy of this instrument 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
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 instrument or
of any such restatements and/or amendments. In this instrument and in any such
restatements and/or amendments, references to this instrument, and all
expressions such as "herein," "hereof," and "hereunder," shall be deemed to
refer to this instrument as amended or affected by 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 is created under, and this Declaration of Trust is to
be governed by, and construed and enforced in accordance with, the laws of the
State of Delaware. The Trust shall be of the type commonly called a business
trust, and without limiting the provisions hereof, the Trust specifically
reserves the right to exercise any of the powers or privileges afforded to
business trusts or actions that may be engaged in by business trusts under the
Delaware Act, and
21
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. 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 such
provision is in conflict with the 1940 Act, the regulated investment company
provisions of the Internal Revenue Code of 1986, as amended (or any successor
statute thereto), and the regulations thereunder, 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 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 8. Business Trust Only. It is the intention of the Trustees
to create a business trust pursuant to the Delaware Act. It is not the
intention of the Trustees to create a general partnership, limited
partnership, joint stock association, corporation, bailment, or any form of
legal relationship other than a business trust pursuant to the 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.
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IN WITNESS WHEREOF, the Trustee named below does hereby make and
enter into this Declaration of Trust as of the 31st day of October 1996.
/s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇
--------------------------------------
▇▇▇▇▇ ▇. ▇▇▇▇▇
Trustee
THE PRINCIPAL PLACE OF BUSINESS OF THE TRUST IS:
▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
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