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AGREEMENT AND DECLARATION OF TRUST
OF
THE PENNSYLVANIA AVENUE FUNDS
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 forming a Delaware business
trust in accordance with the provisions hereinafter set
forth.
NOW, THEREFORE, the Trustees hereby direct that a
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 pro rata benefit of the holders of Shares
in this Trust.
ARTICLE I
Name and Definitions
SECTION 1. NAME. This Trust shall be known as THE
PENNSYLVANIA AVENUE FUNDS 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. However, should the
Trustees determine that the use of the name of the Trust is
not advisable, they may select such other name for the Trust
as they deem proper and the Trust may hold its property and
conduct its activities under such other name. Any name
change shall become effective upon the execution by a
majority of the then Trustees of an instrument setting forth
the new name and the filing of a certificate of amendment
pursuant to Section 3810(b) 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. The Trust shall constitute a
Delaware business trust in accordance with the Delaware Act
and this Declaration of Trust shall constitute the governing
instrument of the Trust.
SECTION 2. REGISTERED AGENT AND REGISTERED OFFICE;
PRINCIPAL PLACE OF BUSINESS.
(a) Registered Agent and Registered Office The name of the
registered agent of the Trust and the address of the
registered office of the Trust are as set forth on the
Certificate of Trust.
(b) Principal Place of Business The principal place of
business of the Trust is Washington, D.C. or such other
location within or outside of the State of Delaware as the
Board of Trustees may determine from time to time.
SECTION 3. 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;
(c) "Class" means a class of Shares of a Series of the
Trust established in accordance with the provisions of
Article III hereof;
(d) "Code" means ., as amended from time to time;
(e) "Commission" shall have the meaning given such term in
the 1940Act;
(f) "Declaration of Trust" means this Agreement and
Declaration of Trust, as amended or restated from time to
time;
(g) "Delaware Act" means Chapter 38 of Title 12 of the
Delaware Code, as amended from time to time;
(h) "Interested Person" shall have the meaning given such
term in Section 2(a) of the 1940 Act;
(i) "Net Asset Value" means the net asset value of each
Series of the Trust, determined as provided in Article VII,
Section 3;
(j) "Outstanding Shares" means Shares shown on the books of
the Trust or its transfer agent as then issued and
outstanding, but does not include Shares which have been
repurchased or redeemed by the Trust;
(k) "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;
(l) "Registered Investment Company" means a company
registered as a management investment company under the 1940
Act;
(m) "Principal Underwriter" shall have the meaning given
such term in Section 2(a) of the 1940 Act;
(n) "Series" means 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" 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;
(q) "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;
(r) "Trustees" means the "Person" or "Persons" who have
signed this Declaration of 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; and
(s) "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 or any
Series or the Trustees on behalf of the Trust or any Series.
(t) "1940 Act" means the Investment Company Act of 1940 and
the rules and regulations thereunder, all as amended from
time to time;
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.
ARTICLE III.
Series; Classes; Shares
Section 1. ESTABLISHMENT OF SERIES OR CLASS. The
Trust shall consist of one or more Series. Without limiting
the authority of the Trustees to establish and designate any
further Series, the Trustees hereby establish a single
Series which shall be designated Pennsylvania Avenue Event-
Driven Fund. Each additional Series shall be established and
is effective upon the adoption of a resolution of a majority
of the Trustees or any alternative date specified in such
resolution. The Trustees may designate the relative rights
and preferences of the Shares of each Series. The Trustees
may divide the Shares of any Series into Classes. Without
limiting the authority of the Trustees to establish and
designate any further Classes, the Trustees hereby establish
four Classes of Shares which shall be designated Investor
Class and Adviser Class Shares. The Classes of Shares of the
existing Series herein established and designated and any
Shares of any further Series and Classes that may from time
to time be established and designated by the Trustees shall
be established and designated, and the variations in the
relative rights and preferences as between the different
Series shall be fixed and determined, by the Trustees;
provided, that all Shares shall be identical except for such
variations as shall be fixed and determined between
different Series or Classes by the Trustees in establishing
and designating such Class or Series. In connection
therewith with respect to the existing Classes, the purchase
price, the method of determining the net asset value, and
the relative dividend rights of holders shall be as set
forth in the Trust's Registration Statement on Form N-1A
under the Securities Act of 1933 and/or the 1940 Act and as
in effect at the time of issuing Shares of the existing
Classes.
All references to Shares in this Declaration shall
be deemed to be Shares of any or all Series or Classes as
the context may require. The Trust shall maintain separate
and distinct records for each Series and hold and account
for the assets thereof separately from the other assets of
the Trust or of any other Series. A Series may issue any
number of Shares or any Class thereof and need not issue
Shares. Each Share of a Series shall represent an equal
beneficial interest in the net assets of such Series. Each
holder of Shares of a Series or a Class thereof shall be
entitled to receive his pro rata share of all distributions
made with respect to such Series or Class. Upon redemption
of his Shares, such Shareholder shall be paid solely out of
the funds and property of such Series. The Trustees may
adopt and change the name of any Series or Class.
Section 2. SHARES. The beneficial interest in the
Trust shall be divided into transferable Shares of one or
more separate and distinct Series or Classes established by
the Trustees. The number of Shares of each Series and Class
is unlimited and each Share shall have no par value per
Share or such other amount as the Trustees may establish.
All Shares issued hereunder shall be fully paid and
nonassessable. Shareholders shall have no preemptive or
other right to subscribe to any additional Shares or other
securities issued by the Trust. The Trustees shall have full
power and authority, in their sole discretion and without
obtaining Shareholder approval, to issue original or
additional Shares at such times and on such terms and
conditions as they deem appropriate; to issue fractional
Shares and Shares held in the treasury; to establish and to
change in any manner Shares of any Series or Classes with
such preferences, terms of conversion, voting powers, rights
and privileges as the Trustees may determine (but the
Trustees may not change Outstanding Shares in a manner
materially adverse to the Shareholders of such Shares); to
divide or combine the Shares of any Series or Classes into a
greater or lesser number; to classify or reclassify any
unissued Shares of any Series or Classes into one or more
Series or Classes of Shares; to abolish any one or more
Series or Classes of Shares; to issue Shares to acquire
other assets (including assets subject to, and in connection
with, the assumption of liabilities) and businesses; and to
take such other action with respect to the Shares as the
Trustees may deem desirable. Shares held in the treasury
shall not confer any voting rights on the Trustees and shall
not be entitled to any dividends or other distributions
declared with respect to the Shares.
Section 3. INVESTMENT IN THE TRUST. The Trustees
shall accept investments in any Series or Class from such
persons and on such terms as they may from time to time
authorize. At the Trustees' discretion, such investments,
subject to applicable law, may be in the form of cash or
securities in which that Series is authorized to invest,
valued as provided in Article VI, Section 3. Investments in
a Series shall be credited to each Shareholder's account in
the form of full Shares at the Net Asset Value per Share
next determined after the investment is received or accepted
as may be determined by the Trustees; provided, however,
that the Trustees may, in their sole discretion, (a) impose
a sales charge upon investments in any Series or Class, (b)
issue fractional Shares, (c) determine the Net Asset Value
per Share of the initial capital contribution or (d)
authorize the issuance of Shares at a price other than Net
Asset Value to the extent permitted by the 1940 Act or any
rule, order or interpretation of the Commission thereunder.
The Trustees shall have the right to refuse to accept
investments in any Series at any time without any cause or
reason therefore whatsoever.
Section 4. ASSETS AND LIABILITIES OF SERIES. All
consideration received by the Trust for the issue or sale of
Shares of a particular Series, together with all assets in
which such consideration is invested or reinvested, all
income, earnings, profits, and proceeds thereof (including
any proceeds derived from the sale, exchange or liquidation
of such assets, and any funds or payments derived from any
reinvestment of such proceeds in whatever form the same may
be), shall be held and accounted for separately from the
assets of every other Series and are referred to as "assets
belonging to" that Series. The assets belonging to a Series
shall belong only to that Series for all purposes, and to no
other Series, subject only to the rights of creditors of
that Series. Any assets, income, earnings, profits, and
proceeds thereof, funds, or payments which are not readily
identifiable as belonging to any particular Series shall be
allocated by the Trustees between and among one or more
Series as the Trustees deem fair and equitable. Each such
allocation shall be conclusive and binding upon the
Shareholders of all Series for all purposes, and such
assets, earnings, income, profits or funds, or payments and
proceeds thereof shall be referred to as assets belonging to
that Series. The assets belonging to a Series shall be so
recorded upon the books of the Trust, and shall be held by
the Trustees in trust for the benefit of the Shareholders of
that Series. The assets belonging to a Series shall be
charged with the liabilities of that Series and all
expenses, costs, charges and reserves attributable to that
Series, except that liabilities and expenses allocated
solely to a particular Class shall be borne by that Class.
Any general liabilities, expenses, costs, charges or
reserves of the Trust which are not readily identifiable as
belonging to any particular Series or Class shall be
allocated and charged by the Trustees between or among any
one or more of the Series or Classes in such manner as the
Trustees deem fair and equitable. Each such allocation shall
be conclusive and binding upon the Shareholders of all
Series 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 of
such Series only, and not against the assets of any other
Series. Notice of this contractual limitation on liabilities
among Series may, in the Trustees' discretion, be set forth
in the certificate of trust of the Trust (whether originally
or by amendment) as filed or to be filed in the Office of
the Secretary of State of the State of Delaware pursuant to
the Delaware Act, and upon the giving of such notice in the
certificate of trust, the statutory provisions of Section
3804 of the Delaware Act relating to limitations on
liabilities among Series (and the statutory effect under
Section 3804 of setting forth such notice in the certificate
of trust) shall become applicable to the Trust and each
Series. Any person extending credit to, contracting with or
having any claim against any Series may look only to the
assets of that Series to satisfy or enforce any debt, with
respect to that Series. No Shareholder or former Shareholder
of any Series shall have a claim on or any right to any
assets allocated or belonging to any other Series.
Section 5. OWNERSHIP AND TRANSFER OF SHARES. The
Trust or a transfer or similar agent for the Trust shall
maintain a register containing the names and addresses of
the Shareholders of each Series and Class thereof, the
number of Shares of each Series and Class held by such
Shareholders, and a record of all Share transfers. The
register shall be conclusive as to the identity of
Shareholders of record and the number of Shares held by them
from time to time. The Trustees may authorize the issuance
of certificates representing Shares and adopt rules
governing their use. The Trustees may make rules governing
the transfer of Shares, whether or not represented by
certificates. Except as otherwise provided by the Trustees,
Shares shall be transferable on the books of the Trust only
by the record holder thereof or by his duly authorized agent
upon delivery to the Trustees or the Trust's transfer agent
of a duly executed instrument of transfer, together with a
Share certificate if one is outstanding, and such evidence
or the genuineness of each such execution and authorization
and of such other matters as may be required by the
Trustees. Upon such delivery, and subject to any further
requirements specified by the Trustees or contained in the
By-laws, the transfer shall be recorded on the books of the
Trust. Until a transfer is so recorded, the Shareholder of
record of Shares shall be deemed to be the holder of such
Shares for all purposes hereunder and neither the Trustees
nor the Trust, nor any transfer agent or registrar or any
officer, employee or agent of the Trust, shall be affected
by any notice of a proposed transfer.
Section 6. STATUS OF SHARES; LIMITATION OF
SHAREHOLDER LIABILITY. Shares shall be deemed to be personal
property giving Shareholders only the rights provided in
this Declaration. Every Shareholder, by virtue of having
acquired a Share, shall be held expressly to have assented
to and agreed to be bound by the terms of this Declaration
and to have become a party hereto. No Shareholder shall be
personally liable for the debts, liabilities, obligations
and expenses incurred by, contracted for, or otherwise
existing with respect to, the Trust or any Series. The
death, incapacity, dissolution, termination or bankruptcy of
a Shareholder during the existence of the Trust shall not
operate to terminate the Trust, nor entitle the
representative of any such Shareholder to an accounting or
to take any action in court or elsewhere against the Trust
or the Trustees, but entitles such representative only to
the rights of such Shareholder under this Trust. Ownership
of Shares shall not entitle the Shareholder to any title in
or to the whole or any part of the Trust Property or right
to call for a partition or division of the same or for an
accounting, nor shall the ownership of Shares constitute the
Shareholders as partners. Neither the Trust nor the Trustees
shall have any power to bind any Shareholder personally or
to demand payment from any Shareholder for anything, other
than as agreed by the Shareholder. Shareholders shall have
the same limitation of personal liability as is extended to
shareholders of a private corporation for profit
incorporated in the State of Delaware. Every written
obligation of the Trust or any Series shall contain a
statement to the effect that such obligation may only be
enforced against the assets of the appropriate Series or all
Series; however, the omission of such statement shall not
operate to bind or create personal liability for any
Shareholder or Trustee.
SECTION 7. 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 of the Trust
(or by having been a Shareholder of a particular Series),
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 out of the assets of the Trust or out of the
assets of the applicable Series (as the case may be)
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)
arising hereunder to reimburse any Shareholder for taxes
paid by reason of such Shareholder's ownership of any
Shares.
ARTICLE IV
Trustees
SECTION 1. NUMBER, ELECTION AND TENURE. The number of
Trustees shall initially be one (1), who shall be ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇, who shall be the President of the Trust.
Hereafter, the number of Trustees shall at all times be at
least two (2) and no more than fifteen (15) as determined,
from time to time, by the Trustees pursuant to Section 5 of
this Article IV. The shareholders shall elect the Trustees
(other than the initial Trustees) on such dates as the
Trustees may fix from time to time. Shareholders shall not
be required to elect Trustees except as required by the 1940
Act or under this Declaration of Trust.
Each Trustee shall hold office for life or until his or
her successor is elected or the Trust terminates; except
that (a) any Trustee may resign by delivering to the other
Trustees or to any Trust officer a written resignation
effective upon such delivery or a later date specified
therein; (b) any Trustee may be removed with or without
cause at any time by a written instrument signed by at least
two-thirds of the other Trustees, specifying the effective
date of removal; (c) any Trustee who requests to be retired,
or who has become physically or mentally incapacitated or is
otherwise unable to serve, may be retired by a written
instrument signed by a majority of the other trustees,
specifying the effective date of retirement; and (d) any
Trustee may be removed at any meeting of the Shareholders by
a vote of at least two-thirds of the Outstanding Shares.
SECTION 2. VACANCIES; APPOINTMENT OF TRUSTEES. Whenever
a vacancy shall exist in the Board of Trustees, regardless
of the reason for such vacancy, the remaining Trustees shall
appoint any person as they determine in their sole
discretion to fill that vacancy, consistent with the
limitations under the 1940 Act. Such appointment shall be
made by a written instrument signed by a majority of the
Trustees or by a resolution of the Trustees, duly adopted
and recorded in the records of the Trust, specifying the
effective date of the appointment. The Trustees may appoint
a new Trustee as provided above in anticipation of a vacancy
expected to occur because of the retirement, resignation, or
removal of a Trustee, or an increase in number of Trustees,
provided that such appointment shall become effective only
at or after the expected vacancy occurs. Upon the
appointment and/or election of a successor Trustee, the
trust estate shall vest in the new Trustee, together with
the continuing Trustees, without any further act or
conveyance, and he or she shall be deemed a Trustee
hereunder. The power of appointment is subject to Section
16(a) of the 1940 Act.
SECTION 3. TEMPORARY VACANCY OR ABSENCE. Whenever a
vacancy in the Board of Trustees shall occur, until such
vacancy is filled, or while any Trustee is absent from his
or her domicile (unless that Trustee has made arrangements
to be informed about, and to participate in, the affairs of
the Trust during such absence), or is physically or mentally
incapacitated, the remaining Trustees shall have all the
powers hereunder and their certificate as to such vacancy,
absence, or incapacity shall be conclusive.
SECTION 4. EFFECT OF TRUSTEES NOT SERVING. The death,
resignation, retirement, removal, incapacity, or inability
or refusal to serve of the Trustees, or any one 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.
SECTION 5. POWERS. Subject to the provisions of this
Declaration of Trust, the business of the Trust shall be
managed by the Trustees. The Trustees shall have exclusive
and absolute control over the Trust Property and over the
business of the Trust to the same extent as if the Trustees
were the sole owners of the Trust Property and business in
their own right, but with such powers of delegation as may
be permitted by this Declaration of Trust. The Trustees
shall have power to conduct the business of the Trust and
carry on its operations in any and all of its branches and
maintain offices both within and without the State of
Delaware, in any and all states of the United States of
America, in the District of Columbia, in any and all
commonwealths, territories, dependencies, colonies, or
possessions of the United States of America, and in any and
all foreign jurisdictions and to do all such other things
and execute all such instruments as they deem necessary,
proper or desirable in order to promote the interests of the
Trust although such things are not herein specifically
mentioned. Any determination as to what is in the interests
of the Trust made by the Trustees in good faith shall be
conclusive. In construing the provisions of this Declaration
of Trust, the presumption shall be in favor of a grant of
power to the Trustees.
The enumeration of any specific power in this
Declaration of Trust shall not be construed as limiting the
aforesaid power. The powers of the Trustees may be exercised
without order of or resort to any court or other authority.
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 duly called meeting of Trustees (including a
meeting by telephonic or other electronic means, unless the
1940 Act requires that a particular action be taken only at
a meeting of the Trustees in person) at which a quorum of
Trustees is present or by unanimous written consent of the
Trustees (or by written consent of a majority of the
Trustees if the President of the Trust or, in his absence,
the Chairman or any two Trustees determines that such
exceptional circumstances exist, and are of such urgency, as
to make unanimous written consent impossible or impractical,
which determination shall be conclusive and binding on all
Trustees and not otherwise subject to challenge) without a
meeting. A majority of the Trustees shall constitute a
quorum at any meeting. Meetings of the Trustees may be
called orally or in writing by the President of the Trust or
by any two Trustees. Notice of the time, date, and place of
all meetings of the Trustees shall be given to each Trustee
by telephone, facsimile, electronic-mail, or other
electronic mechanism sent to his or her home or business
address at least twenty-four hours in advance of the meeting
or in person at another meeting of the Trustees or by
written notice mailed to his or her home or business address
at least seventy-two hours in advance of the meeting. Notice
need not be given to any Trustee who attends the meeting
without objecting to the lack of notice or who signs a
waiver of notice either before or after the meeting. Subject
to the requirements of the 1940 Act, the Trustees by
majority vote may delegate to any Trustee or Trustees
authority to approve particular matters or take particular
actions on behalf of the Trust. Any written consent or
waiver may be provided and delivered to the Trust by any
means by which notice may be given to a Trustee.
Without limiting the foregoing and subject to any
applicable limitation in this Declaration of Trust or the By-
Laws, the Trustees shall have the power and authority to
cause the Trust (or to act on behalf of the Trust):
(a) To operate as and carry on the business of a Registered
Investment Company, and exercise all the powers necessary
and proper to conduct such a business;
(b) To subscribe for, invest in, reinvest in, purchase, or
otherwise acquire, hold, pledge, sell, assign, transfer,
exchange, distribute, or otherwise deal in or dispose of any
form of property, including cash (U.S. currency), foreign
currencies and related instruments, and securities
(including common and preferred stocks, warrants, bonds,
debentures, time notes, and all other evidences of
indebtedness, negotiable or non-negotiable instruments,
obligations, certificates of deposit or indebtedness,
commercial paper, repurchase agreements, reverse repurchase
agreements, dollar rolls, convertible securities, forward
contracts, options, futures contracts, swaps, and other
financial contracts or derivative instruments) issued,
guaranteed, or sponsored by any state, territory, or
possession of the United States or the District of Columbia
or their political subdivisions, agencies, or
instrumentalities, or by the U.S. government, any foreign
government, or any agency, instrumentality, or political
subdivision thereof, or by any international
instrumentality, or by any bank, savings institution,
corporation, or other business entity organized under the
laws of the United States (including a Registered Investment
Company or any series thereof, subject to the provisions of
the ▇▇▇▇ ▇▇▇) or under foreign laws, without regard to
whether any such securities mature before or after the
possible termination of the Trust; 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; and to hold cash or other property uninvested,
without in any event being bound or limited by any current
or future law or custom concerning investments by trustees;
(c) To adopt By-Laws not inconsistent with this Declaration
of Trust providing for the conduct of the business of the
Trust and to amend and repeal them to the extent such right
is not reserved to the Shareholders;
(d) To sell, exchange, or otherwise dispose of any or all
of the assets of the Trust or any Series subject to Article
VIII, Section 2 of this Declaration of Trust;
(e) To vote or give assent, or exercise any rights of
ownership, with respect to 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;
(f) To exercise powers and right of subscription or
otherwise which in any manner arise out of ownership or
securities;
(g) 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, subject in either case to safeguards according to
the usual practice of business trusts or investment
companies;
(h) 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;
(i) 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;
(j) To borrow money or otherwise obtain credit and to
secure the same by mortgaging, pledging, or otherwise
subjecting as security any assets of the Trust, including
the lending of portfolio securities, and to endorse,
guarantee or undertake the performance of any obligation,
contract, or engagement of any other person, firm,
association, or corporation;
(k) To purchase, and pay for, out of Trust Property or the
assets belonging to any appropriate Series, insurance
policies insuring the Shareholders, Trustees, officers,
employees, agents, and/or independent contractors of the
Trust (including the investment adviser of any Series)
against all claims arising by reason of holding any such
position or by reason of any action taken or omitted by any
such person in such capacity, whether or not the Trust would
have the power to indemnify such person against such claim;
(l) To establish committees for such purposes, with such
membership, and with such responsibilities as the Trustees
may consider proper, including a committee consisting of
fewer than all of the Trustees then in office, which may act
for and bind the Trustees and the Trust with respect to the
institution, prosecution, dismissal, settlement, review or
investigation of any legal action, suit or proceeding,
pending or threatened to be brought before any court,
administrative agency, or other adjudicatory body;
(m) To establish a registered office and have a registered
agent in the State of Delaware;
(n) To issue, sell, repurchase, redeem, cancel, retire,
acquire, hold, resell, reissue, dispose of and otherwise
deal in Shares; to establish terms and conditions regarding
the issuance, sale, repurchase, redemption, cancellation,
retirement, acquisition, holding, resale, reissuance,
disposition of or dealing in Shares; and, subject to Article
III, to apply to any such repurchase, redemption,
retirement, cancellation or acquisition of Shares any funds
or property of the Trust or of the particular Series with
respect to which such Shares are issued;
(o) To declare and make distributions of income and of
capital gains to Shareholders in the manner hereinafter
provided for;
(p) To establish, from time to time, a minimum total
investment for Shareholders in the Trust or in one or more
Series or Classes, and to require the redemption of the
Shares of any Shareholders whose investment is less than
such minimum or take such other action as the Trustees in
their discretion shall determine;
(q) 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;
(r) To enter into contracts of any kind and description;
(s) 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;
(t) To elect and remove such officers and appoint and
terminate such agents as they deem appropriate;
(u) To retain one or more transfer agents and Shareholder
servicing agents, or both;
(v) To provide for the distribution of Shares through
either of adistributor, underwriter, broker or by the Trust
itself, or pursuant to a distribution plan of any kind;
(w) To set record dates in the manner provided for herein
or in the By-Laws;
(x) To delegate such authority as they consider desirable
to any officers of the Trust and to any agent, independent
contractor, manager, investment adviser, custodian,
administrator, underwriter or other service provider;
(y) 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;
(z) To interpret the investment policies, practices, or
limitations of any Series or Class;
(aa) 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;
(bb) 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; and
(cc) 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 6. 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
partly out of the principal and partly out of income, and to
charge or allocate to, between or among such one or more
Series (or Classes), 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 adviser or manager, administrator, 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.
SECTION 7. 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 8. CERTAIN TRANSACTIONS. Except as prohibited
by applicable law, the Trustees may, on behalf of the Trust,
buy any securities from or sell any securities to, or lend
any assets of the Trust to, any Trustee or officer of the
Trust or any firm of which any such Trustee or officer is a
member acting as principal, or have any such dealings with
any investment adviser, administrator, distributor or
transfer agent for the Trust or with any Interested Person
of such person. The Trust may employ any such person or
entity in which such person is an Interested Person, as
broker, legal counsel, registrar, investment adviser,
administrator, distributor, transfer agent, dividend
disbursing agent, custodian or in any other capacity upon
customary terms.
SECTION 9. 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, 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.
SECTION 10. 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 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 11. SERIES TRUSTEES. In connection with the
establishment of one or more Series or Classes, the Trustees
establishing such Series or Class may appoint, to the extent
permitted by the Delaware Act, separate Trustees with
respect to such Series or Classes (the "Series Trustees").
Series Trustees may, but are not required to, serve as
Trustees of the Trust or any other Series or Class of the
Trust. The Series Trustees shall have, to the exclusion of
any other Trustee of the Trust, all the powers and
authorities of Trustees hereunder with respect to such
Series or Class, but shall have no power or authority with
respect to any other Series or Class. Any provision of this
Declaration relating to election of Trustees by Shareholders
only shall entitle the Shareholders of a Series or Class for
which Series Trustees have been appointed to vote with
respect to the election of such Series Trustees and the
Shareholders of any other Series or Class shall not be
entitled to participate in such vote. In the event that
Series Trustees are appointed, the Trustees initially
appointing such Series Trustees shall, without the approval
of any Outstanding Shares, amend either the Declaration or
the By-laws to provide for the respective responsibilities
of the Trustees and the Series Trustees in circumstances
where an action of the Trustees or Series Trustees affects
all Series of the Trust or two or more Series represented by
different Trustees.
ARTICLE V
Shareholders' Voting Powers and Meetings
SECTION 1. VOTING POWERS, MEETINGS, NOTICE, AND RECORD
DATES. The Shareholders shall have power to vote only with
respect to (a) the election of Trustees as provided in
Section 2 of this Article and Section 1 of Article IV; (b)
the removal of Trustees as provided in Article IV, Section
1(d); (c) any investment advisory or management contract;
(d) any termination of the Trust as provided in Article
VIII, Section 2; (e) the amendment of this Declaration of
Trust to the extent and as provided in Article VIII, Section
3; and (f) such additional matters relating to the Trust as
may be required or authorized by law, this Declaration of
Trust, or the By-Laws or any registration of the Trust with
the Commission or any State, or as the Trustees may consider
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 or in any manner
provided for in the By-Laws. 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, sixty-six and two-third
percent (66-2/3%) of the Shares entitled to vote shall
constitute a quorum at a Shareholders' meeting. When any one
or more Series (or Class) is to vote as a single Series (or
Class) separate from any other Shares, sixty-six and two-
third percent (66-2/3%) of the Shares of each such Series
(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 shall decide that matter insofar as that
Series (or Class) is concerned.
ARTICLE VI
Limitations Of Liability
SECTION 1 NO PERSONAL LIABILITY OF TRUSTEES,
OFFICERS, EMPLOYEES OR AGENTS. No Trustee, officer, employee
or agent of the Trust when acting in such capacity shall be
subject to any personal liability whatsoever, in his or her
individual capacity, to any Person, other than the Trust or
its Holders, in connection with Trust Property or the
affairs of the Trust; and all such Persons shall look solely
to the Trust Property for satisfaction of claims of any
nature against a Trustee, officer, employee or agent of the
Trust arising in connection with the affairs of the Trust.
No Trustee, officer, employee or agent of the Trust shall be
liable to the Trust, Holders of Interests therein, 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 or her own bad
faith, willful misfeasance, gross negligence or reckless
disregard of his or her duties.
SECTION 2 INDEMNIFICATION OF TRUSTEES, OFFICERS,
EMPLOYEES AND AGENTS. The Trust shall indemnify each of its
Trustees, officers, employees, and agents (including Persons
who serve at its request as directors, officers or trustees
of another organization in which it has any interest, as a
shareholder, creditor or otherwise) against all liabilities
and expenses (including amounts paid in satisfaction of
judgments, in compromise, as fines and penalties, and as
counsel fees) reasonably incurred by him or her in
connection with the defense or disposition of any action,
suit or other proceeding, whether civil or criminal, in
which he or she may be involved or with which he or she may
be threatened, while in office or thereafter, by reason of
his or her being or having been such a Trustee, officer,
employee or agent, except with respect to any matter as to
which he or she shall have been adjudicated to have acted in
bad faith, willful misfeasance, gross negligence or reckless
disregard of his or her duties; provided, however, that as
to any matter disposed of by a compromise payment by such
Person, pursuant to a consent decree or otherwise, no
indemnification either for said payment or for any other
expenses shall be provided unless there has been a
determination that such Person did not engage in willful
misfeasance, bad faith, gross negligence or reckless
disregard of the duties involved in the conduct of his or
her office by the court or other body approving the
settlement or other disposition or by a reasonable
determination, based upon review of readily available facts
(as opposed to a full trial-type inquiry), that he or she
did not engage in such conduct or by a reasonable
determination, based upon a review of the facts, that such
Person was not liable by reason of such conduct, by (a) the
vote of a majority of a quorum of Trustees who are neither
"interested persons" of the Trust as defined in Section
2(a)(19) of the 1940 Act nor parties to the proceeding, or
(b) a written opinion from independent legal counsel
approved by the Trustees. The rights accruing to any Person
under these provisions shall not exclude any other right to
which he or she may be lawfully entitled; provided that no
Person may satisfy any right of indemnity or reimbursement
granted herein or in Section 1 or to which he or she may be
otherwise entitled except out of the Trust Property. The
Trustees may make advance payments in connection with
indemnification under this Section 2, provided that the
indemnified Person shall have given a written undertaking to
reimburse the Trust in the event it is subsequently
determined that he or she is not entitled to such
indemnification.
SECTION 3 NO BOND REQUIRED OF TRUSTEES. No Trustee
shall, as such, be obligated to give any bond or surety or
other security for the performance of any of his or her
duties hereunder.
SECTION 4 NO DUTY OF INVESTIGATION; NOTICE IN TRUST
INSTRUMENTS, ETC. No purchaser, lender, or other Person
dealing with the Trustees or any officer, employee or agent
of the Trust shall be bound to make any inquiry concerning
the validity of any transaction purporting to be made by the
Trustees or by said officer, employee or agent or be liable
for the application of money or property paid, loaned, or
delivered to or on the order of the Trustees or of said
officer, employee or agent. Every obligation, contract,
instrument, certificate or other interest or undertaking of
the Trust, and every other act or thing whatsoever executed
in connection with the Trust, shall be conclusively relied
upon as having been executed or done by the executors
thereof only in their capacities as Trustees, officers,
employees or agents of the Trust. Every written obligation,
contract, instrument, certificate or other interest or
undertaking of the Trust made by the Trustees or by any
officer, employee or agent of the Trust, in his or her
capacity as such, shall contain an appropriate recital to
the effect that the Trustee, officer, employee or agent of
the Trust shall not personally be bound by or liable
thereunder, nor shall resort be had to their private
property or the private property of the Holders for the
satisfaction of any obligation or claim thereunder, and
appropriate references shall be made therein to the
Declaration, and may contain any further recital which they
may deem appropriate, but the omission of such recital shall
not operate to impose personal liability on any of the
Trustees, officers, employees or agents of the Trust. The
Trustees may maintain insurance for the protection of the
Trust Property, Holders, Trustees, officers, employees and
agents in such amount as the Trustees shall deem advisable.
SECTION 5 RELIANCE ON EXPERTS, ETC. Each Trustee
and officer or employee of the Trust shall, in the
performance of his or her duties, 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 by any
of its officers or employees or by any investment adviser,
administrator, accountant, appraiser 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.
SECTION 6 ASSENT TO DECLARATION. Every Holder, by
virtue of having become a Holder in accordance with the
terms of this Declaration, shall be held to have expressly
assented and agreed to the terms hereof and to have become a
party hereto.
ARTICLE VII
Distributions and Redemptions
Section 1. DISTRIBUTIONS. The Trustees or a committee of
one or more Trustees and one or more officers may declare
and pay dividends and other distributions, including
dividends on Shares of a particular Series and other
distributions from the assets belonging to that Series. No
dividend or distribution, including, without limitation, any
distribution paid upon termination of the Trust or of any
Series (or Class) with respect to, nor any redemption or
repurchase of, the Shares of any Series (or Class) shall be
effected by the Trust other than from the assets held with
respect to such Series, nor shall any Shareholder of any
particular Series otherwise have any right or claim against
the assets held with respect to any other Series except to
the extent that such Shareholder has such a right or claim
hereunder as a Shareholder of such other Series. The
Trustees shall have full discretion to determine which items
shall be treated as income and which items as capital; and
each such determination and allocation shall be conclusive
and binding upon the Shareholders. The amount and payment of
dividends or distributions and their form, whether they are
in cash, Shares or other Trust Property, shall be determined
by the Trustees. Dividends and other distributions may be
paid pursuant to a standing resolution adopted once or more
often as the Trustees determine. All dividends and other
distributions on Shares of a particular Series shall be
distributed pro rata to the Shareholders of that Series in
proportion to the number of Shares of that Series they held
on the record date established for such payment, except that
such dividends and distributions shall appropriately reflect
expenses allocated to a particular Class of such Series. The
Trustees may adopt and offer to Shareholders such dividend
reinvestment plans, cash dividend payout plans or similar
plans as the Trustees deem appropriate.
Section 2. REDEMPTIONS. Each Shareholder of a Series
shall have the right at such times as may be permitted by
the Trustees to require the Series to redeem all or any part
of his Shares at a redemption price per Share equal to the
Net Asset Value per Share at such time as the trustees shall
have prescribed by resolution, or, to the extent permitted
by the 1940 Act, at such other redemption price and at such
times as the Trustees shall prescribe by resolution. In the
absence of such resolution, the redemption price per Share
shall be the Net Asset Value next determined after receipt
by the Series of a request for redemption in proper form
less such charges as are determined by the Trustees and
described in the Trust's Registration Statement for that
Series under the Securities Act of 1933. The Trustees may
specify conditions, prices, and places of redemption, may
specify binding requirements for the proper form or forms of
requests for redemption and may specify the amount of any
deferred sales charge to be withheld from redemption
proceeds. Payment of the redemption price may be wholly or
partly in securities or other assets at the value of such
securities or assets used in such determination of Net Asset
Value, or may be in cash. Upon redemption, Shares may be
reissued from time to time. The Trustees may require
Shareholders to redeem Shares for any reason under terms set
by theTrustees, including, but not limited to, the failure
of a Shareholder to supply a taxpayer identification number
if required to do so, or to have the minimum investment
required, or to pay when due for the purchase of Shares
issued to him. To the extent permitted by law, the Trustees
may retain the proceeds of any redemption of Shares required
by them for payment of amounts due and owing by a
Shareholder to the Trust or any Series or Class or any
governmental authority.
Notwithstanding the foregoing, the Trustees may postpone
payment of the redemption price and may suspend the right of
the Shareholders to require any Series or Class to redeem
Shares during any period of time when and to the extent
permissible under the 1940 Act.
Section 3. DETERMINATION OF NET ASSET VALUE. The
Trustees shall cause the Net Asset Value of Shares of each
Series or Class to be determined from time to time in a
manner consistent with applicable laws and regulations. The
Trustees may delegate the power and duty to determine Net
Asset Value per Share to one or more Trustees or officers of
the Trust or to a custodian, depository or other agent
appointed for such purpose. The Net Asset Value of Shares
shall be determined separately for each Series or Class at
such times as may be prescribed by the Trustees or, in the
absence of action by the Trustees, as of the close of
regular trading on the New York Stock Exchange on each day
for all or part of which such Exchange is open for
unrestricted trading.
Section 4. SUSPENSION OF RIGHT OF REDEMPTION. If, as
referred to in Section 2 of this Article, the Trustees
postpone payment of the redemption price and suspend the
right of Shareholders to redeem their Shares, such
suspension shall take effect at the time the Trustees shall
specify, but not later than the close of business on the
business day next following the declaration of suspension.
Thereafter Shareholders shall have no right of redemption or
payment until the Trustees declare the end of the
suspension. If the right of redemption is suspended, a
Shareholder may either withdraw his request for redemption
or receive payment based on the Net Asset Value per Share
next determined after the suspension terminates.
Section 5. REPURCHASE BY AGREEMENT. The Trust may
repurchase Shares directly, or through the underwriter,
distributor or another agent designated for the purpose, by
agreement with the owner thereof at a price not exceeding
the Net Asset Value per Share determined as of the time when
the purchase or contract of purchase is made or the Net
Asset Value as of any time which may be later determined,
provided payment is not made for the Shares prior to the
time as of which such Net Asset Value is determined.
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 uponits order.
SECTION 2. TERMINATION OF TRUST OR SERIES. Unless
terminated as providedherein, 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
may be terminated at any time by vote of a majority of the
Shares of that Series or by the Trustees by written notice
to the Shareholders of that Series.
Upon termination of the Trust (or any Series, as the case
may be), after paying or otherwise providing for all
charges, taxes, expenses and liabilities held, severally,
with respect to each Series (or the applicable Series, as
the case may be), whether due or accrued or anticipated as
may be determined by the Trustees, the Trust shall, in
accordance with such procedures as the Trustees consider
appropriate, reduce the remaining assets held, severally,
with respect to each Series (or the applicable Series, as
the case may be), to distributable form in cash or shares or
other securities, or any combination thereof, and distribute
the proceeds held with respect to each Series (or the
applicable Series, as the case may be), to the Shareholders
of that Series, as a Series, ratably according to the number
of Shares of that Series held by the several Shareholders on
the date of termination.
SECTION 3. MERGER AND CONSOLIDATION. the Trustees may
cause (i) the Trust or one or more of its Series to the
extent consistent with applicable law to be merged into or
consolidated with another Trust or company, (ii) the Shares
of the Trust or any Series to be converted into beneficial
interests in another business trust (or series thereof)
created pursuant to this Section 3 of Article VIII, or (iii)
the Shares to be exchanged under or pursuant to any state or
federal statute to the extent permitted by law. Such merger
or consolidation, Share conversion or Share exchange must be
authorized by vote of a majority of the Outstanding Shares
of the Trust, as a whole, or any affected Series, as may be
applicable; provided that in all respects not governed by
statute or applicable law, the Trustees shall have power to
prescribe the procedure necessary or appropriate to
accomplish a sale of assets, merger or consolidation
including the power to create one or more separate business
trusts to which all or any part of the assets, liabilities,
profits or losses of the Trust may be transferred and to
provide for the conversion of Shares of the Trust or any
Series into beneficial interests in such separate business
trust or trusts (or series thereof).
SECTION 4. AMENDMENTS. This Declaration of Trust may be
restated and/or amended at any time by an instrument in
writing signed by a majority of the then Trustees and, if
required, by approval of such amendment by Shareholders in
accordance with Article V, Section 1 hereof. Any such
restatement and/or amendment hereto shall be effective
immediately upon execution and approval. The Certificate of
Trust of the Trust may be restated and/or amended by a
similar procedure, and any such restatement and/or amendment
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 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 amendment, references to this instrument, and all
expressions like "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. This Agreement and Declaration
of Trust is created under and is to be governed by and
construed and administered according to the laws of the
State of Delaware and the Delaware Business Trust Act, as
amended from time to time (the "Act"). The Trust shall be a
Delaware business trust pursuant to such Act, and without
limiting the provisions hereof, the Trust may exercise all
powers which are ordinarily exercised by such a business
trust.
SECTION 7. PROVISIONS IN CONFLICT WITH LAW OR
REGULATIONS.
(a) The provisions of the 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 regulated investment company
provisions of the Internal Revenue Code or with other
applicable laws and regulations, the conflicting provision
shall be deemed never to have constituted a part of the
Declaration of Trust; provided, however, that such
determination shall not affect any of the remaining
provisions of the Declaration of Trust or render invalid or
improper any action taken or omitted prior to such
determination.
(b) If any provision of the 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 the 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 Business Trust Act, as amended from time to time
(the "Act"), and thereby to create only the relationship of
trustee and beneficial owners within the meaning of such 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
business trust pursuant to such 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.
IN WITNESS WHEREOF, the Trustees named below do hereby
make and enter into this Declaration of Trust as of the __th
day of ______,2002.
THE PRINCIPAL PLACE OF BUSINESS OF THE TRUST IS:
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Old Article III
SECTION 1. DIVISION OF BENEFICIAL INTEREST. The
beneficial interest in the Trust shall at all times be
divided into Shares, all without par value. The number of
Shares authorized hereunder is unlimited. The Board of
Trustees may authorize the division of Shares into separate
and distinct Series and the division of any Series into
separate classes of Shares. The different Series and classes
shall be established and designated, and the variations in
the relative rights and preferences as between the different
Series and classes shall be fixed and determined by the
Board of Trustees without the requirement of Shareholder
approval. If no separate Series or classes shall be
established, the Shares shall have the rights and
preferences provided for herein and in Article III, Section
6 hereof to the extent relevant and not otherwise provided
for herein, and all references to Series and classes shall
be construed (as the context may require) to refer to the
Trust. The fact that a Series shall have initially been
established and designated without any specific
establishment or designation of classes (i.e., that all
Shares of such Series are initially of a single class) shall
not limit the authority of the Board of Trustees to
establish and designate separate classes of said Series. The
fact that a Series shall have more than one established and
designated class, shall not limit the authority of the Board
of Trustees to establish and designate additional classes of
said Series, or to establish and designate separate classes
of the previously established and designated classes.
The Board of Trustees shall have the power to issue
Shares of the Trust, or any Series or class thereof, from
time to time for such consideration (but not less than the
net asset value thereof) and in such form as may be fixed
from time to time pursuant to the direction of the Board of
Trustees.
The Board of Trustees may hold as treasury shares,
reissue for such consideration and on such terms as they may
determine, or cancel, at their discretion from time to time,
any Shares of any Series reacquired by the Trust. The Board
of Trustees may classify or reclassify any unissued Shares
or any Shares previously issued and reacquired of any Series
or class into one or more Series or classes that may be
established and designated from time to time.
Notwithstanding the foregoing, the Trust and any Series
thereof may acquire, hold, sell and otherwise deal in, for
purposes of investment or otherwise, the Shares of any other
Series of the Trust or Shares of the Trust, and such Shares
shall not be deemed treasury shares or cancelled.
Subject to the provisions of Section 6 of this Article
III, each Share shall have voting rights as provided in
Article V hereof, and the Shareholders of any Series shall
be entitled to receive dividends and distributions, when, if
and as declared with respect thereto in the manner provided
in Article VII hereof. No Share shall have any priority or
preference over any other Share of the same Series or class
with respect to dividends or distributions paid in the
ordinary course of business or distributions upon
dissolution of the Trust or of such Series or class made
pursuant to Article VIII, Section 2 hereof. All dividends
and distributions shall be made ratably among all
Shareholders of a particular class of Series from the Trust
Property held with respect to such Series according to the
number of Shares of such class of such Series held of record
by such Shareholders on the record date for any dividend or
distribution. Shareholders shall have no preemptive or other
right to subscribe to new or additional Shares or other
securities issued by the Trust or any Series. The Trustees
may from time to time divide or combine the Shares of any
particular Series into a greater or lesser number of Shares
of that Series. Such division or combination may not
materially change the proportionate beneficial interests of
the Shares of that Series in the Trust Property held with
respect to that Series or materially affect the rights of
Shares of any other Series.
Any Trustee, officer or other agent of the Trust, and any
organization in which any such Person is interested, may
acquire, own, hold and dispose of Shares of the Trust to the
same extent as if such Person were not a Trustee, officer or
other agent of the Trust; and the Trust may issue and sell
or cause to be issued and sold and may purchase Shares from
any such Person or any such organization subject only to the
general limitations, restrictions or other provisions
applicable to the sale or purchase of such Shares generally.
SECTION 2. OWNERSHIP OF SHARES. The ownership of
Shares shall be recorded on the books of the Trust kept by
the Trust or by a transfer or similar agent for the Trust,
which books shall be maintained separately for the Shares of
each Series and class thereof that has been established and
designated. No certificates certifying the ownership of
Shares shall be issued except as the Board of Trustees may
otherwise determine from time to time. The Board of Trustees
may make such rules not inconsistent with the provisions of
the 1940 Act as they consider appropriate for the issuance
of Share certificates, the transfer of Shares of each Series
or class and similar matters. The record books of the Trust
as kept by the Trust or any transfer or similar agent, as
the case may be, shall be conclusive as to who are the
Shareholders of each Series or class thereof and as to the
number of Shares of each Series or class thereof held from
time to time by each such Shareholder.
SECTION 3. 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 Board of
Trustees may, from time to time, 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 may select, at the net
asset value per Share next determined for such Series or
class after receipt of the investment.
SECTION 4. STATUS OF SHARES AND LIMITATION OF PERSONAL
LIABILITY. Shares shall be deemed to be personal property
giving to Shareholders only the rights provided in this
Declaration of Trust and under applicable law. Every
Shareholder by virtue of having become a Shareholder shall
be held to have expressly assented and agreed to the terms
hereof and to have become a party hereto. The death of a
Shareholder during the existence of the Trust shall not
operate to dissolve the Trust or any Series, 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 or any Series, but entitles such
representative only to the rights of said deceased
Shareholder under this Declaration of Trust. Ownership of
Shares shall not entitle the Shareholder to any title in or
to the whole or any part of the Trust Property or right to
call for a partition or division of the same or for an
accounting, nor shall the ownership of Shares constitute the
Shareholders as partners. Neither the Trust nor the
Trustees, nor any officer, employee or agent of the Trust,
shall have any power to bind personally any Shareholder,
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. All Shares, when issued
on the terms determined by the Board of Trustees, shall be
fully paid and nonassessable. As provided in the Delaware
Act, Shareholders of the Trust shall be entitled to the same
limitation of personal liability extended to stockholders of
a private corporation organized for profit under the general
corporation law of the State of Delaware.
SECTION 5. 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 or the
Certificate of Trust as provided elsewhere herein, the Board
of Trustees shall have the power to amend this Declaration
of Trust, or 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 law; provided, however that
if Shares have been issued, Shareholder approval shall be
required to adopt any amendment to this Declaration of Trust
which would adversely affect to a material degree the rights
and preferences of the Shares of any Series or class already
issued; provided, however, that in the event that the Board
of Trustees determines that the Trust shall no longer be
operated as an investment company in accordance with the
provisions of the 1940 Act, the Board of Trustees may adopt
such amendments to this Declaration of Trust to delete those
terms the Board of Trustees identifies as being required by
the 1940 Act.
Subject to the foregoing paragraph, the Board of Trustees
may amend any provision set forth in paragraphs (a) through
(i) of Section 6 of this Article III.
Notwithstanding the foregoing paragraphs, the Board of
Trustees shall have the power, in its discretion, to make
such elections as to the tax status of the Trust as may be
permitted or required under the Code as currently in effect
or as amended, without the vote of any Shareholder.
SECTION 6. ESTABLISHMENT AND DESIGNATION OF SERIES OR
CLASS. The establishment and designation of any Series or
class of Shares shall be effective upon the resolution by a
majority of the then Board of Trustees, adopting a
resolution which sets forth such establishment and
designation and the relative rights and preferences of such
Series or class. Each such resolution shall be incorporated
herein by reference upon adoption. Without limiting the
authority of the Trustees to establish and designate any
further Series,the Trustees hereby establish a Series of the
Trust which shall be designated "The Pennsylvania Avenue
Event-Driven Fund".
Each Series shall be separate and distinct from any other
Series and shall maintain separate and distinct records on
the books of the Trust, 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.
The Trustees may divide the Shares of any Series into
Classes. Without limiting the authority of the Trustees to
establish and designate any further Classes, the Trustees
hereby establish four Classes of Shares which shall be
designated Investor Class and Advisor Class Shares. The
Classes of Shares of the existing Series herein established
and designated and any Shares of any further Series and
Classes that may from time to time be established and
designated by the Trustees shall be established and
designated, and the variations in the relative rights and
preferences as between the different Series shall be fixed
and determined, by the Trustees; provided, that all Shares
shall be identical except for such variations as shall be
fixed and determined between different Series or Classes by
the Trustees in establishing and designating such Class or
Series. In connection therewith with respect to the existing
Classes, the relative expenses of Classes shall be as set
forth in the Trust's Registration Statement on Form N-1A
under the Securities Act of 1933 and/or the 1940 Act and as
in effect at the time of issuing Shares of the existing
Classes.
Shares of each Series or class established pursuant to
this Section 6, unless otherwise provided in the resolution
establishing such Series, 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 with respect to that Series
for all purposes, subject only to the rights of creditors
with respect to such 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"
such 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 Board of 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 Board of Trustees, in
its sole discretion, deems fair and equitable, and any
General Asset so allocated to a particular Series shall be
held with respect to that Series. Each such allocation by
the Board of Trustees shall be conclusive and binding upon
the Shareholders of all Series for all purposes.
(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, and any
liabilities, expenses, costs, charges and reserves of the
Trust that are not readily identifiable as being 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. The liabilities,
expenses, costs, charges, and reserves so charged to a
Series are herein referred to as "liabilities held with
respect to" such Series. Each allocation of liabilities,
expenses, costs, charges and reserves by the Board of
Trustees shall be conclusive and binding upon the
Shareholders of all Series for all purposes. All Persons who
have extended credit that has been allocated to a particular
Series, or who have a claim or contract that has been
allocated to any particular Series, shall look, and shall be
required by contract to look exclusively, to the assets of
that particular Series 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 creditor, claimant or
contract provider 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, whether such Series 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 only, and
not against the assets of any other Series 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 thereof shall be enforceable
against the assets held with respect to such particular
Series. Notice of this limitation on liabilities between and
among Series shall be set forth in the Certificate of Trust
of the Trust (whether originally or by amendment) as filed
or to be filed in the Office of the Secretary of State of
the State of Delaware pursuant to the 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 between and 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.
(c) Dividends, Distributions, Redemptions and
Repurchases. Notwithstanding any other provision of this
Declaration of Trust, including, without limitation, Article
VI, no dividend or distribution, including without
limitation, any distribution paid upon dissolution of the
Trust or of any Series 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, except as specifically provided
in Article VI, shall any Shareholder of any particular
Series otherwise have any right or claim against the assets
held with respect to any other Series or the General Assets
of the Trust except to the extent that such Shareholder has
such a right or claim hereunder as a Shareholder of such
other Series. The Board of 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 on the matter, separately by Series and,
if applicable, by class; provided, that (1) where the 1940
Act requires all Shares of the Trust to be voted in the
aggregate, without differentiation between the separate
Series or classes, on any matter, then all of the Trust's
Shares shall be entitled to vote in the aggregate on the
matter; and (2) if any matter affects only the interests of
some but not all Series or classes, then only the Shares of
such affected Series or classes shall be entitled to vote on
the matter.
(e) Equality All Shares of each particular Series shall
represent an equal proportionate undivided beneficial
interest in the assets held with respect to each such Series
(subject to the liabilities held with respect to such 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 other Share of such Series (subject to the
rights and preferences with respect to separate classes of
such Series).
(f) Fractions Any fractional Share of a Series shall
carry proportionately to the fractional amount of such Share
all the rights and obligations of a whole Share of such
Series, including rights with respect to voting, receipt of
dividends and distributions, redemption of Shares and
dissolution of the Trust or such Series.
(g) Exchange Privilege The Board of Trustees shall have
the authority to provide that the holders of Shares of any
Series shall have the right to exchange said Shares for
Shares of one or more other Series in accordance with such
requirements and procedures as may be established by the
Board of Trustees, and in accordance with the 1940 Act and
the rules and regulations thereunder.
(h) Combination of Series The Board of Trustees shall
have the authority, without the approval of the Shareholders
of any Series unless otherwise required by applicable law,
to combine the assets and liabilities held with respect to
any two or more Series into assets and liabilities held with
respect to a single Series; provided that upon completion of
such combination of Series, the proportionate interest of
each Shareholder of each Series that is combined, in the
assets and liabilities held with respect to the combined
Series shall equal the proportionate interest that each such
Shareholder held in the assets and liabilities held with
respect to the particular Series that is combined.
(i) Elimination of Series At any time that there are no
Shares outstanding of any particular Series or class
previously established and designated, the Board of Trustees
may by resolution of a majority of the then Board of
Trustees abolish that Series or class and rescind the
establishment and designation thereof. Each such resolution
shall be incorporated herein by reference upon adoption.
SECTION 7. 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 of the Trust
(or by having been a Shareholder of a particular Series),
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 out of the assets of the Trust or out of the
assets of the applicable Series (as the case may be)
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)
arising hereunder to reimburse any Shareholder for taxes
paid by reason of such Shareholder's ownership of any
Shares.
This 19th day of September 2002
BY: ___________
▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
Trustee, President of the Trust
