EXHIBIT INDEX
Attachment to item 77Q1: - Exhibits
EXHIBIT A: AMENDED AND RESTATED DECLARATION OF TRUST
EXHIBIT B: INVESTMENT ADVISORY AGREEMENT - SCHEDULE A
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EXHIBIT A:
▇▇▇▇▇ FARGO MASTER TRUST
AMENDED AND RESTATED
DECLARATION OF TRUST
DATED
NOVEMBER 25, 2002
[PAGE BREAK]
DECLARATION OF TRUST
OF
▇▇▇▇▇ FARGO MASTER TRUST
TABLE OF CONTENTS
Page Number
ARTICLE I DEFINITIONS 1
ARTICLE II THE TRUSTEES 3
Section 1. Management of the Trust 3
Section 2. Initial Trustees; Election and Number of Trustees 3
Section 3. Term of Office of Trustees. 3
Section 4. Age Limitation of Trustees 3
Section 5. Vacancies; Appointment of Trustees 3
Section 6. Temporary Vacancies or Absence 4
Section 7. Chairman; Lead Trustee 4
Section 8. Action by Trustees. 5
Section 9. Meetings of the Trustees; Required Notice 5
Section 10. Committees 5
Section 11. Audit Committee 6
Section 12. Nominating Committee 6
Section 13. Ownership of Trust Property 6
Section 14. Effect of Trustees Not Serving 7
Section 15. Trustees as Interestholders 7
Section 16. Compensation of Trustees 7
ARTICLE III POWERS OF THE TRUSTEES 7
Section 1. Powers 7
Section 2. Certain Transactions 10
ARTICLE IV SERIES; CLASSES; INTERESTS 10
Section 1. Establishment of Series or Class 10
Section 2. Interests 11
Section 3. Investment in the Trust 11
Section 4. Assets and Liabilities of Series. 12
Section 5. Ownership and Transfer of Interests 13
Section 6. Status of Interests; Limitation of Interestholder
Liability 13
ARTICLE V DETERMINATION OF BOOK CAPITAL ACCOUNT
BALANCES, AND ALLOCATIONS 13
Section 1. Book Capital Account Balances 13
Section 2. Allocation of Net Profits and Net Losses 14
Section 3. Power to Modify the Foregoing Procedures 14
ARTICLE VI DISTRIBUTIONS AND REDEMPTIONS 15
Section 1. Distributions 15
Section 2. Determination of Net Income 15
Section 3. Redemptions 15
Section 4. Determination of Net Asset Value 16
Section 5. Suspension of Right of Redemption 16
ARTICLE VII INTERESTHOLDERS' VOTING POWERS AND MEETINGS 16
Section 1. Voting Powers 16
Section 2. Meetings of Interestholders 17
Section 3. Quorum; Required Vote 17
Section 4. Inspectors of Election 18
ARTICLE VIII CONTRACTS WITH SERVICE PROVIDERS 18
Section 1. Investment Adviser 18
Section 2. Principal Underwriter 19
Section 3. Transfer Agency, Accounting, Administration and
Other Services 19
Section 4. Custodian 19
Section 5. Parties to Contracts with Service Providers 19
ARTICLE IX EXPENSES OF THE TRUST AND SERIES 20
ARTICLE X LIMITATION OF LIABILITY AND INDEMNIFICATION 20
Section 1. Limitation of Liability 20
Section 2. Mandatory Indemnification 21
Section 3. Indemnification of Interestholders 22
Section 4. Contractual Modification of Duties 22
ARTICLE XI OFFICERS 23
Section 1. General 23
Section 2. Election, Tenure and Qualifications of Officers 23
Section 3. Vacancies and Newly Created Offices 23
Section 4. Removal and Resignation 23
Section 5. President 23
Section 6. Treasurer and Assistant Treasurers 24
Section 7. Secretary and Assistant Secretaries 24
Section 8. Authority to Execute and File Applications for
Exemptive Relief 24
Section 9. Compensation of Officers 25
Section 10. Surety Bond 25
ARTICLE XII MISCELLANEOUS 25
Section 1. Trustee Action; Expert Advice; No Bond or Surety 25
Section 2. Record Dates 25
Section 3. Dissolution or Termination of a Class, Series or
the Trust 25
Section 4. Reorganization 26
Section 5. Declaration 27
Section 6. Derivative Actions 27
Section 7. Applicable Law 27
Section 8. Amendments 28
Section 9. Fiscal Year 28
Section 10. Severability 28
Section 11. Principal Office 28
Section 12. Maintenance and Inspection of the Books. 28
AMENDED AND RESTATED
DECLARATION OF TRUST
OF
▇▇▇▇▇ FARGO MASTER TRUST
This Declaration of Trust, made on March 10, 1999, and
amended and restated on March 26, 1999, August 19, 1999 and
November 25, 2002, creates a Delaware business trust, and by the
November 25, 2002 restatement, a Delaware statutory trust, for
the investment and reinvestment of money and property received
by the Trust from time to time. The Trustees declare that all
money and property received by the Trust shall be held and
managed in trust pursuant to this Declaration. The name of the
Trust created by this Declaration is ▇▇▇▇▇ Fargo Master Trust
(known prior to the November 25, 2002 restatement as ▇▇▇▇▇ Fargo
Core Trust).
ARTICLE I
DEFINITIONS
Unless otherwise provided or required by the context:
(a) "1940 Act" means the Investment Company Act of 1940,
as amended from time to time, and all terms and requirements
that are defined herein by reference to the 1940 Act shall be
interpreted as that term or requirement has been modified or
interpreted by applicable orders of the Commission or any rules
or regulations adopted by, or interpretive releases of the
Commission or its staff, and staff no-action letters issued
under the 1940 Act;
(b) "Board" means the Board of Trustees of the Trust as
described in Article II of this Declaration;
(c) "Book Capital Account" means, with respect to any
Interestholder, the Capital Account maintained for such
Interestholder on a daily basis in accordance with Article V of
this Declaration of Trust;
(d) "By-Laws" means the By-Laws of the Trust if adopted by
the Trustees, as amended from time to time;
(e) "Class" means the class of Interests of a Series
established pursuant to Article IV;
(f) "Code" means the Internal Revenue Code of 1986, as
amended from time to time, and the rules and regulations
thereunder, as adopted or amended from time to time;
(g) "Commission," "Interested Person," and "Principal
Underwriter" have the meanings provided in the 1940 Act;
(h) "Covered Person" means a person so defined in
Article X, Section 2;
(i) "Declaration" shall mean this Amended and Restated
Declaration of Trust as amended, modified, supplemented or
restated from time to time.
(j) "Delaware Act" means Chapter 38 of Title 12 of the
Delaware Code entitled "Treatment of Delaware Statutory Trusts,"
as amended from time to time, and as interpreted by the Delaware
courts;
(k) with the valuation procedures of the Trust as
approved by the Board of Trustees; as follows:
(l) "Interestholder" means a record owner of Interests of
the Trust;
(m) "Interests" means the equal proportionate non-
transferable units of interest into which the beneficial
interest of the Trust is divided from time to time (including
whole and fractional Interests), or if more than one series or
class of interests is authorized by the Trustees, the equal
proportionate non-transferable units of interest into which each
series or class of interests is divided from time to time;
(n) "Majority Interestholder Vote" means "the vote of a
majority of the outstanding voting securities" as defined in the
1940 Act of a Class, a Series, or the Trust as the case may be;
(o) "Net Losses" of a Series for any given time period
shall mean the excess of the Net Asset Value of the Series as of
the opening of the business on the first day of the period,
after any additional contributions made on such date, over the
Net Asset Value of the Series at the close of business on the
last day of such period, prior to any distribution being made;
(p) "Net Profits" of a Series for any given time period
shall mean the excess of the Net Asset Value of the Series as of
the opening of business on the first day of the period, after
any distribution being made with respect to such period, over
the Net Asset Value of the Series as of the opening of business
on the first day of such period, after any additional
contributions made on such date;
(q) "Outstanding Interests" means Interests shown in the
books and records of the Trust or its transfer agent as then
issued and outstanding, but does not include any Interests that
have been repurchased or redeemed by the Trust and are being
held in the treasury of the Trust;
(r) "Percentage Interest" shall mean, with respect to any
Interestholder, as of any day, the ratio (expressed as a
percentage) of such Interestholder's Book Capital Account, as of
close of business on the preceding day to the aggregate Book
Capital Accounts of all Interestholders as of the close of
business on such preceding day, such Book Capital Accounts to be
determined after giving effect to all contributions,
distributions, and allocations through such preceding day.
(s) "Trust" means ▇▇▇▇▇ Fargo Master Trust, created
hereby;
(t) "Trustee" means a person serving as a Trustee in
accordance with Article II, in his capacity as such, and
"Trustees," when used collectively, means the Trustees acting
collectively as the Board;
(u) "Trust Property" means any and all property, real or
personal, tangible or intangible, which is owned or held by or
for the Trust or any Series or by the Trustees on behalf of the
Trust or any Series.
ARTICLE II
THE TRUSTEES
Section 1. Management of the Trust. The business and
affairs of the Trust shall be managed by or under the direction
of the Board, and the Trustees shall have all powers necessary
or desirable, convenient or incidental, to carry out that
responsibility. The Trustees may execute all instruments and
take all action they deem necessary, desirable, convenient or
incidental, to promote the interests of the Trust. To the
extent allowable under federal and state law, the Board may
delegate any or all of its responsibilities to one or more
appropriate officers of the Trust and/or any other person. Any
determination made by the Trustees in good faith as to what is
in the interests of the Trust shall be conclusive.
Section 2. Initial Trustees; Election and Number of
Trustees. The initial Trustees shall be the persons initially
signing this Declaration prior to its amendment and restatement.
The number of Trustees (other than the initial Trustees) shall
be such number as is fixed from time to time by a majority of
the Trustees; provided, that the number shall, at all times, be
at least two (2). The Interestholders shall elect the Trustees
only if required by the 1940 Act, on such dates as the Trustees
may fix from time to time. Otherwise, the Trustees other than
the initial Trustees shall be appointed by the other Trustees as
provided herein.
Section 3. Term of Office of Trustees. 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 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
has become physically or mentally incapacitated or is otherwise
unable to serve fully, 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 Interestholders by a vote of at least two-
thirds of the Outstanding Interests if required by Section 16(c)
of the 1940 Act as interpreted by the staff of the Commission.
Notwithstanding the foregoing, each Trustee shall retire from
service on the Board no later than the end of the calendar year
in which such Trustee reaches the age of 72, or such other time
as may be determined by an appropriate resolution of the full
Board, including a majority of the remaining Trustees.
Section 4. Age Limitation of Trustees. No person shall
stand for election or be appointed as a Trustee if such person
has already reached the age of 70.
Section 5. Vacancies; Appointment of Trustees. Whenever a
vacancy in the Board exists, regardless of the reason for such
vacancy, the remaining Trustees may appoint any person as they
determine in their sole discretion to fill that vacancy, except
that the Trustee appointed may not be an Interested Person if
the appointment of an Interested Person would cause a violation
of the 1940 Act, and the person must meet the qualification
standards set out in Section 4. Such appointment shall be made
by a written instrument signed by a majority of the Trustees or
by an appropriate resolution, 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. As soon as any such Trustee has signed this Declaration
or otherwise accepted his or her appointment in writing, 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, and
Interestholders are entitled to vote on such appointments only
if expressly required under the 1940 Act.
The death, 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. Whenever a vacancy
on the Board shall occur, until such vacancy is filled, 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. 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 Board. In the
event of the death, 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 fill vacancies, the
Trust's investment adviser(s) are empowered to appoint new
Trustees subject to the provisions of Section 16(a) of the 1940
Act.
Notwithstanding the foregoing, all of the initial Trustees
may resign by written instrument to be effective on the date
specified in the instrument ("Resignation Instrument").
However, before resigning as permitted in this paragraph, the
initial Trustees shall determine and set forth in the
Resignation Instrument the number of Trustees of the Trust
(subject to the Trustees' power to change the number as detailed
in Section 2 of this Article) and shall appoint their
successors.
Section 6. Temporary Vacancies or Absence. Whenever a
vacancy in the Board exists, 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 or is otherwise
unable to serve fully, the remaining Trustees shall have all the
powers hereunder and their certification as to such vacancy,
absence, or incapacity or inability shall be conclusive. To the
extent permitted under the 1940 Act, any Trustee may, by power
of attorney, delegate his or her powers as Trustee for a period
not exceeding six (6) months at any one time to any other
Trustee or Trustees.
Section 7. Chairman; Lead Trustee. The Board may appoint
one or more of its members to be Chairman or Co-Chairmen of the
Board. References to the Chairman in this Declaration shall be
construed to include any such Co-Chairmen, acting singly or
jointly as the context requires. The Chairman shall preside at
all meetings of the Trustees, and shall have such other powers
and responsibilities and any limitations thereon as the Trustees
may determine from time to time. Absent an express declaration
otherwise by an appropriate resolution of the Board, the
Chairman is not considered an officer of the Trust and shall not
have the powers or duties of an officer of the Trust.
In addition to a Chairman, the Board may appoint one or
more Trustees as "Lead Trustee(s)" to act as a liaison with
service providers, officers, attorneys, and other Trustees
generally between meetings, and with such other powers and
responsibilities and any limitations thereon as the Trustees may
determine from time to time.
Section 8. Action by Trustees. The Trustees shall act by
majority vote at a meeting duly called at which a quorum is
present, in person or by proxy, or by written consent of a
majority of the Trustees (or such greater number as may be
required by applicable law) without a meeting. Unless a higher
amount is required by this Declaration, by Board resolution, or
the 1940 Act, a quorum of the Trustees at a meeting shall be
one-third of the total number of Trustees, present in person or
by proxy, but no less than two Trustees present in person. An
action of a majority of the Trustees present in person or by
proxy, or acting by written consent, shall constitute action by
the Trustees except to the extent otherwise required by the 1940
Act, this Declaration or by Board resolution. Any Trustee may
grant a proxy to any other Trustee to the extent (and in the
manner) permitted by Delaware law.
Section 9. Meetings of the Trustees; Required Notice.
Unless required under this Declaration or under the 1940 Act,
the Trustees may act with or without a meeting. All of the
Trustees or any one of them may participate in a meeting by
means of a conference call or similar communication equipment,
provided that all participants may hear each other, and
participation in a meeting pursuant to such communication
equipment shall constitute presence at the meeting, unless the
1940 Act specifically requires the Trustees to act "in person,"
in which case such term shall be construed in accordance with
the 1940 Act. Unless required otherwise by this Declaration,
Board resolution or by the 1940 Act, any action of the Trustees
may be taken without a meeting by written consent of a majority
of the Trustees.
Meetings of the Trustees may be called orally or in writing
by the Chairman, if any, or by any two other trustees. Regular
meetings of the Trustees may be held without call or notice at a
place and time fixed by Board resolution of the Trustees.
Notice of any other meeting shall, and notice of any regular
meeting may, be given to each Trustee by first class mail sent
at least three business days before the meeting, by overnight
delivery sent at least two business days before the meeting, or
by telephone, facsimile, email or other electronic mechanism
sent to his or her home or business address at least twenty-four
hours before 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 only to any express limitation in the 1940
Act, the Board, by majority vote, may delegate to any
Trustee(s), officer(s), or any other individual(s), the
authority to approve particular matters or take particular
action on behalf of the Trust, including adjournment of any
meeting to another time and place. Written consents or waivers
of the Trustees may be executed in one or more counterparts, and
may be provided and delivered to the Trust by facsimile, email
or other similar electronic mechanism.
Section 10. Committees. To facilitate certain
requirements under the 1940 Act, the Trust shall have a standing
Audit Committee and a standing Nominating Committee
(collectively, the "Standing Committees"). The Trustees may
designate other committees of the Board. The Trustees shall
determine the number of members of each committee, and may
determine the quorum for each committee, and shall appoint its
members and its chair. Each committee member shall serve at the
pleasure of the Trustees. The Trustees may abolish any
committee other than the Standing Committees, at any time. Each
committee shall maintain records of its meetings and report its
actions to the full Board. The Trustees may rescind any action
of any committee, but such rescission shall not have retroactive
effect except as agreed by the committee. The Trustees may
delegate to any committee any of its powers, subject only to the
express limitations of the 1940 Act.
Committees may act with or without a meeting. Each
committee may adopt such rules governing its proceedings, quorum
and manner of acting as it deems proper and desirable if the
Board does not determine otherwise. In the absence of the
adoption of such rules, a majority of the committee shall
constitute a quorum, and a committee shall act at a meeting by
the vote of a majority of the members present, or without a
meeting by written consent of a majority of the committee
members.
Section 11. Audit Committee. The Audit Committee is
responsible for (a) recommending independent accountants for
selection by the Boards, (b) reviewing the scope of audit,
accounting and financial internal controls and the quality and
adequacy of each Trust's accounting staff with the independent
accountants and such other persons as may be deemed appropriate,
(c) reviewing, as necessary, with the accounting staff and the
independent accountants the compliance of transactions between
each Trust and any affiliated persons of the Trust,
(d) reviewing reports of the independent accountants, and
(e) making themselves directly available to the independent
accountants and responsible officers of the Trusts for
consultation on audit, accounting and related financial matters.
The Board may expand or clarify the responsibilities of the
Audit Committee by adopting a committee charter or otherwise,
but may not narrow the responsibilities set forth here without
the consent of the Audit Committee.
Section 12. Nominating Committee. The Nominating
Committee is responsible for recommending to the Board persons
to be nominated for election as Trustees by the Interestholders
at any required Interestholder meeting and a person to be
appointed to fill any vacancy occurring on the Board.
Notwithstanding this section, the nomination and selection of
those Trustees who are not Interested Persons shall be committed
to the discretion of the Trustees who are not Interested Persons
so long as the Trust has in effect one or more plans pursuant to
Rule 12b-1 under the 1940 Act or relies on one or more of the
Rules under the 1940 Act that condition reliance thereon on such
commitment. The Board may expand or clarify the
responsibilities of the Nominating Committee by adopting a
committee charter or otherwise, but may not narrow the
responsibilities set forth here without the consent of the
Nominating Committee.
Section 13. Ownership of Trust Property. The Trust
Property of the Trust and of each Series shall be held separate
and apart from any assets now or hereafter held in any capacity
(other than as Trustee hereunder) by the Trustees or any
successor Trustees. All of the Trust Property and legal title
thereto shall at all times be considered as vested in the
Trustees on behalf of the Trust, except that the Trustees may
cause legal title to any Trust Property to be held by or in the
name of the Trust, or in the name of any person as nominee. No
Interestholder shall have any interest in specific property of
the Trust or of any Series or any right of partition or
possession thereof, but each Interestholder shall have, as
provided in Article IV, a proportionate undivided beneficial
interest in the assets of the Trust or Series represented by
Interests.
Section 14. Effect of Trustees Not Serving. The death,
resignation, retirement, removal, incapacity, or inability or
refusal to serve of any one or more or all of the Trustees,
shall not operate to annul the Trust or to revoke any existing
agency created pursuant to the terms of this Declaration.
Section 15. Trustees as Interestholders. Subject to any
restrictions that the Trustees may establish, any Trustee,
officer, agent or independent contractor of the Trust may
acquire, own and dispose of Interests to the same extent as any
other Interestholder. The Trustees are not required to be
Interestholders of the Trust.
Section 16. Compensation of Trustees. Each Trustee and
each committee member may receive such compensation for his or
her services and reimbursement for expenses as may be fixed from
time to time by the Trustees. The Chairman, any Lead Trustee
and any committee chairman may receive such additional
compensation as may be fixed from time to time by the Trustees.
Nothing herein shall be construed to preclude any Trustee from
serving the Trust in any other capacity as an officer, agent,
employee, or otherwise and receiving compensation for those
services. Nothing herein shall be construed to preclude the
employment of any Trustee for advisory, management, legal,
accounting, investment banking, or other services and payment
for the same by the Trust.
ARTICLE III
POWERS OF THE TRUSTEES
Section 1. Powers. The Board shall have full, exclusive
and complete power and discretion to manage and control the
business and affairs of the Trust, and to make all decisions
affecting the business and affairs of the Trust. No
Interestholder or assignee of Interests, as such, shall have any
authority, right or power to bind the Trust or to manage or
control, or to participate in the management or control of, the
business and affairs of the Trust in any manner whatsoever. 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 they were the sole owners of the Trust Property and
business in their own right. The Trustees shall have full power
and authority to take or refrain from taking any action and to
execute any contracts and instruments that they may consider
necessary, desirable, convenient or incidental in the management
of the Trust. To the fullest extent permitted by applicable
law, the Trustees shall not in any way be bound or limited by
current or future laws or customs applicable to trust
investments, but shall have full power and authority to make any
investments which they, in their sole discretion, deem proper to
accomplish the purposes of the Trust, and to dispose of the
same. The Trustees may exercise all of their powers without
recourse to any court or other authority. Subject only to any
express limitation in the 1940 Act, this Declaration or
contained in any Board resolution, the Trustees' power and
authority shall include, without limitation, the power and the
authority:
(a) To operate as and carry on the business of a registered
investment company, and exercise all the powers necessary,
proper or convenient 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, without limitation, cash (U.S.
currency, foreign currencies and related instruments), and
securities (including, without limitation, common and preferred
stocks, equity interests and securities, 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,
convertible securities, forward contracts, options, and futures
contracts) issued, guaranteed, or sponsored by, without
limitation, 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, partnership, limited liability
company, trust, 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
1940 Act) 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 property 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
providing for the conduct of the business of the Trust and to
amend and repeal them;
(d) To elect and remove such officers of the Trust and
appoint and terminate such agents of the Trust as they deem
appropriate;
(e) To employ as custodian of any assets of the Trust,
subject to any provisions herein or by resolution of the Board,
one or more banks, trust companies or companies that are members
of a national securities exchange, or other entities permitted
by the Commission to serve as such;
(f) To retain one or more investment advisers,
administrators, or transfer agents, with any such sub-service
providers as the investment advisers, administrators, or
transfer agents shall recommend or retain;
(g) To provide for the distribution of Interests either
through a Principal Underwriter as provided herein or by the
Trust itself, or both, and, subject to applicable law, to adopt
a distribution plan of any kind;
(h) To set record dates in the manner provided for herein or
in the By-Laws;
(i) To delegate such authority as they consider desirable to
such of their number or to officers, employees or agents of the
Trust including, without limitation, the ability to perform
actions or execute instruments in the name of the Trust, the
name of the Trustees or otherwise as the Trustees may deem
necessary, desirable or convenient;
(j) To sell or exchange any or all of the assets of the
Trust, subject to Article XII, Section 3;
(k) To vote or give assent, or exercise any rights of
ownership, with respect to other securities or property; and, if
necessary, to execute and deliver powers of attorney delegating
such power to other persons;
(l) To establish separate and distinct Series, each with its
own defined investment objectives and policies and distinct
investment purposes, and with separate Interests representing
beneficial interests in such Series, and to establish separate
Classes, all in accordance with the provisions of Article IV;
(m) To incur and pay all expenses that in the Trustees'
opinion are necessary or incidental to carry out any of the
purposes of this Declaration; to pay reasonable compensation to
themselves as Trustees from the Trust Property or the assets
belonging to any appropriate Series or Class; to pay themselves
such compensation for special services, including legal and
brokerage services, and such reimbursement for expenses
reasonably incurred by themselves on behalf of the Trust or any
Series or Class, as they in good faith may deem reasonable; and
to fix the compensation of all officers and employees of the
Trust;
(n) To the full extent permitted by Section 3804 of the
Delaware Act, to allocate assets, revenue, liabilities and
expenses of the Trust to a particular Series and liabilities and
expenses to a particular Series or 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 IV, Section 4;
(o) 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;
(p) To make distributions of income and of capital gains to
Interestholders in the manner hereinafter provided for;
(q) To borrow money or other property, issue evidence of
indebtedness 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, subject only to
the requirements of the 1940 Act and any other applicable law;
(r) 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 serving, 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;
(s) To purchase, and pay for out of Trust Property or the
assets belonging to any appropriate Series, insurance policies
insuring the Interestholders, 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;
(t) To issue, sell, repurchase, redeem, cancel, retire,
acquire, hold, resell, reissue, dispose of and otherwise deal in
Interests; to establish terms and conditions regarding the
issuance, sale, repurchase, redemption, cancellation,
retirement, acquisition, holding, resale, reissuance,
disposition of or dealing in Interests; and, subject to
Articles IV and V, to apply to any such repurchase, redemption,
retirement, cancellation or acquisition of Interests any funds
or property of the Trust or of the particular Series with
respect to which such Interests are issued;
(u) To definitively interpret the investment objectives,
policies and limitations of the Trust or any Series; and
(v) To carry on any other business in connection with or
incidental to any of the foregoing powers, to do everything
necessary, desirable or convenient to accomplish any purpose or
to further any of the foregoing powers, and to take any other
action in connection with or incidental to the foregoing
business or purposes, objects or powers.
The clauses above shall be construed as objects and powers,
and the enumeration of specific powers shall not limit in any
way the general powers of the Board or the Trustees. Any action
by one or more of the Trustees in their capacity as Trustee(s)
shall be deemed an action on behalf of the Trust or the
applicable Series, and not an action in an individual capacity.
No one dealing with the Trustees shall be under any obligation
to make any inquiry concerning the authority of the Trustees, or
to see to the application of any payments made or property
transferred to the Trustees or upon their order. In construing
this Declaration, the presumption shall be in favor of a grant
of power to the Board and the Trustees.
Section 2. Certain Transactions. Except as expressly
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, principal underwriter 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, or broker, legal
counsel, registrar, investment adviser, administrator,
distributor, transfer agent, dividend disbursing agent,
custodian or in any other capacity upon customary terms.
ARTICLE IV
SERIES; CLASSES; INTERESTS
Section 1. Establishment of Series or Class. The Board
may divide the Trust into one or more Series. The Trustees may
divide any Series into one or more Classes of Interests. The
Initial Trustees shall establish the initial Series and Classes
of each Series by written unanimous consent. Each additional
Series or division of Series into Classes may be established by
any permissible action of the Trustees, including by resolution
at a meeting. The Trustees may designate the relative rights
and preferences of the Interests of each Series. If a Series is
divided into Classes, each Class of a Series shall represent an
undivided beneficial interest 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 shall 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. 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 Interests and need not issue any
Interests. Each Share of a Series shall represent an equal
undivided beneficial interest in the net assets of such Series
except to the extent affected by expense allocations. Each
holder of Interests of a Series shall be entitled to receive his
or her pro rata share of all distributions made with respect to
such Series except to the extent affected by expense
allocations. Upon redemption of his or her Interests, such
Interestholder shall be paid solely out of the funds and
property of such Series. The Trustees may change the name of
any Series or Class.
Section 2. Interests. The beneficial interest in the
Trust shall be divided into Interests of one or more separate
and distinct Series or Classes established by the Trustees. The
number of Interests of each Series and Class is unlimited and
each Interest shall have a par value (if any) as the Trustees
may determine from time to time. All Interests issued hereunder
shall be fully paid and nonassessable. Interestholders shall
have no preemptive or other right to subscribe to any additional
Interests or other securities issued by the Trust. The Trustees
shall have full power and authority, in their sole discretion
and without obtaining Interestholder approval, to: (i) issue
original or additional Interests at such times and on such terms
and conditions as they deem appropriate; (ii) issue fractional
Interests and Interests held in the treasury; (iii) establish
and change in any manner Interests of any Series or Classes with
such preferences, terms of conversion, voting powers, rights and
privileges as the Trustees may determine; (iv) divide or
combine the Interests of any Series or Classes into a greater or
lesser number; (v) classify or reclassify any unissued
Interests of any Series or Classes into one or more Series or
Classes of Interests; (vi) abolish and/or liquidate any one or
more Series or Classes of Interests; (vii) issue Interests to
acquire other assets (including assets subject to, and in
connection with, the assumption of liabilities) and businesses;
and (viii) take such other action with respect to the Interests
as the Trustees may deem desirable. Interests 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 Interests. Except as expressly
required under the 1940 Act or conferred under other applicable
law, Interestholders shall have no right to obtain or inspect
any information regarding Interest ownership, and may not obtain
or inspect an Interestholder list, except as the Trustees may
expressly authorize.
Section 3. Investment in the Trust. The Trust may accept
investments in any Series from any persons and in any form,
subject to such limitations or terms as they may from time to
time impose. Unless the Board directs otherwise, such
investments, subject only to the express requirements of the
1940 Act, may be in the form of cash or securities in which that
Series is authorized to invest, valued as provided in Article V,
Section 3. Investments in a Series shall be credited to each
Interestholder's account in the form of full Interests 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 discretion,
(a) impose a sales charge upon investments in any Series or
Class, (b) issue fractional Interests, or (c) determine the Net
Asset Value per Share of the initial investment. The Trustees
shall have the right to refuse to accept investments, or any
investment, in any Series at any time without any cause or
reason whatsoever.
Section 4. Assets and Liabilities of Series. All
consideration received by the Trust for the issue or sale of
Interests of a particular Series, together with all assets in
which such consideration is invested or reinvested, all income,
earnings, profits, and proceeds thereof (including any proceeds
derived from the sale, exchange or liquidation of such assets,
and any funds or payments derived from any reinvestment of such
proceeds in whatever form the same may be), shall be held and
accounted for separately from the other assets of the Trust and
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, and
shall be 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 or officers of the Trust between and among one or more
Series as the Trustees or officers deem fair and equitable.
Each such allocation shall be conclusive and binding upon the
Interestholders 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 Interestholders 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 or officers of
the Trust between or among any one or more of the Series or
Classes in such manner as the Trustees or officers deem fair and
equitable. Each such allocation shall be conclusive and binding
upon the Interestholders of all Series or Classes for all
purposes.
Without limiting the foregoing, but subject to the right of
the Trustees or officers of the Trust to allocate general
liabilities, expenses, costs, charges or reserves as herein
provided, the debts, liabilities, obligations and expenses
incurred, contracted for or otherwise existing with respect to a
particular Series shall be enforceable against the assets of
such Series only, and not against the assets of the Trust
generally or of any other Series and, unless otherwise provided
in this Declaration, none of the debts, liabilities,
obligations, expenses incurred, contracted for or otherwise
existing with respect to the Trust generally or any other Series
shall be enforceable against the assets of a 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 the Delaware Act 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 Interestholder or former
Interestholder 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 Interests. The Trust
or Transfer Agent shall maintain a register containing the names
and addresses of the Interestholders of each Series and Class
thereof, the number of Interests of each Series and Class held
by such Interestholders, and a record of all Share transfers.
The register shall be conclusive as to the identity of
Interestholders of record and the number of Interests held by
them from time to time. Interests shall be uncertificated
unless expressly authorized by the Trustees. The Trustees may
authorize the issuance of certificates representing Interests
and adopt rules governing their use. The Trustees may make
rules governing the transfer of Interests, whether or not
represented by certificates. No Interestholder shall be
entitled to payments of distributions nor to any notice given,
until it has given its address to such officer or agent as shall
keep the register.
Section 6. Status of Interests; Limitation of
Interestholder Liability. Interests shall be deemed to be
personal property giving Interestholders only the rights
provided in this Declaration. Every Interestholder, 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
Interestholder, as such, 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. Interestholders, as such, shall have the same
limitation of personal liability as is extended to Stockholders
of a private corporation for profit organized under The General
Corporation Law of 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 Trust or such Series; however, the omission of
such statement shall not operate to bind or create personal
liability for any Interestholder or Trustee or any other Series.
ARTICLE V
DETERMINATION OF BOOK CAPITAL ACCOUNT BALANCES,
AND ALLOCATIONS
Section 1. Book Capital Account Balances. A Book Capital
Account shall be maintained for each Interestholder of each
Series. With respect to each Series, each Book Capital Account
shall be credited with the amounts of consideration paid by the
Interestholder to purchase or increase its interest in the
Series and with its share of the Series' Net Profits, shall be
charged with such Interestholder's share of the Series Net
Losses, distributions and withholding taxes (if any) and shall
otherwise appropriately reflect transactions of the Series and
the Interestholders. No interest shall be paid on any amount of
consideration paid to the Trust to purchase or increase
Interests.
(a) The Book Capital Account Balances of Interestholders
of each Series shall be determined periodically at such time or
times as the Trustees may determine. The power and duty to make
such calculations may be delegated to the custodian, fund
accountant or any other person as the Trustees may determine;
(b) Notwithstanding any other provision of this
Declaration, the Book Capital Accounts and any related accounts
(including without limitation tax capital accounts, gross
appreciation [unrealized gains] accounts, and gross depreciation
[unrealized loss] accounts of the Interestholders and the Series
shall at all times be determined and maintained in compliance
with Treasury Department Regulation 1.704-1(b)(2)(iv). The
Trustees are authorized to prescribe in their absolute
discretion, such policies for the maintenance of such Accounts
as they consider comply with requirements of the Code.
Section 2. Allocation of Net Profits and Net Losses.
(a) Net Profits and Net Losses of each Series shall be
determined and allocated daily as of the close of business to
and among Interestholders of that Series in proportion to their
respective interest in the Series, determined as of the opening
of business on such day.
(b) Except as otherwise provided in this Section, for each
fiscal year, items of income, deduction, gain, loss or credit
that are recognized by a Series for tax purposes shall be
allocated pursuant to Treasury Department Regulations 1.704-
1(b) in such manner as to equitably reflect amounts credited or
debited to the Book Capital Account of each Interestholder of
that Series for such year. Allocations of such items also shall
be made, where appropriate, in accordance with Section 704(c) of
the Code and the regulations thereunder, as may be provided in
any Policies adopted by the Trustees.
(c) Expenses of a Series, if any, which are borne by any
Interestholder of that Series in its individual capacity shall
be specially allocated to that Interestholder;
(d) Notwithstanding subparagraphs (b) and (c), in the
event that any Interestholder of a Series unexpectedly receives
any adjustments, allocations or distributions described in
Treasury Department Regulations 1.704(b)(2)(ii)(d)(4) through
1.704(b)(2)(ii)(d)(6), items of income (including gross
income) and gain of that Series shall be specially allocated to
such Interestholder in an amount and manner sufficient to
eliminate the deficit balance in the Interestholder's Book
Capital Account, 1.704-1(b)(2)(ii)(d) created by such
adjustments, allocations or distributions as quickly as
possible. Any special allocations of income and gain of a
Series pursuant to this subparagraph shall be taken into account
in computing subsequent allocations of income and gain of that
Series pursuant to this Article, so that the net amount of any
items of that Series so allocated and the income, gain, loss,
deduction and all other items of that Series allocated to each
Interestholder pursuant to this Article shall, to the extent
possible, equal the net amount that would have been allocated to
each such Interestholder pursuant to the provisions of this
Article if such special allocations had not been made.
Section 3. Power to Modify the Foregoing Procedures.
Notwithstanding any other provision of this Article, the
Trustees may prescribe, in their absolute discretion, such other
bases and times for determining, for financial reporting and/or
tax accounting purposes, (a) the Net Profits, Net Losses,
taxable income, tax loss, and/or net assets of any Series (or,
where appropriate in the Trustee's judgment, the Trust as a
whole), and/or (b) the allocations of the Net Profits or Net
Losses and taxable income or tax loss so determined among, or
the payment of distributions to, the Interestholders of any
Series as they deem necessary or desirable to enable the Trust
or any Series to comply with any provision of the 1940 Act, the
Code, or any rule or regulation thereunder, or any order of
exemption issued by the Commission, all as in effect now or
hereafter amended or modified.
ARTICLE VI
DISTRIBUTIONS AND REDEMPTIONS
Section 1. Distributions. The Trustees may distribute
periodically to the Interestholders of each Series of Interests
an amount approximately equal to the net income of that Series,
as determined by the Trustees or as they may authorize in their
discretion. The Trustees also may distribute from time to time
to the Interestholders of any one or more Series an amount equal
to all or part of the gain realized on the sale or disposition
of the assets of the Series or all or part of the principal of
the Trust or Series. The amount and payment of distributions
and their form, whether they are in cash, Interests or other
Trust Property, shall be determined by the Trustees in their
discretion. Dividends and other distributions may be paid
pursuant to a standing resolution adopted once or more often as
the Trustees determine. All distributions on Interests of a
particular Series shall be distributed pro rata to the
Interestholders of that Series in proportion to the number of
Interests 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 Interestholders such dividend reinvestment plans, cash
dividend payout plans or similar plans as the Trustees deem
appropriate.
Section 2. Determination of Net Income. In determining
the net income of each Series or Class of Interests for any
period, there shall be deducted from income for that period (a)
such portion of all charges, taxes, expenses and liabilities due
or accrued as the Trustees shall consider properly chargeable
and fairly applicable to income for that period or any earlier
period and (b) whatever reasonable reserves the Trustees shall
consider advisable for possible future charges, taxes, expenses
and liabilities which the Trustees shall consider fairly
chargeable and fairly applicable to income for that period or
any earlier period. The net income of each Series or Class for
any period may be adjusted for amounts included on account of
net income in the net asset value of Interests issued or
redeemed or repurchased during that period. In determining the
net income of a Series or Class for a period ending on a date
other than the end of its fiscal year, income may be estimated
as the Trustees shall deem fair. Gains on the sale or
disposition of assets shall not be treated as income, and losses
shall not be charged against income unless appropriate under
applicable accounting principles, except in the exercise of the
discretionary powers of the Trustees. Any amount contributed to
the Trust which is received as income pursuant to a decree of
any court of competent jurisdiction shall be applied as required
under such decree.
Section 3. Redemptions. As required under the 1940 Act,
each Shareholder of a Series shall have the right at such times
as may be determined by the Trustees to require the Series to
redeem all or any part of his or her Interests at a redemption
price per Interest equal to the Net Asset Value per Share
determined as of such time as the Trustees shall have prescribed
by resolution, less any applicable charges or sales loads. 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 Class or Series under
the Securities Act of 1933 and/or the 1940 Act. The Trustees
may specify conditions, prices, and places of redemption, and
may specify binding requirements for the proper form or forms of
requests for redemption. 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, Interests
shall not be cancelled and may be reissued from time to time.
The Trustees may require Interestholders to redeem Interests for
any reason under terms set by the Trustees, including the
failure of a Interestholder to supply a personal identification
number if required to do so, or to have the minimum investment
required, or to pay when due for the purchase of Interests
issued to him. To the extent permitted by law, the Trustees may
retain the proceeds of any redemption of Interests required by
them for payment of amounts due and owing by a Interestholder to
the Trust or any Series or Class. Notwithstanding the
foregoing, the Trustees may postpone payment of the redemption
price and may suspend the right of the Interestholders to
require any Series or Class to redeem Interests during any
period of time when and to the extent permissible under the 1940
Act.
Section 4. Determination of Net Asset Value. The Trustees
shall cause the Net Asset Value of Interests of each Series or
Class to be determined from time to time in a manner consistent
with the 1940 Act. The Trustees may delegate the power and duty
to determine Net Asset Value per Interest 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 Interests shall be determined separately for each Series or
Class as of such times and dates 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 such Exchange is open for trading.
Section 5. 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
Interestholders to redeem their Interests, 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,
Interestholders 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 Interestholder may either
withdraw his or her request for redemption or receive payment
based on the Net Asset Value per Share next determined after the
suspension terminates.
ARTICLE VII
INTERESTHOLDERS' VOTING POWERS AND MEETINGS
Section 1. Voting Powers. The Interestholders shall have
the right to vote only on matters as expressly required under
the 1940 Act or under the law of Delaware applicable to
statutory trusts. This Declaration shall not confer any
independent right to Interestholders to vote for any matter,
including the creation, operation, dissolution, or termination
of the Trust. The Interestholders shall have the right to vote
on other matters only as the Trustees may consider desirable,
and so authorize. To the extent that the 1940 Act or Delaware
law is amended by rule, regulation, order, or no-action letter
to eliminate or limit Interestholders' right to vote on any
specific matter, the Interestholders' right to vote shall be
deemed to be amended, modified or interpreted in accordance
therewith without further approval by the Trustees or the
Interestholders.
Currently, the 1940 Act requires that Interestholders have
the right to vote, under certain circumstances, to: (a) elect
Trustees; (b) approve investment advisory agreements and
amendments thereto; (c) approve a change in subclassification;
(d) approve any change in fundamental investment policies; (e)
approve a distribution plan and amendments thereto under Rule
12b-1 of the 1940 Act; and (f) terminate the Trust's independent
public accountant. The Interestholders may vote on any
additional matter only as the Trustees may consider desirable,
and so authorize. Interestholders have the right to call special
meetings and vote to remove Trustees but only if and to the
extent that the Commission staff takes the position by rule,
interpretation or other release that Section 16(c) of the 1940
Act gives them such right.
On any matter that requires Interestholder approval under
the 1940 Act, whether Interestholders are required to vote by
Series or Class shall be determined by reference to the express
requirements of the 1940 Act. On other matters submitted to a
vote of the Interestholders in the discretion of the Trustees,
or for which the 1940 Act does not expressly specify the voting
procedure, all Interests shall be voted in the aggregate and not
by Series or Class unless the Trustees determine otherwise.
Each whole Share shall be entitled to one vote as to any matter
on which it is entitled to vote, and each fractional Share shall
be entitled to a proportionate fractional vote. There shall be
no cumulative voting in the election of Trustees. Interests may
be voted in person or by proxy or in any manner authorized by
the Trustees. Unless the Trustees declare otherwise, proxies
may be given by any electronic or telecommunications device,
including telefax, telephone or through the Internet, but if a
proposal by anyone other than the officers or Trustees is
submitted to a vote of the Interestholders of any Series or
Class, or if there is a proxy contest or proxy solicitation or
proposal in opposition to any proposal by the officers or
Trustees, Interests may be voted only in person or by written
proxy unless the Trustees specifically authorize other
permissible methods of transmission. Until Interests of a
Series are issued, as to that Series the Trustees may exercise
all rights of Interestholders and may take any action required
or permitted to be taken by Interestholders by law, or this
Declaration.
Section 2. Meetings of Interestholders. There shall be no
annual Interestholders' meeting unless required by law. The
first Interestholders' meeting shall be held to elect Trustees
at such time and place as the Trustees designate, unless such
action is taken by consent of Interestholders. Special meetings
of the Interestholders of any Series or Class may be called by
the Trustees. Only if required under Section 16(c) of the 1940
Act, as interpreted by the staff of the Commission, special
meetings shall be called by the Trustees upon the written
request of Interestholders owning at least ten percent of the
Outstanding Interests of the Trust entitled to vote for purposes
of removing a Trustee. Interestholders shall be entitled to at
least fifteen calendar days notice of any meeting, given as
determined by the Trustees.
A meeting of the Interestholders may be called at any time
by the Board, and notice of such meeting shall be given by the
Board, any Trustee, the Chairman, or other officer of the Trust.
The notice shall specify the place, date and hour of the
meeting, and the general nature of the business to be
transacted. Meetings of Interestholders shall be held at any
place designated by the Board. In the absence of any such
designation, Interestholders' meetings shall be held at the
principal executive offices of the Trust.
Section 3. Quorum; Required Vote. One-third of the
Outstanding Interests of each Series or Class, or one-third of
the Outstanding Interests of the Trust, entitled to vote in
person or by proxy shall be a quorum for the transaction of
business at a Interestholders' meeting with respect to such
Series or Class, or with respect to the entire Trust,
respectively. Any Interestholders' meeting, whether or not a
quorum is present, may be adjourned from time to time by the
vote of a majority of the Interests represented at the meeting,
either in person or by proxy. Any adjourned session of a
Interestholders' meeting may be held within a reasonable time
without further notice. Except when a larger vote is expressly
required by the 1940 Act, if a quorum is present at a meeting,
an affirmative vote of a majority of the Outstanding Interests
of the Trust voted in person or by proxy shall decide any
matters to be voted upon with respect to the entire Trust.
However, if the 1940 Act requires, or this Declaration permits,
or the Trustees determine, that Interests be voted on any matter
by Series or Classes, then a majority of the Outstanding
Interests of that Series or Class (or, if required by law, a
Majority Interestholder Vote of that Series or Class) voted in
person or by proxy shall decide that matter insofar as that
Series or Class is concerned. Interestholders may act as to the
Trust or any Series or Class by the written consent of a
majority (or such greater amount as may be required by
applicable law or this Declaration) of the Outstanding Interests
of the Trust or of such Series or Class, as the case may be.
Section 4. Inspectors of Election. One or more officers
may serve as chairman of an Interestholder meeting, and unless
otherwise designated by the Board, any officer or the chairman
may also serve as inspector(s) of election at the meeting. No
formal appointment of inspectors of election is required for any
officer or the chairman to:
(a) Determine the number of Interests outstanding and
the voting power of each, the Interests represented
at the meeting, the existence of a quorum and the
authenticity, validity and effect of proxies;
(b) Receive votes, ballots or consents;
(c) Hear and determine all challenges and questions in
any way arising in connection with the right to
vote;
(d) Count and tabulate all votes or consents;
(e) Determine when the polls shall close;
(f) Determine the result; and
(g) Do any other acts that may be proper to conduct the
election or vote with fairness to Interestholders.
ARTICLE VIII
CONTRACTS WITH SERVICE PROVIDERS
Section 1. Investment Adviser. The Trustees may enter
into one or more investment advisory contracts on behalf of the
Trust or any Series, providing for investment advisory services,
statistical and research facilities and services, and other
facilities and services to be furnished to the Trust or Series
on terms and conditions acceptable to the Trustees. Any such
contract may provide for the investment adviser to effect
purchases, sales or exchanges of portfolio securities or other
Trust Property on behalf of the Trustees or may authorize any
officer or agent of the Trust to effect such purchases, sales or
exchanges pursuant to recommendations of the investment adviser.
The Trustees may authorize the investment adviser to employ one
or more sub-advisers. The Interestholders of the Trust or any
Series shall have the right to vote to approve investment
advisory contracts to the extent such approval is required under
the 1940 Act.
Section 2. Principal Underwriter. The Trustees may enter
into one or more distribution contracts on behalf of the Trust
or any Series or Class, providing for the distribution and sale
of Interests by the other party, either directly or through
sales agents, on terms and conditions acceptable to the
Trustees. The Trustees may adopt a plan or plans of
distribution with respect to Interests of any Series or Class
and enter into any related agreements, whereby the Series or
Class finances directly or indirectly any activity that is
primarily intended to result in sales of its Interests, subject
to the requirements of Section 12 of the 1940 Act, Rule 12b-1
thereunder, and other applicable rules and regulations.
Section 3. Transfer Agency, Accounting, Administration and
Other Services. The Trustees, on behalf of the Trust or any
Series or Class, may enter into one or more transfer agency,
accounting, administration contracts and contracts for such
other services necessary or appropriate to carry out the
business and affairs of the Trust with any party or parties on
terms and conditions acceptable to the Trustees and may
authorize any such entity to employ one or more sub-contractors.
Section 4. Custodian. The Trustees shall at all times
place and maintain the securities and similar investments of the
Trust and of each Series in custody under arrangements that meet
the requirements of Section 17(f) of the 1940 Act and the rules
thereunder. The Trustees, on behalf of the Trust or any Series,
may enter into one or more contracts with a custodian on terms
and conditions acceptable to the Trustees, providing for the
custodian, among other things, to (a) hold the securities owned
by the Trust or any Series and deliver the same upon written
order or oral order confirmed in writing, (b) receive and
receipt for any moneys due to the Trust or any Series and
deposit the same in its own banking department or elsewhere,
(c) disburse such funds upon orders or vouchers, and (d) employ
one or more sub-custodians.
Section 5. Parties to Contracts with Service Providers.
The Trustees may enter into any contract with any entity, even
if one or more of the Trustees or officers of the Trust may be
an officer, director, trustee, partner, Interestholder, or
member of such entity, and no such contract shall be invalidated
or rendered void or voidable because of such relationship. No
person having such a relationship shall be disqualified from
voting on or executing a contract in his or her capacity as
Trustee and/or Interestholder, or be liable merely by reason of
such relationship for any loss or expense to the Trust with
respect to such a contract or accountable for any profit
realized directly or indirectly therefrom; provided, that the
contract was reasonable and fair to the Trust and not
inconsistent with this Declaration.
Each contract referred to in Sections 1 and 2 of this
Article shall be consistent with and subject to the applicable
requirements of Section 15 of the 1940 Act and the rules and
orders thereunder with respect to its continuance in effect, its
termination, and the method of authorization and approval of
such contract or renewal.
ARTICLE IX
EXPENSES OF THE TRUST AND SERIES
Subject to Article IV, Section 4, the Trust or a particular
Series shall pay, or shall reimburse the Trustees, from the
Trust estate or the assets belonging to the particular Series,
for their expenses and disbursements, including, but not limited
to, interest charges, taxes, brokerage fees and commissions;
expenses of issue, repurchase and redemption of Interests;
insurance premiums; applicable fees, interest charges and
expenses of third parties, including the Trust's investment
advisers, managers, administrators, distributors, custodians,
transfer agents and fund accountants; fees of pricing, interest,
dividend, credit and other reporting services; costs of
membership in trade associations; telecommunications expenses;
funds transmission expenses; auditing, legal and compliance
expenses; costs of forming the Trust and its Series and
maintaining their existence; costs of preparing and printing the
prospectuses of the Trust and each Series, statements of
additional information and Interestholder reports and delivering
them to Interestholders; expenses of meetings of Interestholders
and proxy solicitations therefor; costs of maintaining books and
accounts; costs of reproduction, stationery and supplies; fees
and expenses of the Trustees; compensation of the Trust's
officers and employees and costs of other personnel performing
services for the Trust or any Series; costs of Trustee meetings;
Commission registration fees and related expenses; state or
foreign securities laws registration or notice fees and related
expenses; and for such non-recurring items as may arise,
including litigation to which the Trust or a Series (or a
Trustee or officer of the Trust acting as such) is a party, and
for all losses and liabilities incurred by any Trustee or
officer of the Trust acting as such in administering the Trust.
The Trustees shall have a lien on the assets belonging to the
appropriate Trust or the Series, or in the case of an expense
allocable to more than one Series, on the assets of each such
Series, prior to any rights or interests of the Interestholders
thereto, for the reimbursement to them of any such expenses or
disbursements, or for any losses or liabilities to which they
become subject in their capacity as Trustees.
ARTICLE X
LIMITATION OF LIABILITY AND INDEMNIFICATION
Section 1. Limitation of Liability. All persons
contracting with or having any claim against the Trust or a
particular Series shall look only to the assets of the Trust or
such Series, respectively, for payment under such contract or
claim; and neither the Trustees nor any of the Trust's officers,
employees or agents, whether past, present or future (each a
"Covered Person," and collectively the "Covered Persons"), shall
be personally liable therefor. Notwithstanding any provision in
this Article X, neither the investment adviser, Principal
Underwriter or other service providers, nor any officers,
employees or other agents of such entities, shall be indemnified
pursuant to this Article X, except that dual officers, employees
or other agents of the Trust and such entities shall be entitled
to indemnification pursuant to this Article X but only to the
extent that such officer, employee or other agent was acting in
his or her capacity as an officer, employee or agent of the
Trust in the conduct that gave rise to the claim for
indemnification. No Covered Person shall be liable to the Trust
or to any Interestholder for any loss, damage or claim incurred
by reason of any act performed or omitted by such Covered Person
in good faith on behalf of the Trust, a Series or a Class, and
in a manner reasonably believed to be within the scope of
authority conferred on such Covered Person by this Declaration,
except that a Covered Person shall be liable for any loss,
damage or claim incurred by reason of such Covered Person's bad
faith, gross negligence, willful misconduct or reckless
disregard of the duties involved in the conduct of his or her
office.
Section 2. Mandatory Indemnification. (a) Subject only to
the express limitations in the 1940 Act, other applicable laws,
and sub-paragraph (b) below, the Trust or the appropriate Series
shall indemnify each of its Covered Persons to the fullest
extent permitted under the 1940 Act and other applicable laws,
including, but not limited to, against all liabilities and
expenses reasonably incurred or paid by him or her in connection
with any claim, action, suit or proceeding in which he or she
becomes involved as a party or otherwise by virtue of his or her
being or having been a Covered Person and against amounts paid
or incurred in the settlement thereof.
As used herein, the words "claim," "action," "suit," or
"proceeding" shall apply to all claims, actions, suits or
proceedings (civil, criminal or other, including appeals),
actual or threatened, and the words "liability" and "expenses"
shall include, without limitation, reasonable attorneys' fees,
costs, judgments, amounts paid in settlement, fines, penalties
and other liabilities.
(b) Notwithstanding any provision to the contrary
contained herein, no Covered Person shall be entitled to
indemnification for any liability arising by reason of such
Covered Person's willful misfeasance, bad faith, gross
negligence, or the reckless disregard of duties owed to the
Trust ("disabling conduct").
(c) No indemnification or advance shall be made under this
Article X to the extent such indemnification or advance:
(i) would be inconsistent with a provision of the
Declaration, or an agreement in effect at the time of
accrual of the alleged cause of action asserted in the
proceeding in which the expenses were incurred or
other amounts were paid which prohibits or otherwise
limits indemnification; or
(ii) would be inconsistent with any condition
expressly imposed by a court in a judgment, order, or
approval of a settlement.
(d) Any indemnification under this Article shall be made
by the Trust only if authorized in the specific case on a
determination that the Covered Person was not liable by reason
of disabling conduct by:
(i) a final decision on the merits by a court or
other body before whom the proceeding was brought; or
(ii) in the absence of such a decision, by any
reasonable and fair means established in accordance
with, and subject to the requirements and limitations
of, Section 17(h) of the 1940 Act and any
interpretation thereunder by the Commission or its
staff.
(e) The rights of indemnification herein provided may be
insured against by policies of insurance maintained by the
Trust, shall be severable, shall not be exclusive of or affect
any other rights to which any Covered Person may now or
hereafter be entitled, and shall inure to the benefit of the
heirs, executors and administrators of a Covered Person.
(f) To the maximum extent permitted by the 1940 Act and
other applicable laws, expenses in connection with the
preparation and presentation of a defense to any claim, action,
suit or proceeding of the character described in subsection (a)
of this Article X shall be paid by the Trust or applicable
Series from time to time prior to final disposition thereof upon
receipt of an undertaking by or on behalf of such Covered Person
that such amount will be paid over by him or her to the Trust or
applicable Series if it is ultimately determined that he or she
is not entitled to indemnification under this Article X;
provided, however, that either (i) such Covered Person shall
have provided appropriate security for such undertaking, (ii)
the Trust is insured against losses arising out of any such
advance payments or (iii) either a majority of the Trustees who
are neither Interested Persons of the Trust nor parties to the
matter, or independent legal counsel in a written opinion, shall
have determined, based upon a review of readily available facts
(as opposed to a full trial-type inquiry) that there is reason
to believe that such Covered Person will not be disqualified
from indemnification under this Article X; provided, however,
that the Trust shall not be obligated to pay the expenses of any
agent acting pursuant to a written contract with the Trust,
except to the extent required by such contract.
(g) Any repeal or modification of this Article X shall be
prospective only, to the extent that such repeal or modification
would, if applied retrospectively, affect any limitation on the
liability of any Covered Person in an a manner that would be
adverse to such Covered Person or affect any indemnification
available to any Covered Person in a manner that would be
adverse to such Covered Person with respect to any act or
omission which occurred prior to such repeal, modification or
adoption.
Section 3. Indemnification of Interestholders. If any
Interestholder or former Interestholder of any Series shall be
held personally liable solely by reason of his or her being or
having been a Interestholder and not because of his or her acts
or omissions or for some other reason, the Interestholder or
former Interestholder (or his or her heirs, executors,
administrators or other legal representatives or in the case of
any entity, its general successor) shall be entitled out of the
assets belonging to the applicable Series to be held harmless
from and indemnified against all loss and expense arising from
such liability to the fullest extent permitted under the 1940
Act and other applicable laws. The Trust, on behalf of the
affected Series, shall, at its discretion, be entitled to assume
the defense of any claim made against such Interestholder for
any act or obligation of the Series and satisfy any judgment
thereon from the assets of the Series.
Section 4. Contractual Modification of Duties. To the
extent that, at law or equity, a Covered Person has duties
(including fiduciary duties) and liabilities relating to the
Trust or any Series thereof or to any Interestholder, any such
Covered Person acting under this Declaration shall not be liable
to the Trust or any Series thereof or to any Interestholder for
the Covered Person's good faith reliance on the provisions of
this Declaration. The provisions of this Declaration, to the
extent that they restrict or limit the duties and liabilities of
a Covered Person otherwise existing at law or in equity, are
agreed by the parties hereto to replace such other duties and
liabilities of such Covered Person.
ARTICLE XI
OFFICERS
Section 1. General. The officers of the Trust shall be a
President, a Treasurer, and a Secretary, and may include one or
more Assistant Treasurers or Assistant Secretaries and such
other officers ("Other Officers") as the Trustees may determine.
As specified in Section 7 of Article II, the Trustees may select
one or more of their members to be Chairman or Co-Chairmen of
the Board, and may, but need not, determine that such Chairman
or Co-Chairmen shall be officer(s) of the Trust.
Section 2. Election, Tenure and Qualifications of
Officers. The Trustees shall appoint the President, Treasurer
and Secretary of the Trust. The Trustees, President, or
Chairman of the Trust may appoint Assistant Treasurers,
Assistant Secretaries, or Other Officers. Each officer shall
hold office until his or her successor shall have been appointed
and qualified or until his or her earlier death, inability to
serve, or resignation. Any person may hold more than one
office, except that the President and the Secretary may not be
the same individual. A person who holds more than one office in
the Trust may not act in more than one capacity to execute,
acknowledge, or verify an instrument required by law to be
executed, acknowledged, or verified by more than one officer.
No officer need be a Trustee or a Interestholder, unless
specified otherwise by the Trustees.
Section 3. Vacancies and Newly Created Offices. The
Trustees may create any additional offices as they deem
appropriate or desirable. Whenever a vacancy shall occur in any
office or if any new office is created, such vacancy or new
office may be filled by the Trustees, the President, or the
Chairman as described in Section 2 of this Article.
Section 4. Removal and Resignation. Officers serve at the
pleasure of the Trustees and may be removed at any time with or
without cause. The President or Chairman may also remove any
Assistant Treasurer, Assistant Secretary, or Other Officer with
or without cause. Any officer may resign from office at any
time by delivering a written resignation to the Trustees,
President, or the Chairman. Unless otherwise specified therein,
such resignation shall take effect upon delivery.
Section 5. President. The President is the principal
executive officer of the Trust and shall have the power and
responsibility to perform all duties incidental to the office of
President, subject to the Trustees' supervision, including, but
not limited to, the authority to make, execute, deliver, amend
and terminate, in the name and on behalf of the Trust, any and
all contracts, agreements, instruments, filings, applications,
notices, documents and other writings, except where required by
law to be otherwise signed and executed or where the Trustees by
resolution expressly delegate specific signing and execution
authority to some other officer or agent of the Trust, and shall
perform such other duties as from time to time may be assigned
by the Board. In the absence of a Chairman, the President shall
preside over meetings of the Board, unless the Trustees
determine otherwise.
Section 6. Treasurer and Assistant Treasurers. The
Treasurer is the principal financial officer and principal
accounting officer of the Trust. As such, the Treasurer shall
have general charge of the finances and books of the Trust, and
shall report to the Trustees as requested regarding the
financial condition of each Series. The Treasurer shall be
responsible for the delivery of all funds and securities of the
Trust to such company as the Trustees shall retain as Custodian.
The Treasurer shall have the power and responsibility to perform
all acts incidental to the office of Treasurer, subject to the
Trustees' supervision, including, but not limited to, the
authority to make, execute, deliver, amend and terminate, in the
name and on behalf of the Trust, any and all contracts,
agreements, instruments, filings, applications, notices,
documents and other writings, except where required by law to be
otherwise signed and executed or where the Trustees by
resolution expressly delegate specific signing and execution
authority to some other officer or agent of the Trust, and shall
perform such other duties as from time to time may be assigned
by the Board.
Any Assistant Treasurer may perform such duties of the
Treasurer as the Trustees, the Chairman, the President or the
Treasurer may assign, and, in the absence of the Treasurer, may
perform all the duties of the Treasurer.
Section 7. Secretary and Assistant Secretaries. The
Secretary shall record all resolutions, votes and proceedings of
the meetings of Trustees and Interestholders in books to be kept
for that purpose. The Secretary shall be responsible for giving
and serving notices of the Trust, unless the Trustees determine
otherwise. The Secretary shall have custody of any seal of the
Trust and shall be responsible for the records of the Trust
other than those maintained by one or more service providers
engaged by the Trust pursuant to the terms of this Declaration.
The Secretary shall have the power and responsibility to perform
all acts incidental to the office of Secretary, subject to the
supervision of the Trustees, including, but not limited to, the
authority to make, execute, deliver, amend and terminate, in the
name and on behalf of the Trust, any and all contracts,
agreements, instruments, filings, applications, notices,
documents and other writings, except where required by law to be
otherwise signed and executed or where the Trustees by
resolution expressly delegate specific signing and execution
authority to some other officer or agent of the Trust, and shall
perform such other duties as from time to time may be assigned
by the Board. In the absence of a Chairman or President, the
Secretary shall preside over meetings of the Board, unless the
Trustees determined otherwise.
Any Assistant Secretary may perform such duties of the
Secretary as the Trustees, the Chairman, the President or the
Secretary may assign, and, in the absence of the Secretary, may
perform all the duties of the Secretary.
Section 8. Authority to Execute and File Applications for
Exemptive Relief. The officers of the Trust, including, without
limitation, the President, Treasurer, any Assistant Treasurer,
Secretary, any Assistant Secretary, or any of them are delegated
the authority to prepare, execute and file with the Commission,
any and all applications for exemptive orders, and any
amendments or supplements thereto, that the officers believe are
necessary, desirable or convenient.
Section 9. Compensation of Officers. Each officer of the
Trust may receive such compensation from the Trust for services
and reimbursement for expenses as the Trustees may determine.
Section 10. Surety Bond. The Trustees may require any
officer or agent of the Trust to execute a bond (including,
without limitation, any bond required by the 1940 Act and the
rules and regulations of the Commission) to the Trust in such
sum and with such surety or sureties as the Trustees may
determine, conditioned upon the faithful performance of his or
her duties to the Trust, including responsibility for negligence
and for the accounting of any of the Trust's property, funds or
securities that may come into his or her hands.
ARTICLE XII
MISCELLANEOUS
Section 1. Trustee Action; Expert Advice; No Bond or
Surety. The exercise by the Trustees of their powers and
discretion in accordance with the terms of this Declaration in
good faith under the circumstances then prevailing shall be
binding upon everyone interested or affected thereby. Subject
to the provisions of Article X, the Trustees 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, and subject to the
provisions of Article X, shall not be liable for any act or
omission in accordance with such advice or 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 obtained.
Section 2. Record Dates. The Trustees may fix in advance
a date up to one hundred twenty (120) days before the date of
any Interestholders' meeting, or the date for the payment of any
dividends or other distributions, or the date for the allotment
of any other rights, or the date when any change or conversion
or exchange of Interests shall go into effect as a record date
for the determination of the Interestholders entitled to notice
of, and to vote at, any such meeting, or entitled to receive
payment of such dividend or other distribution, or to receive
any such allotment of rights, or to exercise such rights in
respect of any such change, conversion or exchange of Interests.
The Trustees may delegate to one or more Trustees or officers
the authority to change, consistent with this section, any
record date fixed by the Trustees, provided that any such change
is entered into the minute books, and ratified by the Board at
its next regular meeting after a change is made.
Section 3. Dissolution or Termination of a Class, Series
or the Trust. (a) The Trust shall have perpetual existence.
Notwithstanding the foregoing, the Trustees may, without
Interestholder approval (unless the 1940 Act or other applicable
law expressly provides otherwise):
(i) sell and convey all or substantially all of the
assets of the Trust or any Series or Class of a Series to
another Class or to another Series or to another entity which is
an open-end investment company as defined in the 1940 Act, or is
a class or a series thereof, for adequate consideration, which
may include the assumption of all outstanding obligations, taxes
and other liabilities, accrued or contingent, of the Trust or
any affected Series or Class of a Series, and which may include
interests of or interests in such entity, class or series
thereof; or
(ii) at any time sell and convey, or convert into
money, all or substantially all of the assets of the Trust or
any Series or Class of a Series; or
(iii) dissolve, liquidate or terminate
a Series, a Class of a Series, or the Trust.
Upon payment or the making of reasonable provision for the
payment of all known liabilities of the Trust or any affected
Class or Series in either (i) or (ii), by assumption or
otherwise, the Trustees may distribute the remaining proceeds or
assets (as the case may be) ratably among the Interestholders of
the Trust or any affected Class or Series; however, the payment
to the Interestholders of any particular Class or Series may be
reduced by any fees, expenses or charges allocated to that
Series or Class; and may dissolve the Trust or any affected
Series or Class of a Series.
(b) In determining whether to dissolve the Trust, a Series
or a Class of a Series, the Trustees may take into account
whether continuation of the Trust, Series or Class is in the
best interests of the Trust, Series or such Class, or their
respective Interestholders as a result of factors or events
adversely affecting the ability of the Trust or such Series or
Class to conduct its business and operations in an economically
viable manner. Such factors and events may include the
inability of the Trust, Series or Class to maintain its assets
at an appropriate size, changes in laws or regulations governing
the Trust, Series or Class or affecting assets of the type in
which the Trust or Series invests, or economic developments or
trends having a significant adverse impact on the business or
operations of the Trust, Series or Class. If a majority of the
Trustees determine that the continuation of the Trust, Series,
or Class is not in the best interests of the Trust, such Series
or Interestholders, such determination is conclusive and binding
upon the Trust, Series, Class and their respective
Interestholders.
(c) Upon completion of the winding up of the affairs of
the Trust and the distribution of the remaining proceeds or
assets pursuant to subsection (a), the Trust shall terminate and
the Trustees and the Trust shall be discharged of any and all
further liabilities and duties hereunder with respect thereto
and the right, title and interest of all parties therein shall
be canceled and discharged. Upon dissolution (as defined in the
Delaware Act) 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, which may be
signed by any one Trustee, to be filed in accordance with the
Delaware Act.
(d) The dissolution or termination of a Series or a Class
shall not affect the existence of the Trust or any other Series
or Class. Upon completion of the winding up of the affairs of a
terminated Series and the distribution of the assets pursuant to
subparagraph (a), the Trustees shall, by Board resolution or
other written instrument, record in the Trust's books and
records that the Series or Class is terminated.
Section 4. Reorganization. Unless Interestholder approval
is expressly required under the 1940 Act, the Trustees may,
without the need of any action or vote of the Interestholders or
any other person or entity, (a) cause the Trust to merge or
consolidate with or into one or more statutory trusts or other
business entities (as defined under the Delaware Act), if the
surviving or resulting entity is the Trust or another open-end
management investment company under the 1940 Act, or a series
thereof, that will succeed to or assume the Trust's registration
under the 1940 Act, or (b) cause the Trust to incorporate under
the laws of Delaware.
Pursuant to and in accordance with the provisions of
Section 3815(f) of the Delaware Act, an agreement of merger or
consolidation approved by the Trustees in accordance with this
Section 5 may effect any amendment to the Declaration or effect
the adoption of a new governing Declaration of the Trust if it
is the surviving or resulting trust in the merger or
consolidation. Any agreement of merger or consolidation or
certificates of merger may be signed by any Trustee authorized
by resolution of a majority of the Trustees and facsimile
signatures conveyed by electronic or telecommunication means
shall be valid.
Section 5. Declaration. The original or a copy of this
Declaration and of each amendment hereto or Declaration
supplemental shall be kept at the office of the Trust. Anyone
dealing with the Trust may rely on a certificate by a Trustee or
an officer of the Trust as to the authenticity of the
Declaration of Trust or any such amendments or supplements and
as to any matters in connection with the Trust; 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 Declaration and in any such restatements and/or amendment,
references to this Declaration, and all expressions like
"herein", "hereof" and "hereunder", shall be deemed to refer to
this Declaration 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
Declaration. 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
Declaration may be executed in any number of counterparts,
originally or by power of attorney, each of which shall be
deemed an original.
Section 6. Derivative Actions. As expressly provided in
the Delaware Act, Interestholders have the right to bring a
derivative action if they meet the express requirements of
Delaware law. However, no derivative action may be brought by
Interestholders unless, in addition to any requirements of
Delaware law, Interestholders owning not less than one-third of
the Outstanding Interests of all Series of the Trust, or of the
affected Series or Classes of the Trust, as the case may be,
join in the bringing of the derivative action.
Section 7. Applicable Law. This Declaration and the Trust
created hereunder are governed by and construed and administered
according to the Delaware Act and the applicable laws of the
State of Delaware; provided, however, that there shall not be
applicable to the Trust, the Trustees or this Declaration (a)
the provisions of Section 3540 of Title 12 of the Delaware Code,
or (b) any provisions of the laws (statutory or common) of the
State of Delaware (other than the Delaware Act) pertaining to
trusts which relate to or regulate (i) the filing with any court
or governmental body or agency of trustee accounts or schedules
of trustee fees and charges, (ii) affirmative requirements to
post bonds for trustees, officers, agents or employees of a
trust, (iii) the necessity for obtaining court or other
governmental approval concerning the acquisition, holding or
disposition of real or personal property, (iv) fees or other
sums payable to trustees, officers, agents or employees of a
trust, (v) the allocation of receipts and expenditures to income
or principal, (vi) restrictions or limitations on the
permissible nature, amount or concentration of trust investments
or requirements relating to the titling, storage or other manner
of holding of trust assets, or (vii) the establishment of
fiduciary or other standards of responsibilities or limitations
on the acts or powers of trustees, which are inconsistent with
the limitations or liabilities or authorities and powers of the
Trustees set forth or referenced in this Declaration. The Trust
shall be of the type commonly called a Delaware statutory trust,
and, without limiting the provisions hereof, the Trust may
exercise all powers which are ordinarily exercised by such a
trust under Delaware law. The Trust specifically reserves the
right to exercise any of the powers or privileges afforded to
trusts or actions that may be engaged in by trusts under the
Delaware Act, and the absence of a specific reference herein to
any such power, privilege or action shall not imply that the
Trust may not exercise such power or privilege or take such
actions.
Section 8. Amendments. Because this Declaration does not
confer any independent rights to Interestholders not expressly
granted under Delaware law or the 1940 Act, this Declaration may
be amended without Interestholder approval, and all
Interestholders purchase Interests with notice that this
Declaration may be so amended unless expressly required under
the 1940 Act. The Trustees may, without any Interestholder
vote, amend or otherwise supplement this Declaration by making
an amendment, a trust instrument supplemental hereto or an
amended and restated declaration of trust; provided, that
Interestholders shall have the right to vote on any amendment if
expressly required under the 1940 Act or other applicable law,
or submitted to them by the Trustees in their discretion.
Section 9. Fiscal Year. The fiscal year of the Trust or
specific Series within the Trust shall end on a specific date as
determined by the Trustees in this Declaration or by resolution
or other written instrument. The Trustees may change the fiscal
year of the Trust, or any Series of the Trust without
Interestholder approval.
Section 10. Severability. The provisions of this
Declaration are severable. If the Trustees determine, with the
advice of counsel, that any provision hereof conflicts with the
1940 Act, the applicable regulated investment company provisions
of the Internal Revenue Code or with other applicable laws and
regulations, the conflicting provision shall be deemed never to
have constituted a part of this Declaration; provided, however,
that such determination shall not affect any of the remaining
provisions of this Declaration or render invalid or improper any
action taken or omitted prior to such determination. If any
provision hereof shall be held invalid or unenforceable in any
jurisdiction, such invalidity or unenforceability shall attach
only to such provision only in such jurisdiction and shall not
affect any other provision of this Declaration.
Section 11. Principal Office. The principal office of the
Trust shall be located in San Francisco, California, or in such
other location as the Trustees may from time to time determine.
Section 12. Maintenance and Inspection of the Books. The
accounting books and records and minutes of proceedings of the
Interestholders and the Board and any committee or committees of
the Board shall be kept at such place or places designated by
the Board or in the absence of such designation, at the
principal executive office of the Trust. The minutes shall be
kept in written form and the accounting books and records shall
be kept either in written form or in any other form capable of
being converted into written form. Except as expressly required
under the 1940 Act or conferred under other applicable law,
Interestholders shall have no right to obtain or inspect the
books of the Trust, or to obtain or inspect any of the other
information referenced in Section 3819 of the Delaware Act,
except as the Trustees may expressly authorize. The Trustees
may authorize that the books of the Trust or any of the other
information referenced in Section 3819 of the Delaware Act be
provided to or open to inspection by Interestholders under the
conditions and regulations that the Trustees deem desirable.
IN WITNESS WHEREOF, the undersigned, being the Trustees,
have executed this Declaration as of the 25th day of November,
2002.
▇▇▇▇▇▇ ▇. ▇▇▇▇▇,
as Trustee and not individually
▇▇▇▇▇▇ ▇. ▇▇▇▇
as Trustee and not individually
▇▇▇▇▇ ▇. ▇▇▇▇▇▇,
as Trustee and not individually
▇. ▇▇▇▇▇▇ ▇▇▇▇▇▇,
as Trustee and not individually
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇,
as Trustee and not individually
▇. ▇▇▇▇▇▇ ▇▇▇▇▇,
as Trustee and not individually
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇,
as Trustee and not individually
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇,
as Trustee and not individually
EXHIBIT B:
▇▇▇▇▇ FARGO MASTER TRUST
INVESTMENT ADVISORY AGREEMENT
Schedule A
Master Trust Portfolios Advisory Fee
Disciplined Growth Portfolio 0.75
Equity Income Portfolio 0.75
Index Portfolio 0.15
International Equity Portfolio 1.00
Large Cap Appreciation Portfolio 0.70
Large Company Growth Portfolio 0.75
Managed Fixed Income Portfolio 0.50
Small Cap Basic Value Portfolio 0.90
Small Cap Index Portfolio 0.25
Small Cap Value Portfolio 0.90
Small Company Growth Portfolio 0.90
Small Company Value Portfolio 0.90
Stable Income Portfolio 0.50
Strategic Value Bond Portfolio 0.50
Tactical Maturity Bond Portfolio 0.50
Approved by Board of Trustees: October 24, 2000, March 1,
2001, May 8, 2001, November 27, 2001, May 7, 2002, August
6, 2002 and November 5, 2002.
Most Recent Annual Approval Date: August 6, 2002.
The foregoing fee schedule is agreed to as of November 25,
2002 and shall remain in effect until changed in writing by
the parties.
▇▇▇▇▇ FARGO MASTER TRUST
By: ▇. ▇▇▇▇▇ ▇▇▇▇▇▇▇
Secretary
▇▇▇▇▇ FARGO FUNDS MANAGEMENT, LLC
By: ▇▇▇▇▇▇ ▇▇▇▇
Senior Vice President
