Exhibit 99(a)
Q RESEARCH FUNDS
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AGREEMENT
AND DECLARATION OF TRUST
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January 30, 2003
TABLE OF CONTENTS
ARTICLE I
The Trust
Section 1.1 Name..............................................................................2
Section 1.2 Definitions.......................................................................2
Section 1.3 Purpose and Powers of Trust.......................................................4
ARTICLE II
Trustees
Section 2.1 Number and Qualification..........................................................4
Section 2.2 Term and Election.................................................................4
Section 2.3 Resignation and Removal...........................................................5
Section 2.4 Vacancies.........................................................................5
Section 2.5 Meetings..........................................................................6
Section 2.6 Officers..........................................................................7
ARTICLE III
Powers and Duties of Trustees
Section 3.1 General...........................................................................7
Section 3.2 Investments.......................................................................8
Section 3.3 Legal Title.......................................................................8
Section 3.4 Issuance and Repurchase of Shares.................................................8
Section 3.5 Borrow Money or Utilize Leverage..................................................9
Section 3.6 Delegation; Committees. .........................................................9
Section 3.7 Collection and Payment. .........................................................9
Section 3.8 Expenses.........................................................................10
Section 3.9 By-Laws..........................................................................10
Section 3.10 Miscellaneous Powers.............................................................10
Section 3.11 Further Powers...................................................................11
ARTICLE IV
Limitations of Liability and Indemnification
Section 4.1 No Personal Liability of Shareholders, Trustees, etc.............................11
Section 4.2 Mandatory Indemnification........................................................12
Section 4.3 No Duty of Investigation; Notice in Trust Instruments, etc.......................14
Section 4.4 Reliance on Experts, etc.........................................................14
ARTICLE V
Shares of Beneficial Interest
Section 5.1 Beneficial Interest..............................................................14
Section 5.2 Series Designation. ............................................................15
Section 5.3 Class Designation. .............................................................15
Section 5.4 Description of Shares............................................................16
Section 5.5 Rights of Shareholders. ........................................................17
Section 5.6 Trust Only.......................................................................18
Section 5.7 Issuance of Shares...............................................................18
Section 5.8 Register of Shares. ............................................................18
Section 5.9 Transfer of Shares...............................................................19
Section 5.10 Notices..........................................................................19
Section 5.11 Net Asset Value..................................................................20
Section 5.12 Distributions to Shareholders....................................................20
ARTICLE VI
Shareholders
Section 6.1 Meetings of Shareholders.........................................................20
Section 6.2 Voting...........................................................................21
Section 6.3 Notice of Meeting, Shareholder Proposals and Record Date.........................21
Section 6.4 Quorum and Required Vote.........................................................22
Section 6.5 Proxies, etc.....................................................................22
Section 6.6 Reports..........................................................................23
Section 6.7 Inspection of Records............................................................23
Section 6.8 Shareholder Action by Written Consent............................................23
ARTICLE VII
Redemption
Section 7.1 Redemptions......................................................................24
Section 7.2 Disclosure of Holding............................................................24
Section 7.3 Redemptions of Small Accounts....................................................24
ARTICLE VIII
Duration: Termination of Trust; Amendment; Mergers, Etc.
Section 8.1 Duration.........................................................................25
Section 8.2 Termination......................................................................25
Section 8.3 Amendment Procedure..............................................................26
Section 8.4 Merger, Consolidation and Sale of Assets.........................................27
ARTICLE IX
Miscellaneous
Section 9.1 Filing...........................................................................28
Section 9.2 Resident Agent...................................................................28
Section 9.3 Governing Law....................................................................28
Section 9.4 Counterparts.....................................................................28
Section 9.5 Reliance by Third Parties........................................................29
Section 9.6 Provisions in Conflict with Law or Regulation....................................29
Q RESEARCH FUNDS
AGREEMENT
AND
DECLARATION OF TRUST
AGREEMENT AND DECLARATION OF TRUST made as of the 30th day of
January, 2003, by the Trustees hereunder, and by the holders of shares of
beneficial interest issued hereunder as hereinafter provided.
WHEREAS, this Trust has been formed to carry on business as set forth
more particularly hereinafter;
WHEREAS, this Trust is authorized to issue an unlimited number of its
shares of beneficial interest in separate series and classes of each such
series, each separate series to be a sub-trust hereunder, all in accordance
with the provisions hereinafter set forth;
WHEREAS, the Trustees have agreed to manage all property coming into
their hands as Trustees of a
Delaware statutory trust in accordance with the
provisions hereinafter set forth; and
WHEREAS, the parties hereto intend that the Trust created by this
Declaration and the Certificate of Trust filed with the Secretary of State of
the State of
Delaware on January 30, 2003 shall constitute a statutory trust
under the
Delaware Statutory Trust Statute and that this Declaration shall
constitute the governing instrument of such statutory trust.
NOW, THEREFORE, the Trustees hereby declare that they will hold all
cash, securities, and other assets which they may from time to time acquire in
any manner as Trustees hereunder IN TRUST to manage and dispose of the same
upon the following terms and conditions for the benefit of the holders from
time to time of shares of beneficial interest in this Trust or sub-trusts
created hereunder as hereinafter set forth.
ARTICLE I
The Trust
Section 1.1 Name. This Trust shall be known as "
Q Research Funds" or
any other name or names as the Trustees may from time to time determine.
Section 1.2 Definitions. As used in this Declaration, the following
terms shall have the following meanings:
"By-Laws" shall mean the By-Laws of the Trust as amended from time to
time by the Trustees.
"Class" shall mean a portion of Shares of a Series of the Trust
established in accordance with Section 5.3 hereof.
"Code" shall mean the Internal Revenue Code of 1986, as amended, and
the regulations promulgated thereunder.
"Commission" shall mean the Securities and Exchange Commission.
"Declaration" shall mean this
Agreement and Declaration of Trust, as
amended or amended and restated from time to time, including by way of any
classifying or reclassifying Shares of any Series or any Class of any such
Series or determining any designations, powers, preferences, voting,
conversion and other rights, limitations, qualifications and terms and
conditions thereof.
"
Delaware Statutory Trust Statute" shall mean the provisions of the
Delaware Statutory Trust Act, 12 Del. C.ss.3801, et. seq., as such Act may be
amended from time to time.
"Fundamental Policies" shall mean the investment policies and
restrictions set forth from time to time in any Prospectus or contained in any
current Registration Statement of the Trust or any Series filed with the
Commission or as otherwise adopted by the Trustees and the Shareholders in
accordance with the requirements of the 1940 Act that are expressly designated
as fundamental policies of such Series as they may be amended from time to
time in accordance with the 1940 Act.
"Interested Person" shall have the meaning ascribed thereto in the
1940 Act.
"Majority Shareholder Vote" shall mean a vote of a "majority of the
outstanding voting securities" (as such term is defined in the ▇▇▇▇ ▇▇▇) of
the Trust, any Series of the Trust or any Class thereof, as applicable.
The "1940 Act" refers to the Investment Company Act of 1940 and the
rules and regulations promulgated thereunder and applicable exemptions
therefrom, as amended from time to time.
The "1933 Act" refers to the Securities Act of 1933, and the rules
and regulations promulgated thereunder and applicable exemptions therefrom, as
amended from time to time.
"Person" shall mean and include natural persons, corporations,
partnerships, trusts, limited liability companies, associations, joint
ventures and other entities, whether or not legal entities, and governments
and agencies and political subdivisions thereof.
"Prospectus" shall mean the current prospectus or offering memorandum
of securities of the Trust or of any Series thereof or of any Class of any
such Series, as applicable.
"Series" shall mean the separate sub-trusts that may be established
and designated as series pursuant to Section 5.2 hereof or any one of such
sub-trusts, as applicable.
"Series Liabilities" shall mean as of any particular time any and all
debts, obligations or other liabilities, contingent or otherwise, of or
relating to a particular Series of the Trust.
"Series Property" shall mean as of any particular time any and all
property, real or personal, tangible or intangible, which at such time is
owned or held by or for the account of a particular Series.
"Shareholders" shall mean as of any particular time the holders of
record of outstanding Shares of the Trust, any Series of the Trust or any
Class of any Series, as applicable, at such time.
"Shares" shall mean the transferable units of beneficial interest in
the Trust or in a Series of the Trust and includes fractions of Shares as well
as whole Shares, which Shares may be classified as relating to particular
Series and Classes within a Series. All references to Shares shall be deemed
to be Shares of any or all Series or Classes as the context may require.
"Trust" shall mean the trust established by this Declaration, as
amended from time to time, inclusive of each such amendment and every
sub-trust established as a Series hereunder.
"Trustees" shall mean the signatory to this Declaration, so long as
such signatory shall continue in office in accordance with the terms hereof,
and all other Persons who at the time in question have been duly elected or
appointed and have qualified as trustees in accordance with the provisions
hereof and are then in office.
Section 1.3 Purpose and Powers of Trust. The Trust is established for
the purpose of engaging in any activity not prohibited by
Delaware law and
shall have the power to engage in any such activity and in any activity
incidental or related to any such activity.
ARTICLE II
Trustees
Section 2.1 Number and Qualification. Prior to any offering of
Shares, there may be a sole Trustee and thereafter the number of Trustees
shall be such number, not less than three or more than fifteen, as shall be
set forth in a written instrument or resolution signed or adopted by a
majority of the Trustees then in office. No reduction in the number of
Trustees shall have the effect of removing any Trustee from office prior to
the expiration of his or her term. An individual nominated as a Trustee shall
be at least 21 years of age and not older than such age as may be set forth in
a written instrument or resolution signed or adopted by not less than a
majority of the Trustees then in office and shall not be under legal
disability. Trustees need not own Shares and may succeed themselves in office.
Section 2.2 Term and Election. Except for the Trustees appointed to
fill vacancies pursuant to Section 2.4 hereof, each Trustee shall be elected
to serve until death, resignation, removal or reelection at the annual
meeting, if one is held, or at any special meeting of shareholders. Subject to
the foregoing sentence, each Trustee named herein or elected or appointed
pursuant to the terms hereof shall hold office until such Trustee's successor
has been elected at such a meeting and has qualified to serve as Trustee.
Election of Trustees at a meeting shall be by the affirmative vote of the
holders of a plurality of the Shares present in person or by proxy. Each
individual elected or appointed as a Trustee of the Trust shall, unless
otherwise provided by such election or appointment, also thereby be elected or
appointed, as the case may be, as a Trustee of each Series of the Trust in
existence at any time such individual is a Trustee. The Trustees may elect one
of themselves to serve as Chairman.
Section 2.3 Resignation and Removal. Any Trustee may resign his trust
(without need for prior or subsequent accounting) by an instrument in writing
signed by him and delivered or mailed to the Trustees or the Chairman, if any,
the President or the Secretary and such resignation shall be effective upon
such delivery, or at a later date according to the terms of the instrument.
Any Trustee may be removed (provided the aggregate number of Trustees after
such removal shall not be less than the minimum number required by Section 2.1
hereof) for cause at any time by written instrument, signed by two-thirds of
the remaining Trustees, specifying the date when such removal shall become
effective. Any Trustee may be removed (provided the aggregate number of
Trustees after such removal shall not be less than the minimum number required
by Section 2.1 hereof) without cause at any time by a written instrument,
signed or adopted by two-thirds of the remaining Trustees or by vote of Shares
having not less than two-thirds of the aggregate number of Shares entitled to
vote in the election of such Trustee, specifying the date when such removal
shall become effective. Upon the resignation or removal of a Trustee, or such
Person otherwise ceasing to be a Trustee, such Person shall cease to hold any
Series Property previously held in the name of such former Trustee, without
any requirement that such former Trustee execute and deliver any conveyance or
acknowledgment thereof.
Section 2.4 Vacancies. Whenever a vacancy in the Board of Trustees
shall occur, the remaining Trustees may fill such vacancy by appointing an
individual having the qualifications described in this Article by a written
instrument signed by a majority of the Trustees then in office or by election
by the Shareholders, or may leave such vacancy unfilled or may reduce the
number of Trustees (provided the aggregate number of Trustees after such
reduction shall not be less than the minimum number required by Section 2.1
hereof). Any vacancy created by an increase in Trustees may be filled by the
appointment of an individual having the qualifications described in this
Article made by a written instrument or resolution signed or approved by a
majority of the Trustees then in office or by election by the Shareholders. No
vacancy shall operate to annul this Declaration or to revoke any existing
authority or power existing pursuant to the terms of this Declaration.
Whenever a vacancy in the number of Trustees shall occur, until such vacancy
is filled as provided herein, 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.
Section 2.5 Meetings. Meetings of the Trustees shall be held from
time to time upon the call of the Chairman, if any, the President, the
Secretary or any two Trustees. Regular meetings of the Trustees may be held
without call or notice at a time and place fixed by the By-Laws or by
resolution of the Trustees. Notice of any other meeting shall be given by the
Secretary and shall be delivered to the Trustees orally not less than 24 hours
before the meeting or in writing not less than 72 hours, but may be waived in
writing by any Trustee either before or after such meeting. The attendance of
a Trustee at a meeting shall constitute a waiver of notice of such meeting
except where a Trustee attends a meeting for the express purpose of objecting
to the transaction of any business on the ground that the meeting has not been
properly called or convened. A quorum for all meetings of the Trustees shall
be one-third, but not less than two, of the Trustees then in office. Unless
provided otherwise in this Declaration of Trust and except as required by the
1940 Act, any action of the Trustees may be taken at a meeting by vote of a
majority of the Trustees present (a quorum being present) or without a meeting
by written consent of a majority of the Trustees then in office.
Any committee of the Trustees, including an executive committee, if
any, may act with or without a meeting. A quorum for all meetings of any such
committee shall be one third, but not less than two, of the members thereof.
Unless provided otherwise in this Declaration or any instrument or resolution
of the Trustees establishing or affecting such Committee, any action of any
such committee may be taken at a meeting by vote of a majority of the members
present (a quorum being present) or without a meeting by written consent of a
majority of the members.
With respect to actions of the Trustees and any committee of the
Trustees, Trustees who are Interested Persons in any action to be taken may be
counted for quorum purposes under this Section and shall be entitled to vote
to the extent not prohibited by the 1940 Act.
All or any one or more Trustees may participate in a meeting of the
Trustees or any committee thereof by means of a conference telephone, internet
connection or similar communications equipment by means of which all Persons
participating in the meeting can hear or otherwise communicate with each
other; participation in a meeting pursuant to any such communications system
shall constitute presence in person at such meeting except as otherwise
provided by the 1940 Act.
Section 2.6 Officers. The Trustees shall elect a President, a
Secretary, a Treasurer and an Assistant Treasurer, who shall serve at the
pleasure of the Trustees or until their successors are elected. The Trustees
may elect or appoint or may authorize the Chairman, if any, or President to
appoint such other officers or agents with such other titles and powers as the
Trustees may deem to be advisable. The President, Secretary, Treasurer and
Assistant Treasurer may, but need not, be a Trustee.
ARTICLE III
Powers and Duties of Trustees
Section 3.1 General. The Trustees shall owe to the Trust and its
Shareholders the same fiduciary duties as owed by directors of corporations to
such corporations and their stockholders under the general corporation law of
the State of
Delaware. The Trustees shall have exclusive and absolute control
over the Series Property of each Series and over the business of the Trust and
any Series thereof to the same extent as if the Trustees were the sole owners
of all such Series Property and business in their own right, but with such
powers of delegation as may be permitted by this Declaration. The enumeration
of any specific power herein shall not be construed as limiting the aforesaid
power. The Trustees may perform such acts as in their sole discretion are
proper for conducting the business of the Trust. The powers of the Trustees
may be exercised without order of or resort to any court. No Trustee shall be
obligated to give any bond or other security for the performance of any of his
duties or powers hereunder.
Section 3.2 Investments. The Trustees shall have power, subject to
the Fundamental Policies in effect from time to time, to:
(a) manage, conduct, operate and carry on the business of an
investment company;
(b) 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 and all sorts of property, tangible or
intangible, including but not limited to securities of any type whatsoever,
whether equity or non-equity, of any issuer, evidences of indebtedness of any
Person and any other rights, interests, instruments or property of any sort
and to exercise any and all rights, powers and privileges of ownership or
interest in respect of any and all such investments of every kind and
description, including, without limitation, the right to consent and otherwise
act with respect thereto, with power to designate one or more Persons to
exercise any of said rights, powers and privileges in respect of any of said
investments. The Trustees shall not be limited by any law limiting the
investments which may be made by fiduciaries.
Section 3.3 Legal Title. Legal title to all the Series Property shall
be vested in the Trustees as joint tenants except that the Trustees shall have
power to cause legal title to any Series Property to be held by or in the name
of one or more of the Trustees, or in the name of the Trust, or any Series
thereof, or in the name of any other Person as nominee, custodian or pledgee,
on such terms as the Trustees may determine, provided that the interest of the
Trust or any Series thereof therein is appropriately protected.
The right, title and interest of the Trustees in the Series Property
shall vest automatically in each Person who may hereafter become a Trustee
upon his due election and qualification. Upon the ceasing of any Person to be
a Trustee for any reason, such Person shall automatically cease to have any
right, title or interest in any of the Series Property, and the right, title
and interest of such Trustee in the Series Property shall vest automatically
in the remaining Trustees. Such vesting and cessation of title shall be
effective whether or not conveyancing documents have been executed and
delivered.
Section 3.4 Issuance and Repurchase of Shares. The Trustees shall
have the power to issue, sell, repurchase, redeem, retire, cancel, acquire,
hold, resell, reissue, dispose of, transfer, and otherwise deal in, Shares,
including Shares in fractional denominations, shall have the power to
establish from time to time in accordance with the provisions of Section 5.2
and 5.3 hereof Series and Classes representing interests in the Trust or a
Series thereof and, subject to the more detailed provisions set forth in
Article VII, shall have the power to apply to any such repurchase, redemption,
retirement, cancellation or acquisition of Shares any funds or property of the
applicable Series of the Trust whether capital or surplus or otherwise, to the
full extent now or hereafter permitted by the laws of the State of
Delaware
governing business corporations.
Section 3.5 Borrow Money or Utilize Leverage. Subject to the
Fundamental Policies in effect from time to time, the Trustees shall have the
power to borrow money or otherwise obtain credit or utilize leverage in
connection with the activities of any Series to the maximum extent permitted
by law, regulation or order and the Fundamental Policies of any Series and to
secure the same by mortgaging, pledging or otherwise subjecting as security
the assets of such Series, including the lending of portfolio securities, and
to endorse, guarantee, or undertake the performance of any obligation,
contract or engagement of any other Person; provided, however, that the assets
of any particular Series shall not be used as security for any credit extended
solely or partially to one or more other Series.
Section 3.6 Delegation; Committees. The Trustees shall have the
power, consistent with their continuing exclusive authority over the
management of the Trust and the Series Property, to delegate from time to time
to such of their number or to officers, employees or agents of the Trust the
doing of such things and the execution of such instruments either in the name
of the Trust or the applicable Series or the names of the Trustees or
otherwise as the Trustees may deem expedient, to at least the same extent as
such delegation is permitted to directors of a
Delaware business corporation
and is permitted by the 1940 Act, as well as any further delegations the
Trustees may determine to be desirable, expedient or necessary in order to
effect the purpose hereof. The Trustees may designate one or more committees
which shall have all or such lesser portion of the authority of the entire
Board of Trustees as the Trustees shall determine from time to time except to
the extent action by the entire Board of Trustees or particular Trustees is
required by the 1940 Act.
Section 3.7 Collection and Payment. The Trustees shall have power to
collect all property due to any Series of the Trust; to pay all claims,
including taxes, against any Series Property, the Trust or any Series of the
Trust, the Trustees or any officer, employee or agent of the Trust; to
prosecute, defend, compromise or abandon any claims relating to any Series
Property, the Trust or any Series of the Trust, the Trustees or any officer,
employee or agent of the Trust; to foreclose any security interest securing
any obligations, by virtue of which any property is owed to any Series of the
Trust; and to enter into releases, agreements and other instruments. Except to
the extent required for a
Delaware business corporation, the Shareholders
shall have no power to vote as to whether or not a court action, legal
proceeding or claim should or should not be brought or maintained derivatively
or as a class action on behalf of the Trust, any Series or the Shareholders
thereof.
Section 3.8 Expenses. The Trustees shall have power to incur and pay
out of the assets or income of any Series of the Trust, any expenses which in
the opinion of the Trustees are necessary or appropriate to carry out any of
the purposes of this Declaration, and the business of any Series of the Trust,
and to pay reasonable compensation from the funds of each Series to themselves
as Trustees. The Trustees shall fix the compensation of all officers,
employees and Trustees. Subject to the 1940 Act, the Trustees may pay
themselves such compensation for special services, including legal,
underwriting, syndicating and brokerage services, as they in good faith may
deem reasonable and reimbursement for expenses reasonably incurred by
themselves on behalf of any Series. The Trustees shall have the power, as
frequently as they may determine, to cause each Shareholder, or each
Shareholder of any particular Series, to pay directly, in advance or arrears,
for charges of distribution, of the custodian or transfer, shareholder
servicing or similar agent of such Series or Class, a pro rata amount as
defined from time to time by the Trustees, by setting off such charges due
from such Shareholder from declared but unpaid dividends or distributions owed
such Shareholder and/or by reducing the number of shares in the account of
such Shareholder by that number of full and/or fractional Shares which
represents, at the net asset value thereof, the outstanding amount of such
charges due from such Shareholder.
Section 3.9 By-Laws. The Trustees shall have the exclusive authority
to adopt and from time to time amend or repeal By-Laws for the conduct of the
business of the Trust.
Section 3.10 Miscellaneous Powers. The Trustees shall have the power
to: (a) employ or contract with such Persons as the Trustees may deem
desirable for the transaction of the business of any Series, including
investment advisors, administrators, custodians, transfer agents, shareholder
services providers, accountants, counsel, brokers, dealers and others; (b)
enter into joint ventures, partnerships and any other combinations or
associations; (c) purchase, and pay for out of Series Property, insurance
policies insuring the Shareholders, Trustees, officers, employees, agents,
investment advisors, distributors, selected dealers or independent contractors
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 constituting negligence, or whether or not the
Trust would have the power to indemnify such Person against such liability;
(d) establish pension, profit-sharing, share purchase, and other retirement,
incentive and benefit plans for any Trustees, officers, employees and agents
of the Trust; (e) make donations, irrespective of benefit to the Trust, for
charitable, religious, educational, scientific, civic or similar purposes; (f)
to the extent permitted by applicable law, indemnify any Person with whom any
Series has dealings, including without limitation any investment advisor,
administrator, manager, transfer agent, custodian, distributor or selected
dealer, or any other Person as the Trustees may see fit to such extent as the
Trustees shall determine; (g) guarantee indebtedness or contractual
obligations of others; (h) determine and change the fiscal year of the Trust
and the method in which its accounts shall be kept; and (i) adopt a seal for
the Trust but the absence of such seal shall not impair the validity of any
instrument executed on behalf of the Trust.
Section 3.11 Further Powers. The Trustees shall have the power to
conduct the business of the Trust or any Series of the Trust or any Class
thereof and carry on its operations in any and all of its branches and
maintain offices both within and without the State of Delaware, in any and all
states of the United States of America, in the District of Columbia, and in
any and all commonwealths, territories, dependencies, colonies, possessions,
agencies or instrumentalities of the United States of America and of foreign
governments, and to do all such other things and execute all such instruments
as they deem necessary, proper or desirable in order to promote the interests
of the Trust or any Series of the Trust or any Class thereof although such
things are not herein specifically mentioned. Any determination as to what is
in the interests of the Trust or any Series of the Trust or any Class thereof
made by the Trustees in good faith shall be conclusive. In construing the
provisions of this Declaration, the presumption shall be in favor of a grant
of power to the Trustees.
ARTICLE IV
Limitations of Liability and Indemnification
Section 4.1 No Personal Liability of Shareholders, Trustees, etc. No
Shareholder of the Trust shall be subject in such capacity to any personal
liability whatsoever to any Person in connection with Series Property or the
acts, obligations or affairs of the Trust. Shareholders shall have the same
limitation of personal liability as is extended to stockholders of a private
corporation for profit incorporated under the general corporation law of the
State of Delaware. No Trustee, officer, employee or agent of the Trust or any
Series of the Trust shall be subject in such capacity to any personal
liability whatsoever to any Person, other than the Trust or the respective
Series or the Shareholders, in connection with Series Property or the affairs
of the Trust or the respective Series, save only liability to the Trust or its
Shareholders arising from bad faith, willful misfeasance, gross negligence or
reckless disregard for his duty to such Person; and, subject to the foregoing
exception, all such Persons shall look solely to the Series Property of the
affected Series for satisfaction of claims of any nature arising in connection
with the affairs of the Trust. If any Shareholder, Trustee or officer, as
such, of the Trust, is made a party to any suit or proceeding to enforce any
such liability, subject to the foregoing exception regarding Trustees and
officers, he shall not, on account thereof, be held to any personal liability.
Any repeal or modification of this Section 4.1 shall not adversely affect any
right or protection of a Trustee or officer of the Trust existing at the time
of such repeal or modification with respect to acts or omissions occurring
prior to such repeal or modification.
Section 4.2 Mandatory Indemnification. (a) The Trust hereby agrees,
solely out of the assets of the affected Series, to indemnify each Person who
at any time serves as Trustee or officer of the Trust (each such Person being
an "indemnitee") against any liabilities and expenses, including amounts paid
in satisfaction of judgments, in compromise or as fines and penalties, and
reasonable counsel fees reasonably incurred by such indemnitee in connection
with the defense or disposition of any action, suit or other proceeding,
whether civil or criminal, before any court or administrative or investigative
body in which he may be or may have been involved as a party or otherwise or
with which he may be or may have been threatened, while acting in any capacity
set forth above in this Article IV by reason of his having acted in any such
capacity, except with respect to any matter as to which he shall not have
acted in good faith in the reasonable belief that his action was in the best
interest of the Trust or the respective Series of the Trust and furthermore,
in the case of any criminal proceeding, as to which he shall have had
reasonable cause to believe that the conduct was unlawful, provided, however,
that no indemnitee shall be indemnified hereunder against any liability to any
Person or any expense of such indemnitee arising by reason of (i) willful
misfeasance, (ii) bad faith, (iii) gross negligence, or (iv) reckless
disregard of the duties involved in the conduct of his position.
Notwithstanding the foregoing, with respect to any action, suit or other
proceeding voluntarily prosecuted by any indemnitee as plaintiff,
indemnification shall be mandatory only if the prosecution of such action,
suit or other proceeding by such indemnitee was (1) authorized by a majority
of the Trustees or (2) was instituted by the indemnitee to enforce his or her
rights to indemnification hereunder in a case in which the indemnitee is found
to be entitled to such indemnification. The rights to indemnification set
forth in this Declaration shall continue as to a Person who has ceased to be a
Trustee or officer of the Trust and shall inure to the benefit of his or her
heirs, executors and personal and legal representatives. No amendment or
restatement of this Declaration or repeal of any of its provisions shall limit
or eliminate any of the benefits provided to any Person who at any time is or
was a Trustee or officer of the Trust or otherwise entitled to indemnification
hereunder in respect of any act or omission that occurred prior to such
amendment, restatement or repeal.
(b) Notwithstanding the foregoing, no indemnification shall be made
hereunder unless there has been a determination (1) by a final decision on the
merits by a court or other body of competent jurisdiction before whom the
issue of entitlement to indemnification hereunder was brought that such
indemnitee is entitled to indemnification hereunder or, (2) in the absence of
such a decision, by (i) a majority vote of a quorum (being one-third of such
Trustees) of those Trustees who are neither Interested Persons of the Trust
nor parties to the proceeding ("Disinterested Non-Party Trustees"), that the
indemnitee is entitled to indemnification hereunder, or (ii) if such quorum is
not obtainable or even if obtainable, if such majority so directs, independent
legal counsel in a written opinion conclude that the indemnitee should be
entitled to indemnification hereunder. All determinations to make advance
payments in connection with the expense of defending any proceeding shall be
authorized and made in accordance with the immediately succeeding paragraph
(c) below.
(c) The Trust shall make advance payments in connection with the
expenses of defending any action with respect to which indemnification might
be sought hereunder if the Trust receives a written affirmation by the
indemnitee of the indemnitee's good faith belief that the standards of conduct
necessary for indemnification have been met and a written undertaking to
reimburse the Trust unless it is subsequently determined that indemnitee is
entitled to such indemnification and if a majority of the Trustees determine
that the applicable standards of conduct necessary for indemnification appear
to have been met. In addition, at least one of the following conditions must
be met: (1) the indemnitee shall provide adequate security for his
undertaking, (2) the Trust shall be insured against losses arising by reason
of any lawful advances, or (3) a majority of a quorum of the Disinterested
Non-Party Trustees, or if a majority vote of such quorum so directs,
independent legal counsel in a written opinion, shall conclude, based on a
review of readily available facts (as opposed to a full trial-type inquiry),
that there is substantial reason to believe that the indemnitee ultimately
will be found entitled to indemnification.
(d) The rights accruing to any indemnitee under these provisions
shall not exclude any other right to which he or she may be lawfully entitled.
(e) Subject to any limitations provided by the 1940 Act and this
Declaration, the Trust shall have the power and authority, solely out of the
assets of the affected Series, to indemnify and provide for the advance
payment of expenses to employees, agents and other Persons providing services
to the Trust or serving in any capacity at the request of the Trust to the
full extent as corporations organized under the Delaware General Corporation
Law may indemnify or provide for the advance payment of expenses for such
Persons provided that such indemnification has been approved by a majority of
the Trustees.
Section 4.3 No Duty of Investigation; Notice in Trust Instruments,
etc. No purchaser, lender, transfer agent or other Person dealing with the
Trustees or with any officer, employee or agent of the Trust or any Series of
the Trust or Class thereof shall be bound to make any inquiry concerning the
validity of any transaction purporting to be made by the Trustees or by said
officer, employee or agent or be liable for the application of money or
property paid, loaned, or delivered to or on the order of the Trustees or of
said officer, employee or agent. Every obligation, contract, undertaking,
instrument, certificate, Share, other security of the Trust or any Series of
the Trust, and every other act or thing whatsoever executed in connection with
the Trust or any Series of the Trust shall be conclusively taken to have been
executed or done by the executors thereof only in their capacity as Trustees
under this Declaration or in their capacity as officers, employees or agents
of the Trust. The Trustees may maintain insurance for the protection of the
Series Property, the Shareholders of each Series, Trustees, officers,
employees and agents in such amount as the Trustees shall deem adequate to
cover possible liability, and such other insurance as the Trustees in their
sole judgment shall deem advisable or is required by the 1940 Act.
Section 4.4 Reliance on Experts, etc. Each Trustee and officer or
employee of the Trust or any Series of the Trust shall, in the performance of
his duties, be fully and completely justified and protected with regard to any
act or any failure to act resulting from reliance in good faith upon the books
of account or other records of the Trust or any Series of the Trust or Class
thereof, upon an opinion of counsel, or upon reports made to the Trust or any
Series thereof by any of the Trust's officers or employees or by any advisor,
administrator, manager, distributor, selected dealer, accountant, appraiser or
other expert or consultant selected with reasonable care by the Trustees,
officers or employees of the Trust, regardless of whether such counsel or
other expert may also be a Trustee.
ARTICLE V
Shares of Beneficial Interest
Section 5.1 Beneficial Interest. The interest of the beneficiaries
hereunder shall be represented by an unlimited number of transferable shares
of beneficial interest, par value $.001 per share. All Shares issued in
accordance with the terms hereof, including, without limitation, Shares issued
in connection with a dividend in Shares or a split of Shares, shall be fully
paid when the consideration determined by the Trustees (if any) therefor shall
have been received by the Trust. The power to make certain changes against
Shareholders and their Shares shall not be considered assessments for the
foregoing purpose.
Section 5.2 Series Designation. The Trustees, in their discretion
from time to time, may authorize the reclassification of Shares into one or
more Series, each Series relating to a separate portfolio of investments and
each of which Series shall be a separate and distinct subtrust of the Trust.
Each Series so established hereunder shall be deemed to be a separate trust
under the provisions of Delaware law. The Trustees shall have exclusive power
without the requirement of Shareholder approval to establish and designate
such separate and distinct Series and to fix and determine the relative rights
and preferences as between the different Series. The establishment and
designation of any Series shall be effective upon the execution or approval by
a majority of the Trustees of an instrument or resolution setting forth the
establishment and designation of such Series (or when authorized to do so, by
any officer of the Trust pursuant to the vote of a majority of the Trustees of
the Trust). Such instrument shall also set forth any rights and preferences of
such Series which are in addition to the rights and preferences of Shares set
forth in this Declaration. At any time that there are no Shares outstanding of
any particular Series previously established and designated, the Trustees may
by an instrument or resolution executed or approved by a majority of their
number abolish or alter that Series and the establishment and designation
thereof. Each instrument referred to in this paragraph shall have the status
of an amendment to this Declaration.
Section 5.3 Class Designation. The Trustees, in their discretion from
time to time, may authorize the reclassification of Shares of any Series into
one or more Classes of Shares all the assets of which Series shall remain
commingled and not allocated among the different Classes thereof. The Trustees
shall have exclusive power without the requirement of Shareholder approval to
establish and designate such separate and distinct Classes and to fix and
determine the relative rights, terms, conditions and expenses applicable to
each Class of Shares to the maximum extent permitted by the ▇▇▇▇ ▇▇▇. The
establishment and designation of any Class of Shares shall be effective upon
the execution or approval by a majority of the Trustees of an instrument or
resolution setting forth the establishment and designation of such Class (or
when authorized to do so, by an officer of the Trust pursuant to the vote of a
majority of the Trustees of the Trust. At any time that there are no Shares
outstanding of any particular Class previously established and designated, the
Trustees may, by an instrument or resolution executed or approved by a
majority of the Trustees, abolish or alter that Class and the establishment
and designation thereof.
Section 5.4 Description of Shares. If the Trustees shall create
sub-trusts and reclassify the Shares into one or more Series or create Classes
of Shares, the following provisions shall be applicable:
(a) Number of Shares. The number of Shares of each Series or Class
that may be issued shall be unlimited. The Trustees may, but shall not be
required to, classify or reclassify any unissued Shares or any Shares
previously issued and reacquired of any Series or Class into one or more
Series or Classes that may be established and designated from time to time.
The Trustees may, but shall not be required to, hold as treasury Shares (of
the same or some other Series or Class), reissue for such consideration and on
such terms as they may determine, or cancel any Shares of any Series or Class
reacquired by the Trust at their discretion from time to time.
(b) Investment of Property. The power of the Trustees to invest and
reinvest the Trust Property of each Series that may be established shall be
governed by Section 3.2 of this Declaration.
(c) Allocation of Assets. All consideration received by the Trust for
the issue or sale of Shares of a particular Series or Class of such 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 payment derived from any reinvestment of such proceeds in
whatever form the same may be, together with such Series' or Class's share of
any other assets of the Trust, shall be held by the Trustees and Trust for the
benefit of the Shareholders of such Series and, subject to the rights of
creditors of such Series only, shall irrevocably belong to that Series for all
purposes, and shall be so recorded upon the books of account of the Trust. In
the event that there are any assets, income, earnings, profits, and proceeds
thereof, funds or payments which are not readily identifiable as belonging to
any particular Series, such assets shall be allocated among the Series in
proportion to their net assets as a proportion of the total net assets of the
Trust unless the Trustees shall have affirmatively allocated them among any
one or more of the Series established and designated from time to time in any
other manner or basis as they, in their sole discretion, deem fair and
equitable, and anything so allocated to a Series shall belong to such Series.
Each such allocation shall be conclusive and binding upon the Shareholders of
all Series for all purposes.
(d) Allocation of Liabilities. The assets belonging to each
particular Series or attributable to each particular Class of such Series
shall be charged with the liabilities of the Trust in respect of that Series
or Class and with all expenses, costs, charges and reserves attributable to
that Series or Class, and any general liabilities, expenses, costs, charges or
reserves of the Trust which are not readily identifiable as being attributable
to any particular Series or Class shall be allocated and charged against
assets of the Series and Classes of each Series in proportion to their net
assets as a proportion of the total net assets of the Trust unless the
Trustees shall have affirmatively allocated them and among any one or more of
the Series or Classes established and designated from time to time in any
other manner or basis as the Trustees in their sole discretion deem fair and
equitable; provided that any incremental expenses allocated to one or more
Classes of Shares on a basis other than the relative net asset values of the
respective Classes shall be allocated in a manner consistent with the 1940
Act. Each allocation of liabilities, expenses, costs, charges and reserves by
the Trustees shall be conclusive and binding upon the Shareholders of all
Series and Classes for all purposes. The Trustees shall have full discretion,
to the extent not inconsistent with the 1940 Act, to determine which items
shall be treated as income and which items as capital, and each such
determination and allocation shall be conclusive and binding upon the
Shareholders. Under no circumstances shall the assets allocated or belonging
to a particular Series or attributable to a particular Class be charged with
any liabilities attributable to another Series or Class. Any creditor may look
only to the assets of the particular Series with respect to which such Person
is a creditor for satisfaction of such creditor's debt.
(e) Dividends. The power of the Trust to pay dividends and make
distributions with respect to any one or more Series shall be governed by
Section 5.12 of this Trust. Dividends and distributions on Shares of a
particular Series may be paid with such frequency as the Trust may determine,
which may be daily or otherwise, pursuant to a standing resolution or
resolutions adopted only once or with such frequency as the Trust may
determine, to the holders of Shares of that Series, from such of the income
and capital gains, accrued or realized, from the assets belonging to that
Series, as the Trust may determine, after providing for actual and accrued
liabilities belonging to that Series. All dividends and distributions on each
Class of a Series shall be distributed pro rata to the holders of Shares of
that Class in proportion to the number of Shares of that Class held by such
holders at the date and time of record established for the payment of such
dividends or distributions, and such dividends and distributions need not be
pro rata with respect to dividends and distributions paid to Shares of any
other Class of such Series. Dividends and distributions shall be paid with
respect to Shares of a given Class only out of lawfully available assets
attributable to such Class.
Section 5.5 Rights of Shareholders. The Shares shall be personal
property giving only the rights in this Declaration specifically set forth.
The ownership of the Trust Property of every description and the right to
conduct any business herein before described are vested exclusively in the
Trustees, and the Shareholders shall have no interest therein other than the
beneficial interest conferred by their Shares, with respect to a particular
Series or Class and they shall have no right to call for any partition or
division of any property, profits, rights or interests of the Trust nor can
they be called upon to share or assume any losses of the Trust or, subject to
the right of the Trustees to charge certain expenses directly to Shareholders,
as provided in the last sentence of Section 3.8, suffer an assessment of any
kind by virtue of their ownership of Shares. The Shares shall not entitle the
holder to preference, preemptive, appraisal, conversion or exchange rights
(except as specified in Section 8.4 or as specified by the Trustees in the
designation or redesignation of any Series or Class thereof).
Section 5.6 Trust Only. It is the intention of the Trustees to create
only the relationship of Trustee and beneficiary between the Trustees and each
Shareholder from time to time. It is not the intention of the Trustees to
create a general partnership, limited partnership, joint stock association,
corporation, bailment or any form of legal relationship other than a trust.
Nothing in this Declaration shall be construed to make the Shareholders,
either by themselves or with the Trustees, partners, members or shareholders
of any such entity.
Section 5.7 Issuance of Shares. The Trustees, in their discretion,
may from time to time without the vote of the Shareholders issue Shares with
respect to any Series that may have been established pursuant to Section 5.2,
in addition to the then issued and outstanding Shares and Shares held in the
treasury, to such party or parties and for such amount and type of
consideration, including cash or property, at such time or times, and on such
terms as the Trustees may determine, and may in such manner acquire other
assets (including the acquisition of assets subject to, and in connection with
the assumption of, liabilities) and businesses. The Trustees may from time to
time divide or combine the Shares of any Series into a greater or lesser
number without thereby changing the proportionate beneficial interest in such
Series of the Trust. Issuances and redemptions of Shares may be made in whole
Shares and/or l/l,000ths of a Share or multiples thereof as the Trustees may
determine.
Section 5.8 Register of Shares. One or more registers shall be kept
at the offices of the Trust or any transfer agent duly appointed by the
Trustees under the direction of the Trustees which shall contain the names and
addresses of the Shareholders and the number of Shares of each Series and
Class thereof held by them respectively and a record of all transfers thereof.
Such registers shall be conclusive as to who are the holders of the Shares of
the applicable Series and Classes thereof and who shall be entitled to receive
dividends or distributions or otherwise to exercise or enjoy the rights of
Shareholders. No Shareholder shall be entitled to receive payment of any
dividend or distribution, nor to have notice given to him as herein provided,
until he or she has given his or her address to a transfer agent or such other
officer or agent of the Trustees as shall keep the register for entry thereon.
It is not contemplated that certificates will be issued for the Shares;
however, the Trustees, in their discretion, may authorize the issuance of
share certificates and promulgate appropriate fees therefore and rules and
regulations as to their use.
Section 5.9 Transfer of Shares. Shares shall be transferable on the
records of the Trust only by the record holder thereof or by its agent thereto
duly authorized in writing, upon delivery to the Trustees or a transfer agent
of the Trust of a duly executed instrument of transfer, together with such
evidence of the genuineness of each such execution and authorization and of
other matters as may reasonably be required. Upon such delivery, the transfer
shall be recorded on the applicable register of the Trust. Until such record
is made, the Shareholder of record shall be deemed to be the holder of such
Shares for all purposes hereof and neither the Trustees nor any transfer agent
or registrar nor any officer, employee or agent of the Trust shall be affected
by any notice of the proposed transfer.
Any Person becoming entitled to any Shares in consequence of the
death, bankruptcy, or incompetence of any Shareholder, or otherwise by
operation of law, shall be recorded on the applicable register of Shares as
the holder of such Shares upon production of the proper evidence thereof to
the Trustees or a transfer agent of the Trust, but until such record is made,
the Shareholder of record shall be deemed to be the holder of such for all
purposes hereof, and neither the Trustees nor any transfer agent or registrar
nor any officer or agent of the Trust shall be affected by any notice of such
death, bankruptcy or incompetence, or other operation of law.
Section 5.10 Notices. Any and all notices to which any Shareholder
hereunder may be entitled and any and all communications to any Shareholder
shall be deemed duly served or given if mailed, postage prepaid, addressed to
any Shareholder of record at his or her last known address as recorded on the
applicable register of the Trust and may be sent together with any such notice
or other communication to another Shareholder at the same address.
Section 5.11 Net Asset Value. The value of the assets of the Trust or
any Series of the Trust or any Class of such Series, the amount of liabilities
of the Trust or any Series of the Trust or any Class of such Series and the
net asset value of each outstanding Share of any Series or Class shall be
determined at such time or times and on such days as the Trustees may
determine in accordance with the 1940 Act. The method of determination of net
asset value shall be determined by the Trustees. The power and duty to value
the assets and liabilities of the Trust and make net asset value
determinations and calculations may be delegated by the Trustees.
Section 5.12 Distributions to Shareholders.
(a) The Trust shall from time to time distribute among the Shares
such proportion of the net profits, surplus (including paid-in surplus),
capital, or assets held by the Trustees as they or any Persons to whom they
delegate such determination may deem proper or as may otherwise be determined
in the instrument setting forth the terms of such Series or Class of Shares,
which need not be ratable with respect to distributions in respect of Shares
of any other Class. Such distributions may be made in cash or property
(including without limitation any type of obligations of the Trust or any
assets thereof) or any combination thereof.
(b) Distributions may be made to the Shareholders of record entitled
to such distribution at the time such distribution is declared or at such
later date as shall be determined by the Trust prior to the date of payment.
(c) The Trust may always retain from any source such amount as the
Trustees or their delegee may deem necessary to pay the debts or expenses of
the Trust or to meet obligations of the Trust, or as the Trustees or their
delegee otherwise may deem desirable to use in the conduct of its affairs or
to retain for future requirements or extensions of the business of the Trust.
ARTICLE VI
Shareholders
Section 6.1 Meetings of Shareholders. The Trust may, but shall not be
required to, hold annual meetings of the Shareholders of any or all of the
Class or Series. An annual or special meeting of Shareholders may be called at
any time only by the Trustees; provided, however, that if May 31 of any year
shall have passed and the Trustees shall not have called an annual meeting of
Shareholders for such year, the Trustees shall call a meeting for the purpose
of voting on the removal of one or more Trustees or the termination of any
investment advisory agreement, upon written request of holders of Shares of
the Trust or a Series having in the aggregate not less than a majority of the
votes of the outstanding Shares of the Trust entitled to vote on the matter or
matters in question, such request specifying the purpose or purposes for which
such meeting is to be called. Any meeting of Shareholders shall be held within
or without the State of Delaware on such day and at such time as the Trustees
shall designate.
Section 6.2 Voting. Shareholders shall have no power to vote on any
matter except matters on which a vote of Shares is expressly required by
applicable law, this Declaration or resolution of the Trustees. In particular,
no amendment of this declaration, merger, consolidation, share exchange or
sale of assets of the Trust or any Series thereof, conversion of the Trust to
any other form of organization or any other action of the Trust or Series
thereof shall require any vote or other approval of any of the Shareholders
except as provided by the foregoing sentence. Any matter required to be
submitted for approval of any of the Shares and affecting more than one Series
or Class shall require approval by the required vote of Shares of the affected
Series or Classes voting together as a single Series or Class and, if such
matter affects one or more Series or Class thereof differently from one or
more other Series or Class, approval, to the extent provided by applicable
law, this Declaration or resolution of the Trustees, by the required vote of
Shares of each such Series or Class voting as a separate Series or Class shall
be required in order to be approved with respect to such Series or Class;
provided, however, that except to the extent required by the 1940 Act, there
shall be no separate class votes on the election or removal of Trustees or the
selection of auditors for the Trust and its Series. Shareholders of a
particular Series shall not be entitled to vote on any matter that affects the
rights or interests of only one or more other Series. There shall be no
cumulative voting in the election or removal of Trustees.
Section 6.3 Notice of Meeting, Shareholder Proposals and Record Date.
Notice of all meetings of Shareholders, stating the time, place and purposes
of the meeting, shall be given by the Trustees by mail to each Shareholder of
record entitled to vote thereat at its registered address, mailed at least 10
days before the meeting or otherwise in compliance with applicable law. Except
with respect to an annual meeting, at which any business required by the 1940
Act may be conducted, only the business stated in the notice of the meeting
shall be considered at such meeting. Subject to the provisions of applicable
law, any Shareholder wishing to include a proposal to be considered at an
annual meeting must submit such proposal to the Trust at least 30 days in
advance of such meeting. Any adjourned meeting may be held as adjourned one or
more times without further notice not later than 130 days after the record
date. For the purposes of determining the Shareholders who are entitled to
notice of and to vote at any meeting the Trustees may, without closing the
transfer books, fix a date not more than 100 days prior to the date of such
meeting of Shareholders as a record date for the determination of the Persons
to be treated as Shareholders of record for such purposes.
Section 6.4 Quorum and Required Vote.
(a) The holders of one-third of the outstanding Shares of the Trust
on the record date present in person or by proxy shall constitute a quorum at
any meeting of the Shareholders for purposes of conducting business on which a
vote of all Shareholders of the Trust is being taken. The holders of one-third
of the outstanding Shares of the affected Series or Classes on the record date
present in person or by proxy shall constitute a quorum at any meeting of the
Shareholders for purposes of conducting business on which a vote of
Shareholders of such Series or Classes is being taken. Shares underlying a
proxy as to which a broker or other intermediary states its absence of
authority or lack of instruction to vote with respect to one or more matters
or fails to abstain or vote on or against one or more matters shall be treated
as present for purposes of establishing a quorum or proportion of shares voted
for taking action on any such matter only to the extent so determined by the
Trustees at or prior to the meeting of Shareholders at which such matter is to
be considered.
(b) Subject to any provision of applicable law, this Declaration or a
resolution of the Trustees specifying or requiring a greater or lesser vote
requirement for the transaction of any matter of business at any meeting of
Shareholders, (i) the affirmative vote of a plurality of the Shares entitled
to vote for the election of any Trustee or Trustees shall be the act of such
Shareholders with respect to the election of such Trustee or Trustees, (ii)
the affirmative vote of a majority of the Shares present in person or
represented by proxy on any other matter and entitled to vote on such matter
shall be the act of the Shareholders with respect to such matter, and (iii)
where a separate vote of any Series or Class is required on any matter, the
affirmative vote of a majority of the Shares of such Series or Class present
in person or represented by proxy on such matter and entitled to vote on such
matter shall be the act of the Shareholders of such Series or Class with
respect to such matter.
Section 6.5 Proxies, etc. At any meeting of Shareholders, any holder
of Shares entitled to vote thereat may vote by proxy, provided that no proxy
shall be voted at any meeting unless it shall have been placed on file with
the Secretary, or with such other officer or agent of the Trust as the
Secretary may direct, for verification prior to the time at which such vote
shall be taken. Pursuant to a resolution of a majority of the Trustees,
proxies may be solicited in the name of one or more Trustees or one or more of
the officers or employees of the Trust. Only Shareholders of record shall be
entitled to vote. Each full Share shall be entitled to one vote and each
fractional Share shall be entitled to a vote equal to its fraction of a full
Share. When any Share is held jointly by several Persons, any one of them may
vote at any meeting in person or by proxy in respect of such Share, but if
more than one of them shall be present at such meeting in person or by proxy,
and such joint owners or their proxies so present disagree as to any vote to
be cast, such vote shall not be received in respect of such Share. A proxy
purporting to be given by or on behalf of a Shareholder of record on the
record date for a meeting shall be deemed valid unless challenged at or prior
to its exercise, and the burden of proving invalidity shall rest on the
challenger. If the holder of any such Share is a minor or a Person of unsound
mind, and subject to guardianship or to the legal control of any other Person
as regards the charge or management of such Share, he or she may vote by his
or her guardian or such other Person appointed or having such control, and
such vote may be given in person or by proxy. The Trustees shall have the
authority to make and modify from time to time regulations regarding the
validity of proxies. In addition to signed proxies, such regulations may
authorize facsimile, telephonic, internet and other methods of appointing a
proxy that are subject to such supervision by or under the direction of the
Trustees as the Trustees shall determine.
Section 6.6 Reports. The Trustees shall cause to be prepared and sent
to Shareholders at least annually and more frequently to the extent and in the
form required by law, regulation or any exchange on which Shares are listed a
report of operations containing financial statements of the Trust prepared in
conformity with generally accepted accounting principles and applicable law.
Separate reports may be prepared for the various Series. Copies of such
reports shall be mailed to all Shareholders of record of the applicable Series
within the time required by the 1940 Act, and in any event within a reasonable
period preceding the meeting of Shareholders. The Trustees may prepare and
send to Shareholders of any Series or Class any other reports.
Section 6.7 Inspection of Records. The records of the Trust shall be
open to inspection by Persons who have been holders of record of at least
$25,000 in net asset value or liquidation preference of Shares for a
continuous period of not less than six months to the same extent and for the
same purposes as is permitted under the Delaware General Business Corporation
Law to shareholders of a Delaware business corporation.
Section 6.8 Shareholder Action by Written Consent. Any
action which may be taken by Shareholders by vote may be taken without a
meeting if the holders of all of the Shares entitled to vote thereon consent
to the action in writing and the written consents are filed with the records
of the meetings of Shareholders. Such consent shall be treated for all
purposes as a vote taken at a meeting of Shareholders.
ARTICLE VII
Redemption
Section 7.1 Redemptions. All outstanding Shares of any Series of the
Trust or any Class thereof may be redeemed at the option of the holders
thereof, upon and subject to the terms and conditions provided in this Article
VII. The Trust shall, upon application by any Shareholder or pursuant to
authorization from any Shareholder of a particular Series or Class, redeem or
repurchase from such Shareholder outstanding Shares of such Series or Class
for an amount per share determined by the application of a formula adopted for
such purpose by the Trustees with respect to such Series or Class (which
formula shall be consistent with the 1940 Act); provided that (a) such amount
per share shall not exceed any limitations imposed under applicable law and
(b) if so authorized by the Trustees, the Trust may, at any time and from time
to time, charge fees for effecting such redemption, at such rates as the
Trustees may establish, as and to the extent permitted under the 1940 Act, and
may, at any time and from time to time, pursuant to such Act, suspend such
right of redemption. The procedures for effecting redemption shall be as set
forth in the Prospectus with respect to the applicable Series or Class from
time to time. The proceeds of the redemption of Shares shall be paid in cash
or property (tangible or intangible) or any combination thereof in the sole
discretion of the Trustees or, if not determined by them, the Trust's
investment advisor.
Section 7.2 Disclosure of Holding. The holders of Shares or other
securities of the Trust shall upon demand disclose to the Trustees in writing
such information with respect to direct and indirect ownership of Shares or
other securities of the Trust as the Trustees deem necessary to comply with
the provisions of the Code or any other applicable laws.
Section 7.3 Redemptions of Small Accounts. The Trustees shall have
the power to redeem shares of any Series or Class at a redemption price
determined in accordance with Section 7.1 above, (a) if at any time the total
investment in such account does not have a value of at least such minimum
amount as may be specified in the Prospectus for such Series or Class from
time to time, (b) as provided by Section 3.8, or (c) to the extent a
Shareholder or other Person beneficially owns Shares equal to or in excess of
a percentage of Shares of the Trust or any Series or Class determined from
time to time by the Trustees and specified in the applicable Prospectus. In
the event the Trustees determine to exercise their power to redeem Shares
provided in subsection (a) of this Section 7.3, the Shareholder shall be
notified that the value of his account is less than the applicable minimum
amount and shall be allowed 30 days to make an appropriate investment before
redemption is processed.
ARTICLE VIII
Duration: Termination of Trust; Amendment; Mergers, Etc.
Section 8.1 Duration. Subject to termination in accordance with the
provisions of Section 8.2 hereof, the Trust created hereby shall have
perpetual existence.
Section 8.2 Termination.
(a) The Trust or any Series may be dissolved by the affirmative vote
of a majority of the Trustees, and without any vote of the Shareholders
thereof except as may be required by the 1940 Act. Upon the dissolution of the
Trust or any Series:
(1) The Trust or such Series shall carry on no business
except for the purpose of winding up its affairs.
(2) The Trustees shall proceed to wind up the affairs of the
Trust or such Series and all of the powers of the Trustees under this
Declaration shall continue until the affairs of the Trust or such
Series shall have been wound up, including the power to fulfill or
discharge the contracts of the Trust or such Series, collect its
assets, sell, convey, assign, exchange, merge where the Trust is not
the survivor, transfer or otherwise dispose of all or any part of the
remaining Trust Property to one or more Persons at a public or
private sale for consideration which may consist in whole or in part
in cash, securities or other property of any kind, discharge or pay
its liabilities, and do all other acts appropriate to liquidate its
business; provided that any sale, conveyance, assignment, exchange,
merger in which the Trust is not the survivor, transfer or other
disposition of all or substantially all the Trust Property of the
Trust or any Series shall require approval of the principal terms of
the transaction and the nature and amount of the consideration with
the same vote as required for dissolution pursuant to paragraph (a)
above.
(3) After paying or adequately providing for the payment of
all liabilities, and upon receipt of such releases, indemnities and
refunding agreements, as they deem necessary for their protection,
the Trustees may distribute the remaining Trust Property of the Trust
or any Series, in cash or in kind or partly in each, among the
Shareholders of such Series according to their respective rights.
(b) After the winding up and termination of the Trust or any Series
and distribution to the Shareholders as herein provided, a majority of the
Trustees shall execute and lodge among the records of the Trust an instrument
in writing setting forth the fact of such termination and shall execute and
file a certificate of cancellation with the Secretary of State of the State of
Delaware. Upon termination of the Trust, the Trustees shall thereupon be
discharged from all further liabilities and duties hereunder, and the rights
and interests of all Shareholders shall thereupon cease.
Upon termination of any Series, the Trustees shall thereunder be
discharged from all further liabilities and duties with respect to such
Series, and the rights and interests of all Shareholders of such Series shall
thereupon cease.
Section 8.3 Amendment Procedure.
(a) Subject to Section 8.3(b), this Declaration may be amended in any
respect by the affirmative vote or approval in writing of two-thirds of the
Trustees and without any vote of the Shareholders of the Trust or any Series
or Class except as may be required by the 1940 Act.
(b) Nothing contained in this Declaration shall permit the amendment
of this Declaration to impair the exemption from personal liability of the
Shareholders, Trustees, officers, employees and agents of the Trust or to
permit assessments upon Shareholders. Expenses of the Trust charged directly
to Shareholders pursuant to Section 3.8 hereof or fees or sales charges
payable upon or in connection with redemptions of Shares pursuant to Section
7.1 hereof shall not constitute "assessments" for purposes of this Section
8.3(b).
(c) An amendment duly adopted by the requisite approval of the Board
of Trustees and, if required, Shareholders as aforesaid, shall become
effective at the time of such adoption or at such other time as may be
designated by the Board of Trustees or Shareholders, as the case may be. A
certification signed by a majority of the Trustees setting forth an amendment
and reciting that it was duly adopted by the Trustees and, if required,
Shareholders as aforesaid, or a copy of the Declaration, as amended, and
executed by a majority of the Trustees, shall be conclusive evidence of such
amendment when lodged among the records of the Trust or at such other time
designated by the Board.
Notwithstanding any other provision hereof, until such time as Shares
are issued and outstanding, this Declaration may be terminated or amended in
any respect by the affirmative vote of a majority of the Trustees or by an
instrument signed by a majority of the Trustees.
Section 8.4 Merger, Consolidation and Sale of Assets. The Trust or
any Series may merge or consolidate with any other corporation, association,
trust or other organization or any Series, sub-trust or other designated
portion thereof or may sell, lease or exchange all or substantially all of the
Trust Property or the property of any Series including its good will or may
acquire all or substantially all of the property of any other corporation,
association, trust or other organization or any series, sub-trust or other
designated portion thereof, upon such terms and conditions and for such
consideration when and as authorized by two-thirds of the Trustees and without
any vote by the Shareholders of the Trust or any Series or Class except as may
be required by the 1940 Act, and any such merger, consolidation, sale, lease,
exchange or purchase shall be determined for all purposes to have been
accomplished under and pursuant to the statutes of the State of Delaware.
ARTICLE IX
Miscellaneous
Section 9.1 Filing. This Declaration and any amendment or supplement
hereto shall be filed in such places as may be required or as the Trustees
deem appropriate. Each amendment or supplement shall be accompanied by a
certificate signed and acknowledged by a Trustee stating that such action was
duly taken in a manner provided herein, and shall, upon insertion in the
Trust's minute book, be conclusive evidence of all amendments contained
therein. A restated Declaration, containing the original Declaration and all
amendments and supplements theretofore made, may be executed from time to time
by a majority of the Trustees and shall, upon insertion in the Trust's minute
book, be conclusive evidence of all amendments and supplements contained
therein and may thereafter be referred to in lieu of the original Declaration
and the various amendments thereto.
Section 9.2 Resident Agent. The Trust shall maintain a resident agent
in the State of Delaware, which agent shall initially be The Corporation Trust
Company, ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇. The Trustees may
designate a successor resident agent, provided, however, that such appointment
shall not become effective until written notice thereof is delivered to the
office of the Secretary of the State.
Section 9.3 Governing Law. This Declaration is executed by a majority
of the Trustees for the purpose of creating a "statutory trust" under the
Delaware Statutory Trust Statue and establishing this Declaration as the
"governing instrument" of the Trust within the meaning of the Delaware
Statutory Trust Statue. The rights of all Persons hereunder and the validity
and construction of every provision hereof shall be subject to and construed
according to the laws of said State of Delaware and reference shall be
specifically made to the business corporation law of the State of Delaware as
to the construction of matters not specifically covered herein or as to which
an ambiguity exists, although such law shall not be viewed as limiting the
powers otherwise granted to the Trustees hereunder and any ambiguity shall be
viewed in favor of such powers.
Section 9.4 Counterparts. This Declaration may be simultaneously
executed in several counterparts, each of which shall be deemed to be an
original, and such counterparts, together, shall constitute one and the same
instrument, which shall be sufficiently evidenced by any such original
counterpart.
Section 9.5 Reliance by Third Parties. Any certificate executed by an
individual who, according to the records of the Trust, or of any recording
office in which this Declaration may be recorded, appears to be a Trustee
hereunder, certifying to the existence of any fact or facts which in any
manner relate to the affairs of the Trust shall be conclusive evidence as to
the matters so certified in favor of any Person dealing with the Trust.
Section 9.6 Provisions in Conflict with Law or Regulation.
(a) The provisions of this Declaration are severable, and if the
Trustees shall determine, with the advice of counsel, that any of such
provisions is in conflict with the 1940 Act, the regulated investment company
provisions of the Code or with other applicable laws and regulations, the
conflicting provision shall be deemed never to have constituted a part of this
Declaration to the extent of such conflict; 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.
(b) If any provision of this Declaration shall be held invalid or
unenforceable in any jurisdiction, such invalidity or unenforceability shall
attach only to such provision in such jurisdiction and shall not in any manner
affect such provision in any other jurisdiction or any other provision of this
Declaration in any jurisdiction.
IN WITNESS WHEREOF, the undersigned has caused these presents to be
executed as of the day and year first above written.
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇
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Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: Sole Initial Trustee