AGREEMENT AND DECLARATION OF TRUST
OF
FIRST EAGLE VARIABLE FUNDS
THIS AGREEMENT AND DECLARATION OF TRUST is made and entered into as of
the date set forth below by the Trustees named hereunder for the purpose of
forming a Delaware statutory trust in accordance with the provisions hereinafter
set forth,
NOW, THEREFORE, the Initial Trustee hereby directs that the
Certificate of Trust be filed with Office of the Secretary of State of the State
of Delaware, and the Initial Trustee does hereby declare that the Trustees will
hold in trust all cash, securities and other assets that the Trust now possesses
or may hereafter acquire from time to time in any manner and manage and dispose
of the same upon the following terms and conditions for the benefit of the
holders of Shares in the Trust.
ARTICLE I
Name and Definitions
Section 1. Name. This Trust shall be known as "First Eagle Variable
Funds" and the Trustees shall conduct the business of the Trust under that
name or any other name as they may from time to time determine.
Section 2. Definitions. Whenever used herein, unless otherwise
required by the context or specifically provided:
(a) "By-Laws" shall mean the By-Laws of the Trust, as amended from
time to time, which By-Laws are expressly herein incorporated by reference as
part of the "governing instrument" within the meaning of the Delaware Act;
(b) "Certificate of Trust" means the certificate of trust, as amended
or restated from time to time, filed by the Trustees in the Office of the
Secretary of State of the State of Delaware in accordance with the Delaware Act;
(c) "Class" means a class of Shares of a Series of the Trust
established in accordance with the provisions of Article III hereof;
(d) "Commission" means the Securities and Exchange Commission;
(e) "Declaration of Trust" means this Agreement and Declaration of
Trust, as amended or restated from time to time;
(f) "Delaware Act" means the Delaware Statutory Trust Act, 12 Del. C.
3801 et seq., as amended from time to time;
(g) "Initial Trustee(s)" means the person or persons who have signed
this Declaration of Trust;
(h) "Manager" means a party furnishing services to the Trust pursuant
to an investment management or investment advisory agreement described in
Article IV, Section 8(a) hereof;
(i) "1940 Act" means the Investment Company Act of 1940 and the Rules
and Regulations thereunder, all as amended from time to time;
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(j) "Person" means and includes individuals, corporations,
partnerships, trusts, associations, joint ventures, estates and other entities,
whether or not legal entities, and governments and agencies and political
subdivisions thereof, whether domestic or foreign;
(k) "Principal Underwriter" shall have the meaning given to it in the
1940 Act;
(l) "Series" means each Series of Shares established and designated
under or in accordance with the provisions of Article III hereof;
(m) "Shareholder" means a beneficial owner of outstanding Shares;
(n) "Shares" means the Shares of beneficial interest into which the
beneficial interest in the Trust shall be divided, from time to time, and
includes fractions of Shares as well as whole Shares;
(o) "Trust" means the Delaware statutory trust established under the
Delaware Act by this Declaration of Trust and the filing of the Certificate of
Trust in the Office of the Secretary of State of the State of Delaware;
(p) "Trust Property" means any and all property, real or personal,
tangible or intangible, that is from time to time owned or held by or for the
account of the Trust; and
(q) "Trustees" means the Initial Trustee, and all other Persons who
may, from time to time, be duly elected or appointed to serve as Trustees in
accordance with the provisions hereof, in each case so long as such Person shall
continue in office in accordance with the terms of this Declaration of Trust,
and reference herein to a Trustee or the Trustees shall refer to such Person or
Persons in her or his or their capacity as Trustees hereunder.
ARTICLE II
Purpose of Trust
The purpose of the Trust is to conduct, operate and carry on the
business of a management investment company registered under the 1940 Act
through one or more Series investing primarily in securities, and to carry on
such other business as the Trustees may, from time to time, determine pursuant
to their authority under this Declaration of Trust.
ARTICLE III
Shares
Section 1. Division of Beneficial Interests. The beneficial interests
in the Trust may be divided into one or more Series. Each Series may be divided
into one or more Classes. Subject to the further provisions of this Article III
and any applicable requirements of the 1940 Act, the Trustees shall have full
power and authority, in their sole discretion, and without obtaining any
authorization or vote of the Shareholders of any Series or Class thereof, (i) to
divide the beneficial interests in the Trust or in each Series or Class thereof
into Shares, with or without par value as the Trustees shall determine, (ii) to
issue Shares without limitation as to number (including fractional Shares) to
such Persons and for such amount and type of consideration, including cash or
securities, at such time or times and on such terms as the Trustees may deem
appropriate, (iii) to establish and designate and to change in any manner any
Series or Class thereof and to fix such preferences, voting powers, rights,
duties and privileges and business purpose of each Series or Class thereof as
the Trustees may, from time to time, determine, which preferences, voting
powers, rights, duties and privileges may be senior or subordinate to (or in the
case of business purpose, different from) any existing Series or Class thereof
and may be limited to specified property or obligations of the Trust or profits
and losses associated with specified property or obligations of the Trust, (iv)
to divide or combine the Shares of any Series or Class thereof into a greater or
lesser number, or issue dividends in Shares with respect to Shares of any Series
or Class, without thereby materially changing the proportionate
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beneficial interest of the Shares of such Series or Class in the assets held
with respect to that Series or Class thereof, (v) to classify or reclassify any
issued Shares of any Series or Class thereof into Shares of one or more Series
or Classes thereof and (vi) to take such other action with respect to the Shares
as the Trustees may deem desirable.
Subject to the distinctions permitted among Classes or otherwise in
Shares of the same Series as established by the Trustees consistent with the
requirements of the 1940 Act, each Share of a Series of the Trust shall
represent an equal beneficial interest in the net assets of such Series, and
each holder of Shares of a Series shall be entitled to receive such holder's pro
rata share of distributions of income and capital gains, if any, made with
respect to such Series. Upon redemption of the Shares of any Series or Class
thereof, the applicable Shareholder shall be entitled to be paid solely out of
the funds and property of such Series or Class thereof of the Trust.
All references to Shares in this Declaration of Trust shall be deemed
to be Shares of any or all Series or Classes thereof, as the context may
require. All provisions herein relating to the Trust shall apply equally to each
Series of the Trust and each Class thereof, except as the context otherwise
requires.
All Shares issued hereunder, including, without limitation, Shares
issued in connection with a dividend in Shares or a split or reverse split of
Shares, shall be fully paid and non-assessable. Except as otherwise provided by
the Trustees, Shareholders shall have no appraisal, preemptive or other right to
subscribe to any additional Shares or other securities issued by the Trust.
Section 2. Ownership of Shares. The ownership of Shares shall be
recorded on the books of the Trust or a transfer or similar agent for the Trust,
which books shall be maintained separately for the Shares of each Series (or
Class). No certificates certifying the ownership of Shares shall be issued
except as the Trustees may otherwise determine from time to time. The Trustees
may make such rules as they consider appropriate for the issuance of Share
certificates, the transfer of Shares of each Series (or Class) and similar
matters. The record books of the Trust as kept by the Trust or any transfer or
similar agent, as the case may be, shall be conclusive as to the identity of the
Shareholders of each Series (or Class) and as to the number of Shares of each
Series (or Class) held, from time to time, by each Shareholder.
Section 3. Transfer of Shares. Except as otherwise provided by the
Trustees, Shares shall be transferable on the books of the Trust only by the
record holder thereof or by his duly authorized agent upon delivery to the
Trustees or the Trust's transfer agent of a duly executed instrument of
transfer, together with a Share certificate if one is outstanding, and such
evidence of the genuineness of the execution and authorization thereof as may be
required by the Trustees and of such other matters as may be required by the
Trustees. Upon such delivery, and subject to any further requirements specified
by the Trustees or contained in the By-Laws, the transfer shall be recorded on
the books of the Trust. Until a transfer is so recorded, the record holder of
Shares shall be deemed to be the holder of such Shares for all purposes
hereunder and neither the Trustees nor the Trust, nor any transfer agent,
shareholder servicing agent or similar agent, any officer, employee or agent of
the Trust, shall be affected by any notice of a proposed transfer.
Section 4. Investments in the Trust. Investments may be accepted by
the Trust from such Persons, at such times, on such terms, and for such
consideration as the Trustees, from time to time, may authorize.
Section 5. Status of Shares and Limitation of Personal Liability.
Shares shall be deemed to be personal property giving only the rights provided
in this instrument. Every Shareholder, by virtue of having become a Shareholder,
shall be held to have expressly assented and agreed to the terms hereof. The
death, incapacity, dissolution, termination or bankruptcy of a Shareholder
during the existence of the Trust shall not operate to dissolve the Trust, nor
entitle the representative of any such Shareholder to an accounting or to take
any action in court or elsewhere against the Trust or the Trustees, but entitles
such representative only to the rights of such Shareholder under this Trust.
Ownership of Shares shall not entitle the Shareholder to any title in or to the
whole or any part of the Trust Property or right to call for a partition or
division of the same or for an accounting, nor shall the ownership of Shares
constitute the Shareholders as partners. Neither the Trust nor the Trustees, nor
any officer, employee or agent of the Trust shall have any power to bind
personally any Shareholder, nor, except as specifically provided herein, to call
upon any Shareholder for the payment of any sum of money or assessment
whatsoever other than such as the Shareholder may at any time personally agree
to pay. Except as specifically provided herein, no Shareholder shall be
personally liable for the debts, liabilities, obligations or expenses incurred
by, contracted for, or
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otherwise existing with respect to, the Trust or by or on behalf of any Series
or Class. Every note, bond, contract or other understanding issued by or on
behalf of the Trust or Trustees relating to the Trust or to a Series or Class
may include a recitation limiting the obligation represented thereby to the
Trust or to one or more Series or Class and its respective assets (but the
omission of such a recitation shall not operate to bind any Shareholder or
Trustee of the Trust).
Section 6. Establishment and Designation of Series (or Class). Without
obtaining any authorization or vote of the Shareholders of any Series or Class
thereof (except as otherwise required by the 1940 Act), the establishment and
designation of any Series (or Class) of Shares shall be effective upon the
adoption by a majority of the then Trustees of a resolution that sets forth such
establishment and designation and the relative rights and preferences of such
Series (or Class), whether directly in such resolution or by reference to
another document including, without limitation, any registration statement of
the Trust, or as otherwise provided in such resolution.
Shares of each Series (or Class) established pursuant to this Article
III, unless otherwise provided in the resolution establishing such Series, shall
have the following relative rights and preferences:
(a) Assets Held with Respect to a Particular Series (or Class). All
consideration received by the Trust for the issue or sale of Shares of a
particular Series or Class thereof, together with all assets in which such
consideration is invested or reinvested, all income, earnings, profits, and
proceeds thereof from whatever source derived, including, without limitation,
any proceeds derived from the sale, exchange or liquidation of such assets, and
any funds or payments derived from any reinvestment of such proceeds in whatever
form the same may be, shall irrevocably be held with respect to that Series (or
Class) for all purposes, subject only to the rights of creditors of such Series
(or Class thereof to the extent provided below), and shall be so recorded upon
the books of account of the Trust. Such consideration, assets, income, earnings,
profits and proceeds thereof, from whatever source derived, including, without
limitation, any proceeds derived from the sale, exchange or liquidation of such
assets, and any funds or payments derived from any reinvestment of such
proceeds, in whatever form the same may be, are herein referred to as assets
held with respect to that Series (or Class thereof). In the event that there are
any assets, income, earnings, profits and proceeds thereof, funds or payments
that are not readily identifiable as assets held with respect to any particular
Series (and the Classes thereof) (collectively "General Assets"), the Trustees
shall allocate such General Assets to, between or among any one or more of the
Series (and the Classes thereof) in such manner and on such basis as the
Trustees, in their sole discretion, deem fair and equitable, and any General
Assets so allocated to a particular Series (and the Classes thereof) shall be
assets held with respect to that Series and such Classes. Each such allocation
by the Trustees shall be conclusive and binding upon the Shareholders of all
Series and Classes for all purposes. Separate and distinct records shall be
maintained for each Series (and the Classes thereof) and the assets held with
respect to each Series (and the Classes thereof) shall be held and accounted for
separately from the assets held with respect to all other Series (and the
Classes thereof) and the General Assets of the Trust not allocated to such
Series or Classes.
(b) Liabilities Attributable to a Particular Series (or Class). The
assets of the Trust held with respect to each particular Series (or Class
thereof) shall be charged exclusively with the liabilities of the Trust
attributable to that Series or Class and all expenses, costs, charges and
reserves attributable to that Series or Class. Any general liabilities of the
Trust that are not readily identifiable as being attributable to any particular
Series (and the Classes thereof) shall be allocated and charged by the Trustees
to and among any one or more of the Series (and the Classes thereof) in such
manner and on such basis as the Trustees in their sole discretion deem fair and
equitable. All liabilities, expenses, costs, charges, and reserves so charged to
a Series (and the Classes thereof) are herein referred to as "liabilities
attributable to" that Series (or Class thereof). 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. All
liabilities attributable to a particular Series shall be enforceable against the
assets held with respect to such Series only and not against the assets of the
Trust generally or against the assets held with respect to any other Series.
Notice of this limitation on the liability of each Series shall be set forth in
the Certificate of Trust or in an amendment thereto prior to the issuance of any
Shares of a Series. To the extent that the Trustees, pursuant to Section 2 of
Article VII hereof, include a Class limitation on liability in any note, bond,
contract, instrument, certificate or undertaking made with respect to any Class,
the parties to such note, bond, contract, instrument, certificate or undertaking
shall look only to the assets of such Class in satisfaction of the liabilities
arising thereunder and not to the assets of any other Class of the applicable
Series.
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(c) Dividends, Distributions, Redemptions and Repurchases.
Notwithstanding any other provision of this Declaration of Trust, including,
without limitation, Article VI, no dividend or distribution, including, without
limitation, any distribution paid upon dissolution of the Trust or of any Series
(or Class) thereof with respect to, nor any redemption or repurchase of, the
Shares of any Series (or Class thereof) shall be effected by the Trust other
than from the assets held with respect to such Series (or Class thereof), nor
shall any Shareholder of any particular Series (or Class thereof) otherwise have
any right or claim against the assets held with respect to any other Series or
Class except to the extent that such Shareholder has such a right or claim
hereunder as a Shareholder of such other Series or Class. The Trustees shall
have full discretion, to the extent not inconsistent with the 1940 Act, to
determine which items shall be treated as income and which items as capital; and
each such determination and allocation shall be conclusive and binding upon the
Shareholders.
(d) Equality. All the Shares of each particular Series (or Class
thereof) shall represent an equal proportionate interest in the assets held with
respect to that Series (or Class thereof), and each Share of any particular
Series shall be equal to each other Share of that Series (subject to the
liabilities attributable to that Series and such rights and preferences as may
have been established and designated with respect to Classes, or otherwise, of
Shares within such Series).
(e) Fractions. Any fractional Share of a Series (or Class thereof)
shall carry proportionately all the rights and obligations of a whole Share of
that Series or Class, including rights with respect to voting, receipt of
dividends and distributions, redemption of Shares and dissolution of the Trust.
(f) Combination of Series. The Trustees shall have the authority,
without the approval of the Shareholders of any Series (or Class thereof),
unless otherwise required by applicable law, to combine the assets and
liabilities attributable to any two or more Series (or Classes) into assets and
liabilities attributable to a single Series or Class.
(g) Elimination of Series. At any time that there are no Shares
outstanding of any particular Series (or Class) previously established and
designated, the Trustees may by resolution of a majority of the Trustees abolish
that Series (or Class) and rescind the establishment and designation thereof and
may thereafter establish a new Series (or Class) with such designation and
otherwise as herein provided.
Section 7. Indemnification of Shareholders. If any Shareholder or
former Shareholder shall be exposed to liability by reason of a claim or demand
relating to such Person being or having been a Shareholder, and not because of
such Person's acts or omissions, the Shareholder or former Shareholder (or such
Person's heirs, executors, administrators, or other legal representatives or in
the case of a corporation or other entity, its corporate or other general
successor) shall be entitled to be held harmless from and indemnified out of the
assets of the Trust against all cost and expense reasonably incurred in
connection with such claim or demand, but only out of the assets held with
respect to the particular Series (or Class thereof) of Shares of which such
Person is or was a Shareholder and from or in relation to which such liability
arose. The Series (or Class thereof) may, at its option, and shall, upon request
by the Shareholder, assume the defense of any claim made against the Shareholder
for any act or obligation of such Series and satisfy any judgment thereon.
ARTICLE IV
Trustees
Section 1. Election of Trustees. Upon the issuance of beneficial
interests of the Trust, First Eagle Variable Funds, Inc., a Maryland
corporation, as initial shareholder of the Trust, shall elect the Trustees of
the Trust; to the extent that persons so elected are different from the Initial
Trustee, such persons shall replace the Initial Trustee as Trustees of the
Trust.
Section 2. Number, Election and Tenure. The Initial Trustee shall be
▇▇▇▇▇ ▇▇▇▇▇▇. After the initial election of Trustees, the number of Trustees
shall be nine or such other number as shall, from time to time, be determined by
the Trustees pursuant to Section 4 of this Article IV. Except as described above
with respect to the Initial Trustee, each Trustee shall serve during the
continued term of the Trust until she or he dies, resigns, is
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declared bankrupt or incompetent by a court of appropriate jurisdiction, or is
removed, or, if sooner, until the next meeting of Shareholders called for the
purpose of electing Trustees and until the election and qualification of her or
his successor. In the event that less than the majority of the Trustees holding
office have been elected by the Shareholders, to the extent required by the 1940
Act, the Trustees then in office shall call a Shareholders meeting for the
election of Trustees. Any Trustee may resign at any time by written instrument
signed by her or him and delivered to any officer of the Trust or to the
secretary of any meeting of the Trustees. Such resignation shall be effective
upon receipt unless specified to be effective at some other time. Except to the
extent expressly provided in a written agreement with the Trust, no Trustee
resigning and no Trustee removed shall have any right to any compensation for
any period following her or his resignation or removal, or any right to damages
on account of such removal. The Shareholders may elect Trustees at any meeting
of Shareholders called by the Trustees for that purpose. Any Trustee may be
removed at any meeting of Shareholders by a majority vote of the outstanding
Shares of the Trust, as defined in the 1940 Act.
Section 3. Effect of Death, Resignation or Removal of a Trustee. The
death, declination to serve, resignation, retirement, removal, or incapacity of
one or more Trustees, or all of them, shall not operate to annul the Trust or to
revoke any existing agency created pursuant to the terms of this Declaration of
Trust. Whenever there shall be fewer than the designated number of Trustees,
until additional Trustees are elected or appointed as provided herein to bring
the total number of Trustees equal to the designated number, the Trustees in
office, regardless of their number, shall have all the powers granted to the
Trustees and shall discharge all the duties imposed upon the Trustees by this
Declaration of Trust. As conclusive evidence of such vacancy, a written
instrument certifying the existence of such vacancy may be executed by an
officer of the Trust or by a majority of the Trustees then in office. In the
event of the death, declination, resignation, retirement, removal, or incapacity
of all the then Trustees within a short period of time and without the
opportunity for at least one Trustee being able to appoint additional Trustees
to replace those no longer serving, the Trust's Manager is empowered to appoint
new Trustees subject to the applicable provisions of the 1940 Act.
Section 4. Powers. Subject to the provisions of this Declaration of
Trust, the business of the Trust shall be managed by the Trustees; the Trustees
shall have full power and authority to do any and all acts and to make and
execute any and all contracts and instruments that they may consider necessary
or appropriate in connection with the management of the Trust, including the
power to engage in securities transactions of all kinds on behalf of the Trust.
Without limiting the foregoing, the Trustees may: adopt By-Laws not inconsistent
with this Declaration of Trust providing for the regulation and management of
the affairs of the Trust and may amend and repeal them to the extent that such
By-Laws do not reserve that right to the Shareholders; enlarge or reduce their
number; remove any Trustee with or without cause at any time by written
instrument signed by at least two-thirds of the number of Trustees prior to such
removal, specifying the date when such removal shall become effective and fill
vacancies caused by enlargement of their number or by the death, resignation or
removal of a Trustee; elect and remove, with or without cause, such officers and
appoint and terminate such agents as they consider appropriate; appoint from
their own number and establish and terminate one or more committees consisting
of two or more Trustees which may exercise the powers and authority of the Board
of Trustees to the extent that the Board of Trustees determine; deposit all or
any part of such assets in a system or systems for the central handling of
securities or with a Federal Reserve Bank; provide for the issuance and
distribution of Shares by the Trust directly or through one or more Principal
Underwriters or otherwise; redeem, repurchase and transfer Shares pursuant to
applicable law; declare and pay dividends and distributions to Shareholders from
the assets available therefor; and in general exercise, or delegate to any
officer of the Trust, to any committee of the Trustees and to any agent or
employee of the Trust or to any such custodian, transfer or Shareholder
servicing agent, or Principal Underwriter, such authority as they consider
desirable. Any determination as to what is in the interests of the Trust made by
the Trustees in good faith shall be conclusive. In construing the provisions of
this Declaration of Trust, the presumption shall be in favor of a grant of power
to the Trustees. Unless otherwise specified herein or in the By-Laws or required
by law, any action by the Trustees shall be deemed effective if approved or
taken by a majority of the Trustees present at a meeting of Trustees at which a
quorum of Trustees is present, within or without the State of Delaware.
Without limiting the foregoing, the Trustees shall have the power and
authority to cause the Trust (or to act on behalf of the Trust):
(a) To operate as and carry out the business of an investment company,
and exercise all the powers necessary or appropriate to the conduct of such
operations;
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(b) To invest and reinvest cash, to hold cash uninvested, and to
subscribe for, invest in, reinvest in, purchase or otherwise acquire, own, hold,
pledge, sell, assign, transfer, exchange, distribute, purchase or write options
on, lend, enter into contracts for the future acquisition or delivery of, or
otherwise deal in or dispose of, securities, indices, currencies, commodities or
other property of every nature and kind, including, without limitation, all
types of bonds, debentures, stocks, negotiable or non-negotiable instruments,
obligations, evidences of indebtedness, certificates of deposit or indebtedness,
commercial paper, repurchase agreements, bankers acceptances, and other
securities, commodities or contracts of any kind, issued, created, guaranteed,
or sponsored by any and all Persons, including, without limitation, states,
territories, and possessions of the United States and the District of Columbia
and any political subdivision, agency, or instrumentality thereof, the U.S.
Government or any foreign government or any political subdivision of the U.S.
Government or any foreign government, or any domestic or international
instrumentality, or by any bank or savings institution, or by any corporation or
organization organized under the laws of the United States or of any state,
territory, or possession thereof, or by any corporation or organization
organized under any foreign law, or in "when issued" contracts for any such
securities; to change the investments of the assets of the Trust; and to
exercise any and all rights, powers, and privileges of ownership or interest in
respect of any and all such investments of every kind and description,
including, without limitation, the right to consent and otherwise act with
respect thereto, with power to designate one or more Persons to exercise any of
said rights, powers, and privileges in respect of any of said instruments;
(c) To sell, exchange, lend, pledge, mortgage, hypothecate, lease, or
write options (including options on futures contracts) with respect to or
otherwise deal in any property rights relating to any or all of the assets of
the Trust or any Series or Class thereof;
(d) To vote or give assent, or exercise any rights of ownership, with
respect to stock or other securities or property; and to execute and deliver
proxies or powers of attorney to such Person or Persons as the Trustees shall
deem proper, granting to such Person or Persons such power and discretion with
relation to securities or property as the Trustees shall deem proper;
(e) To set record dates for the determination of Shareholders with
respect to various matters, which, for purposes of determining the Shareholders
of any Series (or Class) who are entitled to receive payment of any dividend or
of any other distribution shall be on or before the date for the payment of such
dividend or such other payment, as the record date for determining the
Shareholders of such Series (or Class) having the right to receive such dividend
or distribution; without fixing a record date, the Trustees may for distribution
purposes close the register or transfer books for one or more Series (or
Classes) at any time prior to the payment of a distribution; nothing in this
subsection shall be construed as precluding the Trustees from setting different
record dates for different Series (or Classes);
(f) To exercise powers and rights of subscription or otherwise which
in any manner arise out of ownership of securities or other property;
(g) To hold any security or property in a form not indicating any
trust, whether in bearer, unregistered or other negotiable form, or in its own
name or in the name of a custodian or a nominee or nominees or otherwise;
(h) To consent to or participate in any plan for the reorganization,
consolidation or merger of any corporation or issuer of any security or property
which is held in the Trust; to consent to any contract, lease, mortgage,
purchase or sale of property by such corporation or issuer; and to pay calls or
subscriptions with respect to any security or property held in the Trust;
(i) To join with other security or property holders in acting through
a committee, depository, voting trustee or otherwise, and in that connection to
deposit any security or property with, or transfer any security or property to,
any such committee, depositary or trustee, and to delegate to them such power
and authority with relation to any security or property (whether or not so
deposited or transferred) as the Trustees shall deem proper, and to agree to
pay, and to pay, such portion of the expenses and compensation of such
committee, depositary or trustee as the Trustees shall deem proper;
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(j) 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;
(k) To enter into joint ventures, general or limited partnerships and
any other combinations or associations;
(l) To borrow funds or other property in the name of the Trust or any
Series thereof exclusively for Trust or the relevant Series purposes and in
connection therewith issue notes or other evidences of indebtedness; and to
mortgage and pledge the Trust Property or any part thereof to secure any or all
of such indebtedness;
(m) To endorse or guarantee the payment of any notes or other
obligations of any Person; to make contracts of guaranty or suretyship, or
otherwise assume liability for payment thereof; and to mortgage and pledge the
Trust Property or any part thereof to secure any of or all of such obligations;
(n) To purchase and pay for entirely out of Trust Property such
insurance as the Trustees may deem necessary or appropriate for the conduct of
the business, including, without limitation, insurance policies insuring the
assets of the Trust or payment of distributions and principal on its portfolio
investments, and insurance policies insuring the Shareholders, Trustees,
officers, employees, agents, investment advisers, principal underwriters, or
independent contractors of the Trust, individually against all claims and
liabilities of every nature arising by reason of holding Shares, holding, being
in or having held any such office or position, or by reason of any action
alleged to have been taken or omitted by any such Person as Trustee, officer,
employee, agent, investment adviser, principal underwriter, or independent
contractor, including any action taken or omitted that may be determined to
constitute negligence, whether or not the Trust would have the power to
indemnify such Person against liability;
(o) To adopt, establish and carry out pension, profit-sharing, Share
bonus, Share purchase, savings, thrift and other retirement, incentive and
benefit plans and trusts, including the purchasing of life insurance and annuity
contracts as a means of providing such retirement and other benefits, for any or
all of the Trustees, officers, employees and agents of the Trust;
(p) To enter into contracts of any kind and description;
(q) To interpret the investment policies, practices or limitations of
any Series or Class;
(r) To establish a registered office and have a registered agent in
the State of Delaware;
(s) To invest part or all of the Trust Property (or part or all of the
assets of any Series), or to dispose of part or all of the Trust Property (or
part or all of the assets of any Series) and invest the proceeds of such
disposition, in securities issued by one or more other investment companies
registered under the 1940 Act (including investment by means of transfer or part
of all of the Trust Property in exchange for an interest or interests in such
one or more investment companies) all without any requirement of approval by
Shareholders unless required by the 1940 Act. Any such other investment company
may (but need not) be a trust (formed under the laws of the State of Delaware or
of any other state) which is classified as a partnership for federal income tax
purposes;
(t) Subject to the 1940 Act, to engage in any other lawful act or
activity in which a statutory trust organized under the Delaware Act may engage;
and
(u) In general to carry on any other business in connection with or
incidental to any of the foregoing powers, to do everything necessary, suitable
or proper for the accomplishment of any purpose or the attainment of any object
or the furtherance of any power hereinbefore set forth, either alone or in
association with others, and to do every other act or thing incidental or
appurtenant to or growing out of or connected with the aforesaid business or
purposes, objects or powers.
The foregoing clauses shall be construed as objects and powers, and
the foregoing enumeration of specific powers shall not be held to limit or
restrict in any manner the general power of the Trustees. Any action by
8
one or more of the Trustees in their capacity as such hereunder shall be deemed
an action on behalf of the Trust or the applicable Series, and not an action in
an individual capacity.
The Trust shall not be limited to investing in obligations maturing
before the possible dissolution of the Trust or one or more of its Series or
Classes thereof. The Trust shall not in any way be bound or limited by any
present or future law or custom in regard to investment by fiduciaries. The
Trust shall not be required to obtain any court order to deal with any assets of
the Trust or take any other action hereunder.
Section 5. Payment of Expenses by the Trust. The Trustees are
authorized to pay or cause to be paid out of the principal or income of the
Trust, or partly out of the principal and partly out of income, as they deem
fair, all expenses, fees, charges, taxes and liabilities incurred or arising in
connection with the Trust, or in connection with the management thereof,
including, but not limited to, the Trustees compensation and such expenses and
charges for the services of the Trust's officers, employees, investment adviser
or manager, Principal Underwriter, auditors, counsel, custodian, transfer agent,
Shareholder servicing agent, and such other agents or independent contractors
and such other expenses and charges as the Trustees may deem necessary or proper
to incur, which expenses, fees, charges, taxes and liabilities shall be
allocated in accordance with Article III, Section 6 hereof.
Section 6. Payment of Expenses by Shareholders. The Trustees shall
have the power to cause each Shareholder, or each Shareholder of any particular
Series or Class, to pay directly, at such intervals as the Trustees may
determine, in advance or arrears, for charges of the Trust's transfer agent,
Shareholder servicing or similar agent, an amount fixed, from time to time, by
the Trustees, by setting off such charges due from such Shareholder from
declared but unpaid dividends owed such Shareholder and/or by reducing the
number of Shares in the account of such Shareholder by that number of full
and/or fractional Shares which represents the outstanding amount of such charges
due from such Shareholder.
Section 7. Ownership of Assets of the Trust. The assets of the Trust
shall be held separate and apart from any assets now or hereafter held in any
capacity other than as Trustee hereunder by the Trustees. Title to all of the
assets of the Trust shall at all times be considered as vested in the Trust,
except that the Trustees shall have power to cause legal title to any Trust
Property to be held by or in the name of one or more of the Trustees, or in the
name of any other Person as nominee, on such terms as the Trustees may
determine. The right, title and interest of the Trustees in the Trust Property
shall vest automatically in each Person who may hereafter become a Trustee. Upon
the resignation, removal or death of a Trustee, she or he shall automatically
cease to have any right, title or interest in any of the Trust Property, and the
right, title and interest of such Trustee in the Trust Property shall vest
automatically in the remaining Trustees. Such vesting and cessation of title
shall be effective whether or not conveyancing documents have been executed and
delivered.
Section 8. Service Contracts.
(a) Subject to such requirements and restrictions as may be set forth
under applicable federal or state law and in the By-Laws, including, without
limitation, on the date hereof the requirements of Section 15 of the 1940 Act,
or any successor provision, the Trustees may, at any time and from time to time,
contract for exclusive or nonexclusive investment advisory, management or
administrative services for the Trust or for any Series (or Class thereof) with
any corporation, trust, association or other organization; and any such contract
may contain such other terms as the Trustees may determine, including, without
limitation, authority for the Manager or administrator to delegate certain or
all of its duties under such contracts to qualified investment advisers or
administrators and to determine from time to time, without prior consultation
with the Trustees, what investments shall be purchased, held, sold or exchanged
and what portion, if any, of the assets of the Trust shall be held uninvested
and to make changes in the Trust's investments, or such other activities as may
specifically be delegated to such party.
(b) The Trustees may also, at any time and from time to time, contract
with any corporation, trust, association or other organization, appointing it
exclusive or nonexclusive distributor or Principal Underwriter for the Shares of
one or more of the Series (or Classes) or other securities to be issued by the
Trust. Every such contract shall comply with such requirements and restrictions
as may be set forth under applicable federal or state law and in the By-Laws,
including, without limitation, at the date hereof the requirements of Section 15
of the 1940 Act, or any successor provision; and any such contract may contain
such other terms as the Trustees may determine.
9
(c) The Trustees are also empowered, at any time and from time to
time, to contract with any corporations, trusts, associations or other
organizations, appointing it or them the custodian, transfer agent or
Shareholder servicing agent for the Trust or one or more of its Series (or
Classes). Every such contract shall comply with such requirements and
restrictions as may be set forth under applicable federal or state law and in
the By-Laws or stipulated by resolution of the Trustees. The Trustees are
empowered, at any time and from time to time, to retain sub-agents (foreign or
domestic) in connection with any service provider to the Trust or one or more of
its Series (or Classes).
(d) Subject to applicable law, the Trustees are further empowered, at
any time and from time to time, to contract with any entity to provide such
other services, including, without limitation, accounting and pricing services,
to the Trust or one or more of the Series (or Classes thereof), as the Trustees
determine to be in the best interests of the Trust and the applicable Series (or
Class).
(e) The fact that:
(i) any of the Shareholders, Trustees, or officers of the Trust
is a shareholder, director, officer, partner, trustee, employee,
manager, adviser, principal underwriter, distributor, or affiliate or
agent of or for any corporation, trust, association, or other
organization, or for any parent or affiliate of any organization, with
which an advisory, management or administration contract, or Principal
Underwriter's or distributor's contract, or transfer, shareholder
servicing or other type of service contract may have been or may
hereafter be made, or that any such organization, or any parent or
affiliate thereof, is a Shareholder or has an interest in the Trust,
or that
(ii) any corporation, trust, association or other organization
with which an advisory, management or administration contract or
Principal Underwriter's or distributor's contract, or transfer,
shareholder servicing or other type of service contract may have been
or may hereafter be made with the Trust or any Series of the Trust
also has an advisory, management or administration contract, or
principal underwriter's or distributor's contract, or transfer,
shareholder servicing or other service contract with one or more other
corporations, trusts, associations, or other organizations, or has
other business or interests,
shall not affect the validity of any such contract or disqualify any
Shareholder, Trustee or officer of the Trust from voting upon or executing the
same, or create any liability or accountability to the Trust or its
Shareholders, provided approval of each such contract is made pursuant to the
requirements of the 1940 Act.
Section 9. Trustees and Officers as Shareholders. Any Trustee, officer
or agent of the Trust may acquire, own and dispose of Shares to the same extent
as if he or she were not a Trustee, officer or agent; and the Trustees may issue
and sell and cause to be issued and sold Shares to, and redeem such Shares from,
any such Person or any firm or company in which such Person is interested,
subject only to the general limitations contained herein or in the By-Laws
relating to the sale and redemption of such Shares.
ARTICLE V
Shareholders Voting Powers and Meetings
Section 1. Voting Powers, Meetings, Notice and Record Dates. The
Shareholders shall have power to vote only (i) for the election or removal of
Trustees to the extent and as provided in Article IV, Section 2, and (ii) with
respect to such additional matters relating to the Trust as may be required by
applicable law, this Declaration of Trust, the By-Laws or any registration of
the Trust with the Commission (or any successor agency) or any state, or as the
Trustees may consider necessary or desirable. Each Shareholder shall be entitled
to one vote for each dollar of net asset value (determined as of the applicable
record date) of each Share owned by such Shareholder
10
(number of Shares owned times net asset value per Share) on any matter on which
such Shareholder is entitled to vote and each fractional dollar amount shall be
entitled to a proportionate fractional vote. Notwithstanding any other provision
of this Declaration of Trust, on any matter submitted to a vote of the
Shareholders, all Shares of the Trust then entitled to vote shall be voted in
aggregate, except (i) when required by the 1940 Act, Shares shall be voted by
individual Series or Class; and (ii) when the matter involves the termination of
a Series or Class or any other action that the Trustees have determined will
affect only the interests of one or more Series or Classes, then only
Shareholders of such Series or Classes shall be entitled to vote thereon. There
shall be no cumulative voting in the election of Trustees. Shares may be voted
in person or by proxy. A proxy may be given in writing. The By-Laws may provide
that proxies may also, or may instead, be given by any electronic or
telecommunications device or in any other manner. Notwithstanding anything else
contained herein or in the By-Laws, in the event a proposal by anyone other than
the officers or Trustees of the Trust is submitted to a vote of the Shareholders
of one or more Series or Classes thereof or of the Trust, or in the event of any
proxy contest or proxy solicitation or proposal in opposition to any proposal by
the officers or Trustees of the Trust, Shares may be voted only in person or by
written proxy at a meeting. Until Shares are issued, the Trustees may exercise
all rights of Shareholders and may take any action required by law, this
Declaration of Trust or the By-Laws to be taken by the Shareholders. Meetings of
the Shareholders shall be called and notice thereof and record dates therefor
shall be given and set as provided in the By-Laws.
Section 2. Quorum and Required Vote. Except when a larger quorum is
required by applicable law, by the By-Laws or by this Declaration of Trust, (i)
thirty-three and one-third percent (33-1/3%) of the Shares entitled to vote
shall constitute a quorum at a Shareholders meeting and (ii) when any one or
more Series (or Classes) is to vote as a single class separate from any other
Shares, thirty-three and one-third percent (33-1/3%) of the Shares of each such
Series (or Class) entitled to vote shall constitute a quorum at a Shareholders
meeting of that Series (or Class). Except when a larger vote is required by any
provision of this Declaration of Trust or the By-Laws or by applicable law, when
a quorum is present at any meeting, a majority of the Shares voted shall decide
any questions and a plurality of the Shares voted shall elect a Trustee,
provided that where any provision of law or of this Declaration of Trust
requires that the holders of any Series shall vote as a Series (or that holders
of a Class shall vote as a Class), then a majority of the Shares of that Series
(or Class) voting on the matter (or a plurality with respect to the election of
a Trustee) shall decide that matter insofar as that Series (or Class) is
concerned.
Section 3. Additional Provisions. The By-Laws may include further
provisions for Shareholders votes and meetings and related matters.
ARTICLE VI
Net Asset Value, Distributions and Redemptions
Section 1. Determination of Net Asset Value, Net Income, and
Distributions. Subject to applicable law and Article III, Section 6 hereof, the
Trustees, in their absolute discretion, may prescribe and shall set forth in the
Registration Statement of the Trust as filed on Form N-1A or any successor form
with the Commission (the "Registration Statement of the Trust") such bases and
time or times for determining the net asset value of the Shares of any Series or
Class, the net income attributable to the Shares of any Series or Class, or the
declaration and payment of dividends and distributions on the Shares of any
Series or Class, as they may deem necessary or desirable from time to time.
Section 2. Redemptions and Repurchases.
(a) The Trust shall purchase such Shares as are offered by any record
holder of such Shares for redemption, upon the presentation of a proper
instrument of transfer together with a request directed to the Trust or a Person
designated by the Trust that the Trust purchase such Shares or in accordance
with such other procedures for redemption as the Trustees may, from time to
time, authorize, and the Trust will pay therefor the net asset value thereof as
determined by the Trustees (or on their behalf), in accordance with any
applicable provisions of the By-Laws and applicable law. Unless extraordinary
circumstances exist, payment for said Shares shall be made by the Trust to the
Shareholder within seven (7) days after the date on which the request is made in
proper form. The obligation set forth in this Section 2 is subject to the
provisions regarding the suspension of the right of redemption
11
that are set forth in the Registration Statement of the Trust, and as the
Trustees, in their absolute discretion, may prescribe. In the case of a
suspension of the right of redemption as provided herein, a record holder of
such Shares may either withdraw the request for redemption or receive payment
based on the net asset value per Share next determined after the termination of
such suspension.
(b) The redemption price may, in any case or cases, be paid wholly or
partly in-kind if the Trustees determine that such payment is advisable and in
the interest of the remaining Shareholders of the Series or Class for which the
Shares are being redeemed. The fair value, selection and quantity of securities
or other property so paid or delivered as all or part of the redemption price
may be determined by or under authority of the Trustees. In no case shall the
Trust be liable for any delay of any corporation or other Person in transferring
securities selected for delivery as all or part of any payment in-kind.
(c) If the Trustees shall, at any time and in good faith, determine
that direct or indirect ownership of Shares of any Series or Class has or may
become concentrated in any Person to an extent that would disqualify any Series
as a regulated investment company under the Internal Revenue Code of 1986, as
amended (or any successor statute thereto), then the Trustees shall have the
power (but not the obligation) by such means as they deem equitable (i) to
involuntarily redeem any number, or principal amount, of Shares of such Person
sufficient to maintain or bring the direct or indirect ownership of Shares into
conformity with the requirements for such qualification, and (ii) to refuse to
transfer or issue Shares to any Person whose acquisition of the Shares in
question would result in such disqualification. Any such redemption shall be
effected at the redemption price and in the manner provided in this Article VI.
(d) The holders of Shares shall upon demand disclose to the Trustees
in writing such information with respect to direct and indirect ownership of
Shares as the Trustees deem necessary to comply with the provisions of the
Internal Revenue Code of 1986, as amended (or any successor statute thereto), or
to comply with the requirements of any other taxing or regulatory authority.
(e) Subject to the requirements of the 1940 Act, the Board of Trustees
may cause the Trust to redeem, at the price and in the manner provided in this
Article VI, Shares of any Series or Class held by any Person (i) if such Person
is no longer qualified to hold such Shares in accordance with such
qualifications as may be established by the Trustees, (ii) if the net asset
value of such Shares is below the minimum investment amount which is set forth
in the Registration Statement of the Trust or (iii) if otherwise deemed by the
Trustees to be in the best interest of the Trust or that particular Series (or
Class) as a whole.
(f) Shares redeemed shall, upon redemption, be deemed to be retired
and restored to the status of unissued shares.
ARTICLE VII
Compensation and Limitation of Liability of Trustees
Section 1. Compensation. The Trustees as such shall be entitled to
reasonable compensation from the Trust, and they may fix the amount of such
compensation. Nothing herein shall in any way prevent the employment of any
Trustee for advisory, management, legal, accounting, investment banking or other
services and payment for the same by the Trust.
Section 2. Indemnification and Limitation of Liability. A Trustee,
when acting in such capacity, shall not be personally liable to any Person,
other than the Trust or a Shareholder to the extent provided in this Article
VII, for any act, omission or obligation of the Trust, of such Trustee or of any
other Trustee. The Trustees shall not be responsible or liable in any event for
any neglect or wrongdoing of any officer, agent, employee, Manager or Principal
Underwriter of the Trust. The Trust (i) may indemnify an agent of the Trust or
any Person who is serving or has served at the Trust's request as an agent of
another organization in which the Trust has any interest as a shareholder,
creditor or otherwise and (ii) shall indemnify each Person who is, or has been,
a Trustee, officer or employee of the Trust and any Person who is serving or has
served at the Trust's request as a director, officer, trustee, or employee of
another organization in which the Trust has any interest as a shareholder,
creditor or otherwise, in the case of (i) and (ii), to the fullest extent
consistent with the 1940 Act and in the manner provided in
12
the By-Laws; provided that such indemnification shall not be available to any of
the foregoing Persons in connection with a claim, suit or other proceeding by
any such Person against the Trust or a Series (or Class) thereof.
All persons extending credit to, contracting with or having any claim
against the Trust or the Trustees shall look only to the assets of the
appropriate Series (or Class thereof if the Trustees have included a Class
limitation on liability in the agreement with such person as provided below),
or, if the Trustees have yet to establish Series, of the Trust for payment under
such credit, contract or claim; and neither the Trustees nor the Shareholders,
nor any of the Trust's officers, employees or agents, whether past, present or
future, shall be personally liable therefor.
Every note, bond, contract, instrument, certificate or undertaking and
every other act or thing whatsoever executed or done by or on behalf of the
Trust or the Trustees by any of them in connection with the Trust shall
conclusively be deemed to have been executed or done only in or with respect to
his or their capacity as Trustee or Trustees, and such Trustee or Trustees shall
not be personally liable thereon. At the Trustees discretion, any note, bond,
contract, instrument, certificate or undertaking made or issued by the Trustees
or by any officer or officers may give notice that the Certificate of Trust is
on file in the Office of the Secretary of State of the State of Delaware and
that a statutory limitation on liability of Series exists and such note, bond,
contract, instrument, certificate or undertaking may, if the Trustees so
determine, recite that the same was executed or made on behalf of the Trust by a
Trustee or Trustees in such capacity and not individually or by an officer or
officers in such capacity and not individually and that the obligations of such
instrument are not binding upon any of them or the Shareholders individually but
are binding only on the assets and property of the Trust or a Series thereof,
and may contain such further recital as such Person or Persons may deem
appropriate including, without limitation, a requirement, in any note, bond,
contract, instrument, certificate or undertaking made with respect to one or
more Classes of any Series that the parties thereto look only to the assets of
such Class or Classes in satisfaction of the liabilities arising thereunder. The
omission of any such notice or recital shall in no way operate to bind any
Trustees, officers or Shareholders individually.
Section 3. Trustee's Good Faith Action; Expert Advice; No Bond or
Surety. The exercise by the Trustees of their powers and discretions hereunder
shall be binding upon everyone interested. A Trustee shall be liable to the
Trust and to any Shareholder solely for her or his own willful misfeasance, bad
faith, gross negligence or reckless disregard of the duties involved in the
conduct of the office of Trustee, and shall not be liable for errors of judgment
or mistakes of fact or law. The Trustees may take advice of counsel or other
experts with respect to the meaning and operation of this Declaration of Trust,
and shall be under no liability for any act or omission in accordance with such
advice, nor for failing to follow such advice. The Trustees shall not be
required to give any bond as such, nor any surety if a bond is required.
Section 4. Insurance. The Trustees shall be entitled and empowered to
the fullest extent permitted by law to purchase with Trust assets insurance for
liability and for all expenses reasonably incurred or paid or expected to be
paid by a Trustee, officer, employee or agent of the Trust in connection with
any claim, action, suit or proceeding in which she or he becomes involved by
virtue of her or his capacity or former capacity with the Trust.
ARTICLE VIII
Miscellaneous
Section 1. Liability of Third Persons Dealing with Trustees. No Person
dealing with the Trustees shall be bound to make any inquiry concerning the
validity of any transaction made or to be made by the Trustees or to see to the
application of any payments made or property transferred to the Trust or upon
its order.
Section 2. Termination of Trust or Series.
(a) Unless dissolved as provided herein, the Trust shall continue
without limitation of time. The Trust may be dissolved at any time by vote of a
majority of the Shares of each Series entitled to vote, voting separately by
Series, or by the Trustees by written notice to the Shareholders. Any Series of
Shares (or Class thereof) may be dissolved at any time by vote of a majority of
the Shares of such Series or Class entitled to vote or by the Trustees by
written notice to the Shareholders of such Series or Class.
13
(b) Upon the requisite Shareholder vote or action by the Trustees to
dissolve the Trust or any one or more Series of Shares (or any Class thereof),
after paying or otherwise providing for all charges, taxes, expenses and
liabilities, whether due or accrued or anticipated, of the Trust or of the
particular Series (or any Class thereof) as may be determined by the Trustees,
the Trust shall in accordance with such procedures as the Trustees consider
appropriate reduce the remaining assets of the Trust or of the affected Series
or Class to distributable form in cash or Shares (if any Series remain) or other
securities, or any combination thereof, and distribute the proceeds to the
Shareholders of the Series or Classes involved, ratably according to the number
of Shares of such Series or Class held by the several Shareholders of such
Series or Class on the date of distribution. Thereupon, the Trust or any
affected Series (or Class thereof) shall terminate and the Trustees and the
Trust shall be discharged of any and all further liabilities and duties relating
thereto or arising therefrom, and the right, title and interest of all parties
with respect to the Trust or such Series or Class shall be canceled and
discharged.
(c) Upon termination of the Trust, following completion of winding up
of its business, the Trustees shall cause a certificate of cancellation of the
Trust's Certificate of Trust to be filed in accordance with the Delaware Act,
which certificate of cancellation may be signed by any one Trustee.
Section 3. Reorganization.
(a) Notwithstanding anything else herein, the Trustees may, without
any Shareholder approval or vote unless such approval or vote is required by
applicable law, in order to change the form or jurisdiction of organization of
the Trust or for any other purpose (i) cause the Trust to merge or consolidate
with or into one or more trusts (or series thereof to the extent permitted by
law), partnerships, associations, corporations or other business entities
(including trusts, partnerships, associations, corporations or other business
entities created by the Trustees to accomplish such merger or consolidation),
(ii) cause the Shares to be exchanged under or pursuant to any state or federal
statute to the extent permitted by law or (iii) cause the Trust to reorganize
under the laws of any state or other political subdivision of the United States,
if such action is determined by the Trustees to be in the best interests of the
Trust. Any agreement of merger or consolidation or exchange or certificate of
merger may be signed by a majority of the Trustees and facsimile signatures
conveyed by electronic or telecommunication means shall be valid.
(b) Pursuant to and in accordance with the provisions of Section
3815(f) of the Delaware Act, and notwithstanding anything to the contrary
contained in this Declaration of Trust, an agreement of merger or consolidation
approved by the Trustees in accordance with this Section 3 of Article VIII may
effect any amendment to the governing instrument of the Trust or effect the
adoption of a new trust instrument of the Trust if the Trust is the surviving or
resulting trust in the merger or consolidation.
(c) The Trustees may, without any Shareholder approval or vote unless
such approval or vote is required by applicable law, create one or more
statutory trusts to which all or any part of the assets, liabilities, profits or
losses of the Trust or any Series or Class thereof may be transferred and may
provide for the conversion of Shares in the Trust or any Series or Class thereof
into beneficial interests in any such newly created trust or trusts or any
series or classes thereof.
(d) Notwithstanding anything else herein, the Trustees may, without
Shareholder approval (unless required by the 1940 Act), invest all or a portion
of the Trust Property of any Series, or dispose of all or a portion of the Trust
Property of any Series, and invest the proceeds of such disposition in interests
issued by one or more other investment companies registered under the 1940 Act.
Any such other investment company may (but not need) be a trust (formed under
the laws of the State of Delaware or any other state or jurisdiction) (or series
thereof) which is classified as a partnership for federal income tax purposes.
Notwithstanding anything else herein, the Trustees may, without Shareholder
approval unless such approval is required by the 1940 Act, cause a Series that
is organized in the master/feeder fund structure to withdraw or redeem its Trust
Property from the master fund and cause such Series to invest its Trust Property
directly in securities and other financial instruments or in another master
fund.
Section 4. Amendments. Except as specifically provided in this Section
4 of Article VIII, the Trustees may, without Shareholder vote, restate, amend or
otherwise supplement this Declaration of Trust.
14
Shareholders shall have the right to vote (i) on any amendment that would affect
their right to vote granted in Article V, Section 1 hereof, (ii) on any
amendment to this Section 4 of Article VIII, (iii) on any amendment that may be
required to be approved by Shareholders by applicable law or by the Trust's
registration statement filed with the Commission, and (iv) on any amendment
submitted to them by the Trustees. Any amendment required or permitted to be
submitted to the Shareholders that, as the Trustees determine, shall affect the
Shareholders of one or more Series (or Classes thereof) shall be authorized by a
vote of the Shareholders of each Series or Class affected and no vote of
Shareholders of a Series or Class not affected shall be required.
Notwithstanding anything else herein, no amendment hereof shall limit the rights
to insurance provided by Article VII, Section 4 with respect to any acts or
omissions of Persons covered thereby prior to such amendment nor shall any such
amendment limit the rights to indemnification referenced in Article VII, Section
2 hereof as provided in the By-Laws with respect to any actions or omissions of
Persons covered thereby prior to such amendment. The Trustees may, without
Shareholder vote, restate, amend, or otherwise supplement the Certificate of
Trust as they deem necessary or desirable.
Section 5. Filing of Copies, References, Headings. The original or a
copy of this instrument and of each restatement and/or amendment hereto shall be
kept at the office of the Trust where it may be inspected by any Shareholder.
Anyone dealing with the Trust may rely on a certificate by an officer of the
Trust as to whether or not any such restatements and/or amendments have been
made and as to any matters in connection with the Trust hereunder; and, with the
same effect as if it were the original, may rely on a copy certified by an
officer of the Trust to be a copy of this instrument or of any such restatements
and/or amendments. In this instrument and in any such restatements and/or
amendments, references to this instrument, and all expressions such as "herein,"
"hereof" and "hereunder," shall be deemed to refer to this instrument as amended
or affected by any such restatements and/or amendments. Headings are placed
herein for convenience of reference only and shall not be taken as a part hereof
or control or affect the meaning, construction or effect of this instrument.
Whenever the singular number is used herein, the same shall include the plural;
and the neuter, masculine and feminine genders shall include each other, as
applicable. This instrument may be executed in any number of counterparts each
of which shall be deemed an original.
Section 6. Applicable Law.
(a) The Trust is created under, and this Declaration of Trust is to be
governed by, and construed and enforced in accordance with, the laws of the
State of Delaware. The Trust shall be of the type commonly called a statutory
trust, and without limiting the provisions hereof, the Trust specifically
reserves the right to exercise any of the powers or privileges afforded to
statutory trusts or actions that may be engaged in by statutory trusts under the
Delaware Act, and the absence of a specific reference herein to any such power,
privilege or action shall not imply that the Trust may not exercise such power
or privilege or take such actions.
(b) Notwithstanding the first sentence of Section 6(a) of this Article
VIII, there shall not be applicable to the Trust, the Trustees or this
Declaration of Trust (x) the provisions of section 3540 of Title 12 of the
Delaware Code or (y) any provisions of the laws (statutory or common) of the
State of Delaware (other than the Delaware Act) pertaining to trusts that relate
to or regulate: (i) the filing with any court or governmental body or agency of
trustee accounts or schedules of trustee fees and charges, (ii) affirmative
requirements to post bonds for trustees, officers, agents or employees of a
trust, (iii) the necessity for obtaining a court or other governmental approval
concerning the acquisition, holding or disposition of real or personal property,
(iv) fees or other sums applicable to trustees, officers, agents or employees of
a trust, (v) the allocation of receipts and expenditures to income or principal,
(vi) restrictions or limitations on the permissible nature, amount or
concentration of trust investments or requirements relating to the titling,
storage or other manner of holding of trust assets, or (vii) the establishment
of fiduciary or other standards or responsibilities or limitations on the acts
or powers of trustees that are inconsistent with the limitations or liabilities
or authorities and powers of the Trustees set forth or referenced in this
Declaration of Trust.
Section 7. Provisions in Conflict with Law or Regulations.
(a) The provisions of the Declaration of Trust are severable, and if
the Trustees shall determine, with the advice of counsel, that any of such
provisions is in conflict with the 1940 Act, the regulated investment company
provisions of the Internal Revenue Code of 1986, as amended (or any successor
statute thereto), and the regulations thereunder, with the Delaware Act or with
other applicable laws and regulations, the
15
conflicting provision shall be deemed never to have constituted a part of the
Declaration of Trust; provided, however, that such determination shall not
affect any of the remaining provisions of the Declaration of Trust or render
invalid or improper any action taken or omitted prior to such determination.
(b) If any provision of the Declaration of Trust shall be held invalid
or unenforceable in any jurisdiction, such invalidity or unenforceability shall
attach only to such provision in such jurisdiction and shall not in any manner
affect such provision in any other jurisdiction or any other provision of the
Declaration of Trust in any jurisdiction.
Section 8. Statutory Trust Only. It is the intention of the Trustees
to create a statutory trust pursuant to the Delaware Act. It is not the
intention of the Trustees to create a general partnership, limited partnership,
joint stock association, corporation, bailment, or any form of legal
relationship other than a statutory trust pursuant to the Delaware Act. Nothing
in this Declaration of Trust shall be construed to make the Shareholders, either
by themselves or with the Trustees, partners or members of a joint stock
association.
Section 9. Derivative Actions. In addition to the requirements set
forth in Section 3816 of the Delaware Act, a Shareholder may bring a derivative
action on behalf of the Trust only if the following conditions are met:
(a) The Shareholder or Shareholders must make a pre-suit demand upon
the Trustees to bring the subject action unless an effort to cause the Trustees
to bring such an action is not likely to succeed. For purposes of this Section
9(a), a demand on the Trustees shall only be deemed not likely to succeed and
therefore excused if a majority of the Board of Trustees, or a majority of any
committee established to consider the merits of such action, has a personal
financial interest in the transaction at issue, and a Trustee shall not be
deemed interested in a transaction or otherwise disqualified from ruling on the
merits of a Shareholder demand by virtue of the fact that such Trustee receives
remuneration for his service on the Board of Trustees of the Trust or on the
boards of one or more Trusts that are under common management with or otherwise
affiliated with the Trust.
(b) Unless a demand is not required under paragraph (a) of this
Section 9, Shareholders eligible to bring such derivative action under the
Delaware Act who hold at least 10% of the outstanding Shares of the Trust, or
10% of the outstanding Shares of the Series or Class to which such action
relates, shall join in the request for the Trustees to commence such action.
(c) Unless a demand is not required under paragraph (a) of this
Section 9, the Trustees must be afforded a reasonable amount of time to consider
such shareholder request and to investigate the basis of such claim. The
Trustees shall be entitled to retain counsel or other advisors in considering
the merits of the request and shall require an undertaking by the Shareholders
making such request to reimburse the Trust for the expense of any such advisors
in the event that the Trustees determine not to bring such action.
For purposes of this Section 9, the Board of Trustees may designate a
committee of one Trustee to consider a Shareholder demand if necessary to create
a committee with a majority of Trustees who do not have a personal financial
interest in the transaction at issue.
IN WITNESS WHEREOF, the Initial Trustee named below does hereby make
and enter into this Declaration of Trust as of March 31, 2004.
INITIAL TRUSTEE
/s/
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▇▇▇▇▇ ▇▇▇▇▇▇, as Initial Trustee
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