CONESTOGA FUNDS
TRUST INSTRUMENT
DATED FEBRUARY 5, 2002
TABLE OF CONTENTS
Page
ARTICLE I - NAME AND DEFINITIONS.............................................1
Section 1.01 Name..........................................................1
Section 1.02 Definitions...................................................1
Section 1.03 Purpose.......................................................2
ARTICLE II - BENEFICIAL INTEREST.............................................3
Section 2.01 Shares Of Beneficial Interest.................................3
Section 2.02 Issuance of Shares............................................3
Section 2.03 Register of Shares and Share Certificates.....................3
Section 2.04 Transfer of Shares............................................3
Section 2.05 Treasury Shares...............................................4
Section 2.06 Establishment of Series.......................................4
Section 2.07 Investment in the Trust.......................................5
Section 2.08 Assets and Liabilities of Series..............................5
Section 2.09 No Preemptive Rights..........................................6
Section 2.10 No Personal Liability of Shareholder..........................6
ARTICLE III - THE TRUSTEES...................................................6
Section 3.01 Management of the Trust......................................6
Section 3.02 Term of Office................................................7
Section 3.03 Vacancies and Appointments...................................7
Section 3.04 Temporary Absence............................................8
Section 3.05 Number of Trustees...........................................8
Section 3.06 Effect of Ending of a Trustee's Service......................8
Section 3.07 Ownership of Assets of the Trust..............................8
Section 3.08 Compensation..................................................8
ARTICLE IV - POWERS OF THE TRUSTEES..........................................9
Section 4.01 Powers........................................................9
Section 4.02 Issuance and Repurchase of Shares...........................12
Section 4.03 Trustees and Officers as Shareholders........................12
Section 4.04 Action by the Trustees......................................12
Section 4.05 Chairman of the Trustees.....................................13
Section 4.06 Principal Transactions.......................................13
ARTICLE V - EXPENSES OF THE TRUST...........................................13
ARTICLE VI - INVESTMENT ADVISER, PRINCIPAL UNDERWRITER, ADMINISTRATOR AND
TRANSFER AGENT..............................................................14
Section 6.01 Investment Adviser...........................................14
Section 6.02 Principal Underwriter.......................................14
Section 6.03 Administration...............................................14
Section 6.04 Transfer Agent...............................................15
Section 6.05 Parties to Contract.........................................15
Section 6.06 Provisions and Amendments...................................15
ARTICLE VII - SHAREHOLDERS' VOTING POWERS AND MEETINGS......................15
Section 7.01 Voting Powers...............................................15
Section 7.02 Meetings....................................................17
Section 7.03 Quorum and Required Vote....................................17
ARTICLE VIII - CUSTODIAN....................................................17
Section 8.01 Appointment and Duties......................................17
2
Section 8.02 Central Certificate System..................................18
ARTICLE IX - DISTRIBUTIONS AND REDEMPTIONS..................................18
Section 9.01 Distributions................................................18
Section 9.02 Redemptions.................................................19
Section 9.03 Determination of Net Asset Value and Valuation of Portfolio
Assets....................................................................19
Section 9.04 Suspension of the Right of Redemption.......................20
Section 9.05 Required Redemption of Shares...............................20
ARTICLE X - LIMITATION OF LIABILITY AND INDEMNIFICATION.....................21
Section 10.01 Limitation of Liability....................................21
Section 10.02 Indemnification............................................21
Section 10.03 Shareholders...............................................22
ARTICLE XI - MISCELLANEOUS..................................................22
Section 11.01 Trust Not a Partnership....................................22
Section 11.02 Trustee's Good Faith Action, Expert Advice, No Bond or
Surety....................................................................23
Section 11.03 Establishment of Record Dates..............................23
Section 11.04 Dissolution and Termination of Trust........................23
Section 11.05 Reorganization and Master/Feeder...........................24
Section 11.06 Filing of Copies, References Headings......................25
Section 11.07 Applicable Law.............................................25
Section 11.08 Derivative Actions.........................................26
Section 11.09 Amendments.................................................27
Section 11.10 Fiscal Year................................................27
Section 11.11 Name Reservation...........................................27
Section 11.12 Provisions in Conflict With Law............................27
3
CONESTOGA FUNDS
TRUST INSTRUMENT
DATED FEBRUARY 5, 2002
This TRUST INSTRUMENT is adopted as of February 5, 2002 by ▇▇▇▇
▇▇▇▇▇▇▇▇▇▇ and ▇▇▇▇ ▇. ▇▇▇▇▇ (the "Trustees") for the purpose of forming
Conestoga Funds, a Delaware business trust (the "Trust").
WHEREAS, the Trustees desire to establish a business trust under the
Delaware Business Trust Act, 12 Del. C. SS 3801 et seq. (as amended and in
effect from time to time, the "Delaware Act"), for the investment and
reinvestment of funds contributed thereto;
NOW, THEREFORE, the Trustees hereby direct that the Certificate of
Trust be filed with the Office of the Secretary of State of the State of
Delaware and do hereby declare that the Trustees will hold in trust all
money, securities and other assets which the Trust now possesses or may
hereafter acquire from time to time in any manner and manage and dispose of
the same upon the following terms and conditions for the benefit of the
holders of Shares in this Trust.
ARTICLE I
NAME AND DEFINITIONS
Section 1.01 Name. The name of the Trust is "Conestoga Funds."
Section 1.02 Definitions. Wherever used herein, unless otherwise
required by the context or specifically provided:
(a) The "1940 Act" means the Investment Company Act of 1940, as amended
from time to time. Whenever reference is made hereunder to the 1940 Act, such
references shall be interpreted as including any applicable order or orders of
the Commission or any rules or regulations adopted by the Commission
thereunder or interpretive releases of the Commission staff;
(b) "Bylaws" means the Bylaws of the Trust as adopted by the Trustees,
as amended from time to time;
(c) "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;
(d) "Commission" has the meaning given it in the 1940 Act. In addition,
"Affiliated Person," "Assignment," "Interested Person" and "Principal
Underwriter" shall have the respective meanings given them in the 1940 Act.
"Majority Shareholder Vote" shall have the same meaning as the term "vote of a
majority of the outstanding voting securities" under the 1940 Act;
(e) "Delaware Act" has the meaning set forth in the preamble of this
Trust Instrument;
(f) "Net Asset Value" means the net asset value of each Series of the
Trust determined in the manner provided in Article IX, Section 9.03 hereof;
(g) "Outstanding Shares" means those Shares shown from time to time in
the books of the Trust or its transfer agent as then issued and outstanding,
but shall not include Shares which have been redeemed or repurchased by the
Trust and which are at the time held in the treasury of the Trust;
(h) "Series" means a series of Shares of the Trust established and
designated under or in accordance with Sections 3804 and 3806 of the Delaware
Act and the provisions of Article II, Section 2.06 hereof, each of which shall
be accounted for and maintained as a separate series or portfolio of the
Trust;
(i) "Shareholder" means a record owner of Outstanding Shares of the
Trust;
(j) "Shares" means the equal proportionate transferable units of
beneficial interest into which the beneficial interest of each Series of the
Trust or class thereof shall be divided and may include fractions of Shares as
well as whole Shares;
(k) The "Trust" means Conestoga Funds, a Delaware business trust,
established under the Delaware Act by this Trust Instrument and the filing of
the Certificate of Trust in the Office of the Secretary of State of the State
of Delaware and reference to the Trust when applicable to one or more Series
of the Trust (or classes of such Series), shall refer to such Series (and such
classes thereof);
(l) The "Trustees" means the person or persons who has or have signed
this Trust Instrument so long as he or they shall continue in office in
accordance with the terms hereof and all other persons who may from time to
time be duly qualified and serving as Trustees in accordance with the
provisions of Article III hereof, and reference herein to a Trustee or to the
Trustees shall refer to the individual Trustees in their respective capacity
as Trustees hereunder;
(m) "Trust Instrument" means this Trust Instrument, as amended or
restated from time to time; and
(n) "Trust Property" means any and all property, real or personal,
tangible or intangible, which is owned or held by or for the account of the
Trust or any Series, or the Trustees on behalf of the Trust or any Series.
Section 1.03 Purpose. 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 Trust Instrument.
2
ARTICLE II
BENEFICIAL INTEREST
Section 2.01 Shares Of Beneficial Interest. The beneficial interest in
the Trust shall be divided into such Shares of one or more separate and
distinct Series or classes of a Series as set forth in Section 2.06 or as the
Trustees shall otherwise from time to time create and establish as provided
in Section 2.06. The number of Shares of each Series and class thereof
authorized hereunder is unlimited. Each Share shall have a par value of
$0.001. All Shares issued hereunder, including without limitation, Shares
issued in connection with a dividend paid in Shares or a split or reverse
split of Shares, shall be fully paid and non-assessable.
Section 2.02 Issuance of Shares. The Trustees in their discretion may,
from time to time, without a vote of the Shareholders, issue Shares, 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, subject to applicable law, including cash or securities, at
such time or times and on such terms as the Trustees may deem appropriate,
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. In connection with any issuance of Shares, the Trustees may
issue fractional Shares and Shares held in the treasury. The Trustees may
from time to time divide or combine the Shares into a greater or lesser
number without thereby changing the proportionate beneficial interests in the
Trust. Contributions to the Trust may be accepted for, and Shares shall be
redeemed as, whole Shares and/or 1/1000th of a Share or integral multiples
thereof. The Trustees or any person the Trustees may authorize for the
purpose may, in their discretion, reject any application for the issuance of
shares.
Section 2.03 Register of Shares and Share Certificates. A register
shall be kept at the principal office of the Trust or an office of the
Trust's transfer agent which shall contain the names and addresses of the
Shareholders of each Series, the number of Shares of that Series (or any
class or classes thereof) held by them respectively and a record of all
transfers thereof. No share certificates shall be issued by the Trust except
as the Trustees may otherwise authorize, and the persons indicated as
shareholders in such register shall be entitled to receive dividends or other
distributions or otherwise to exercise or enjoy the rights of Shareholders.
No Shareholder shall be entitled to receive payment of any dividend or other
distribution, nor to have notice given to him as herein or in the Bylaws
provided, until he has given his address to the transfer agent or such
officer or other agent of the Trustees as shall keep the said register for
entry thereon. 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.
Section 2.04 Transfer of Shares. Except as otherwise provided by the
Trustees, Shares shall be transferable on the records of the Trust only by
the record holder thereof or by his agent thereunto duly authorized in
writing, upon delivery to the Trustees or the Trust's transfer agent of a
duly executed instrument of transfer and such evidence of the genuineness of
such execution and authorization and of such other matters as may be required
by the Trustees. Upon such delivery the transfer shall be recorded on the
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 hereunder
and neither the Trustees nor the Trust, 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.
3
Section 2.05 Treasury Shares. Shares held in the treasury shall,
until reissued pursuant to Section 2.02 hereof, not confer any voting rights
on the Trustees, nor shall such Shares be entitled to any dividends or other
distributions declared with respect to the Shares.
Section 2.06 Establishment of Series. Subject to the provisions of
this Section 2.06, the Trust shall consist of the Series indicated on
Schedule A attached hereto, as such Schedule may be amended from time to
time. The Series indicated on Schedule A attached hereto as of the date
hereof are referred to as the "Initial Series." The preferences, voting
powers, rights and privileges of the Initial Series and any classes thereof
existing shall be as set forth in the Trust's registration statement or
statements as filed with the Commission, as from time to time in effect.
Distinct records shall be maintained by the Trust for each Series and the
assets associated with each Series shall be held and accounted for separately
from the assets of the Trust or any other Series. The Trustees shall have
full power and authority, in their sole discretion and without obtaining any
prior authorization or vote of the Shareholders of any Series, (a) to divide
the beneficial interest in each Series or class thereof into Shares, (b) to
establish and designate and to change in any manner any Series or any classes
of the Initial Series or any additional Series and to fix such preferences,
voting powers, rights, duties and privileges and business purpose of such
Series or classes 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, (c) to divide or combine the Shares or
any Series or classes thereof into a greater or lesser number without thereby
materially changing the proportionate beneficial interests of the Shares of
such Series or class in the assets held with respect to such Series, (d) to
classify or reclassify any issued Shares or any Series or classes thereof
into one or more Series or classes of Shares and (e) to take such other
action with respect to the Shares as the Trustees may deem desirable. The
establishment and designation of any Series (or class) (other than the
Initial Series and classes thereof) shall be effective upon the adoption of a
resolution by a majority of the Trustees setting forth such establishment and
designation of the Shares of such Series (or class), whether directly in such
resolution or by reference to, or approval of, another document that sets
forth such Series (or class) including, without limitation, any registration
statement of the Trust, or as otherwise provided in such resolution. The
relative rights and preferences of each Series and each class thereof (other
than the Initial Series and classes thereof) shall be as set forth herein and
as set forth in the Trust's registration statement or statements as filed
with the Commission, as from time to time in effect, unless otherwise
provided in the resolution establishing such Series or class. Upon the
establishment of any such Series (or class), Schedule A shall be amended to
reflect the addition of such Series (or class) thereto; provided that
amendment of Schedule A shall not be a condition precedent to the
establishment of any Series (or class) in accordance with this Trust
Instrument. A Series may issue any number of Shares, but need not issue
Shares. At any time that there are no Shares outstanding of any particular
Series (or class) previously established and designated, the Trustees may by
a majority vote abolish that Series (or class) and the establishment and
designation thereof, and, in connection with such abolishment, Schedule A
shall be amended to reflect the removal of such Series (or class) therefrom;
provided that amendment of Schedule A shall not be a condition precedent to
the abolishment of any Series (or class) in accordance with this Trust
Instrument.
4
All references to Shares in this Trust Instrument 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.
Each Share of a Series of the Trust shall represent an equal beneficial
interest in the net assets of such Series. Each holder of Shares of a Series
shall be entitled to receive his proportionate share of all distributions
made with respect to such Series, based upon the number of full and
fractional Shares of the Series held. Upon redemption of his Shares, such
Shareholder shall be paid solely out of the funds and property of such Series
of the Trust.
Section 2.07 Investment in the Trust. The Trustees shall accept
investments in any Series from such persons and on such terms as they may
from time to time authorize. At the Trustees' discretion, such investments,
subject to applicable law, may be in the form of cash or securities in which
the affected Series is authorized to invest, valued as provided in Article IX
Section 9.03 hereof. Investments in a Series shall be credited to each
Shareholder's account in the form of full and fractional Shares at the net
asset value per Share next determined after the investment is received or
accepted as may be determined by the Trustees; provided, however, that the
Trustees may, in their sole discretion, (a) fix minimum amounts for initial
and subsequent investments or (b) impose a sales charge upon investments in
such manner and at such time determined by the Trustees.
Section 2.08 Assets and Liabilities of Series. All consideration
received by the Trust for the issue or sale of Shares of a particular Series,
together with all assets in which such consideration is invested or
reinvested, all income, earnings, profits, and proceeds thereof including any
proceeds derived from the sale, exchange or liquidation of such assets, and
any funds or payments derived from any reinvestment of such proceeds in
whatever form the same may be, shall be held and accounted for separately
from the other assets of the Trust and of every other Series and any assets,
income, earnings, profits or funds, or payments and proceeds with respect
thereto of the Trust not allocated to such Series and may be referred to
herein as "assets belonging to" that Series. The assets belonging to a
particular Series shall belong to that Series for all purposes, and to no
other Series, and shall be subject only to the rights of creditors of that
Series. In addition, any assets, income, earnings, profits or funds, or
payments and proceeds with respect thereto, which are not readily
identifiable as belonging to any particular Series shall be allocated by the
Trustees between and among one or more of the Series in such manner as the
Trustees, in their sole discretion, deem fair and equitable. Each such
allocation shall be conclusive and binding upon the Shareholders of all
Series for all purposes, and such assets, income, earnings, profits or funds,
or payments and proceeds with respect thereto shall be assets belonging to
that Series. The assets belonging to a particular Series shall be so
recorded upon the books of the Trust, and shall be held by the Trustees in
trust for the benefit of the holders of Shares of that Series, and separate
and distinct records shall be maintained for each Series. The assets
belonging to each particular Series shall be charged with the liabilities of
that Series and all expenses, costs, charges and reserves attributable to
that Series. Any general liabilities, expenses, costs, charges or reserves
of the Trust which are not readily identifiable as belonging to any
particular Series shall be allocated and charged by the Trustees between or
among any one or more of the Series in such manner as the Trustees in their
sole discretion deem fair and
5
equitable. Each such allocation shall be conclusive and binding upon the
Shareholders of all Series for all purposes. Without limitation of the
foregoing provisions of this Section 2.08, but subject to the right of the
Trustees in their discretion to allocate general liabilities, expenses, costs,
changes or reserves as herein provided, the debts, liabilities, obligations
and expenses incurred, contracted for or otherwise existing with respect to a
particular Series shall be enforceable against the assets of such Series only,
and not against the assets of the Trust generally or of any other Series.
Notice of this contractual limitation on inter-Series liabilities shall be set
forth in the Certificate of Trust (whether originally or by amendment) prior
to the issuance of any Shares of a Series, and upon the giving of such notice
in the Certificate of Trust, the statutory provisions of Section 3804 of the
Delaware Act relating to limitations on inter-Series liabilities (and the
statutory effect under Section 3804 of setting forth such notice in the
Certificate of Trust) shall become applicable to the Trust and each Series.
Any person extending credit to, contracting with or having any claim against
any Series may look only to the assets of that Series to satisfy or enforce
any debt, with respect to that Series. No Shareholder or former Shareholder of
any Series shall have a claim on or any right to any assets allocated or
belonging to any other Series.
Section 2.09 No Preemptive Rights. Shareholders shall have no
preemptive or other right to subscribe to any additional Shares or other
securities issued by the Trust or the Trustees, whether of the same or other
Series.
Section 2.10 No Personal Liability of Shareholder. Except to the
extent otherwise provided in this Trust Instrument, the Shareholders shall be
entitled to the same limitation of personal liability extended to
stockholders of private corporations for profit organized under the general
corporation law of the State of Delaware. To the fullest extent permitted by
law, no Shareholder shall be personally liable for the debts, liabilities,
obligations and expenses incurred by, contracted for, or otherwise existing
with respect to, the Trust or by or on behalf of any Series. The Trustees
shall have no power to bind any Shareholder personally or 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 by
way of subscription for any Shares or otherwise.
ARTICLE III
THE TRUSTEES
Section 3.01 Management of the Trust. Subject to the provisions of
this Trust Instrument and the Bylaws, the Trustees shall have exclusive and
absolute control over the Trust Property and over the business of the Trust
to the same extent as if the Trustees were the sole owners of the Trust
Property and business in their own right, but with such powers of delegation
as may be permitted by this Trust Instrument. The Trustees shall have power
to conduct the business of the Trust and carry on its operations in any and
all of its branches and maintain offices both within and without the State of
Delaware, in any and all states of the United States of America, in the
District of Columbia, in any and all commonwealths, territories,
dependencies, colonies, or possessions of the United States of America, and
in any foreign jurisdiction and to do all such other things and execute all
such contracts and instruments as they deem necessary, proper or desirable in
order to promote the interests of the Trust although such things are not
herein specifically mentioned. Any determination as to what is in the
interests of
6
the Trust made by the Trustees in good faith shall be conclusive. In
construing the provisions of this Trust Instrument, the presumption shall be
in favor of a grant of power to the Trustees.
The enumeration of any specific power in this Trust Instrument shall
not be construed as limiting the aforesaid power. The powers of the Trustees
may be exercised without order of or resort to any court.
Except for the Trustees named herein or appointed to fill vacancies
pursuant to Section 3.04 of this Article III, the Trustees shall be elected
by the Shareholders owning of record a plurality of the Shares voting at a
meeting of Shareholders. Any Shareholder meeting held for such purpose shall
be held on a date fixed by the Trustees. In the event that less than a
majority of the Trustees holding office have been elected by Shareholders,
the Trustees then in office will call a Shareholders' meeting for the
election of Trustees in accordance with the provisions of the 1940 Act.
Section 3.02 Term of Office. The Trustees shall hold office during the
lifetime of this Trust, and until its termination as herein provided; except
(a) that any Trustee may resign his trust by written instrument signed by him
and delivered to the other Trustees, which shall take effect upon such
delivery or upon such later date as is specified therein; (b) that any
Trustee may be removed at any time, with or without cause, 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;
(c) that any Trustee who requests in writing to be retired or who has died,
becomes physically or mentally incapacitated by reason of illness or
otherwise, or is otherwise unable to serve, may be retired by written
instrument signed by a majority of the other Trustees, specifying the date of
his retirement; and (d) that a Trustee may be removed, with or without cause,
at any meeting of the Shareholders of the Trust by a vote of Shareholders
owning at least two-thirds of the Outstanding Shares of the Trust. Except to
the extent expressly provided in a written agreement with the Trust, no
Trustee resigning, removed or retired shall have any right to any
compensation for any period following the effective date of his or her
resignation, removal or retirement, or any right to damages on account of
such removal or retirement.
Section 3.03 Vacancies and Appointments . In case of a Trustee's
declination to serve, death, resignation, retirement, removal, physical or
mental incapacity by reason of illness, disease or otherwise, or if a Trustee
is otherwise unable to serve, or if there is an increase in the number of
Trustees, a vacancy shall occur. Whenever a vacancy in the Board of Trustees
shall occur, until such vacancy is filled, the other Trustees shall have all
the powers hereunder and the certificate of the other Trustees of such
vacancy shall be conclusive. In the case of a vacancy, the remaining
Trustees shall fill such vacancy by appointing such other person as they in
their discretion see fit, to the extent consistent with the limitations
provided under the 1940 Act. Such appointment shall be evidenced by a
written instrument signed by a majority of the Trustees in office or by
resolution of the Trustees, duly adopted, which shall be recorded in the
minutes of a meeting of the Trustees, whereupon the appointment shall take
effect.
An appointment of a Trustee may be made by the Trustees then in office
in anticipation of a vacancy to occur by reason of retirement, resignation or
increase in number of Trustees effective at a later date, provided that said
appointment shall become effective only at or after the effective date of
said retirement, resignation or increase in number of Trustees. As soon as
any
7
person appointed as a Trustee pursuant to this Section 3.04 shall have
accepted this Trust, such person shall be deemed a Trustee.
Section 3.04 Temporary Absence . Any Trustee may, by power of
attorney, delegate his power for a period not exceeding six months at any
time to any other Trustee or Trustees, provided that in no case shall fewer
than two Trustees personally exercise the other powers hereunder except as
herein otherwise expressly provided.
Section 3.05 Number of Trustees . The number of Trustees shall be at
least two (2), and thereafter shall be such number as shall be fixed from
time to time by a majority of the Trustees.
Section 3.06 Effect of Ending of a Trustee's Service. The
declination to serve, death, resignation, retirement, removal, incapacity, or
inability to serve of the Trustees, or any one of them, shall not operate to
terminate the Trust or to revoke any existing agency created pursuant to the
terms of this Trust Instrument.
Section 3.07 Ownership of Assets of the Trust . The assets of the
Trust and of each Series shall be held separate and apart from any assets now
or hereafter held in any capacity other than as Trustee hereunder by the
Trustees or any successor Trustees. Legal title in all of the assets of the
Trust and the right to conduct any business shall at all times be considered
as vested in the Trust, except that the Trustees may 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 person as nominee. No Shareholder shall be deemed to
have a severable ownership in any individual asset of the Trust or of any
Series or any right of partition or possession thereof but each Shareholder
shall have, except as otherwise provided for herein, a proportionate
undivided beneficial interest in the Trust or Series based upon the number of
Shares owned. The Shares shall be personal property giving only the rights
specifically set forth in this Trust Instrument. 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 declination to
serve, death, resignation, retirement, removal, incapacity or inability to
serve of a Trustee, he or she shall automatically cease to have any right,
title or interest in any of the Trust Property, and the right, title and
interest of such Trustee in the Trust Property shall vest automatically in
the remaining Trustees. Such vesting and cessation of title shall be
effective whether or not conveyancing documents have been executed and
delivered.
Section 3.08 Compensation. The Trustees as such shall be entitled to
reasonable compensation from the Trust, and the Trustees 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.
ARTICLE IV
POWERS OF THE TRUSTEES
Section 4.01 Powers. The Trustees in all instances shall act as
principals, and are and shall be free from the control of the Shareholders.
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.
8
The Trustees shall not in any way be bound or limited by present or future
laws or customs in regard to trust investments, but shall have full authority
and power to make any and all investments which they, in their sole
discretion, shall deem proper to accomplish the purpose of this Trust without
recourse to any court or other authority. Subject to any applicable limitation
in this Trust Instrument or the Bylaws of the Trust and without limiting the
generality of the foregoing, the Trustees shall have the power and authority
to cause the Trust (or to act on behalf of the Trust):
(a) To invest and reinvest cash and other property (including
investment, notwithstanding any other provision hereof, of all of the assets
of any Series in a single open-end investment company, including investment by
means of transfer of such assets in exchange for an interest or interests in
such investment company), and to hold cash or other property of the Trust
uninvested, without in any event being bound or limited by any present or
future law or custom in regard to investments by trustees, and to sell,
exchange, lend, pledge, mortgage, hypothecate, write options on and lease any
or all of the assets of the Trust:
(b) To operate as and carry on the business of an investment company,
and exercise all the powers necessary and appropriate to the conduct of such
operations;
(c) To borrow money and in this connection issue notes or other evidence
of indebtedness; to endorse, guarantee, or undertake the performance of an
obligation or engagement of any other person and to lend Trust Property; and
to secure borrowings. endorsements, guarantees and other undertakings by
mortgaging, pledging or otherwise subjecting as security the Trust Property
(d) To provide for the distribution of interests of the Trust either
through a principal underwriter in the manner hereinafter provided for or by
the Trust itself, or both, or otherwise pursuant to a plan of distribution of
any kind;
(e) To adopt Bylaws not inconsistent with this Trust Instrument
providing for the conduct of the business of the Trust and to amend and repeal
them to the extent that they do not reserve that right to the Shareholders;
such Bylaws shall be deemed incorporated and included in this Trust
Instrument;
(f) To elect and remove such officers and appoint and terminate such
agents, in each case with or without cause, as they consider appropriate;
(g) To employ one or more banks, trust companies or companies that are
members of a national securities exchange or such other entities as the
Commission may permit as custodians of any assets of the Trust subject to any
conditions set forth in this Trust Instrument or in the Bylaws;
(h) To retain one or more transfer agents and shareholder servicing
agents, or both;
(i) To set record dates in the manner provided herein or in the Bylaws;
9
(j) To delegate such authority as they consider desirable to any
officers of the Trust or to any investment adviser, manager, custodian,
underwriter or other agent or independent contractor;
(k) To sell or exchange any or all of the assets of the Trust, subject
to the provisions of Article XI, subsection 11.04(b) hereof;
(l) 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
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;
(m) To exercise powers and rights of subscription or otherwise which in
any manner arise out of ownership of securities;
(n) To hold any security or property in a form not indicating any trust,
whether in bearer, book entry, unregistered or other negotiable form; or
either in the name of the Trust or in the name of a custodian or a nominee or
nominees, subject in either case to proper safeguards according to the usual
practice of Delaware business trusts or investment companies;
(o) To establish separate and distinct Series with separately defined
investment objectives and policies and distinct investment purposes in
accordance with the provisions of Article II hereof and to establish classes
of such Series having relative rights, powers and duties as they may provide
consistent with applicable law;
(p) Subject to the provisions of Sections 3804 and 3806 of the Delaware
Act, to allocate assets, liabilities and expenses of the Trust to a particular
Series or to apportion the same between or among two or more Series, provided
that any liabilities or expenses incurred by a particular Series shall be
payable solely out of the assets belonging to that Series as provided for in
Article II hereof;
(q) To consent to or participate in any plan for the reorganization,
consolidation or merger of any corporation or concern, any security of which
is held in the Trust; to consent to any contract, lease, mortgage, purchase,
or sale of property by such corporation or concern, and to pay calls or
subscriptions with respect to any security held in the Trust;
(r) 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;
(s) To make distributions of income and of capital gains to Shareholders
in the manner provided herein;
(t) To establish, from time to time, a minimum investment for
Shareholders in the Trust or in one or more Series or class, and to require
the redemption of the Shares of any Shareholders whose investment is less than
such minimum upon giving notice to such Shareholder;
10
(u) To establish one or more committees, to delegate any of the powers
of the Trustees to said committees and to adopt a committee charter providing
for such responsibilities, membership (including Trustees, officers or other
agents of the Trust therein) and any other characteristics of said committees
as the Trustees may deem proper. Notwithstanding the provisions of this
Article IV, and in addition to such provisions or any other provision of this
Trust Instrument or of the Bylaws, the Trustees may by resolution appoint a
committee consisting of less than the whole number of Trustees then in office,
which committee may be empowered to act for and bind the Trustees and the
Trust, as if the acts of such committee were the acts of all the Trustees then
in office, with respect to the institution, prosecution, dismissal,
settlement, review or investigation of any action, suit or proceeding which
shall be pending or threatened to be brought before any court, administrative
agency or other adjudicatory body;
(v) To interpret the investment policies, practices or limitations of
any Series;
(w) To establish a registered office and have a registered agent in the
state of Delaware;
(x) 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 of
part or 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; and
(y) 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 powers of the Trustees. Any action by 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 Trustees shall not be limited to investing in obligations maturing
before the possible termination of the Trust.
No one dealing with the Trustees shall be under any obligation to make
any inquiry concerning the authority of the Trustees, or to see the
application of any payments made or property transferred to the Trustees or
upon their order.
11
Section 4.02 Issuance and Repurchase of Shares . The Trustees shall
have the power to issue, sell, repurchase, redeem, retire, cancel, acquire,
hold, resell, reissue, dispose of and otherwise deal in Shares and, subject
to the provisions set forth in Article II and Article IX, to apply to any
such repurchase, redemption, retirement, cancellation or acquisition of
Shares any funds or property of the Trust, or the particular Series of the
Trust, with respect to which such Shares are issued.
Section 4.03 Trustees and Officers as Shareholders. Any Trustee,
officer or other agent of the Trust may acquire, own and dispose of Shares to
the same extent as if he were not a Trustee, officer or agent; and the
Trustees may issue and sell or cause to be issued and sold Shares to and buy
such Shares from any such person or any firm or company in which he is
interested, subject only to the general limitations herein contained as to
the sale and purchase of such Shares; and all subject to any restrictions
which may be contained in the Bylaws.
Section 4.04 Action by the Trustees. In any action taken by the
Trustees hereunder, unless otherwise specified, the Trustees shall act by
majority vote at a meeting (including a telephone meeting) duly called,
provided a quorum of Trustees participate, or by written consent of a
majority of the Trustees (or such higher number of Trustees as would be
required to act on the matter if a meeting were held) without a meeting,
unless the 1940 Act requires that a particular action be taken only at a
meeting at which the Trustees are present in person. At any meeting of the
Trustees, a majority of the Trustees shall constitute a quorum. Meetings of
the Trustees may be called orally or in writing by the Chairman of the Board
of Trustees or by any two other Trustees. Notice of the time, date and place
of all meetings of the Trustees shall be given by the person calling the
meeting or by the Secretary or Assistant Secretary of the Trust to each
Trustee by telephone, facsimile or other electronic mechanism sent to his
home or business address at least twenty-four hours in advance of the meeting
or by written notice mailed to his home or business address at least
seventy-two hours in advance of the meeting. Such notice may be waived by
any Trustee. A notice of waiver need not specify the purpose of any
meeting. Notice need not be given to any Trustee who attends the meeting
without objecting prior thereto to the lack of notice or who executes a
written waiver of notice with respect to the meeting. Any meeting conducted
by telephone shall be deemed to take place at the principal office of the
Trust, as determined by the Bylaws or by the Trustees. Subject to the
requirements of the 1940 Act, the Trustees by majority vote may delegate to
any one or more of their number their authority to approve particular matters
or take particular actions on behalf of the Trust. Written consents or
waivers of the Trustees may be executed in one or more counterparts.
Execution of a written consent or waiver and delivery thereof to the Trust
may be accomplished by facsimile or other similar electronic mechanism.
Section 4.05 Chairman of the Board of Trustees. The Trustees shall
appoint one of their number to be Chairman of the Board of Trustees. The
Chairman shall preside at all meetings of the Trustees, shall be responsible
for the execution of policies established by the Trustees and the
administration of the Trust, and may be (but is not required to be) the chief
executive, financial and/or accounting officer of the Trust.
Section 4.06 Principal Transactions. Except to the extent prohibited
by applicable law, the Trustees may, on behalf of the Trust, buy any
securities from or sell any securities to, or lend any assets of the Trust
to, any Trustee or officer of the Trust or any firm of which any such
12
Trustee or officer is a member acting as principal, or have any such dealings
with any investment adviser, administrator, distributor or transfer agent for
the Trust or with any interested person of such person; and the Trust may
employ any such person, or firm or company in which such person is an
interested person, as broker, legal counsel, registrar, investment adviser,
administrator, distributor, transfer agent, dividend disbursing agent,
custodian or in any other capacity upon customary terms.
ARTICLE V
EXPENSES OF 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 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, without limitation,
interest charges, taxes, brokerage fees and commissions; expenses of issue,
repurchase and redemption of Shares; certain insurance premiums; applicable
fees, interest charges and expenses of third parties, including the Trust's
investment advisers, managers, administrators, distributors, custodians,
transfer agent and fund accountant; fees of pricing, interest, dividend,
credit and other reporting services; costs of membership in trade
associations; telecommunications expenses; funds transmission expenses;
auditing, legal and compliance expenses; costs of forming the Trust and
maintaining its existence; costs of preparing and printing the Trust's
prospectuses, statements of additional information and shareholder reports
and delivering them to existing Shareholders; expenses of meetings of
Shareholders and proxy solicitations therefor; costs of maintaining books and
accounts; costs of reproduction, stationery and supplies; fees and expenses
of the Trustees; compensation of the Trust's officers and employees and costs
of other personnel performing services for the Trust; costs of Trustee
meetings; Commission registration fees and related expenses; state or foreign
securities laws registration fees and related expenses and for such
non-recurring items as may arise, including litigation to which the Trust (or
a Trustee acting as such) is a party, and for all losses and liabilities by
them incurred in administering the Trust, 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
II, Section 2.08. The Trustees shall be reimbursed from the assets belonging
to the appropriate Series for their expenses and disbursements, and the
Trustees shall have a lien on the assets belonging to the appropriate Series,
or in the case of an expense allocable to more than one Series, on the assets
of each such Series, prior to any rights or interests of the Shareholders
thereto.
ARTICLE VI
INVESTMENT ADVISER, PRINCIPAL UNDERWRITER,
ADMINISTRATOR AND TRANSFER AGENT
Section 6.01 Investment Adviser.
(a) The Trustees may in their discretion, from time to time, enter
into an investment advisory contract or contracts with respect to the Trust
or any Series whereby the other party or parties to such contract or
contracts shall undertake to furnish the Trustees with such investment
advisory, statistical and research facilities and services and such other
facilities and services, if
13
any, all upon such terms and conditions (including any Shareholder vote) that
may be required under the 1940 Act, as may be prescribed in the Bylaws, or as
the Trustees may in their discretion determine (such terms and conditions not
to be inconsistent with the provisions of this Trust Instrument or of the
Bylaws). Notwithstanding any other provision of this Trust Instrument, the
Trustees may authorize any investment adviser (subject to such general or
specific instructions as the Trustees may from time to time adopt) to effect
purchases, sales or exchanges of portfolio securities, other investment
instruments of the Trust, or other Trust Property on behalf of the Trustees,
or may authorize any officer, agent, or Trustee to effect such purchases,
sales or exchanges pursuant to recommendations of the investment adviser (and
all without further action by the Trustees). Any such purchases, sales and
exchanges shall be deemed to have been authorized by all of the Trustees.
(b) The Trustees may authorize the investment adviser to employ, from
time to time, one or more sub-advisers to perform such of the acts and
services of the investment adviser, and upon such terms and conditions, as
may be agreed upon between the investment adviser and subadviser (such terms
and conditions not to be inconsistent with the provisions of this Trust
Instrument or of the Bylaws). Any reference in this Trust Instrument to the
investment adviser shall be deemed to include such sub-advisers, unless the
context otherwise requires; provided that no Shareholder approval shall be
required with respect to any sub-adviser unless required under the 1940 Act
or other law, contract or order applicable to the Trust.
Section 6.02 Principal Underwriter. The Trustees may in their
discretion from time to time enter into an exclusive or non-exclusive
underwriting contract or contracts providing for the sale of Shares, whereby
the Trust may either agree to sell Shares to the other party to the contract
or appoint such other party its sales agent for such Shares. In either case,
the contract shall be on such terms and conditions as may be prescribed in
the Bylaws and as the Trustees may in their discretion determine (such terms
and conditions not to be inconsistent with the provisions of this Trust
Instrument or of the Bylaws); and such contract may also provide for the
repurchase or sale of Shares by such other party as principal or as agent of
the Trust.
Section 6.03 Administration. The Trustees may in their discretion from
time to time enter into one or more management or administrative contracts
whereby the other party or parties shall undertake to furnish the Trustees
with management or administrative services. The contract or contracts shall
be on such terms and conditions as may be prescribed in the Bylaws and as the
Trustees may in their discretion determine (such terms and conditions not to
be inconsistent with the provisions of this Trust Instrument or of the
Bylaws).
Section 6.04 Transfer Agent. The Trustees may in their discretion from
time to time enter into one or more transfer agency and shareholder service
contracts whereby the other party or parties shall undertake to furnish the
Trustees with transfer agency and shareholder services. The contract or
contracts shall be on such terms and conditions as may be prescribed in the
Bylaws and as the Trustees may in their discretion determine (such terms and
conditions not to be inconsistent with the provisions of this Trust
Instrument or of the Bylaws).
Section 6.05 Parties to Contract. Any contract of the character
described in Sections 6.01, 6.02, 6.03 and 6.04 of this Article VI or any
contract of the character described in Article VIII hereof may be entered
into with any corporation, firm, partnership, trust, limited liability
14
company or association, although one or more of the Trustees or officers of
the Trust may be an officer, director, trustee, shareholder, or member of
such other party to the contract, and no such contract shall be invalidated
or rendered void or voidable by reason of the existence of any relationship,
nor shall any person holding such relationship be disqualified from voting on
or executing the same in his capacity as Shareholder and/or Trustee, nor
shall any person holding such relationship be liable merely by reason of such
relationship for any loss or expense to the Trust under or by reason of said
contract or accountable for any profit realized directly or indirectly
therefrom, provided that the contract when entered into was not inconsistent
with the provisions of this Article VI or Article VIII hereof or of the
Bylaws. The same person (including a corporation, firm, partnership, trust,
limited liability company or association) may be the other party to contracts
entered into pursuant to Sections 6.01, 6.02, 6.03 and 6.04 of this Article
VI or pursuant to Article VIII hereof and any individual may be financially
interested or otherwise affiliated with persons who are parties to any or all
of the contracts mentioned in this Section 6.05.
Section 6.06 Provisions and Amendments. Any contract entered into
pursuant to Section 6.01 or 6.02 of this Article VI shall be consistent with
and subject to the requirements of Section 15 of the 1940 Act, if applicable,
or other applicable Act of Congress hereafter enacted with respect to its
continuance in effect, its termination, and the method of authorization and
approval of such contract or renewal thereof, and no amendment to any
contract entered into pursuant to Section 6.01 or 6.02 of this Article VI
shall be effective unless assented to in a manner consistent with the
requirements of said Section 15, as modified by any applicable rule,
regulation or order of the Commission.
ARTICLE VII
SHAREHOLDERS' VOTING POWERS AND MEETINGS
Section 7.01 Voting Powers.
(a) The Shareholders shall have power to vote only (a) for the
election of Trustees to the extent provided in Article III, Section 3.01
hereof, (b) for the removal of Trustees to the extent provided in Article
III, Section 3.03(d) hereof, (c) with respect to any investment advisory
contract to the extent provided in Article VI, Section 6.01 hereof, (d) with
respect to an amendment of this Trust Instrument, to the extent provided in
Article XI, Section 11.09, and (e) with respect to such additional matters
relating to the Trust as may be required by law, by this Trust Instrument, or
any registration of the Trust with the Commission or any State, or as the
Trustees may consider desirable.
(b) Notwithstanding paragraph (a) of this Section 7.01 or any other
provision of this Trust Instrument (including the Bylaws) which would by its
terms provide for or require a vote of Shareholders, the Trustees may take
action without a Shareholder vote if (i) the Trustees shall have obtained an
opinion of counsel that a vote or approval of such action by Shareholders is
not required under (A) the 1940 Act or any other applicable laws, or (B) any
registrations, undertakings or agreements of the Trust known to such counsel,
and if the Trustees determine that the taking of such action without a
Shareholder vote would be consistent with the best interests, or not opposed
to the best interests, of the Shareholders (considered as a group).
15
(c) On any matter submitted to a vote of the Shareholders, all Shares
shall be voted separately by individual Series, and whenever the Trustees
determine that the matter affects only certain Series, may be submitted for a
vote by only such Series, except (i) when required by the 1940 Act, Shares
shall be voted in the aggregate and not by individual Series; and (ii) when
the Trustees have determined that the matter affects the interests of more
than one Series and that voting by shareholders of all Series would be
consistent with the 1940 Act, then the Shareholders of all such Series shall
be entitled to vote thereon (either by individual Series or by Shares voted
in the aggregate, as the Trustees in their discretion may determine). The
Trustees may also determine that a matter affects only the interests of one
or more classes of a Series, in which case (or if required under the 1940
Act) such matter shall be voted on by such class or classes. As determined
by the Trustees without the vote or consent of Shareholders (except as
required by the 1940 Act), on any matter submitted to a vote of Shareholders,
either (i) each whole Share shall be entitled to one vote as to any matter on
which it is entitled to vote and each fractional Share shall be entitled to a
proportionate fractional vote or (ii) each dollar of Net Asset Value (number
of Shares owned times Net Asset Value per share of such Series or class
thereof, as applicable) shall be entitled to one vote on any matter on which
such Shares are entitled to vote and each fractional dollar amount shall be
entitled to a proportionate fractional vote. Without limiting the power of
the Trustees in any way to designate otherwise in accordance with the
preceding sentence, the Trustees hereby establish that each whole Share shall
be entitled to one vote as to any matter on which it is entitled to vote and
each fractional Share shall be entitled to a proportionate fractional vote.
There shall be no cumulative voting in the election of Trustees. Shares may
be voted in person or by proxy or in any manner provided for in the Bylaws.
A proxy may be given in writing. The Bylaws 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 herein or in the
Bylaws, in the event a proposal by anyone other than the officers or Trustees
of the Trust is submitted to a vote of the Shareholders, 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. Until Shares are issued, the Trustees may
exercise all rights of Shareholders and may take any action required or
permitted by law, this Trust Instrument or any of the Bylaws of the Trust to
be taken by Shareholders.
Section 7.02 Meetings. Meetings may be held within or without the
State of Delaware. Special meetings of the Shareholders of any Series may be
called by the Trustees and shall be called by the Trustees upon the written
request of Shareholders owning at least one tenth of the Outstanding Shares
of the Trust entitled to vote. Whenever ten or more Shareholders meeting the
qualifications set forth in Section 16(c) of the 1940 Act, as the same may be
amended from time to time, seek the opportunity of furnishing materials to
the other Shareholders with a view to obtaining signatures on such a request
for a meeting, the Trustees shall comply with the provisions of said Section
16(c) with respect to providing such Shareholders access to the list of the
Shareholders of record of the Trust or the mailing of such materials to such
Shareholders of record, subject to any rights provided to the Trust or any
Trustees provided by said Section 16(c). Notice shall be sent, by First
Class Mail or such other means determined by the Trustees, at least 10 days
prior to any such meeting. Notwithstanding anything to the contrary in this
Section 7.02, the Trustees shall not be required to call a special meeting of
the Shareholders of any Series or to provide Shareholders seeking the
opportunity of furnishing the materials to other
16
Shareholders with a view to obtaining signatures on a request for a meeting
except to the extent required under the 1940 Act.
Section 7.03 Quorum and Required Vote. Except when a larger quorum is
required by federal law, including the 1940 Act, by the Bylaws or by this
Trust Instrument, one-third of Shares outstanding and entitled to vote in
person or by proxy as of the record date for a Shareholders' meeting shall be
a quorum for the transaction of business at such Shareholders' meeting,
except that where any provision of law or of this Trust Instrument permits or
requires that holders of any Series shall vote as a Series (or that holders
of a class shall vote as a class), then one-third of the aggregate number of
Shares of that Series (or that class) entitled to vote shall be necessary to
constitute a quorum for the transaction of business by that Series (or that
class). Any meeting of Shareholders may be adjourned from time to time by a
majority of the votes properly cast upon the question of adjourning a meeting
to another date and time, whether or not a quorum is present. Any adjourned
session or sessions may be held, within a reasonable time after the date set
for the original meeting, without the necessity of further notice. Except
when a larger vote is required by law or by any provision of this Trust
Instrument or the Bylaws, a majority of the Shares voted in person or by
proxy shall decide any questions and a plurality shall elect a Trustee,
provided that where any provision of law or of this Trust Instrument permits
or requires that the holders of any Series shall vote as a Series (or that
the holders of any class shall vote as a class), then a majority of the
Shares present in person or by proxy of that Series (or class), voted on the
matter in person or by proxy shall decide that matter insofar as that Series
(or class) is concerned. Shareholders may act by written consent in
accordance with the provisions of the Bylaws.
ARTICLE VIII
CUSTODIAN
Section 8.01 Appointment and Duties. The Trustees shall employ a
bank, a company that is a member of a national securities exchange, or a
trust company, that in each case shall have capital, surplus and undivided
profits of at least twenty million dollars ($20,000,000) and that is a member
of the Depository Trust Company (or such other person or entity as may be
permitted to act as custodian of the Trust's assets under the 1940 Act) as
custodian with authority as its agent, but subject to such restrictions,
limitations and other requirements, if any, as may be contained in the Bylaws
of the Trust: (a) to hold the securities owned by the Trust and deliver the
same upon written order or oral order confirmed in writing; (b) to receive
and receipt for any moneys due to the Trust and deposit the same in its own
banking department or elsewhere as the Trustees may direct; and (c) to
disburse such funds upon orders or vouchers.
The Trustees may also authorize the custodian to employ one or more
sub-custodians from time to time to perform such of the acts and services of
the custodian, and upon such terms and conditions, as may be agreed upon
between the custodian and such sub-custodian and approved by the Trustees,
provided that in every case such sub-custodian shall be a bank, a company
that is a member of a national securities exchange, or a trust company
organized under the laws of the United States or one of the states thereof
and having capital, surplus and undivided profits of at least twenty million
dollars ($20,000,000) and that is a member of the Depository Trust Company or
such other person or entity as may be permitted by the
17
Commission or is otherwise able to act as custodian of the Trust's assets in
accordance with the 1940 Act.
Section 8.02 Central Certificate System. Subject to the 1940 Act and
such other rules, regulations and orders as the Commission may adopt, the
Trustees may direct the custodian to deposit all or any part of the
securities owned by the Trust in a system for the central handling of
securities established by a national securities exchange or a national
securities association registered with the Commission under the Securities
Exchange Act of 1934, as amended, or such other person as may be permitted by
the Commission, or otherwise in accordance with the 1940 Act, pursuant to
which system all securities of any particular class or series of any issuer
deposited within the system are treated as fungible and may be transferred or
pledged by bookkeeping entry without physical delivery of such securities,
provided that all such deposits shall be subject to withdrawal only upon the
order of the Trust or its custodians, sub-custodians or other agents.
ARTICLE IX
DISTRIBUTIONS AND REDEMPTIONS
Section 9.01 Distributions.
(a) The Trustees may from time to time declare and pay dividends or
other distributions with respect to any Series and/or class of a Series. The
amount of such dividends or distributions and the payment of them and whether
they are in cash or any other Trust Property shall be wholly in the
discretion of the Trustees.
(b) Dividends and other distributions may be paid or made to the
Shareholders of record at the time of declaring a dividend or other
distribution or among the Shareholders of record at such other date or time
or dates or times as the Trustees shall determine, which dividends or
distributions, at the election of the Trustees, may be paid pursuant to a
standing resolution or resolutions adopted only once or with such frequency
as the Trustees may determine. The Trustees may adopt and offer to
Shareholders such dividend reinvestment plans, cash dividend payout plans or
related plans as the Trustees shall deem appropriate.
(c) Anything in this Trust Instrument to the contrary
notwithstanding, the Trustees may at any time declare and distribute a stock
dividend to the Shareholders of a particular Series, or class thereof, as of
the record date of that Series fixed as provided in Subsection 9.01(b) hereof.
Section 9.02 Redemptions. In case any holder of record of Shares of a
particular Series desires to dispose of his Shares or any portion thereof he
may deposit at the office of the transfer agent or other authorized agent of
that Series a written request or such other form of request as the Trustees
may from time to time authorize, requesting that the Series purchase the
Shares in accordance with this Section 9.02; and, subject to Section 9.04
hereof, the Shareholder so requesting shall be entitled to require the Trust
on behalf of the Series to purchase, and the Trust on behalf of the Series or
the principal underwriter of the Series shall purchase his said Shares, but
only at the Net Asset Value thereof (as described in Section 9.03 of this
Article IX). The Trust on behalf of the Series shall make payment for any
such Shares to be redeemed, as
18
aforesaid, in cash or property from the assets of that Series and, subject to
Section 9.04 hereof, payment for such Shares shall be made by the Trust on
behalf of the Series or by the principal underwriter of the Series to the
Shareholder of record within seven (7) days after the date upon which the
request is effective. Upon redemption, shares shall become Treasury shares and
may be re-issued from time to time.
Section 9.03 Determination of Net Asset Value and Valuation of
Portfolio Assets. The term "Net Asset Value" of any Series shall mean that
amount by which the assets of that Series exceed its liabilities, all as
determined by or under the direction of the Trustees. The Trustees may
delegate any of their powers and duties under this Section 9.03 with respect
to valuation of assets and liabilities. Such value shall be determined
separately for each Series and shall be determined on such days and at such
times as the Trustees may determine. Such determination shall be made with
respect to securities for which market quotations are readily available, at
the market value of such securities; and with respect to other securities and
assets, at the fair value as determined in good faith by the Trustees;
provided, however, that the Trustees, without Shareholder approval, may alter
the method of valuing portfolio securities insofar as permitted under the
1940 Act. The resulting amount, which shall represent the total Net Asset
Value of the particular Series, shall be divided by the total number of
shares of that Series outstanding at the time and the quotient so obtained
shall be the Net Asset Value per Share of that Series. At any time the
Trustees may cause the Net Asset Value per Share last determined to be
determined again in similar manner and may fix the time when such
redetermined value shall become effective.
The Trustees shall not be required to adopt, but may at any time adopt,
discontinue or amend a practice of seeking to maintain the Net Asset Value
per Share of the Series at a constant amount. If, for any reason, the net
income of any Series, determined at any time, is a negative amount, the
Trustees shall have the power with respect to that Series (a) to offset each
Shareholder's pro rata share of such negative amount from the accrued
dividend account of such Shareholder, (b) to reduce the number of Outstanding
Shares of such Series by reducing the number of Shares in the account of each
Shareholder by a pro rata portion of that number of full and fractional
Shares which represents the amount of such excess negative net income, (c) to
cause to be recorded on the books of such Series an asset account in the
amount of such negative net income (provided that the same shall thereupon
become the property of such Series with respect to such Series and shall not
be paid to any Shareholder), which account may be reduced by the amount of
dividends declared thereafter upon the Outstanding Shares of such Series on
the day such negative net income is experienced, until such asset account is
reduced to zero; (d) to combine the methods described in clauses (a) and (b)
and (c) of this sentence; or (e) to take any other action they deem
appropriate, in order to cause (or in order to assist in causing) the Net
Asset Value per Share of such Series to remain at a constant amount per
Outstanding Share immediately after each such determination and declaration.
The Trustees shall also have the power not to declare a dividend out of net
income for the purpose of causing the Net Asset Value per Share to be
increased.
In the event that any Series is divided into classes, the provisions of
this Section 9.03, to the extent applicable as determined in the discretion
of the Trustees and consistent with the 1940 Act and other applicable law,
may be equally applied to each such class.
19
Section 9.04 Suspension of the Right of Redemption. The Trustees may
declare a suspension of the right of redemption or postpone the date of
payment if permitted under the 1940 Act. Such suspension shall take effect
at such time as the Trustees shall specify but not later than the close of
business on the business day next following the declaration of suspension,
and thereafter there shall be no right of redemption or payment until the
Trustees shall declare the suspension at an end. In the case of a suspension
of the right of redemption, a Shareholder may either withdraw his request for
redemption or receive payment based on the Net Asset Value per Share next
determined after the termination of the suspension.
Section 9.05 Required Redemption of Shares. The Trustees may
require any Shareholder or any group of Shareholders (including some or all
of the Shareholders of any Series or class) to redeem Shares for any reason
under terms set by the Trustees, including, but not limited to, (i) the
determination of the Trustees that direct or indirect ownership of Shares of
any Series has or may become concentrated in such Shareholder 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),
(ii) the failure of a Shareholder to supply a tax identification number if
required to do so, or to have the minimum investment required (which may vary
by Series), (iii) the failure of a Shareholder to pay when due for the
purchase of Shares issued to him or (iv) the Shares owned by such Shareholder
being below the minimum investment set by the Trustees, from time to time,
for investments in the Trust or in such Series or classes thereof, as
applicable.
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 requirements of any
taxing authority or for the Trustees to make any determination contemplated
by this Section 9.05.
ARTICLE X
LIMITATION OF LIABILITY AND INDEMNIFICATION
Section 10.01 Limitation of Liability. Neither a Trustee nor an
officer of the Trust, when acting in such capacity, shall be personally
liable to any person other than the Trust or the Shareholders for any act,
omission or obligation of the Trust, any Trustee or any officer of the
Trust. Neither a Trustee nor an officer of the Trust shall be liable for any
act or omission or any conduct whatsoever in his capacity as Trustee or as an
officer of the Trust, provided that nothing contained herein or in the
Delaware Act shall protect any Trustee or any officer of the Trust against
any liability to the Trust or to Shareholders to which he would otherwise be
subject by reason of willful misfeasance, bad faith, gross negligence or
reckless disregard of the duties involved in the conduct of the office of
Trustee or officer of the Trust hereunder.
Section 10.02 Indemnification.
(a) Subject to the exceptions and limitations contained in Subsection
10.02(b):
(i) every person who is, or has been, a Trustee or officer of
the Trust (hereinafter referred to as a "Covered Person") shall be
indemnified by the Trust to the fullest extent permitted by law against
liability and against all expenses reasonably
20
incurred or paid by him in connection with any claim, action, suit or
proceeding in which he becomes involved as a party or otherwise by
virtue of his being or having been a Trustee or officer and against
amounts paid or incurred by him in the settlement thereof;
(ii) the words "claim," "action," "suit," or "proceeding" shall
apply to all claims, actions, suits or proceedings (civil, criminal or
other, including appeals), actual or threatened while in office or
thereafter, and the words "liability" and "expenses" shall include,
without limitation, attorneys' fees, costs, judgments, amounts paid in
settlement, fines, penalties and other liabilities.
(b) No indemnification shall be provided hereunder to a Covered
Person:
(i) who shall have been adjudicated by a court or body before
which the proceeding was brought (A) to be liable to the Trust or its
Shareholders by reason of willful misfeasance, bad faith, gross
negligence or reckless disregard of the duties involved in the conduct
of his office or (B) not to have acted in good faith in the reasonable
belief that his action was in the best interest, or not opposed to the
best interest, of the Trust; or
(ii) in the event of a settlement, unless there has been a
determination that such Trustee or officer did not engage in willful
misfeasance, bad faith, gross negligence or reckless disregard of the
duties involved in the conduct of his office, (A) by the court or other
body approving the settlement; (B) by at least a majority of those
Trustees who are neither interested persons of the Trust nor are
parties to the matter based upon a review of readily available facts
(as opposed to a full trial-type inquiry); or (C) by written opinion of
independent legal counsel based upon a review of readily available
facts (as opposed to a full trial-type inquiry).
(c) The rights of indemnification herein provided may be insured
against by policies maintained by the Trust, shall be severable, shall not be
exclusive of or affect any other rights to which any Covered Person may now
or hereafter be entitled, shall continue as to a person who has ceased to be
a Covered Person and shall inure to the benefit of the heirs, executors and
administrators of such a person. Nothing contained herein shall affect any
rights to indemnification to which Trust personnel, other than Covered
Persons, and other persons may be entitled by contract or otherwise under law.
(d) Expenses in connection with the preparation and presentation of a
defense to any claim, action, suit or proceeding of the character described
in Subsection (a) of this Section 10.02 may be paid by the Trust or Series
from time to time prior to final disposition thereof upon receipt of an
undertaking by or on behalf of such Covered Person that such amount will be
paid over by him to the Trust or Series if it is ultimately determined that
he is not entitled to indemnification under this Section 10.02; provided,
however, that either (i) such Covered Person shall have provided appropriate
security for such undertaking, (ii) the Trust is insured against losses
arising out of any such advance payments or (iii) either a majority of the
Trustees who are neither interested persons of the Trust nor parties to the
matter, or independent legal counsel in a written opinion, shall have
determined, based upon a review of readily available facts (as
21
opposed to a trial-type inquiry or full investigation), that there is reason
to believe that such Covered Person will be found entitled to indemnification
under this Section 10.02.
Section 10.03 Shareholders. In case any Shareholder of any Series
shall be held to be personally liable solely by reason of his being or having
been a Shareholder of such Series and not because of his acts or omissions or
for some other reason, the Shareholder or former Shareholder (or his 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 against all loss
and expense arising from such liability but only out of the assets belonging
to the particular Series of which such person is or was a Shareholder and
from or in relation to which such liability arose. The Trust, on behalf of
the affected Series, 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 from the assets of such
Series only.
ARTICLE XI
MISCELLANEOUS
Section 11.01 Trust Not A Partnership. It is hereby expressly
declared that a trust and not a partnership is created hereby. No Trustee
hereunder shall have any power to bind personally either the Trust officers
or any Shareholder. 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 (if the Trustees shall have yet to have
established Series) of the Trust for payment under such credit, contract or
claim; and neither the Shareholders nor the Trustees, nor any of their
agents, whether past, present or future, shall be personally liable
therefor. Nothing in this Trust Instrument shall protect a Trustee against
any liability to which the Trustee would otherwise be subject by reason of
willful misfeasance, bad faith, gross negligence or reckless disregard of the
duties involved in the conduct of the office of Trustee hereunder.
Section 11.02 Trustee's Good Faith Action, Expert Advice, No Bond or
Surety. The exercise by the Trustees or the officers of the Trust of their
powers and discretion hereunder in good faith and with reasonable care under
the circumstances then prevailing shall be binding upon everyone interested.
Subject to the provisions of Article X hereof and to Section 11.01 of this
Article XI, the Trustees and the officers of the Trust shall not be liable
for errors of judgment or mistakes of fact or law. The Trustees and the
officers of the Trust may take advice of counsel or other experts with
respect to the meaning and operation of this Trust Instrument, and subject to
the provisions of Article X hereof and Section 11.01 of this Article XI,
shall be under no liability for any act or omission in accordance with such
advice or for failing to follow such advice. The Trustees and the officers
of the Trust shall not be required to give any bond as such, nor any surety
if a bond is obtained.
Section 11.03 Establishment of Record Dates. The Trustees may close
the Share transfer books of the Trust for a period not exceeding ninety (90)
days preceding the date of any meeting of Shareholders, or the date for the
payment of any dividends or other distributions, or the date for the
allotment of rights, or the date when any change or conversion or exchange of
Shares shall go into effect; or in lieu of closing the stock transfer books
as aforesaid, the Trustees
22
may fix in advance a date, not exceeding ninety (90) days preceding the date
of any meeting of Shareholders, or the date for payment of any dividend or
other distribution, or the date for the allotment of rights, or the date when
any change or conversion or exchange of Shares shall go into effect, as a
record date for the determination of the Shareholders entitled to notice of,
and to vote at, any such meeting, or entitled to receive payment of any such
dividend or other distribution, or to any such allotment of rights, or to
exercise the rights in respect of any such change, conversion or exchange of
Shares, and in such case such Shareholders and only such Shareholders as shall
be Shareholders of record on the date so fixed shall be entitled to such
notice of, and to vote at, such meeting, or to receive payment of such
dividend or other distribution, or to receive such allotment or rights, or to
exercise such rights, as the case may be, notwithstanding any transfer of any
Shares on the books of the Trust after any such record date fixed as
aforesaid.
Section 11.04 Dissolution and Termination of Trust.
(a) This Trust shall continue without limitation of time but subject
to the provisions of Subsection 11.04(b).
(b) The Trustees may, subject to any necessary Shareholder, Trustee,
and regulatory approvals:
(i) sell and convey all or substantially all of the assets of
the Trust or any affected Series to another trust, partnership,
association, corporation or other business entity, or to a separate
series of shares thereof, organized under the laws of any state which
trust, partnership, association, corporation or other business entity
is an open-end management investment company as defined in the 1940
Act, or is a series thereof, for adequate consideration which may
include the assumption of all outstanding obligations, taxes and other
liabilities, accrued or contingent, of the Trust or any affected Series
or class, and which may include shares of beneficial interest, stock or
other ownership interests of such trust, partnership, association,
corporation or other business entity or of a series thereof;
(ii) enter into a plan of liquidation in order to dissolve and
liquidate any Series (or class) of the Trust, or the Trust; or
(iii) at any time sell and convert into money all of the assets
of the Trust or any affected Series.
Upon making reasonable provision, in the determination of the Trustees, for
the payment of all liabilities by assumption or otherwise, the Trustees shall
distribute the remaining proceeds or assets (as the case may be) of each
Series (or class) ratably among the holders of Shares of the affected Series,
based upon the ratio that each Shareholder's Shares bears to the number of
Shares of such Series (or class) then outstanding.
(c) Upon completion of the distribution of the remaining proceeds or
the remaining assets as provided in Subsection 11.04(b), the Trustees and the
Trust or any affected Series or class shall be discharged of any and all
further liabilities and duties hereunder and the right, title
23
and interest of all parties with respect to the Trust or Series or class shall
be canceled and discharged and any such Series or class shall terminate.
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. Upon filing of the certificate of
cancellation for the Trust, the Trust shall terminate.
Section 11.05 Reorganization and Master/Feeder.
(a) Notwithstanding anything else herein, the Trustees, in order to
change the form or jurisdiction of organization of the Trust, may (i) cause
the Trust to merge or consolidate with or into, or convert into, one or more
trusts, partnerships (general or limited), associations, corporations or
other business entities so long as the surviving or resulting entity is an
open-end management investment company under the 1940 Act, or is a series
thereof, that will succeed to or assume the Trust's registration under that
Act and which is formed, organized or existing under the laws of a state,
commonwealth, possession or colony of the United States or (ii) cause the
Trust to incorporate under the laws of Delaware.
(b) The Trustees may, subject to a vote of a majority of the Trustees
and any shareholder vote required under the 1940 Act, if any, cause the Trust
to merge or consolidate with or into, or convert into, one or more trusts,
partnerships (general or limited), associations, limited liability companies,
corporations or other business entities formed, organized or existing under
the laws of a state, commonwealth, possession or colony of the United
States.
(c) Any agreement of merger or consolidation or certificate of merger
or consolidation may be signed by a majority of Trustees and facsimile
signatures conveyed by electronic or telecommunication means shall be valid.
(d) 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 Trust Instrument, an agreement of merger or consolidation
approved by the Trustees in accordance with paragraph (a) or (b) of this
Section 11.05 may effect any amendment to the Trust Instrument or effect the
adoption of a new trust instrument of the Trust if it is the surviving or
resulting trust in the merger or consolidation.
(e) 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
need not) 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.
24
Section 11.06 Filing of Copies, References, Headings. The original
or a copy of this Trust Instrument and of each amendment hereof or Trust
Instrument supplemental 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 or Trustee of the Trust as to whether or
not any such amendments or supplements 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 or Trustee of
the Trust to be a copy of this Trust Instrument or of any such amendment or
supplemental Trust Instrument. In this Trust Instrument or in any such
amendment or supplemental Trust Instrument, references to this Trust
Instrument, and all expressions such as "herein," "hereof" and "hereunder,"
shall be deemed to refer to this Trust Instrument as amended or affected by
any such supplemental Trust Instrument. All expressions like "his," "he" and
"him," shall be deemed to include the feminine and neuter, as well as
masculine, genders. Headings are placed herein for convenience of reference
only and in case of any conflict, the text of this Trust Instrument, rather
than the headings, shall control. This Trust Instrument may be executed in
any number of counterparts each of which shall be deemed an original.
Section 11.07 Applicable Law. The trust set forth in this instrument
is made in the State of Delaware, and the Trust and this Trust Instrument,
and the rights and obligations of the Trustees and Shareholders hereunder,
are to be governed by and construed and administered according to the
Delaware Act and the laws of said State; provided, however, that there shall
not be applicable to the Trust, the Trustees or this Trust Instrument (a) the
provisions of Section 3540 of Title 12 of the Delaware Code or (b) any
provisions of the laws (statutory or common) of the State of Delaware (other
than the Delaware Act) pertaining to trusts which relate to or regulate (i)
the filing with any court or governmental body or agency of trustee accounts
or schedules of trustee fees and charges, (ii) affirmative requirements to
post bonds for trustees, officers, agents or employees of a trust, (iii) the
necessity for obtaining court or other governmental approval concerning the
acquisition, holding or disposition of real or personal property, (iv) fees
or other sums payable to trustees, officers, agents or employees of a trust,
(v) the allocation of receipts and expenditures to income or principal, (vi)
restrictions or limitations on the permissible nature, amount or
concentration of trust investments or requirements relating to the titling,
storage or other manner of holding of trust assets, or (vii) the
establishment of fiduciary or other standards of responsibilities or
limitations on the acts or powers of trustees, which are inconsistent with
the limitations or liabilities or authorities and powers of the Trustees set
forth or referenced in this Trust Instrument. The Trust shall be of the type
commonly called a "business trust," and without limiting the provisions
hereof, the Trust may exercise all powers which are ordinarily exercised by
such a trust under Delaware law. The Trust specifically reserves the right
to exercise any of the powers or privileges afforded to trusts or actions
that may be engaged in by trusts under the Delaware Act, and the absence of a
specific reference herein to any such power, privilege or action shall not
imply that the Trust may not exercise such power or privilege or take such
actions.
Section 11.08 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:
25
(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 11.08(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, is composed of Trustees who are not "independent trustees"
(as such term is defined in the Delaware Act).
(b) Unless a demand is not required under paragraph (a) of this
Section 11.08, 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; and
(c) Unless a demand is not required under paragraph (a) of this
Section 11.08, 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 11.08, 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.
Section 11.09 Amendments. Except as specifically provided in this
Section 11.09, the Trustees may, without shareholder vote, amend or otherwise
supplement this Trust Instrument by making an amendment, a Trust Instrument
supplemental hereto or an amended and restated trust instrument.
Shareholders shall have the right to vote (a) on any amendment as may be
required by law or by the Trust's registration statement filed with the
Commission and (b) on any amendment submitted to them by the Trustees. Any
amendment required or permitted to be submitted to Shareholders which, as the
Trustees determine, shall affect the Shareholders of one or more Series or
class shall be authorized by 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 any other provision of this Trust Instrument,
any amendment to Article X hereof shall not limit the rights to
indemnification or insurance provided therein with respect to action or
omission of Covered Persons prior to such amendment. The Trustees may,
without Shareholder vote, restate, amend, or otherwise supplement the
Certificate of Trust as the Trustees deem necessary or desirable.
Section 11.10 Fiscal Year. The fiscal year of the Trust shall end on
a specified date as set forth in the Bylaws, provided, however, that the
Trustees may change the fiscal year of the Trust.
Section 11.11 Name Reservation. The Trustees on behalf of the Trust
acknowledge that Conestoga Capital Advisors, LLC ("CCA") has licensed to the
Trust the non-exclusive right to use the name "Conestoga Funds" as part of
the name of the Trust, and has reserved the right to
26
grant the non-exclusive use of the name "Conestoga Funds" or any derivative
thereof to any other party. In addition, CCA reserves the right to grant the
non-exclusive use of the name "Conestoga Funds" to, and to withdraw such right
from, any other business or other enterprise. CCA reserves the right to
withdraw from the Trust the right to use said name "Conestoga Funds" and will
withdraw such right if the Trust ceases to employ, for any reason, CCA, an
affiliate or any successor as adviser of the Trust.
Section 11.12 Provisions in Conflict With Law. The provisions of this
Trust Instrument are severable, and if the Trustees shall determine, with the
advice of counsel, that any of such provision is in conflict with the 1940
Act, the regulated investment company provisions of the Internal Revenue Code
or with other applicable laws and regulations, the conflicting provision
shall be deemed never to have constituted a part of this Trust Instrument;
provided, however, that such determination shall not affect any of the
remaining provisions of this Trust Instrument or render invalid or improper
any action taken or omitted prior to such determination. If any provision of
this Trust Instrument 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 matter affect such
provision in any other jurisdiction or any other provision of this Trust
Instrument in any jurisdiction.
27
IN WITNESS WHEREOF, the undersigned, being all of the Trustees of the
Trust, have executed this instrument as of the date first written above.
/s/ ▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇
----------------------------------
▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇, as Trustee,
and not individually
/s/ ▇▇▇▇ ▇▇▇▇▇
-----------------------------------
▇▇▇▇ ▇. ▇▇▇▇▇, as Trustee,
and not individually
28
SCHEDULE A
TO
TRUST INSTRUMENT OF CONESTOGA FUNDS
DATED FEBRUARY 5, 2002
Establishment of Series of the Trust
Series Date Established
------------------------- -------------------
Conestoga Small Cap Fund February 5, 2002