EXHIBIT 23(A)(1)
AGREEMENT AND DECLARATION OF TRUST
AGREEMENT AND DECLARATION OF TRUST
of
THE LEGACY FUNDS, INC.
a Delaware Business Trust
Principal Place of Business:
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WHEREAS, this AGREEMENT AND DECLARATION OF TRUST is made and entered
into as of the date set forth below by the Trustees named hereunder for the
purpose of forming a Delaware business trust in accordance with the
provisions hereinafter set forth,
NOW, THEREFORE, the Trustees hereby direct that a Certificate of Trust
be filed with the Office of the Secretary of State of the State of Delaware
and do hereby declare that the Trustees will hold IN TRUST all cash,
securities and other assets which the Trust now possesses or may hereafter
acquire from time to time in any manner and manage and dispose of the same
upon the following terms and conditions for the pro rata benefit of the
holders of Shares in this Trust.
ARTICLE I.
Name and Definitions
Section 1.01. NAME. This trust shall be known as "The Legacy
Funds, Inc." and the Trustees shall conduct the business of the Trust under
that name or any other name as they may from time to time determine.
Section 1.02. DEFINITIONS. Whenever used herein, unless otherwise
required by the context or specifically provided:
(a) The "Trust" refers to the Delaware business trust
established by this Agreement and Declaration of Trust, as amended from time
to time;
(b) The "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;
(c) "Trustees" refers to the persons who have signed this
Agreement and Declaration of Trust, so long as they continue in office in
accordance with the terms hereof, and all other persons who may from time to
time be duly elected or appointed to serve on the Board of Trustees in
accordance with the provisions hereof, and reference herein to a Trustee or
the Trustees shall refer to such person or persons in their capacity as
trustees hereunder;
(d) "Shares" means the shares of beneficial interest into which
the beneficial interest in the Trust shall be divided from time to time and
includes fractions of Shares as well as whole Shares;
(e) "Shareholder" means a record owner of outstanding Shares;
(f) "Person" means and includes individuals, corporations,
partnerships, limited liability companies, trusts, foundations, plans,
associations, joint ventures, estates and other entities, whether or not
legal entities, and governments and agencies and political subdivisions
thereof, whether domestic or foreign;
(g) The "1940 Act" refers to the Investment Company Act of 1940
and the Rules and Regulations thereunder, all as amended from time to time.
References herein to specific sections of the 1940 Act shall be deemed to
include such Rules and Regulations as are applicable to such sections;
(h) The terms "Commission" and "Principal Underwriter" shall
have the respective meanings given them in Section 2(a)(7) and Section
(2)(a)(29) of the 1940 Act;
(i) "Declaration of Trust" shall mean this Agreement and
Declaration of Trust, as amended or restated from time to time;
(j) "By-Laws" shall mean the By-Laws of the Trust as amended
from time to time;
(k) The term "Interested Person" has the meaning given it in
Section 2(a)(19) of the 1940 Act;
(l) "Investment Manager" or "Manager" means a party furnishing
services to the Trust pursuant to any contract described in Section 4.06(a)
hereof;
(m) "Series" refers to each Series of Shares established and
designated under or in accordance with the provisions of Article III.
ARTICLE II.
Purpose of Trust
The purpose of the Trust is to conduct, operate and carry on the
business of a management investment company registered under the 1940 Act
through one or more Series investing primarily in securities.
ARTICLE III.
Shares
Section 3.01. DIVISION OF BENEFICIAL INTEREST. The beneficial
interest in the Trust shall at all times be divided into an unlimited number
of Shares, with a par value of $ .001 per Share. The Trustees may authorize
the division of Shares into separate Series and the division of Series into
separate classes of Shares. The different Series shall be established and
designated, and the variations in the relative rights and preferences as
between the different Series shall be fixed and determined, by the Trustees.
If only one Series shall be established, the Shares shall have the rights and
preferences provided for herein and in Section 3.06 hereof to the extent
relevant and not otherwise provided for herein.
Subject to the provisions of Section 3.06, each Share shall have voting
rights as provided in Article V hereof, and holders of the Shares of any
Series shall be entitled to receive dividends, when, if and as declared with
respect thereto in the manner provided in Section 6.01 hereof. No Share
shall have any priority or preference over any other Share of the same Series
with respect to dividends or distributions of the Trust or otherwise. All
dividends and distributions shall be made ratably among all Shareholders of a
Series (or class) from the assets held with respect to such Series according
to the number of Shares of such Series (or class) held of record by such
Shareholders on the record date for any dividend or distribution or on the
date of termination of the Trust, as the case may be. Shareholders shall
have no preemptive or other right to subscribe to any additional Shares or
other securities issued by the Trust or any Series. The Trustees may from
time to time divide or combine the Shares of a Series into a greater or
lesser number of Shares of such Series without thereby materially changing
the proportionate beneficial interest of such Shares in the assets held with
respect to that Series or materially affecting the rights of Shares of any
other Series. Pursuant to the powers contained herein, a single initial
Series of shares of beneficial interest of the Trust shall be established and
designated as The Legacy Growth Fund and an unlimited number of shares of
beneficial interest are hereby allocated to such Series.
Section 3.02. OWNERSHIP OF SHARES. The ownership of Shares shall
be recorded on the books of the Trust or a transfer or similar agent for the
Trust, which books shall be maintained separately for the Shares of each
Series. No certificates evidencing the ownership of Shares shall be issued
except as the Board of Trustees may otherwise determine from time to time.
The Trustees may make such rules as they consider appropriate for the
transfer of Shares of each Series (or class) and similar matters. The record
books of the Trust as kept by the Trust or any transfer or similar agent, as
the case may be, shall be conclusive as to the identity of the Shareholders
of each Series and as to the number of Shares of each Series held from time
to time by each Shareholder.
Section 3.03. INVESTMENTS IN THE TRUST. Investments may be
accepted by the Trust from such Persons, at such times, on such terms, and
for such consideration as the Trustees from time to time may authorize. Each
investment shall be credited to the Shareholder's account in the form of full
and fractional Shares of the Trust, in such Series (or class) as the
purchaser shall select, at the net asset value per Share next determined for
such Series (or class) after receipt of the investment; provided, however,
that the Trustees may, in their sole discretion, impose a sales charge or
redemption fee upon investments in the Trust.
Section 3.04. STATUS OF SHARES AND LIMITATION OF PERSONAL
Liability. Shares shall be deemed to be personal property giving only the
rights provided in this instrument and the By-Laws of the Trust. Every
Shareholder by virtue of having become a Shareholder shall be held to have
expressly assented and agreed to the terms hereof. The death of a
Shareholder during the existence of the Trust shall not operate to terminate
the Trust, nor entitle the representative of any deceased Shareholder to an
accounting or to take any action in court or elsewhere against the Trust or
the Trustees, but shall entitle such representative only to the rights of
said deceased Shareholder under this Declaration of Trust. Ownership of
Shares shall not entitle a Shareholder to any title in or to the whole or any
part of the Trust Property or right to call for a partition or division of
the same or for an accounting, nor shall the ownership of Shares constitute
the Shareholders as partners or joint venturers. Neither the Trust nor the
Trustees, nor any officer, employee or agent of the Trust shall have any
power to bind personally any Shareholder, 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 agree to pay.
Section 3.05. POWER OF BOARD OF TRUSTEES TO CHANGE PROVISIONS
RELATING TO SHARES. Notwithstanding any other provision of this Declaration
of Trust to the contrary, and without limiting the power of the Board of
Trustees to amend the Declaration of Trust as provided elsewhere herein, the
Board of Trustees shall have the power to amend this Declaration of Trust, at
any time and from time to time, in such manner as the Board of Trustees may
determine in their sole discretion, without the need for Shareholder action,
so as to add to, delete, replace or otherwise modify any provisions relating
to the Shares contained in this Declaration of Trust, provided that before
adopting any such amendment without Shareholder approval the Board of
Trustees shall determine that it is consistent with the fair and equitable
treatment of all Shareholders and that Shareholder approval is not required
by the 1940 Act or other applicable law. If Shares have been issued,
Shareholder approval shall be required by the Shareholders of the affected
Series (or class) to adopt any amendments to this Declaration of Trust which
would adversely affect to a material degree the rights and preferences of the
Shares of any Series (or class) or to increase or decrease the par value of
the Shares of any Series (or class).
Section 3.06. ESTABLISHMENT AND DESIGNATION OF SHARES. The
establishment and designation of any Series (or class) of Shares shall be
effective upon the adoption by a majority of the Trustees, of a resolution
which sets forth such establishment and designation and the relative rights
and preferences of such Series (or class). Each such resolution shall be
incorporated herein by reference upon adoption. Shares of each Series (or
class) established pursuant to this Section 3.06, unless otherwise provided
in the resolution establishing such Series, shall have the following relative
rights and preferences:
(a) ASSETS HELD WITH RESPECT TO A PARTICULAR SERIES. All
consideration received by the Trust for the issue or sale of Shares of a
Series, including dividends and distributions paid by, and reinvested in,
such Series, together with all assets in which such consideration is invested
or reinvested, all income, earnings, profits, and proceeds thereof from
whatever source derived, including, without limitation, any proceeds derived
from the sale, exchange or liquidation of such assets, and any funds or
payments derived from any reinvestment of such proceeds in whatever form the
same may be, shall irrevocably be held with respect to that Series for all
purposes, subject only to the rights of creditors, and shall be so recorded
upon the books of account of the Trust. Such consideration, assets, income,
earnings, profits and proceeds thereof, from whatever source derived,
including, without limitation, any proceeds derived from the sale, exchange
or liquidation of such assets, and any funds or payments derived from any
reinvestment of such proceeds, in whatever form the same may be, are herein
referred to as "assets held with respect to" that Series. In the event that
there are any assets, income, earnings, profits and proceeds thereof, funds
or payments which are not readily identifiable as assets held with respect to
any particular Series (collectively "General Assets"), the Trustees shall
allocate such General Assets to, between or among any one or more of the
Series in such manner and on such basis as the Trustees, in their sole
discretion, deem fair and equitable, and any General Asset so allocated to a
particular Series shall be held with respect to that Series. Each such
allocation by the Trustees shall be conclusive and binding upon the
Shareholders of all Series for all purposes in absence of manifest error.
(b) LIABILITIES OF A PARTICULAR SERIES. The assets of the
Trust held with respect to each Series shall be charged with the liabilities
of the Trust with respect to such Series and all expenses, costs, charges and
reserves attributable to such Series, and any general liabilities of the
Trust which are not readily identifiable as being held in respect of a Series
shall be allocated and charged by the Trustees to and among any one or more
Series in such manner and on such basis as the Trustees in their sole
discretion deem fair and equitable. The liabilities, expenses, costs,
charges, and reserves so charged to a Series are herein referred to as
"liabilities of" that Series. Each allocation of liabilities, expenses,
costs, charges and reserves by the Trustees shall be conclusive and binding
upon the holders of all Series for all purposes in absence of manifest
error. All Persons who have extended credit which has been allocated to a
particular Series, or who have a claim or contract which has been allocated
to a Series, shall look exclusively to the assets held with respect to such
Series for payment of such credit, claim, or contract. In the absence of an
express agreement so limiting the claims of such creditors, claimants and
contracting parties, each creditor, claimant and contracting party shall be
deemed nevertheless to have agreed to such limitation unless an express
provision to the contrary has been incorporated in the written contract or
other document establishing the contractual relationship.
(c) DIVIDENDS, DISTRIBUTIONS, REDEMPTIONS, AND REPURCHASES. No
dividend or distribution including, without limitation, any distribution paid
upon termination of the Trust or of any Series (or class) with respect to, or
any redemption or repurchase of, the Shares of any Series (or class) shall be
effected by the Trust other than from the assets held with respect to such
Series, nor shall any Shareholder of any Series otherwise have any right or
claim against the assets held with respect to any other Series except to the
extent that such Shareholder has such a right or claim hereunder as a
Shareholder of such other Series. The Trustees shall have full discretion to
determine which items shall be treated as income and which items as capital;
and each such determination and allocation shall be conclusive and binding
upon the Shareholders in absence of manifest error.
(d) VOTING. All Shares of the Trust entitled to vote on a
matter shall vote without differentiation between the separate Series on a
one-vote-per-Share basis; provided however, if a matter to be voted on
affects only the interests of one or more Series (or classes of a Series) but
not all Series (or classes of a Series), then only the Shareholders of such
affected Series (or classes) shall be entitled to vote on the matter.
(e) EQUALITY. All the Shares of each Series shall represent an
equal proportionate undivided interest in the assets held with respect to
such Series (subject to the liabilities of such Series and such rights and
preferences as may have been established and designated with respect to
classes of Shares within such Series), and each Share of a Series shall be
equal to each other Share of such Series.
(f) FRACTIONS. Any fractional Share of a Series shall have
proportionately all the rights and obligations of a whole share of such
Series, including rights with respect to voting, receipt of dividends and
distributions and redemption of Shares.
(g) EXCHANGE PRIVILEGE. The Trustees shall have the authority
to provide that the holders of Shares of any Series shall have the right to
exchange such Shares for Shares of one or more other Series in accordance
with such requirements and procedures as may be established by the Trustees.
(h) ELIMINATION OF SERIES. At any time that there are no
Shares outstanding of a Series (or class), the Trustees may abolish such
Series (or class).
ARTICLE IV.
The Board of Trustees
Section 4.01. NUMBER, ELECTION AND TENURE. The number of Trustees
constituting the Board of Trustees shall be fixed from time to time by a
written instrument signed, or by resolution approved at a duly constituted
meeting, by a majority of the Board of Trustees, provided, however, that the
number of Trustees shall in no event be less than one (1) nor more than
fifteen (15). Subject to the requirements of Section 16(a) of the 1940 Act,
the Board of Trustees, by action of a majority of the Trustees then in office
at a duly constituted meeting, may fill vacancies in the Board of Trustees[,
including, without limitation, vacancies] created as a result of any increase
in the size of the Board of Trustees pursuant to this Section 4.01, and
remove Trustees with or without cause. [Such Trustees shall be divided into
three classes, which shall be as nearly equal in number as possible, and no
class shall include less than three directors. The terms of office of the
Trustees shall be as follows: That of the first class shall expire at the
next annual meeting of stockholders, the second class at the second annual
meeting and the third class at the third succeeding annual meeting. At each
annual meeting after such initial classification, directors replacing those
whose terms expire at such annual meeting shall be elected to hold office
until the third succeeding annual meeting.] Each director shall serve for
the term for which he is elected and until his successor is elected and shall
qualify.] Each Trustee shall serve during the continued lifetime of the
Trust until [his or her term of office expires,] he or she dies, resigns, is
declared bankrupt or incompetent by a court of competent jurisdiction, or is
removed. Any Trustee may resign at any time by written instrument signed by
him and delivered to any officer of the Trust or to a meeting of the
Trustees. Such resignation shall be effective upon receipt unless specified
to be effective at some other time. Except to the extent expressly provided
in a written agreement with the Trust, no Trustee resigning and no Trustee
removed shall have any right to any compensation for any period following his
or her resignation or removal, or any right to damages or other payment on
account of such removal. Any Trustee may be removed at any meeting of
Shareholders by a vote of two-thirds of the outstanding Shares of the Trust.
A meeting of Shareholders for the purpose of electing or removing one or more
Trustees may be called (i) by the Trustees upon their own vote, or (ii) upon
the demand of Shareholders owning 10% or more of the Shares of the Trust in
the aggregate.
Section 4.02. EFFECT OF DEATH, RESIGNATION, ETC. OF A TRUSTEE. The
death, declination, resignation, retirement, removal, or incapacity of one or
more Trustees, or all of them, shall not operate to annul the Trust or to
revoke any existing agency created pursuant to the terms of this Declaration
of Trust. Whenever a vacancy in the Board of Trustees shall occur, until
such vacancy is filled as provided in Section 4.01, the Trustees in office,
regardless of their number, shall have all the powers granted to the Trustees
and shall discharge all the duties imposed upon the Trustees by this
Declaration of Trust.
Section 4.03. POWERS. Subject to the provisions of this
Declaration of Trust, the business of the Trust shall be managed by the Board
of Trustees, and such Board shall have all powers necessary or convenient to
carry out that responsibility including the power to engage in transactions
of all kinds on behalf of the Trust. 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, documents and
instruments that they may consider desirable, necessary or appropriate in
connection with the administration of the Trust. Without limiting the
foregoing, the Trustees may: adopt, amend and repeal By-Laws not
inconsistent with this Declaration of Trust providing for the regulation and
management of the affairs of the Trust; elect and remove such officers and
appoint and terminate such agents as they consider appropriate; appoint from
their own number and establish and terminate one or more committees
consisting of two or more Trustees who may exercise the powers and authority
of the Board of Trustees to the extent that the Trustees determine; employ
one or more Investment Manager to [manage the assets and investments of the
Trust]; employ one or more custodians of the assets of the Trust and
authorize such custodians to employ subcustodians and to deposit all or any
part of such assets in a system or systems for the central handling of
securities or with a Federal Reserve Bank, retain a transfer agent or a
shareholder servicing agent, or both; provide for the issuance and
distribution of Shares by the Trust directly or through one or more Principal
Underwriters or otherwise; redeem, repurchase and transfer Shares pursuant to
applicable law; set record dates for the determination of Shareholders with
respect to various matters; declare and pay dividends and distributions to
Shareholders of each Series from the assets of such Series; establish from
time to time, in accordance with the provisions of Section 3.06 hereof, any
Series of Shares, each such Series to operate as a separate and distinct
investment medium and with separately defined investment objectives and
policies and distinct investment purpose; and in general delegate such
authority as they consider desirable to any officer of the Trust, to any
committee of the Trustees and to any agent or employee of the Trust or to any
such custodian, transfer or shareholder servicing agent, Investment Manager
or Principal Underwriter. Any determination as to what is in the interests
of the Trust made by the Trustees in good faith shall be conclusive. In
construing the provisions of this Declaration of Trust, the presumption shall
be in favor of a grant of power to the Trustees, and unless otherwise
specified herein or required by the 1940 Act or other applicable law, any
action by the Board of Trustees shall be deemed effective if approved or
taken by a majority of the Trustees then in office or a majority of any duly
constituted committee of Trustees. Any action required or permitted to be
taken at any meeting of the Board of Trustees, or any committee thereof, may
be taken without a meeting if all members of the Board of Trustees or
committee (as the case may be) consent thereto in writing, and the writing or
writings are filed with the minutes of the proceedings of the Board of
Trustees, or committee, except as otherwise provided in the 1940 Act.
Without limiting the foregoing, the Trust shall have power and authority:
(a) To invest and reinvest cash and cash items, to hold cash
uninvested, and to subscribe for, invest in, reinvest in, purchase or
otherwise acquire, own, hold, pledge, sell, assign, transfer, exchange,
distribute, write options on, lend or otherwise deal in or dispose of
contracts for the future acquisition or delivery of all types of securities,
futures contracts and options thereon, and forward currency contracts of
every nature and kind, including, without limitation, all types of bonds,
debentures, stocks, preferred stocks, negotiable or non-negotiable
instruments, obligations, evidences of indebtedness, certificates of deposit
or indebtedness, commercial paper, repurchase agreements, bankers'
acceptances, and other securities of any kind, issued, created, guaranteed,
or sponsored by any and all Persons, including, without limitation, states,
territories, and possessions of the United States and the District of
Columbia and any political subdivision, agency, or instrumentality thereof,
any foreign government or any political subdivision of the U.S. Government or
any foreign government, or any international instrumentality or organization,
or by any bank or savings institution, or by any corporation or organization
organized under the laws of the United States or of any state, territory, or
possession thereof, or by any corporation or organization organized under any
foreign law, or in "when issued" contracts for any such securities, futures
contracts and options thereon, and forward currency contracts, to change the
investments of the assets of the Trust; and to exercise any and all rights,
powers, and privileges of ownership or interest in respect of any and all
such investments of every kind and description, including, without
limitation, the right to consent and otherwise act with respect thereto, with
power to designate one or more Persons, to exercise any of said rights,
powers, and privileges in respect of any of said instruments;
(b) To sell, exchange, lend, pledge, mortgage, hypothecate,
lease, or write options with respect to or otherwise deal in any property
rights relating to any or all of the assets of the Trust or any Series;
(c) To vote or give assent, or exercise any rights of
ownership, with respect to stock or other securities or property; and to
execute and deliver proxies or powers of attorney to such person or persons
as the Trustees shall deem proper, granting to such person or persons such
power and discretion with relation to securities or property as the Trustees
shall deem proper;
(d) To exercise powers and rights of subscription or otherwise
which in any manner arise out of ownership of securities;
(e) To hold any security or property in a form not indicating
that it is trust property, whether in bearer, unregistered or other
negotiable form, or in its own name or in the name of a custodian or
subcustodian or a nominee or nominees or otherwise or to authorize the
custodian or a subcustodian or a nominee or nominees to deposit the same in a
securities depository, subject in each case to the applicable provisions of
the 1940 Act;
(f) To consent to, or participate in, any plan for the
reorganization, consolidation or merger of any corporation or issuer of any
security which is held in the Trust; to consent to any contract, lease,
mortgage, purchase or sale of property by such corporation or issuer; and to
pay calls or subscriptions with respect to any security held in the Trust;
(g) To join with other security holders in acting through a
committee, depositary, voting trustee or otherwise, and in that connection to
deposit any security with, or transfer any security to, any such committee,
depositary or trustee, and to delegate to them such power and authority with
relation to any security (whether or not so deposited or transferred) as the
Trustees shall deem proper, and to agree to pay, and to pay, such portion of
the expenses and compensation of such committee, depositary or trustee as the
Trustees shall deem proper;
(h) To litigate, compromise, arbitrate, settle or otherwise
adjust claims in favor of or against the Trust or a Series, or any matter in
controversy, including but not limited to claims for taxes;
(i) To enter into joint ventures, general or limited
partnerships and any other combinations or associations;
(j) To borrow funds or other property in the name of the Trust
or Series exclusively for Trust purposes;
(k) To endorse or guarantee the payment of any notes or other
obligations of any Person; to make contracts of guaranty or suretyship, or
otherwise assume liability for payment thereof;
(l) To purchase and pay for entirely out of Trust Property such
insurance as the Trustees may deem necessary, desirable or appropriate for
the conduct of the business, including, without limitation, insurance
policies insuring the assets of the Trust or payment of distributions and
principal on its portfolio investments, and insurance policies insuring the
Shareholders, Trustees, officers, employees, agents, Investment Manager,
Principal Underwriters, or independent contractors of the Trust, individually
against all claims and liabilities of every nature arising by reason of
holding Shares, holding, being or having held any such office or position, or
by reason of any action alleged to have been taken or omitted by any such
Person as Trustee, officer, employee, agent, Investment Manager, Principal
Underwriter, or independent contractor, including any action taken or omitted
that may be determined to constitute negligence, whether or not the Trust
would have the power to indemnify such Person against liability; and
(m) To adopt, establish and carry out pension, profit-sharing,
share bonus, share purchase, savings, thrift and other retirement, incentive
and benefit plans, trusts and provisions, including the purchasing of life
insurance and annuity contracts as a means of providing such retirement and
other benefits, for any or all of the Trustees, officers, employees and
agents of the Trust. The Trust shall not be limited to investing in
obligations maturing before the possible termination of the Trust or one or
more of its Series. The Trust shall not in any way be bound or limited by
any present or future law or custom in regard to investment by fiduciaries.
The Trust shall not be required to obtain any court order to deal with any
assets of the Trust or take any other action hereunder.
Section 4.04. PAYMENT OF EXPENSES BY THE TRUST. Subject to the
provisions of Section 3.06(b), the Trustees are authorized to pay or cause to
be paid out of the principal or income of the Trust or Series, or partly out
of the principal and partly out of income, and to charge or allocate the same
to, between or among such one or more of the Series that may be established
or designated pursuant to Section 3.06, all expenses, fees, charges, taxes
and liabilities incurred or arising in connection with the Trust or Series,
or in connection with the management thereof, including, but not limited to,
the Trustees' compensation and such expenses and charges for the services of
the Trust's officers, employees, Investment Manager, Principal Underwriter,
auditors, counsel, custodian, transfer agent, Shareholder servicing agent,
and such other agents or independent contractors and such other expenses and
charges as the Trustees may deem necessary or proper to incur.
Section 4.05. OWNERSHIP OF ASSETS OF THE TRUST. Title to all of
the assets of the Trust shall at all times be considered as vested in the
Trust, except that the Trustees shall have power to cause legal title to any
Trust Property to be held by or in the name of one or more of the Trustees,
or in the name of the Trust, or in the name of any other Person as nominee,
on such terms as the Trustees may determine. Upon the resignation,
expiration of term, incompetency, bankruptcy, removal, or death of a Trustee
he or she shall automatically cease to have any such title in any of the
Trust Property, and the title 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. The Trustees may determine that the Trust or the
Trustees, acting for and on behalf of the Trust, shall be deemed to hold
beneficial ownership of any income earned on the securities owned by the
Trust, whether domestic or foreign.
Section 4.06. Service Contracts.
(a) The Trustees, at any time and from time to time, may
contract for exclusive or nonexclusive advisory, management and/or
administrative services for the Trust or for any Series with any Person; and
any such contract may contain such other terms as the Trustees may determine,
including without limitation, authority for the Investment Manager to
determine from time to time without prior consultation with the Trustees what
investments shall be purchased, held, sold or exchanged and what portion, if
any, of the assets of the Trust shall be held uninvested and to make changes
in the Trust's investments, and such contract may provide for the exercise of
such other responsibilities as may specifically be delegated to such Person.
(b) The Trustees may also, at any time and from time to time,
contract with any Person or Persons, appointing such Person or Persons
exclusive or nonexclusive distributor(s) or Principal Underwriter(s) for the
Shares of one or more of the Series or other securities to be issued by the
Trust. Every such contract may contain such other terms as the Trustees may
determine.
(c) The Trustees are also empowered, at any time and from time
to time, to contract with any Person or Persons, appointing such Person or
Persons to serve as custodian(s), transfer agent(s) and/or shareholder
servicing agent(s) for the Trust or one or more of its Series. Every such
contract shall comply with such terms as may be required by the Trustees.
(d) The Trustees are further empowered, at any time and from
time to time, to contract with any Person or Persons to provide such other
services to the Trust or one or more of the Series, as the Trustees determine
to be in the best interests of the Trust and the applicable Series.
(e) The fact that:
(i) any of the Shareholders, Trustees, or officers of the
Trust is a shareholder, director, officer, partner, trustee, employee,
[Investment] Manager, adviser, Principal Underwriter, distributor, or
affiliate or agent of or for any Person with which an advisory,
management or administration contract, or Principal Underwriter's or
distributor's contract, or transfer, shareholder servicing or other
type of service contract may be made, or that
(ii) any Person with which an advisory, management or
administration contract or Principal Underwriter's or distributor's
contract, or transfer, shareholder servicing or other type of service
contract may be made also has an advisory, management or administration
contract, or Principal Underwriter's or distributor's contract, or
transfer, shareholder servicing or other service contract, or has other
business or interests with any other Person,
shall not affect the validity of any such contract or disqualify any
Shareholder, Trustee or officer of the Trust from voting upon or
executing the same, or create any liability or accountability to the
Trust or its Shareholders, provided approval of each such contract is
made pursuant to the applicable requirements of the 1940 Act.
ARTICLE V.
Shareholders' Voting Powers and Meetings
Section 5.01. VOTING POWERS. Subject to the provisions of Sections
3.05 and 3.06(d), the Shareholders shall have right to vote only (i) for the
election or removal of Trustees as provided in Section 4.01, and (ii) with
respect to such additional matters relating to the Trust as may be required
by the applicable provisions of the 1940 Act, including Section 16(a)
thereof, and (iii) on such other matters as the Trustees may consider
necessary or desirable. 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. A proxy purporting to be executed by or on behalf of a Shareholder
shall be deemed valid unless challenged at or prior to its exercise and the
burden of proving invalidity shall rest on the challenger.
Section 5.02. VOTING POWER AND MEETINGS. Meetings of the
Shareholders may be called by the Trustees for the purposes described in
Section 5.01. A meeting of Shareholders may be held at any time and place
designated by the Trustees. Written notice of any meeting of Shareholders
shall be given or caused to be given by the Trustees by delivering personally
or mailing such notice not more than ninety (90), nor less than ten (10) days
before such meeting, postage prepaid, stating the time and place of the
meeting, to each Shareholder at the Shareholder's address as it appears on
the records of the Trust. Whenever notice of a meeting is required to be
given to a Shareholder under this Declaration of Trust, a written waiver
thereof, executed before or after the meeting by such Shareholder or his or
her attorney thereunto authorized and filed with the records of the meeting,
or actual attendance at the meeting of Shareholders in person or by proxy,
shall be deemed equivalent to such notice.
Section 5.03. QUORUM AND REQUIRED VOTE. Except when a larger
quorum is required by the applicable provisions of the 1940 Act, the presence
in person or by proxy of a majority of the Shares entitled to vote on a
matter shall constitute a quorum at a Shareholders' meeting. 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, and the meeting may be held as
adjourned within a reasonable time after the date set for the original
meeting without further notice. Subject to the provisions of Section 3.06(d)
and the applicable provisions of the 1940 Act, when a quorum is present at
any meeting, a majority of the Shares voted shall decide any questions except
only a plurality vote shall be necessary to elect Trustees.
Section 5.04. ACTION BY WRITTEN CONSENT. [Any action to be taken
by shareholders may be taken without a meeting if (a) all shareholders
entitled to vote on the matter consent to the action in writing, and (b) all
shareholders entitled to notice of the meeting but not entitled to vote at it
sign a written waiver of any right to dissent, and (c) the written consents
are filed with the records of the meetings of shareholders.] Such consent
shall be treated for all purposes as a vote at a meeting.
Section 5.05. RECORD DATES. For the purpose of determining the
Shareholders who are entitled to vote or act at any meeting or any
adjournment thereof or by written consent, the Trustees may fix a time, which
shall be not more than ninety (90) nor less than ten (10) days before the
date of any meeting of Shareholders, as the record date for determining the
Shareholders having the right to notice of and to vote at such meeting and
any adjournment thereof, and in such case only Shareholders of record on such
record date shall have such right, notwithstanding any transfer of shares on
the books of the Trust after the record date. For the purpose of determining
the Shareholders who are entitled to receive payment of any dividend or of
any other distribution, the Trustees may fix a date, which shall be on or
before the date for the payment of such dividend or distribution, as the
record date for determining the Shareholders having the right to receive such
dividend or distribution. Nothing in this Section shall be construed as
precluding the Trustees from setting different record dates for different
Series.
ARTICLE VI.
Net Asset Value, Distributions, and Redemptions
Section 6.01. DETERMINATION OF NET ASSET VALUE, NET INCOME, AND
DISTRIBUTIONS. Subject to Section 3.06 hereof, the Trustees, in their
absolute discretion, may prescribe and shall set forth in the By-Laws or in a
duly adopted resolution of the Trustees such bases and time for determining
the per Share net asset value of the Shares of any Series and the declaration
and payment of dividends and distributions on the Shares of any Series, as
they may deem necessary or desirable.
Section 6.02. REDEMPTIONS AND REPURCHASES. The Trust shall
purchase such Shares as are offered by any Shareholder for redemption, upon
receipt by the Trust or a Person designated by the Trust of a request that
the Trust redeem such Shares in such form and in accordance with such
procedures for redemption as the Trustees may from time to time authorize;
and the Trust will pay therefor the net asset value thereof, in accordance
with the By-Laws and the applicable provisions of the 1940 Act. Payment for
said Shares shall be made by the Trust to the Shareholder within seven days
after the date on which the request for redemption is received in proper
form. The obligation set forth in this Section 6.02 is subject to the
provision that in the event that any time the New York Stock Exchange (the
"Exchange") is closed for other than weekends or holidays, or if permitted by
the Rules of the Commission during periods when trading on the Exchange is
restricted or during any emergency which makes it impracticable for the Trust
to dispose of the investments of the applicable Series or to determine fairly
the value of the net assets held with respect to such Series or during any
other period permitted by order of the Commission for the protection of
investors, such obligations may be suspended or postponed by the Trustees.
The redemption price may in any case or cases be paid in cash or wholly or
partly in kind in accordance with Rule 18f-1 under the 1940 Act if the
Trustees determine that such payment is advisable in the interest of the
remaining Shareholders of the Series of which the Shares being redeemed are a
part. Subject to the foregoing, the selection and quantity of securities or
other property so paid or delivered as all or part of the redemption price
shall be determined by or under authority of the Trustees. In no case shall
the Trust be liable for any delay of any corporation or other Person in
transferring securities selected for delivery as all or part of any payment
in kind.
Section 6.03. REDEMPTIONS AT THE OPTION OF THE TRUST. The Trust
shall have the right, at its option, upon 60 days notice to the affected
Shareholder at any time to redeem any or all of the Shares of any Shareholder
at the net asset value thereof as described in Section 6.01: (i) if at such
time such Shareholder owns Shares of any Series having an aggregate net asset
value of less than a minimum value determined from time to time by the
Trustees; or (ii) to the extent that such Shareholder owns Shares of a Series
equal to or in excess of a maximum percentage of the outstanding Shares of
such Series determined from time to time by the Trustees; or (iii) to the
extent that such Shareholder owns Shares equal to or in excess of a maximum
percentage, determined from time to time by the Trustees, of the outstanding
Shares of the Trust.
Section 6.04. TRANSFER OF SHARES. The Trust shall transfer shares
held of record by any Person to any other Person upon receipt by the Trust or
a Person designated by the Trust of a written request therefore in such form
and pursuant to such procedures as may be approved by the Trustees.
ARTICLE VII.
Compensation and Limitation of Liability
Section 7.01. COMPENSATION OF TRUSTEES. [The Board of Trustees, by
resolution, may authorize the Trust to compensate each Trustee for his
services as a Trustee of the Trust.] Nothing herein shall in any way prevent
(i) the employment of any Trustee or any Person of whom the Trustee is a
shareholder, director, officer, partner, trustee, employee, or agent to
provide advisory, management, legal, accounting, investment banking or other
services to the Trust or (ii) such Trustee or Person from being specially
compensated for such services by the Trust.
Section 7.02. INDEMNIFICATION AND LIMITATION OF LIABILITY. The
Trustees shall not be responsible or liable in any event for any neglect or
wrong-doing of any officer, agent, employee, Manager or Principal Underwriter
of the Trust, nor shall any Trustee be responsible for the act or omission of
any other Trustee, and, subject to the provisions of the Bylaws, the Trust
out of its assets may indemnify and hold harmless each and every Trustee and
officer of the Trust from and against any and all claims, demands, costs,
losses, expenses, and damages whatsoever arising out of or related to such
Trustee's performance of his or her duties as a Trustee or officer of the
Trust; provided that nothing herein contained shall indemnify, hold harmless
or protect any Trustee or officer from or against any liability to the Trust
or any Shareholder to which he or she would otherwise be subject by reason of
willful misfeasance, bad faith, gross negligence or reckless disregard of the
duties involved in the conduct of his or her office. Every note, bond,
contract, instrument, certificate or undertaking and every other act or thing
whatsoever issued, executed or done by or on behalf of the Trust or the
Trustees or any of them in connection with the Trust shall be conclusively
deemed to have been issued, executed or done only in or with respect to their
or his or her capacity as Trustees or Trustee, and such Trustees or Trustee
shall not be personally liable thereon.
Section 7.03. TRUSTEE'S GOOD FAITH ACTION, EXPERT ADVICE, NO BOND
OR SURETY. The exercise by the Trustees of their powers hereunder shall be
binding upon everyone interested in or dealing with the Trust. A Trustee
shall be liable to the Trust and to any Shareholder solely for his or her own
willful misfeasance, bad faith, gross negligence or reckless disregard of the
duties involved in the conduct of the office of Trustee, and shall not be
liable for errors of judgment or mistakes of fact or law. The Trustees may
take advice of counsel or other experts with respect to the meaning and
operation of this Declaration of Trust, and shall not be under any liability
for any act or omission in accordance with such advice or for failing to
follow such advice. The Trustees shall not be required to give any bond as
such, nor any surety if a bond is required.
Section 7.04. INSURANCE. The Trustees shall be entitled and
empowered to the fullest extent permitted by law to purchase with Trust
assets insurance for liability and for all expenses reasonably incurred or
paid or expected to be paid by a Trustee or officer in connection with any
claim, action, suit or proceeding in which he or she becomes involved by
virtue of his or her capacity or former capacity with the Trust, whether or
not the Trust would have the power to indemnify him or her against such
liability under the provisions of this Article.
ARTICLE VIII.
Miscellaneous
Section 8.01. LIABILITY OF THIRD PERSONS DEALING WITH TRUSTEES. No
Person dealing with the Trustees shall be bound to make any inquiry
concerning the validity of any transaction made or to be made by the Trustees
or to see to the application of any payments made or property transferred to
the Trust or upon its order.
Section 8.02. TERMINATION OF TRUST OR SERIES. Unless terminated as
provided herein, the Trust shall continue without limitation of time. The
Trust may be terminated at any time by the Trustees upon 60 days prior
written notice to the Shareholders. Any Series may be terminated at any time
by the Trustees upon 60 days prior written notice to the Shareholders of that
Series. Upon termination of the Trust (or any Series, as the case may be),
after paying or otherwise providing for all charges, taxes, expenses and
liabilities of each Series, severally (or the applicable Series, as the case
may be), whether due or accrued or anticipated as may be determined by the
Trustees, the Trust shall, in accordance with such procedures as the Trustees
consider appropriate, reduce the remaining assets held, severally, with
respect to each Series (or the applicable Series, as the case may be), to
distributable form in cash or shares or other securities, and any combination
thereof, and distribute the proceeds held with respect to each Series (or the
applicable Series, as the case may be), to the Shareholders of that Series,
as a Series, ratably according to the number of Shares of that Series held by
the several Shareholders on the date of termination.
Section 8.03. MERGER AND CONSOLIDATION. The Trustees may cause (i)
the Trust or one or more of its Series to the extent consistent with
applicable law to be merged into or consolidated with another trust (or
series thereof), Series or Person (or series thereof), (ii) the Shares of the
Trust or any Series to be converted into beneficial interests in another
business trust (or series thereof), (iii) the Shares to be exchanged for
assets or property under or pursuant to any state or federal statute to the
extent permitted by law or (iv) a sale of assets of the Trust or one or more
of its Series. Such merger or consolidation, Share conversion, Share
exchange or sale of assets must be authorized by vote as provided in Sections
3.05(d) and 5.03 herein; provided that in all respects not governed by
statute or applicable law, the Trustees shall have power to prescribe the
procedure necessary or appropriate to accomplish a sale of assets, Share
exchange, merger or consolidation including the power to create one or more
separate business trusts or other Person or Persons to which all or any part
of the assets, liabilities, profits or losses of the Trust may be transferred
and to provide for the conversion of Shares of the Trust or any Series into
beneficial interests in such separate business trust or trusts (or series
thereof).
Section 8.04. AMENDMENTS. This Declaration of Trust may be
restated and/or amended at any time by an instrument in writing signed by a
majority of the Trustees then in office. Any such restatement and/or
amendment hereto shall be effective immediately upon execution and approval.
The Certificate of Trust of the Trust may be restated and/or amended by a
similar procedure, and any such restatement and/or amendment shall be
effective immediately upon filing with the Office of the Secretary of State
of the State of Delaware or upon such future date as may be stated therein.
Section 8.05. FILING OF COPIES, REFERENCES, HEADINGS. The original
or a copy of this instrument and of each restatement and/or amendment hereto
shall be kept at the office of the Trust where it may be inspected by any
Shareholder. Anyone dealing with the Trust may rely on a certificate by an
officer of the Trust as to whether or not any such restatements and/or
amendments have been made and as to any matters in connection with the Trust
hereunder; and, with the same effect as if it were the original, may rely on
a copy certified by an officer of the Trust to be a copy of this instrument
or of any such restatements and/or amendments. In this instrument and in any
such restatements and/or amendment, references to this instrument, and all
expressions such as "herein," "hereof" and "hereunder," shall be deemed to
refer to this instrument as amended or affected by any such restatements
and/or amendments. Headings are placed herein for convenience of reference
only and shall not be taken as a part hereof or control or affect the
meaning, construction or effect of this instrument. Whenever the singular
number is used herein, the same shall include the plural; and the neuter,
masculine and feminine genders shall include each other, as applicable. This
instrument may be executed in any number of counterparts each of which shall
be deemed an original.
Section 8.06. APPLICABLE LAW. This Agreement and Declaration of
Trust is created under and is to be governed by and construed and
administered according to the laws of the State of Delaware and the Delaware
Business Trust Act, as amended from time to time (the "Act"). The Trust
shall be a Delaware business trust pursuant to such Act, and without limiting
the provisions hereof, the Trust may exercise all powers which are ordinarily
exercised by such a business trust.
Section 8.07. PROVISIONS IN CONFLICT WITH LAW OR REGULATIONS.
(a) The provisions of the Declaration of Trust are severable, and
if the Trustees shall determine, with the advice of counsel, that any of such
provisions is in conflict with the 1940 Act, the regulated investment company
provisions of the Internal Revenue Code or with other applicable laws and
regulations, the conflicting provision shall be deemed never to have
constituted a part of the Declaration of Trust; provided, however, that such
determination shall not affect any of the remaining provisions of the
Declaration of Trust or render invalid or improper any action taken or
omitted prior to such determination.
(b) If any provision of the Declaration of Trust shall be held
invalid or unenforceable in any jurisdiction, such invalidity or
unenforceability shall attach only to such provision in such jurisdiction and
shall not in any manner affect such provision in any other jurisdiction or
any other provision of the Declaration of Trust in any jurisdiction.
Section 8.08. BUSINESS TRUST ONLY. It is the intention of the
Trustees to create a business trust pursuant to the Act, and thereby to
create only the relationship of trustee and beneficial owners within the
meaning of such Act between the Trustees and each Shareholder. It is not the
intention of the Trustees to create a general partnership, limited
partnership, joint stock association, corporation, bailment, joint venture,
or any form of legal relationship other than a business trust pursuant to
such Act. Nothing in this Declaration of Trust shall be construed to make
the Shareholders, either by themselves or with the Trustees, partners or
members of a joint stock association.
IN WITNESS WHEREOF, the Trustees named below do hereby make and enter
into this Declaration of Trust as of the 14th day of July, 1999.
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