Exhibit B
Schedule B
BLACKROCK BOND ALLOCATION TARGET SHARES
AGREEMENT AND DECLARATION OF TRUST
Dated as of March 5, 2003
TABLE OF CONTENTS
Page
ARTICLE I
The Trust......................1
1.1 Name................................................................1
1.2 Definitions.........................................................2
1.3 Purpose and Powers of Trust.........................................4
ARTICLE II
Trustees.......................4
2.1 Number and Qualification............................................4
2.2 Term and Election...................................................4
2.3 Resignation and Removal.............................................4
2.4 Vacancies...........................................................5
2.5 Meetings............................................................5
2.6 Trustee Action by Written Consent...................................6
2.7 Officers............................................................6
ARTICLE III
Powers and Duties of Trustees............7
3.1 General.............................................................7
3.2 Investments.........................................................7
3.3 Legal Title.........................................................7
3.4 Issuance and Repurchase of Shares...................................8
3.5 Borrow Money or Utilize Leverage....................................8
3.6 Delegation; Committees..............................................8
3.7 Collection and Payment..............................................9
3.8 Expenses............................................................9
3.9 By-Laws............................................................10
3.10 Miscellaneous Powers...............................................10
3.11 Further Powers.....................................................10
ARTICLE IV
Advisory, Management and Distribution Arrangemes...11
4.1 Advisory and Management Arrangements...............................11
4.2 Distribution Arrangements..........................................11
4.3 Parties to Contract................................................11
ARTICLE V
Limitations of Liability
and Indemnification................12
5.1 No Personal Liability of Shareholders, Trustees, etc...............12
5.2 Mandatory Indemnification..........................................13
5.3 No Duty of Investigation; Notice in Trust Instruments, etc.........14
5.4 Reliance on Experts, etc...........................................15
ARTICLE VI
Shares of Beneficial Interest...........15
6.1 Beneficial Interest................................................15
6.2 Series Designation.................................................15
6.3 Class Designation..................................................15
6.4 Description of Shares..............................................16
6.5 Rights of Shareholders.............................................18
6.6 Trust Only.........................................................19
6.7 Issuance of Shares.................................................19
6.8 Register of Shares.................................................19
6.9 Transfer Agent and Registrar.......................................20
6.10 Transfer of Shares.................................................20
6.11 Notices............................................................20
ARTICLE VII
Custodians.....................21
7.1 Appointment and Duties.............................................21
7.2 Central Certificate System.........................................21
ARTICLE VIII
Redemption.....................22
8.1 Redemptions........................................................22
8.2 Disclosure of Holding..............................................22
ARTICLE IX
Determination of Net Asset Value
Net Income and Distributions............23
9.1 Net Asset Value....................................................23
9.2 Distributions to Shareholders......................................23
9.3 Power to Modify Foregoing Procedures...............................24
ARTICLE X
Shareholders....................24
10.1 Meetings of Shareholders...........................................24
10.2 Voting.............................................................24
10.3 Notice of Meeting and Record Date..................................25
10.4 Quorum and Required Vote...........................................25
10.5 Proxies, etc.......................................................26
10.6 Reports............................................................26
10.7 Inspection of Records..............................................27
10.8 Shareholder Action by Written Consent..............................27
ARTICLE XI
Duration; Termination of Trust;
Amendment; Mergers, Etc...............27
11.1 Duration...........................................................27
11.2 Termination........................................................27
11.3 Amendment Procedure................................................28
11.4 Merger, Consolidation and Sale of Assets...........................29
11.5 Subsidiaries.......................................................29
ARTICLE XII
Miscellaneous...................30
12.1 Filing.............................................................30
12.2 Resident Agent.....................................................30
12.3 Governing Law......................................................30
12.4 Counterparts.......................................................31
12.5 Reliance by Third Parties..........................................31
12.6 Provisions in Conflict with Law or Regulation......................31
BLACKROCK BOND ALLOCATION TARGET SHARES
AGREEMENT AND DECLARATION OF TRUST
AGREEMENT AND DECLARATION OF TRUST made as of the 5th day of
March, 2003, by the Trustees hereunder, and by the holders of shares of
beneficial interest issued hereunder as hereinafter provided.
WHEREAS, this Trust has been formed to carry on business as
set forth more particularly hereinafter;
WHEREAS, this Trust is authorized to issue an unlimited number
of its shares of beneficial interest in separate series and classes of each such
series, each separate series to be a sub-trust hereunder, all in accordance with
the provisions hereinafter set forth;
WHEREAS, the Trustees have agreed to manage all property
coming into their hands as Trustees of a Delaware statutory trust in accordance
with the provisions hereinafter set forth; and
WHEREAS, the parties hereto intend that the Trust created by
this Declaration and the Certificate of Trust filed with the Secretary of State
of the State of Delaware on March 5, 2003 shall constitute a statutory trust
under the Delaware Statutory Trust Act and that this Declaration shall
constitute the governing instru ment of such statutory trust.
NOW, THEREFORE, the Trustees hereby declare that they will
hold all cash, securities, and other assets which they may from time to time
acquire in any manner as Trustees hereunder IN TRUST to manage and dispose of
the same upon the following terms and conditions for the benefit of the holders
from time to time of shares of beneficial interest in this Trust or sub-trusts
created hereunder as hereinaf ter set forth.
ARTICLE I
The Trust
1.1 Name. This Trust shall be known as the "BlackRock Bond
Allocation Target Shares" and the Trustees shall conduct the business of the
Trust under that name or any other name or names as they may from time to time
deter mine.
1.2 Definitions. As used in this Declaration, the following
terms shall have the following meanings:
"By-Laws" shall mean the By-Laws of the Trust as amended from
time to time by the Trustees.
"Class" shall mean a portion of Shares of a Series of the
Trust established in accordance with Section 6.3 hereof.
"Code" shall mean the Internal Revenue Code of 1986, as
amended, and the regulations promulgated thereunder.
"Commission" shall mean the Securities and Exchange
Commission.
"Declaration" shall mean this Agreement and Declaration of
Trust, as amended or amended and restated from time to time, including by way
of any classifying or reclassifying Shares of any Series or any Class of any
such Series or determining any designations, powers, preferences, voting,
conversion and other rights, limitations, qualifications and terms and
conditions thereof.
"Delaware Statutory Trust Statute" shall mean the provisions
of the Delaware Statutory Trust Act, 12 Del. C.ss.3801, et. seq., as such Act
may be amended from time to time.
"Fundamental Policies" shall mean the investment policies
and restrictions set forth from time to time in any current Prospectus or
contained in any current Registration Statement of the Trust or any Series
filed with the Commission or as otherwise adopted by the Trustees and the
Shareholders in accordance with the requirements of the 1940 Act that are
expressly designated as fundamental policies of such Series as they may be
amended from time to time in accordance with the 1940 Act.
"Interested Person" shall have the meaning ascribed thereto
in the 1940 Act.
"Majority Shareholder Vote" shall mean a vote of a "majority
of the outstanding voting securities" (as such term is defined in the ▇▇▇▇ ▇▇▇)
of the Trust, any Series of the Trust or any Class thereof, as applicable.
The "1940 Act" refers to the Investment Company Act of 1940
and the rules and regulations promulgated thereunder and applicable exemptions
there from, as amended from time to time.
The "1933 Act" refers to the Securities Act of 1933, and the
rules and regulations promulgated thereunder and applicable exemptions
therefrom, as amended from time to time.
"Person" shall mean and include natural persons, corporations,
partnerships, trusts, limited liability companies, associations, joint ventures
and other entities, whether or not legal entities, and governments and agencies
and political subdivisions thereof.
"Prospectus" shall mean the current prospectus or offering
memoran dum of securities of the Trust or of any Series thereof or of any
Class of any such Series, as applicable.
"Series" shall mean the separate sub-trusts that may be
established and designated as series pursuant to Section 6.2 hereof or any one
of such sub-trusts, as applicable.
"Series Liabilities" shall mean as of any particular time
any and all debts, obligations or other liabilities, contingent or otherwise,
of or relating to a particular Series of the Trust.
"Series Property" shall mean as of any particular time any
and all property, real or personal, tangible or intangible, which at such time
is owned or held by or for the account of a particular Series.
"Shareholders" shall mean as of any particular time the
holders of record of outstanding Shares of the Trust, any Series of the Trust
or any Class of any Series, as applicable, at such time.
"Shares" shall mean the transferable units of beneficial
interest in the Trust or in a Series of the Trust and includes fractions of
Shares as well as whole Shares, which Shares may be classified as relating to
particular Series and Classes within a Series. All references to Shares shall
be deemed to be Shares of any or all Series or Classes as the context may
require.
"Trust" shall mean the trust established by this
Declaration, as amended from time to time, inclusive of each such amendment
and every sub-trust established as a Series hereunder.
"Trustees" shall mean the signatory to this Declaration, so
long as such signatory shall continue in office in accordance with the terms
hereof, and all other Persons who at the time in question have been duly
elected or appointed and have qualified as trustees in accordance with the
provisions hereof and are then in office.
1.3 Purpose and Powers of Trust. The Trust is established
for the purpose of engaging in any activity not prohibited by Delaware law and
shall have the power to engage in any such activity and in any activity
incidental or related to any such activity.
ARTICLE II
Trustees
2.1 Number and Qualification. Prior to any offering of
Shares, there may be a sole Trustee and thereafter, the number of Trustees
shall be such number, not less than two or more than nine, as shall be set
forth in a written instrument signed by a majority of the Trustees then in
office. No reduction in the number of Trustees shall have the effect of
removing any Trustee from office prior to the expiration of his term. An
individual nominated as a Trustee shall be at least 21 years of age and not
older than 80 years of age at the time of nomination and not under legal
disability. Trustees need not own Shares and may succeed themselves in office.
The Trustees may elect from their number a Chairman who shall serve at the
pleasure of the Trustees.
2.2 Term and Election. Each Trustee elected shall hold
office until his or her successor shall have been elected and shall have
qualified. The term of office of a Trustee shall terminate and a vacancy shall
occur in the event of the death, resignation, removal, bankruptcy, adjudicated
incompetence or other incapacity to perform the duties of the office, or
removal, of a Trustee.
2.3 Resignation and Removal. Any of the Trustees may resign
their trust (without need for prior or subsequent accounting) by an instrument
in writing signed by such Trustee and delivered or mailed to the Trustees or
the Chairman, if any, the President or the Secretary and such resignation
shall be effective upon such delivery, or at a later date according to the
terms of the instrument. Any of the Trustees may be removed (provided the
aggregate number of Trustees after such removal shall not be less than the
minimum number required by Section 2.1 hereof) with or without cause by
written instrument signed by two-thirds of the remaining Trustees specifying
the date such removal shall become effective or by action taken by the holders
of at least seventy-five percent (75%) of the Shares then entitled to vote in
an election of such Trustee. Upon the resignation or removal of a Trustee,
each such resigning or removed Trustee shall execute and deliver such
documents as the remaining Trustees shall require for the purpose of conveying
to the Trust or the remaining Trustees any Series Property held in the name of
such resigning or removed Trustee. Upon the incapacity or death of any
Trustee, such Trustee's legal representative shall execute and deliver on such
Trustee's behalf such documents as the remaining Trustees shall require as
provided in the preceding sentence.
2.4 Vacancies. Whenever a vacancy in the Board of Trustees
shall occur, the remaining Trustees may, subject to the requirements of the
1940 Act, fill such vacancy by appointing an individual having the
qualifications described in this Article by a written instrument signed by a
majority of the Trustees then in office or by election by the Shareholders, or
may leave such vacancy unfilled or may reduce the number of Trustees (provided
the aggregate number of Trustees after such reduction shall not be less than
the minimum number required by Section 2.1 hereof). Any vacancy created by an
increase in Trustees may be filled by the appointment of an individual having
the qualifications described in this Article made by a written instrument or
resolution signed or approved by a majority of the Trustees then in office or
by election by the Shareholders. No vacancy shall operate to annul this
Declaration or to revoke any existing authority or power existing pursuant to
the terms of this Declaration. Whenever a vacancy in the number of Trustees
shall occur, until such vacancy is filled as provided herein, the Trustees in
office, regard less 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.
2.5 Meetings. Meetings of the Trustees shall be held from
time to time upon the call of the Chairman, if any, or the President or any
two Trustees. Regular meetings of the Trustees may be held without call or
notice at a time and place fixed by the By-Laws or by resolution of the
Trustees. Notice of any other meeting shall be given by the Secretary and
shall be delivered to the Trustees orally not less than 24 hours, or in
writing not less than 72 hours, before the meeting, but may be waived in
writing by any Trustee either before or after such meeting. The attendance of
a Trustee at a meeting shall constitute a waiver of notice of such meeting
except where a Trustee attends a meeting for the express purpose of object ing
to the transaction of any business on the ground that the meeting has not been
properly called or convened. A quorum for all meetings of the Trustees shall
be one- third of the Trustees. Unless provided otherwise in this Declaration
and except as required under the 1940 Act, any action of the Trustees may be
taken at a meeting by vote of a majority of the Trustees present (a quorum
being present) or without a meeting by written consent of a majority of the
Trustees.
Any committee of the Trustees, including an executive
committee, if any, may act with or without a meeting. A quorum for all
meetings of any such committee shall be one-third, but not less than two, of
the members thereof. Unless provided otherwise in this Declaration, any action
of any such committee may be taken at a meeting by vote of a majority of the
members present (a quorum being present) or without a meeting by written
consent of all of the members.
With respect to actions of the Trustees and any committee of
the Trustees, Trustees who are Interested Persons in any action to be taken
may be counted for quorum purposes under this Section and shall be entitled to
vote to the extent not prohibited by the 1940 Act.
All or any one or more Trustees may participate in a meeting
of the Trustees or any committee thereof by means of a conference telephone or
similar communications equipment by means of which all persons participating
in the meeting can hear each other; participation in a meeting pursuant to any
such commu nications system shall constitute presence in person at such
meeting.
2.6 Trustee Action by Written Consent. Any action which may
be taken by Trustees by vote may be taken without a meeting if that number of
the Trustees, or members of a committee, as the case may be, required for
approval of such action at a meeting of the Trustees or of such committee
consent to the action in writing and the written consents are filed with the
records of the meetings of Trust ees. Such consent shall be treated for all
purposes as a vote taken at a meeting of Trustees.
2.7 Officers. The Trustees shall elect a President, a
Secretary and a Treasurer who shall serve at the pleasure of the Trustees or
until their successors are elected. The Trustees may elect or appoint or may
authorize the Chairman, if any, or President to appoint such other officers or
agents with such powers as the Trustees may deem to be advisable. The
President, Secretary and Treasurer may, but need not, be a Trustee.
ARTICLE III
Powers and Duties of Trustees
3.1 General. The Trustees shall owe to the Trust and its
Shareholders the same fiduciary duties as owed by directors of corporations to
such corporations and their stockholders under the general corporation law of
the State of Delaware. The Trustees shall have exclusive and absolute control
over the Series Property of each Series and over the business of the Trust and
any Series thereof to the same extent as if the Trustees were the sole owners
of all such Series Property and busi ness in their own right, but with such
powers of delegation as may be permitted by this Declaration. The enumeration
of any specific power herein shall not be con strued as limiting the aforesaid
power. The Trustees may perform such acts as in their sole discretion are
proper for conducting the business of the Trust. The powers of the Trustees
may be exercised without order of or resort to any court. No Trustee shall be
obligated to give any bond or other security for the performance of any of his
duties or powers hereunder.
3.2 Investments. The Trustees shall have power, subject to
the Fundamental Policies in effect from time to time with respect to the
Trust, to:
(a) manage, conduct, operate and carry on the
business of an investment company;
(b) subscribe for, invest in, reinvest in, purchase
or otherwise acquire, hold, pledge, sell, assign, transfer, exchange, distribute
or otherwise deal in or dispose of any and all sorts of property, tangible or
intangible, including but not limited to securities of any type whatsoever,
whether equity or non-equity, of any issuer, evidences of indebtedness of any
Person and any other rights, interests, instruments or property of any sort
and to exercise any and all rights, powers and privileges of ownership or
interest in respect of any and all such investments of every kind and
description, including, without limitation, the right to consent and otherwise
act with respect thereto, with power to designate one or more Persons to
exercise any of said rights, powers and privileges in respect of any of said
investments. The Trustees shall not be limited by any law limiting the
investments which may be made by fiduciaries.
3.3 Legal Title. Legal title to all the Series Property
shall be vested in the Trustees as joint tenants except that the Trustees
shall have power to cause legal title to any Series Property to be held by or
in the name of one or more of the Trustees, or in the name of the Trust, or
any Series thereof, or in the name of any other Person as nominee, custodian
or pledgee, on such terms as the Trustees may determine, provided that the
interest of the Trust or any Series thereof therein is appropriately
protected.
The right, title and interest of the Trustees in the Series
Property shall vest automatically in each Person who may hereafter become a
Trustee upon his due election and qualification. Upon the ceasing of any
Person to be a Trustee for any reason, such Person shall automatically cease
to have any right, title or interest in any of the Series Property, and the
right, title and interest of such Trustee in the Series Property shall vest
automatically in the remaining Trustees. Such vesting and cessation of title
shall be effective whether or not conveyancing documents have been executed
and delivered.
3.4 Issuance and Repurchase of Shares. The Trustees shall
have the power to issue, sell, repurchase, redeem, retire, cancel, acquire,
hold, resell, reissue, dispose of, transfer, and otherwise deal in, Shares,
including Shares in fractional denominations, shall have the power to
establish from time to time in accordance with the provisions of Section 6.2
and 6.3 hereof Series and Classes representing interests in the Trust or a
Series thereof and, subject to the more detailed provisions set forth in
Article VII, shall have the power to apply to any such repurchase, redemption,
retirement, cancellation or acquisition of Shares any funds or property of the
applicable Series of the Trust whether capital or surplus or otherwise, to the
full extent now or hereafter permitted by the laws of the State of Delaware
governing business corporations.
3.5 Borrow Money or Utilize Leverage. Subject to the
Fundamental Policies in effect from time to time, the Trustees shall have the
power to borrow money or otherwise obtain credit or utilize leverage in
connection with the activities of any Series to the maximum extent permitted
by law, regulation or order and the Fundamental Policies of any Series and to
secure the same by mortgaging, pledging or otherwise subjecting as security
the assets of such Series, including the lending of portfolio securities, and
to endorse, guarantee, or undertake the performance of any obligation,
contract or engagement of any other Person; provided, however, that the assets
of any particular Series shall not be used as security for any credit extended
solely or partially to one or more other Series.
3.6 Delegation; Committees. The Trustees shall have the
power, consistent with their continuing exclusive authority over the
management of the Trust and the Series Property, to delegate from time to time
to such of their number or to officers, employees or agents of the Trust the
doing of such things and the execution of such instruments either in the name
of the Trust or the applicable Series or the names of the Trustees or
otherwise as the Trustees may deem expedient, to at least the same extent as
such delegation is permitted to directors of a Delaware business corporation
and is permitted by the 1940 Act, as well as any further delega tions the
Trustees may determine to be desirable, expedient or necessary in order to
effect the purpose hereof. The Trustees may designate one or more committees
which shall have all or such lesser portion of the authority of the entire
Board of Trustees as the Trustees shall determine from time to time except to
the extent action by the entire Board of Trustees or particular Trustees is
required by the ▇▇▇▇ ▇▇▇.
3.7 Collection and Payment. The Trustees shall have power to
collect all property due to any Series of the Trust; to pay all claims,
including taxes, against any Series Property, the Trust or any Series of the
Trust, the Trustees or any officer, employee or agent of the Trust; to
prosecute, defend, compromise or abandon any claims relating to any Series
Property, the Trust or any Series of the Trust, the Trustees or any officer,
employee or agent of the Trust; to foreclose any security interest securing
any obligations, by virtue of which any property is owed to any Series of the
Trust; and to enter into releases, agreements and other instruments. Except to
the extent required for a Delaware business corporation, the Shareholders
shall have no power to vote as to whether or not a court action, legal
proceeding or claim should or should not be brought or maintained derivatively
or as a class action on behalf of the Trust, any Series or the Shareholders
thereof.
3.8 Expenses. The Trustees shall have power to incur and pay
out of the assets or income of any Series of the Trust, any expenses which in
the opinion of the Trustees are necessary or appropriate to carry out any of
the purposes of this Declaration, and the business of any Series of the Trust,
and to pay reasonable compensation from the funds of each Series to themselves
as Trustees. The Trustees shall fix the compensation of all officers,
employees and Trustees. Subject to the 1940 Act, the Trustees may pay
themselves such compensation for special services, including legal,
underwriting, syndicating and brokerage services, as they in good faith may
deem reasonable and reimbursement for expenses reasonably incurred by
themselves on behalf of any Series. The Trustees shall have the power, as
frequently as they may determine, to cause each Shareholder, or each
Shareholder of any particular Series, to pay directly, in advance or arrears,
for charges of distribution, of the custodian or transfer, shareholder
servicing or similar agent of such Series or Class, a pro rata amount as
defined from time to time by the Trustees, by setting off such charges due
from such Shareholder from declared but unpaid dividends or distributions owed
such Shareholder and/or by reducing the number of shares in the account of
such Shareholder by that number of full and/or fractional Shares which
represents, at the net asset value thereof, the outstanding amount of such
charges due from such Shareholder.
3.9 By-Laws. The Trustees shall have the exclusive authority
to adopt and from time to time amend or repeal By-Laws for the conduct of the
business of the Trust.
3.10 Miscellaneous Powers. The Trustees shall have the power
to: (a) employ or contract with such Persons as the Trustees may deem
desirable for the transaction of the business of any Series, including
investment advisors, administra tors, custodians, transfer agents, shareholder
services providers, accountants, counsel, brokers, dealers and others; (b)
enter into joint ventures, partnerships and any other combinations or
associations; (c) purchase, and pay for out of Series Property, insurance
policies insuring the Shareholders, Trustees, officers, employees, agents,
investment advisors, distributors, selected dealers or independent contractors
of any Series against all claims arising by reason of holding any such
position or by reason of any action taken or omitted by any such Person in
such capacity, whether or not constituting negligence, or whether or not the
Trust would have the power to indemnify such Person against such liability;
(d) establish pension, profit-sharing, share purchase, and other retirement,
incentive and benefit plans for any Trustees, officers, employees and agents
of the Trust; (e) make donations, irrespective of benefit to the Trust, for
charitable, religious, educational, scientific, civic or similar purposes; (f)
to the extent permitted by applicable law, indemnify any Person with whom any
Series has dealings, including without limitation any investment advisor,
administrator, manager, transfer agent, custodian, distributor or selected
dealer, or any other Person as the Trustees may see fit to such extent as the
Trustees shall determine; (g) guarantee indebtedness or contractual
obligations of others; (h) determine and change the fiscal year of the Trust
and the method in which its accounts shall be kept; and (i) adopt a seal for
the Trust but the absence of such seal shall not impair the validity of any
instrument executed on behalf of the Trust.
3.11 Further Powers. The Trustees shall have the power to
conduct the business of the Trust or any Series of the Trust or any Class
thereof and carry on its operations in any and all of its branches and
maintain offices both within and without the State of Delaware, in any and all
states of the United States of America, in the District of Columbia, and in
any and all commonwealths, territories, dependen cies, colonies, possessions,
agencies or instrumentalities of the United States of America and of foreign
governments, and to do all such other things and execute all such instruments
as they deem necessary, proper or desirable in order to promote the interests
of the Trust or any Series of the Trust or any Class thereof although such
things are not herein specifically mentioned. Any determination as to what is
in the interests of the Trust or any Series of the Trust or any Class thereof
made by the Trustees in good faith shall be conclusive. In construing the
provisions of this Declaration, the presumption shall be in favor of a grant
of power to the Trustees.
ARTICLE IV
Advisory, Management and Distribution Arrangements
--------------------------------------------------
4.1 Advisory and Management Arrangements. Subject to the
requirements of applicable law as in effect from time to time, the Trustees
may in their discretion from time to time enter into advisory, administration
or management contracts (including, in each case, one or more sub-advisory,
sub-administration or sub-management contracts) whereby the other party to any
such contract shall undertake to furnish the Trustees such advisory,
administrative and management services, with respect to the Trust as the
Trustees shall from time to time consider desirable and all upon such terms
and conditions as the Trustees may in their discretion determine.
Notwithstanding any provisions of this Declaration, the Trustees may authorize
any advisor, administrator or manager (subject to such general or specific
instructions as the Trustees may from time to time adopt) to effect investment
transactions with respect to the assets on behalf of the Trustees to the full
extent of the power of the Trustees to effect such transactions or may
authorize any officer, employee or Trustee to effect such transactions
pursuant to recommendations of any such advisor, administrator or manager (and
all without further action by the Trustees). Any such investment transaction
shall be deemed to have been authorized by all of the Trustees.
4.2 Distribution Arrangements. Subject to compliance with
the 1940 Act, the Trustees may retain a distributor to sell Shares of the
Trust or any Series. The Trustees may in their discretion from time to time
enter into one or more contracts, providing for the sale of the Shares of the
Trust or any Series, whereby the Trust may either agree to sell such 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 the Trustees may in their discretion determine not inconsistent
with the provisions of this Article IV or the By-Laws; and such contract may
also provide for the repurchase or sale of Shares of the Trust or Series by
such other party as principal or as agent of the Trust.
4.3 Parties to Contract. Any contract of the character
described in Sections 4.1 and 4.2 of this Article IV or in Article VII hereof
may be entered into with any Person, although one or more of the Trustees,
officers or employees 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 voidable by reason of the existence of any such
relationship, 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
reasonable and fair and not inconsistent with the provisions of this Article IV
or the By-Laws. The same Person may be the other party to contracts entered into
pursuant to Sections 4.1 and 4.2 above or Article VII, 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 4.3.
ARTICLE V
Limitations of Liability
and Indemnification
5.1 No Personal Liability of Shareholders, Trustees, etc. No
Share holder of the Trust shall be subject in such capacity to any personal
liability whatso ever to any Person in connection with Series Property or the
acts, obligations or affairs of the Trust. Shareholders shall have the same
limitation of personal liability as is extended to stockholders of a private
corporation for profit incorporated under the general corporation law of the
State of Delaware. No Trustee, officer, employee or agent of the Trust or any
Series of the Trust shall be subject in such capacity to any personal
liability whatsoever to any Person, other than the Trust or the respective
Series or the Shareholders, in connection with Series Property or the affairs
of the Trust or the respective Series, save only liability to the Trust or its
Shareholders arising from bad faith, willful misfeasance, gross negligence or
reckless disregard for his duty to such Person; and, subject to the foregoing
exception, all such Persons shall look solely to the Series Property of the
affected Series for satisfaction of claims of any nature arising in connection
with the affairs of the Trust. If any Shareholder, Trustee or officer, as
such, of the Trust, is made a party to any suit or proceeding to enforce any
such liability, subject to the foregoing exception regarding Trustees and
officers, he shall not, on account thereof, be held to any personal liability.
Any repeal or modification of this Section 5.1 shall not adversely affect any
right or protection of a Trustee or officer of the Trust existing at the time
of such repeal or modification with respect to acts or omissions occurring
prior to such repeal or modification.
5.2 Mandatory Indemnification. (a) The Trust hereby agrees,
solely out of the assets of the affected Series, to indemnify each Person who
at any time serves as Trustee or officer of the Trust (each such Person being
an "indemnitee") against any liabilities and expenses, including amounts paid
in satisfaction of judgments, in compromise or as fines and penalties, and
reasonable counsel fees reasonably incurred by such indemnitee in connection
with the defense or disposition of any action, suit or other proceeding,
whether civil or criminal, before any court or administrative or investigative
body in which he may be or may have been involved as a party or otherwise or
with which he may be or may have been threatened, while acting in any capacity
set forth above in this Article V by reason of his having acted in any such
capacity, except with respect to any matter as to which he shall not have
acted in good faith in the reasonable belief that his action was in the best
interest of the Trust or the respective Series of the Trust and further more,
in the case of any criminal proceeding, as to which he shall have had reason
able cause to believe that the conduct was unlawful, provided, however, that
no indemnitee shall be indemnified hereunder against any liability to any
Person or any expense of such indemnitee arising by reason of (i) willful
misfeasance, (ii) bad faith, (iii) gross negligence, or (iv) reckless
disregard of the duties involved in the conduct of his position.
Notwithstanding the foregoing, with respect to any action, suit or other
proceeding voluntarily prosecuted by any indemnitee as plaintiff, indemnifica
tion shall be mandatory only if the prosecution of such action, suit or other
proceed ing by such indemnitee was (1) authorized by a majority of the
Trustees or (2) was instituted by the indemnitee to enforce his or her rights
to indemnification hereunder in a case in which the indemnitee is found to be
entitled to such indemnification. The rights to indemnification set forth in
this Declaration shall continue as to a Person who has ceased to be a Trustee
or officer of the Trust and shall inure to the benefit of his or her heirs,
executors and personal and legal representatives. No amendment or restatement
of this Declaration or repeal of any of its provisions shall limit or
eliminate any of the benefits provided to any Person who at any time is or was
a Trustee or officer of the Trust or otherwise entitled to indemnification
hereun der in respect of any act or omission that occurred prior to such
amendment, restate ment or repeal.
(b) Notwithstanding the foregoing, no indemnification
shall be made hereunder unless there has been a determination (1) by a final
decision on the merits by a court or other body of competent jurisdiction
before whom the issue of entitlement to indemnification hereunder was brought
that such indemnitee is entitled to indemnification hereunder or, (2) in the
absence of such a decision, by (i) a majority vote of a quorum (being
one-third of such Trustees) of those Trustees who are neither Interested
Persons of the Trust nor parties to the proceeding ("Disinter ested Non-Party
Trustees"), that the indemnitee is entitled to indemnification hereunder, or
(ii) if such quorum is not obtainable or even if obtainable, if such majority
so directs, independent legal counsel in a written opinion conclude that the
indemnitee should be entitled to indemnification hereunder. All determinations
to make advance payments in connection with the expense of defending any
proceeding shall be authorized and made in accordance with the immediately
succeeding paragraph (c) below.
(c) The Trust shall make advance payments in
connection with the expenses of defending any action with respect to which
indemnification might be sought hereunder if the Trust receives a written
affirmation by the indemnitee of the indemnitee's good faith belief that the
standards of conduct necessary for indemnification have been met and a written
undertaking to reimburse the Trust unless it is subsequently determined that
indemnitee is entitled to such indemnification and if a majority of the
Trustees determine that the applicable standards of conduct necessary for
indemnification appear to have been met. In addition, at least one of the
following conditions must be met: (1) the indemnitee shall provide adequate
security for his undertaking, (2) the Trust shall be insured against losses
arising by reason of any lawful advances, or (3) a majority of a quorum of the
Disinterested Non-Party Trustees, or if a majority vote of such quorum so
directs, independent legal counsel in a written opinion, shall conclude, based
on a review of readily available facts (as opposed to a full trial-type
inquiry), that there is substantial reason to believe that the indemnitee
ultimately will be found entitled to indemnification.
(d) The rights accruing to any indemnitee under
these provi sions shall not exclude any other right to which he or she may be
lawfully entitled.
(e) Subject to any limitations provided by the 1940
Act and this Declaration, the Trust shall have the power and authority, solely
out of the assets of the affected Series, to indemnify and provide for the
advance payment of expenses to employees, agents and other Persons providing
services to the Trust or serving in any capacity at the request of the Trust
to the full extent as corporations organized under the Delaware General
Corporation Law may indemnify or provide for the advance payment of expenses
for such Persons provided that such indemnification has been approved by a
majority of the Trustees.
5.3 No Duty of Investigation; Notice in Trust Instruments,
etc. No purchaser, lender, transfer agent or other Person dealing with the
Trustees or with any officer, employee or agent of the Trust or any Series of
the Trust or Class thereof shall be bound to make any inquiry concerning the
validity of any transaction purporting to be made by the Trustees or by said
officer, employee or agent or be liable for the application of money or
property paid, loaned, or delivered to or on the order of the Trustees or of
said officer, employee or agent. Every obligation, contract, undertaking,
instrument, certificate, Share, other security of the Trust or any Series of
the Trust, and every other act or thing whatsoever executed in connection with
the Trust or any Series of the Trust shall be conclusively taken to have been
executed or done by the executors thereof only in their capacity as Trustees
under this Declaration or in their capacity as officers, employees or agents
of the Trust. The Trustees may maintain insurance for the protection of the
Series Property, the Shareholders of each Series, Trustees, officers,
employees and agents in such amount as the Trustees shall deem adequate to
cover possible liability, and such other insurance as the Trustees in their
sole judgment shall deem advisable or is required by the 1940 Act..
5.4 Reliance on Experts, etc. Each Trustee and officer or
employee of the Trust or any Series of the Trust shall, in the performance of
his duties, be fully and completely justified and protected with regard to any
act or any failure to act resulting from reliance in good faith upon the books
of account or other records of the Trust or any Series of the Trust or Class
thereof, upon an opinion of counsel, or upon reports made to the Trust or any
Series thereof by any of the Trust's officers or employees or by any advisor,
administrator, manager, distributor, selected dealer, accountant, appraiser or
other expert or consultant selected with reasonable care by the Trustees,
officers or employees of the Trust, regardless of whether such counsel or
other expert may also be a Trustee.
ARTICLE VI
Shares of Beneficial Interest
6.1 Beneficial Interest. The interest of the beneficiaries
hereunder shall be represented by an unlimited number of transferable shares
of beneficial interest, par value $.001 per share. All Shares issued in
accordance with the terms hereof, including, without limitation, Shares issued
in connection with a dividend in Shares or a split of Shares, shall be fully
paid when the consideration determined by the Trustees (if any) therefor shall
have been received by the Trust. The power to make certain changes against
Shareholders and their Shares shall not be considered assessments for the
foregoing purpose.
6.2 Series Designation. The Trustees, in their discretion
from time to time, may authorize the reclassification of Shares into one or
more Series, each Series relating to a separate portfolio of investments and
each of which Series shall be a separate and distinct sub-trust of the Trust.
Each Series so established hereunder shall be deemed to be a separate trust
under the provisions of Delaware law. The Trustees shall have exclusive power
without the requirement of Shareholder approval to establish and designate
such separate and distinct Series and to fix and determine the relative rights
and preferences as between the different Series. The establishment and
designation of any Series shall be effective upon the execution or approval by
a majority of the Trustees of an instrument or resolution setting forth the
establishment and designation of such Series (or when authorized to do so, by
any officer of the Trust pursuant to the vote of a majority of the Trustees of
the Trust). Such instru ment shall also set forth any rights and preferences
of such Series which are in addition to the rights and preferences of Shares
set forth in this Declaration. At any time that there are no Shares
outstanding of any particular Series previously estab lished and designated,
the Trustees may by an instrument or resolution executed or approved by a
majority of their number abolish or alter that Series and the establish ment
and designation thereof. Each instrument referred to in this paragraph shall
have the status of an amendment to this Declaration.
6.3 Class Designation. The Trustees, in their discretion
from time to time, may authorize the reclassification of Shares of any Series
into one or more Classes of Shares all the assets of which Series shall remain
commingled and not allocated among the different Classes thereof. The Trustees
shall have exclusive power without the requirement of Shareholder approval to
establish and designate such separate and distinct Classes and to fix and
determine the relative rights, terms, conditions and expenses applicable to
each Class of Shares to the maximum extent permitted by the ▇▇▇▇ ▇▇▇. The
establishment and designation of any Class of Shares shall be effective upon
the execution or approval by a majority of the Trustees of an instrument or
resolution setting forth the establishment and designation of such Class (or
when authorized to do so, by an officer of the Trust pursuant to the vote of a
majority of the Trustees of the Trust). At any time that there are no Shares
outstand ing of any particular Class previously established and designated,
the Trustees may, by an instrument or resolution executed or approved by a
majority of the Trustees, abolish or alter that Class and the establishment
and designation thereof.
6.4 Description of Shares. If the Trustees shall create
sub-trusts and reclassify the Shares into one or more Series or create Classes
of Shares, the following provisions shall be applicable:
(a) Number of Shares. The number of Shares of each
Series
or Class that may be issued shall be unlimited. The Trustees may, but shall not
be required to, classify or reclassify any unissued Shares or any Shares
previously issued and reacquired of any Series or Class into one or more Series
or Classes that may be established and designated from time to time. The
Trustees may, but shall not be required to, hold as treasury Shares (of the same
or some other Series or Class), reissue for such consideration and on such terms
as they may determine, or cancel any Shares of any Series or Class reacquired by
the Trust at their discretion from time to time.
(b) Investment of Property. The power of the Trustees
to
invest and reinvest the Series Property of each Series that may be established
shall be governed by Section 3.2 of this Declaration.
(c) Allocation of Assets. All consideration
received by the Trust for the issue or sale of Shares of a particular Series
or Class of such Series, together with all assets in which such consideration
is invested or reinvested, all income, earnings, profits, and proceeds
thereof, including any proceeds derived from the sale, exchange or liquidation
of such assets, and any funds or payment derived from any reinvestment of such
proceeds in whatever form the same may be, together with such Series' or
Class's share of any other assets of the Trust, shall be held by the Trustees
and Trust for the benefit of the Shareholders of such Series and, subject to
the rights of creditors of such Series only, shall irrevocably belong to that
Series for all purposes, and shall be so recorded upon the books of account of
the Trust. In the event that there are any assets, income, earnings, profits,
and proceeds thereof, funds or payments which are not readily identifiable as
belonging to any particular Series, such assets shall be allocated among the
Series in proportion to their net assets as a proportion of the total net
assets of the Trust unless the Trustees shall have affirma tively allocated
them among any one or more of the Series established and designated from time
to time in any other manner or basis as they, in their sole discretion, deem
fair and equitable, and anything so allocated to a Series shall belong to such
Series. Each such allocation shall be conclusive and binding upon the
Shareholders of all Series for all purposes.
(d) Allocation of Liabilities. The assets belonging
to each particular Series or attributable to each particular Class of such
Series shall be charged with the liabilities of the Trust in respect of that
Series or Class and with all expenses, costs, charges and reserves
attributable to that Series or Class, and any general liabilities, expenses,
costs, charges or reserves of the Trust which are not readily identifiable as
being attributable to any particular Series or Class shall be allocated and
charged against assets of the Series and Classes of each Series in proportion
to their net assets as a proportion of the total net assets of the Trust
unless the Trustees shall have affirmatively allocated them among any one or
more of the Series or Classes established and designated from time to time in
any other manner or basis as the Trustees in their sole discretion deem fair
and equitable; provided that any incremental expenses allocated to one or more
Classes of Shares on a basis other than the relative net asset values of the
respective Classes shall be allocated in a manner consistent with the 1940
Act. Each allocation of liabilities, expenses, costs, charges and reserves by
the Trustees shall be conclusive and binding upon the Shareholders and
creditors of all Series and Classes for all purposes. The Trustees shall have
full discretion, to the extent not inconsistent with the 1940 Act, to deter
mine 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 Share holders and creditors of all Series and Classes for all purposes.
Under no circum stances shall the assets allocated or belonging to a
particular Series or attributable to a particular Class be charged with any
liabilities attributable to another Series or Class. Any creditor may look
only to the assets of the particular Series with respect to which such Person
is a creditor for satisfaction of such creditor's debt.
(e) Dividends. The power of the Trust to pay
dividends and make distributions with respect to any one or more Series shall
be governed by Section 9.2 of this Trust. Dividends and distributions on
Shares of a particular Series may be paid with such frequency as the Trust may
determine, which may be daily or otherwise, pursuant to a standing resolution
or resolutions adopted only once or with such frequency as the Trust may
determine, to the holders of Shares of that Series, from such of the income
and capital gains, accrued or realized, from the assets belonging to that
Series, as the Trust may determine, after providing for actual and accrued
liabilities belonging to that Series. All dividends and distributions on each
Class of a Series shall be distributed pro rata to the holders of Shares of
that Class in proportion to the number of Shares of that Class held by such
holders at the date and time of record established for the payment of such
dividends or distributions, and such dividends and distributions need not be
pro rata with respect to dividends and distributions paid to Shares of any
other Class of such Series. Dividends and distributions shall be paid with
respect to Shares of a given Class only out of lawfully available assets
attributable to such Class.
6.5 Rights of Shareholders. The Shares shall be personal
property giving only the rights in this Declaration specifically set forth.
The ownership of the Series Property of every description and the right to
conduct any business herein before described are vested exclusively in the
Trustees, and the Shareholders shall have no interest therein other than the
beneficial interest conferred by their Shares, with respect to a particular
Series or Class and they shall have no right to call for any partition or
division of any property, profits, rights or interests of the Trust nor can
they be called upon to share or assume any losses of the Trust or, subject to
the right of the Trustees to charge certain expenses directly to Shareholders,
as provided in the last sentence of Section 3.8, suffer an assessment of any
kind by virtue of their ownership of Shares. The Shares shall not entitle the
holder to preference, preemp tive, appraisal, conversion or exchange rights
(except as specified in Section 11.4 or as specified by the Trustees in the
designation or redesignation of any Series or Class thereof).
6.6 Trust Only. It is the intention of the Trustees to
create only the relationship of Trustee and beneficiary between the Trustees
and each Shareholder from time to time. It is not the intention of the
Trustees to create a general partner ship, limited partnership, joint stock
association, corporation, bailment or any form of legal relationship other
than a trust. Nothing in this Declaration shall be construed to make the
Shareholders, either by themselves or with the Trustees, partners, members or
shareholders of any such entity.
6.7 Issuance of Shares. The Trustees, in their discretion,
may from time to time without the vote of the Shareholders issue Shares with
respect to any Series that may have been established pursuant to Section 6.2,
in addition to the then issued and outstanding Shares and Shares held in the
treasury, to such party or parties and for such amount and type of
consideration, including cash or property, at such time or times, and on such
terms as the Trustees may determine, and may in such manner acquire other
assets (including the acquisition of assets subject to, and in connection with
the assumption of, liabilities) and businesses. The Trustees may from time to
time divide or combine the Shares of any Series into a greater or lesser
number without thereby changing the proportionate beneficial interest in such
Series of the Trust. Issuances and redemptions of Shares may be made in whole
Shares and/or l/l,000ths of a Share or multiples thereof as the Trustees may
determine.
6.8 Register of Shares. One or more registers shall be kept
at the offices of the Trust or any transfer agent duly appointed by the
Trustees under the direction of the Trustees which shall contain the names and
addresses of the Share holders and the number of Shares of each Series and
Class thereof held by them respectively and a record of all transfers thereof.
Such registers shall be conclusive as to who are the holders of the Shares of
the applicable Series and Classes thereof and who shall be entitled to receive
dividends or distributions or otherwise to exercise or enjoy the rights of
Shareholders. No Shareholder shall be entitled to receive payment of any
dividend or distribution, nor to have notice given to him as herein provided,
until he or she has given his or her address to a transfer agent or such other
officer or agent of the Trustees as shall keep the register for entry thereon.
It is not contemplated that certificates will be issued for the Shares;
however, the Trustees, in their discretion, may authorize the issuance of
share certificates and promulgate appropriate fees therefore and rules and
regulations as to their use.
6.9 Transfer Agent and Registrar. The Trustees shall have
power to employ a transfer agent or transfer agents, and a registrar or
registrars, with respect to the Shares. The transfer agent or transfer agents
may keep the applicable register and record therein, the original issues and
transfers, if any, of the said Shares. Any such transfer agents and/or
registrars shall perform the duties usually performed by transfer agents and
registrars of certificates of stock in a corporation, as modified by the
Trustees.
6.10 Transfer of Shares. Shares shall be transferable on the
records of the Trust only by the record holder thereof or by its agent thereto
duly authorized in writing, upon delivery to the Trustees or a transfer agent
of the Trust of a duly executed instrument of transfer, together with such
evidence of the genuineness of each such execution and authorization and of
other matters as may reasonably be required. Upon such delivery the transfer
shall be recorded on the applicable register of the Trust. Until such record
is made, the Shareholder of record shall be deemed to be the holder of such
Shares for all purposes hereof and neither the Trustees nor any transfer agent
or registrar nor any officer, employee or agent of the Trust shall be affected
by any notice of the proposed transfer. Except as otherwise determined by the
Trustees, no holders of any Shares or any Series or Class may sell or
otherwise transfer for value any Shares to any Person other than the Trust
upon redemption thereof.
Any Person becoming entitled to any Shares in consequence of
the death, bankruptcy, or incompetence of any Shareholder, or otherwise by
operation of law, shall be recorded on the applicable register of Shares as
the holder of such Shares upon production of the proper evidence thereof to
the Trustees or a transfer agent of the Trust, but until such record is made,
the Shareholder of record shall be deemed to be the holder of such for all
purposes hereof, and neither the Trustees nor any transfer agent or registrar
nor any officer or agent of the Trust shall be affected by any notice of such
death, bankruptcy or incompetence, or other operation of law.
6.11 Notices. Any and all notices to which any Shareholder
hereun der may be entitled and any and all communications shall be deemed duly
served or given if mailed, postage prepaid, addressed to any Shareholder of
record at his last known address as recorded on the applicable register of the
Trust.
ARTICLE VII
Custodians
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7.1 Appointment and Duties. The Trustees shall at all times
employ a custodian or custodians, meeting the qualifications for custodians for
portfolio securities of investment companies contained in the 1940 Act, as
custodian with respect to the assets of the Trustor any Series. Any custodian
shall have authority as agent of the Trust or Series with respect to which it is
acting as determined by the custodian agreement or agreements, but subject to
such restrictions, limitations and other requirements, if any, as may be
contained in the By-Laws of the Trust and the 1940 Act:
(1) to hold the securities owned by the Trust or Series and
deliver the same upon written order;
(2) to receive any receipt for any moneys due to the Trust or
Series and deposit the same in its own banking department (if a bank)
or elsewhere as the Trustees may direct;
(3) to disburse such funds upon orders or vouchers;
(4) if authorized by the Trustees, to keep the books and
accounts of the Trust and furnish clerical and accounting services; and
(5) if authorized to do so by the Trustees, to compute the net
income or net asset value of the Trust or Series;
all upon such basis of compensation as may be agreed upon between the Trustees
and the custodian.
The Trustees may also authorize each 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 meet the qualifications for
custodians contained in the 1940 Act.
7.2 Central Certificate System. Subject to such 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
or Series 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, 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
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 with drawal
only upon the order of the Trust.
ARTICLE VIII
Redemption
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8.1 Redemptions. All outstanding Shares of any Series of the
Trust or any Class thereof may be redeemed at the option of the holders
thereof, upon and subject to the terms and conditions provided in this Article
VII. The Trust shall, upon application by any Shareholder or pursuant to
authorization from any Share holder of a particular Series or Class, redeem or
repurchase from such Shareholder outstanding Shares of such Series or Class
for an amount per share determined by the application of a formula adopted for
such purpose by the Trustees with respect to such Series or Class (which
formula shall be consistent with the 1940 Act); provided that (a) such amount
per share shall not exceed any limitations imposed under applicable law and
(b) if so authorized by the Trustees, the Trust may, at any time and from time
to time, charge fees for effecting such redemption, at such rates as the
Trustees may establish, as and to the extent permitted under the 1940 Act, and
may, at any time and from time to time, pursuant to such Act, suspend such
right of redemption. The procedures for effecting redemption shall be as set
forth in the Prospectus with respect to the applicable Series or Class from
time to time. The proceeds of the redemption of Shares shall be paid in cash
or property (tangible or intangible) or any combination thereof in the sole
discretion of the Trustees or, if not determined by them, the Trust's
investment advisor.
8.2 Disclosure of Holding. The holders of Shares or other
securities of the Trust shall upon demand disclose to the Trustees in writing
such information with respect to direct and indirect ownership of Shares or
other securities of the Trust as the Trustees deem necessary to comply with
the provisions of the Code or any other applicable laws.
8.3 Redemptions of Small Accounts. The Trustees shall have
the power to redeem shares of any Series or Class in any or all accounts at a
redemption price determined in accordance with Section 8.1 above, (a) if at
any time the total investment in such account does not have a value of at
least such minimum amount as may be specified in the Prospectus for such
Series or Class from time to time, (b) as provided by Section 3.8, or (c) to
the extent a Shareholder or other Person benefi cially owns Shares equal to or
in excess of a percentage of Shares of the Trust or any Series or Class
determined from time to time by the Trustees and specified in the applicable
Prospectus. In the event the Trustees determine to exercise their power to
redeem Shares provided in subsection (a) of this Section 8.3, the Shareholder
shall be notified that the value of his account is less than the applicable
minimum amount and shall be allowed 30 days to make an appropriate investment
before redemption is processed.
ARTICLE IX
Determination of Net Asset Value
Net Income and Distributions
9.1 Net Asset Value. The value of the assets of the Trust or
any Series of the Trust or any Class of such Series, the amount of liabilities
of the Trust or any Series of the Trust or any Class of such Series and the
net asset value of each outstanding Share of any Series or Class shall be
determined at such time or times and on such days as the Trustees may
determine in accordance with the 1940 Act. The method of determination of net
asset value shall be determined by the Trustees. The power and duty to value
the assets and liabilities of the Trust and make net asset value
determinations and calculations may be delegated by the Trustees.
9.2 Distributions to Shareholders.
(a) The Trust shall from time to time distribute among
the Shares such proportion of the net profits, surplus (including paid-in
surplus), capital, or assets held by the Trustees as they or any Persons to
whom they delegate such determination may deem proper or as may otherwise be
determined in the instrument setting forth the terms of such Series or Class
of Shares, which need not be ratable with respect to distributions in respect
of Shares of any other Class. Such distribu tions may be made in cash or
property (including without limitation any type of obligations of the Trust or
any assets thereof) or any combination thereof.
(b) Distributions may be made to the Shareholders
of record entitled to such distribution at the time such distribution is
declared or at such later date as shall be determined by the Trust prior to
the date of payment.
(c) The Trust may always retain from any source
such amount as the Trustees or their delegee may deem necessary to pay the
debts or expenses of the Trust or to meet obligations of the Trust, or as the
Trustees or their delegee otherwise may deem desirable to use in the conduct
of its affairs or to retain for future requirements or extensions of the
business of the Trust.
9.3 Power to Modify Foregoing Procedures. Notwithstanding
any of the foregoing provisions of this Article IX, the Trustees may
prescribe, in their absolute discretion except as may be required by the 1940
Act, such other bases and times for determining the per share asset value of
the Trust's Shares or net income, or the declaration and payment of dividends
and distributions as they may deem necessary or desirable for any reason,
including to enable the Trust to comply with any provision of the 1940 Act, or
any securities exchange or association registered under the Securities
Exchange Act of 1934, or any order of exemption issued by the Commission, all
as in effect now or hereafter amended or modified.
ARTICLE X
Shareholders
10.1 Meetings of Shareholders. A meeting of Shareholders may
be called at any time by a majority of the Trustees or the President and shall
be called by any Trustee for any proper purpose upon written request of
Shareholders of the Trust holding in the aggregate not less than 51% of the
outstanding Shares of the Trust, or the class or series of Shares having
voting rights on the matter, such request specify ing the purpose or purposes
for which such meeting is to be called. Any Shareholder meeting shall be held
within or without the State of Delaware on such day and at such time as the
Trustees shall designate. The Trust shall not be required to hold annual
meetings of the Shareholders.
10.2 Voting. Shareholders shall have no power to vote on any
matter except matters on which a vote of Shares is expressly required by
applicable law, this Declaration or resolution of the Trustees. In particular,
no amendment of this declaration, merger, consolidation, share exchange or
sale of assets of the Trust or any Series thereof, conversion of the Trust to
any other form of organization or any other action of the Trust or Series
thereof shall require any vote or other approval of any of the Shareholders
except as provided by the foregoing sentence. Any matter required to be
submitted for approval of any of the Shares and affecting more than one Series
or Class shall require approval by the required vote of Shares of the affected
Series or Classes voting together as a single Series or Class and, if such
matter affects one or more Series or Class thereof differently from one or
more other Series or Class, approval, to the extent provided by applicable
law, this Declaration or resolution of the Trustees, by the required vote of
Shares of each such Series or Class voting as a separate Series or Class shall
be required in order to be approved with respect to such Series or Class;
provided, however, that except to the extent required by the 1940 Act, there
shall be no separate class votes on the election or removal of Trustees or the
selection of auditors for the Trust and its Series. Share holders of a
particular Series shall not be entitled to vote on any matter that affects the
rights or interests of only one or more other Series. There shall be no
cumulative voting in the election or removal of Trustees.
10.3 Notice of Meeting and Record Date. Notice of all
meetings of Shareholders, stating the time, place and purposes of the meeting,
shall be given by the Trustees by mail to each Shareholder of record entitled
to vote thereat at its registered address, mailed at least 10 days and not
more than 90 days before the meeting or otherwise in compliance with
applicable law. Only the business stated in the notice of the meeting shall be
considered at such meeting. Any adjourned meeting may be held as adjourned one
or more times without further notice not later than 120 days after the record
date. For the purposes of determining the Sharehold ers who are entitled to
notice of and to vote at any meeting the Trustees may, without closing the
transfer books, fix a date not more than 90 nor less than 10 days prior to the
date of such meeting of Shareholders as a record date for the determination of
the Persons to be treated as Shareholders of record for such purposes.
10.4 Quorum and Required Vote. (a) The holders of a majority
of the Shares entitled to vote on any matter at a meeting present in person or
by proxy shall constitute a quorum at such meeting of the Shareholders for
purposes of conducting business on such matter. The holders of a majority of
the outstanding Shares of the affected Series or Classes on the record date
present in person or by proxy shall constitute a quorum at any meeting of the
Shareholders for purposes of conducting business on which a vote of
Shareholders of such Series or Classes is being taken. Shares underlying a
proxy as to which a broker or other intermediary states its absence of
authority or lack of instruction to vote with respect to one or more matters
or fails to abstain or vote on or against one or more matters shall be treated
as present for purposes of establishing a quorum or proportion of shares voted
for taking action on any such matter only to the extent so determined by the
Trustees at or prior to the meeting of Shareholders at which such matter is to
be considered.
(b) Subject to any provision of applicable law,
this Declara tion or a resolution of the Trustees specifying or requiring a
greater or lesser vote requirement for the transaction of any matter of
business at any meeting of Share holders, (i) the affirmative vote of a
plurality of the Shares entitled to vote for the election of any Trustee or
Trustees shall be the act of such Shareholders with respect to the election of
such Trustee or Trustees, (ii) the affirmative vote of a majority of the
Shares present in person or represented by proxy on any other matter and
entitled to vote on such matter shall be the act of the Shareholders with
respect to such matter, and (iii) where a separate vote of any Series or Class
is required on any matter, the affirmative vote of a majority of the Shares of
such Series or Class present in person or represented by proxy on such matter
and entitled to vote on such matter shall be the act of the Shareholders of
such Series or Class with respect to such matter.
10.5 Proxies, etc. At any meeting of Shareholders, any
holder of Shares entitled to vote thereat may vote by proxy, provided that no
proxy shall be voted at any meeting unless it shall have been placed on file
with the Secretary, or with such other officer or agent of the Trust as the
Secretary may direct, for verifica tion prior to the time at which such vote
shall be taken. Pursuant to a resolution of a majority of the Trustees,
proxies may be solicited in the name of one or more Trustees or one or more of
the officers or employees of the Trust. Only Shareholders of record shall be
entitled to vote. Each full Share shall be entitled to one vote and each
fractional Share shall be entitled to a vote equal to its fraction of a full
Share. When any Share is held jointly by several Persons, any one of them may
vote at any meeting in person or by proxy in respect of such Share, but if
more than one of them shall be present at such meeting in person or by proxy,
and such joint owners or their proxies so present disagree as to any vote to
be cast, such vote shall not be received in respect of such Share. A proxy
purporting to be given by or on behalf of a Shareholder of record on the
record date for a meeting shall be deemed valid unless challenged at or prior
to its exercise, and the burden of proving invalidity shall rest on the
challenger. If the holder of any such Share is a minor or a Person of unsound
mind, and subject to guardianship or to the legal control of any other Person
as regards the charge or management of such Share, he or she may vote by his
or her guardian or such other Person appointed or having such control, and
such vote may be given in person or by proxy. The Trustees shall have the
authority to make and modify from time to time regulations regarding the
validity of proxies. In addition to signed proxies, such regulations may
authorize facsimile, telephonic, internet and other methods of appointing a
proxy that are subject to such supervision by or under the direction of the
Trustees as the Trustees shall determine.
10.6 Reports. The Trustees shall cause to be prepared and
sent to Shareholders at least annually and more frequently to the extent and
in the form required by law, regulation or any exchange on which Shares are
listed a report of operations containing financial statements of the Trust
prepared in conformity with generally accepted accounting principles and
applicable law. Separate reports may be prepared for the various Series.
Copies of such reports shall be mailed to all Shareholders of record of the
applicable Series within the time required by the 1940 Act, and in any event
within a reasonable period preceding the meeting of Sharehold ers. The
Trustees may prepare and send to Shareholders of any Series or Class any other
reports.
10.7 Inspection of Records. The records of the Trust shall
be open to inspection by Persons who have been holders of record of at least
$25,000 in net asset value or liquidation preference of Shares for a
continuous period of not less than six months to the same extent and for the
same purposes as is permitted under the Delaware General Business Corporation
Law to shareholders of a Delaware business corporation.
10.8 Shareholder Action by Written Consent. Any action which
may be taken by Shareholders by vote may be taken without a meeting if the
holders of all of the Shares entitled to vote thereon consent to the action in
writing and the written consents are filed with the records of the meetings of
Shareholders. Such consent shall be treated for all purposes as a vote taken
at a meeting of Shareholders.
ARTICLE XI
Duration; Termination of Trust;
Amendment; Mergers, Etc.
11.1 Duration. Subject to possible termination in accordance
with the provisions of Section 11.2 hereof, the Trust created hereby shall have
perpetual existence.
11.2 Termination. (a) The Trust or any Series may be
dissolved by the affirmative vote of a majority of the Trustees, and without
any vote of the Shareholders thereof except as may be required by the 1940
Act. Upon the dissolu tion of the Trust or any Series:
(i) The Trust or such Series shall carry on
no
business except for the purpose of winding up its affairs.
(ii) The Trustees shall proceed to wind up
the affairs of the Trust or such Series and all of the powers of the
Trustees under this Declaration shall continue until the affairs of the
Trust or such Series shall have been wound up, including the power to
fulfill or discharge the contracts of the Trust or such Series, collect
its assets, sell, convey, assign, exchange, merge where the Trust is
not the survivor, transfer or otherwise dispose of all or any part of
the remain ing Series Property to one or more Persons at a public or
private sale for consideration which may consist in whole or in part in
cash, securities or other property of any kind, discharge or pay its
liabilities, and do all other acts appropriate to liquidate its
business; provided that any sale, conveyance, assignment, exchange,
merger in which the Trust is not the survivor, transfer or other
disposition of all or substan tially all of the property of the Trust
or any Series Property shall require approval of the principal terms of
the transaction and the nature and amount of the consideration with the
same vote as required for dissolution pursuant to paragraph (a) above.
(iii) After paying or adequately providing
for the payment of all liabilities, and upon receipt of such releases,
indemnities and refunding agreements, as they deem necessary for their
protection, the Trustees may distribute the remaining Series Property
of any Series, in cash or in kind or partly in each, among the Share
holders of such Series according to their respective rights.
(b) After the winding up and termination of the
Trust or any Series and distribution to the Shareholders as herein provided, a
majority of the Trustees shall execute and lodge among the records of the
Trust an instrument in writing setting forth the fact of such termination and
shall execute and file a certifi cate of cancellation with the Secretary of
State of the State of Delaware. Upon termination of the Trust, the Trustees
shall thereupon be discharged from all further liabilities and duties
hereunder, and the rights and interests of all Shareholders shall thereupon
cease.
Upon termination of any Series, the Trustees shall thereunder
be discharged from all further liabilities and duties with respect to such
Series, and the rights and interests of all Shareholders of such Series shall
thereupon cease.
11.3 Amendment Procedure.
(a) Subject to Section 11.3(b), this Declaration may
be amended in any respect by the affirmative vote or approval in writing of
two-thirds of the Trustees and without any vote of the Shareholders of the Trust
or any Series or Class except as may be required by the 1940 Act.
(b) Nothing contained in this Declaration shall
permit the amendment of this Declaration to impair the exemption from personal
liability of the Shareholders, Trustees, officers, employees and agents of the
Trust or to permit assessments upon Shareholders. Expenses of the Trust
charged directly to Share holders pursuant to Section 3.8 hereof or fees or
sales charges payable upon or in connection with redemptions of Shares
pursuant to Section 8.1 hereof shall not constitute "assessments" for purposes
of this Section 11.3(b).
(c) An amendment duly adopted by the requisite
approval of the Board of Trustees and, if required, Shareholders as aforesaid,
shall become effective at the time of such adoption or at such other time as
may be designated by the Board of Trustees or Shareholders, as the case may
be. A certification signed by a majority of the Trustees setting forth an
amendment and reciting that it was duly adopted by the Trustees and, if
required, Shareholders as aforesaid, or a copy of the Declaration, as amended,
and executed by a majority of the Trustees, shall be conclusive evidence of
such amendment when lodged among the records of the Trust or at such other
time designated by the Board.
Notwithstanding any other provision hereof, until such time as
Shares are issued and outstanding, this Declaration may be terminated or amended
in any respect by the affirmative vote of a majority of the Trustees or by an
instrument signed by a majority of the Trustees.
11.4 Merger, Consolidation and Sale of Assets. The Trust or
any Series may merge or consolidate with any other corporation, association,
trust or other organization or any Series, sub-trust or other designated portion
thereof or may sell, lease or exchange all or substantially all of the property
of the Trust or any Series Property including its good will or may acquire all
or substantially all of the property of any other corporation, association,
trust or other organization or any series, sub-trust or other designated portion
thereof, upon such terms and conditions and for such consideration when and as
authorized by two-thirds of the Trustees and without any vote by the
Shareholders of the Trust or any Series or Class except as may be required by
the 1940 Act, and any such merger, consolidation, sale, lease, exchange or
purchase shall be determined for all purposes to have been accomplished under
and pursuant to the statutes of the State of Delaware.
11.5 Subsidiaries. Without approval by Shareholders, the
Trustees may cause to be organized or assist in organizing one or more
corporations, trusts, partnerships, associations or other organizations to
take over all of the Trust Property or to carry on any business in which the
Trust shall directly or indirectly have any interest, and to sell, convey and
transfer all or a portion of the Trust Property or Series Property to any such
corporation, trust, limited liability company, association or organization in
exchange for the shares or securities thereof, or otherwise, and to lend money
to, subscribe for the shares or securities of, and enter into any contracts
with any such corporation, trust, limited liability company, partnership,
association or organization, or any corporation, partnership, trust, limited
liability company, association or organization in which the Trust or Series
holds or is about to acquire shares or any other interests.
ARTICLE XII
Miscellaneous
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12.1 Filing. (a) This Declaration and any amendment or
supplement hereto shall be filed in such places as may be required or as the
Trustees deem appropriate. Each amendment or supplement shall be accompanied
by a certificate signed and acknowledged by a Trustee stating that such action
was duly taken in a manner provided herein, and shall, upon insertion in the
Trust's minute book, be conclusive evidence of all amendments contained
therein. A restated Declaration, containing the original Declaration and all
amendments and supplements theretofore made, may be executed from time to time
by a majority of the Trustees and shall, upon insertion in the Trust's minute
book, be conclusive evidence of all amendments and supplements contained
therein and may thereafter be referred to in lieu of the original Declaration
and the various amendments and supplements thereto.
(b) The Trustees hereby authorize and direct a
Certificate of Trust, in the form attached hereto as Exhibit A, to be executed
and filed with the Office of the Secretary of State of the State of Delaware
in accordance with the Delaware Statutory Trust Act.
12.2 Resident Agent. The Trust shall maintain a resident
agent in the State of Delaware, which agent shall initially be The Corporation
Trust Company, ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇ The Trustees may
designate a successor resident agent, provided, however, that such appointment
shall not become effective until written notice thereof is delivered to the
office of the Secretary of the State.
12.3 Governing Law. This Declaration is executed by the
initial Trustee for the purpose of creating a "statutory trust" under the
Delaware Statutory Trust Statue and establishing this Declaration as the
"governing instrument" of the Trust within the meaning of the Delaware
Statutory Trust Statute. The rights of all Persons hereunder and the validity
and construction of every provision hereof shall be subject to and construed
according to the laws of said State of Delaware and reference shall be
specifically made to the business corporation law of the State of Delaware as
to the construction of matters not specifically covered herein or as to which
an ambiguity exists, although such law shall not be viewed as limiting the
powers otherwise granted to the Trustees hereunder and any ambiguity shall be
viewed in favor of such powers.
12.4 Counterparts. This Declaration may be simultaneously
executed in several counterparts, each of which shall be deemed to be an
original, and such counterparts, together, shall constitute one and the same
instrument, which shall be sufficiently evidenced by any such original
counterpart.
12.5 Reliance by Third Parties. Any certificate executed by
an individual who, according to the records of the Trust, or of any recording
office in which this Declaration may be recorded, appears to be a Trustee
hereunder, certifying to: (a) the number or identity of Trustees or
Shareholders, (b) the name of the Trust, (c) the due authorization of the
execution of any instrument or writing, (d) the form of any vote passed at a
meeting of Trustees or Shareholders, (e) the fact that the number of Trustees
or Shareholders present at any meeting or executing any written instrument
satisfies the requirements of this Declaration, (f) the form of any By Laws
adopted by or the identity of any officers elected by the Trustees, or (g) the
existence of any fact or facts which in any manner relate to the affairs of
the Trust, shall be conclusive evidence as to the matters so certified in
favor of any person dealing with the Trustees and their successors.
12.6 Provisions in Conflict with Law or Regulation. (a) The
provisions of this Declaration are severable, and if the Trustees shall
determine, with the advice of counsel, that any of such provisions is in
conflict with the 1940 Act, the regulated investment company provisions of the
Internal Revenue Code or with other applicable laws and regulations, the
conflicting provision shall be deemed never to have constituted a part of this
Declaration; provided, however, that such determina tion shall not affect any
of the remaining provisions of this Declaration or render invalid or improper
any action taken or omitted prior to such determination.
(b) If any provision of this Declaration shall be
held invalid or unenforceable in any jurisdiction, such invalidity or
unenforceability shall attach only to such provision in such jurisdiction and
shall not in any manner affect such provision in any other jurisdiction or any
other provision of this Declaration in any jurisdiction.
IN WITNESS WHEREOF, the undersigned has caused these presents
to be executed as of the day and year first above written.
By: _________________________
▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
Sole Trustee
729250.08-New York S7A
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