EXHIBIT 99(a)(3)
AMENDED AND RESTATED AGREEMENT AND DECLARATION OF TRUST
of
EVERGREEN INTERNATIONAL BALANCED INCOME FUND
a Delaware Statutory Trust
Principal Place of Business:
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Agent for Service of
Process in Delaware:
Corporation Trust Company
Corporation Trust Center
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TABLE OF CONTENTS
AGREEMENT AND DECLARATION OF TRUST
ARTICLE I Name and Definitions........................................1
1. Name ................................................................1
2. Definitions..............................................................1
(a) Advisers........................................................1
(b) By-Laws.........................................................1
(c) Certificate of Trust............................................1
(d) Class...........................................................1
(e) Commission......................................................1
(f) Continuing Trustee..............................................1
(g) Declaration of Trust............................................2
(h) Delaware Act....................................................2
(i) Interested Person...............................................2
(j) 1940 Act........................................................2
(k) Person..........................................................2
(l) Principal Underwriter...........................................2
(m) Series..........................................................2
(n) Shareholder.....................................................2
(o) Shares..........................................................2
(p) Trust 2
(q) Trust Property..................................................2
(r) Trustees........................................................2
ARTICLE II Purpose of Trust............................................3
ARTICLE III Shares......................................................3
1. (a) Division of Beneficial Interest.................................3
(b) No Preemptive Rights............................................3
2. Ownership of Shares......................................................4
3. Transfer of Shares.......................................................4
4. Investments in the Trust.................................................5
5. Status of Shares and Limitation of Personal Liability....................5
6. Establishment, Designation, Abolition or Termination, etc.
of Series or Class.......................................................5
(a) Assets Held with Respect to a Particular Series.................5
(b) Liabilities Held with Respect to a Particular Series............6
(c) Dividends, Distributions, Redemptions, and Repurchases..........7
(d) Equality........................................................7
(e) Fractions.......................................................7
(f) Exchange Privilege..............................................7
(g) Combination of Series...........................................7
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7. Claims...................................................................7
ARTICLE IV Trustees....................................................8
1. Number...................................................................8
2. Term of Office of Trustees; Classes......................................8
3. Vacancies; Resignation; Removal..........................................9
4. Effect of Death, Resignation, etc. of a Trustee..........................10
5. Powers...................................................................10
6. Payment of Expenses by the Trust.........................................14
7. Payment of Expenses by Shareholders......................................14
8. Ownership of Assets of the Trust.........................................14
9. Service Contracts........................................................14
10. Trustees and Officers as Shareholders....................................15
11. Compensation.............................................................16
ARTICLE V Shareholders' Voting Powers and Meetings....................16
1. Voting Powers, Meetings, Notice and Record Dates.........................16
2. Quorum and Required Vote.................................................16
3. Record Dates.............................................................17
4. Additional Provisions....................................................17
ARTICLE VI Net Asset Value, Distributions and Redemptions..............17
1. Determination of Net Asset Value, Net Income and Distributions...........17
2. Redemptions..............................................................17
ARTICLE VII Limitation of Liability; Indemnification....................18
1. Trustees, Shareholders, etc. Not Personally Liable; Notice...............18
2. Trustees' Good Faith Action; Expert Advice; No Bond or Surety............18
3. Indemnification of Shareholders..........................................19
4. Indemnification of Trustees, Officers, etc...............................19
5. Compromise Payment.......................................................20
6. Indemnification Not Exclusive, etc.......................................21
7. Liability of Third Persons Dealing with Trustees.........................21
8. Insurance................................................................21
ARTICLE VIII Miscellaneous...............................................21
1. Termination of the Trust.................................................21
2. Conversion to an Open-End Investment Company.............................22
3. Reorganization...........................................................22
4. Certain Transactions.....................................................23
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5. Amendments...............................................................24
6. Filing of Copies; References; Headings...................................25
7. Applicable Law...........................................................25
8. Provisions in Conflict with Law or Regulations...........................26
9. Statutory Trust Only.....................................................26
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AMENDED AND RESTATED AGREEMENT AND DECLARATION OF TRUST
EVERGREEN INTERNATIONAL BALANCED INCOME FUND
THIS AMENDED AND RESTATED 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 operating a Delaware statutory trust in accordance with the
provisions hereinafter set forth.
NOW, THEREFORE, the Trustees 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 benefit of the holders
of Shares of this Trust.
ARTICLE I
Name and Definitions
Section 1. Name. This Trust shall be known as "Evergreen International
Balanced Income Fund", and the Trustees shall conduct the business of the Trust
under that name or any other name as they may from time to time determine.
Section 2. Definitions. Whenever used herein, unless otherwise required by
the context or specifically provided:
(a) "Adviser(s)" means a party or parties furnishing services to the
Trust pursuant to any investment advisory or investment management
contract described in Article IV, Section 9(a) hereof;
(b) "By-Laws" shall mean the By-Laws of the Trust as amended from
time to time, which By-Laws are expressly herein incorporated by reference
as part of the "governing instrument" within the meaning of the Delaware
Act;
(c) "Certificate of Trust" means the certificate of trust, as
amended or restated from time to time, filed by the Trustees in the Office
of the Secretary of State of the State of Delaware in accordance with the
Delaware Act;
(d) "Class" means a class of Shares of a Series of the Trust
established in accordance with the provisions of Article III hereof;
(e) "Commission" shall have the meaning given such term in the 1940
Act;
(f) "Continuing Trustee" shall mean any member of the Board of
Trustees who either (a) has been a member of the Board of Trustees for a
period of at least thirty-six months (or since the commencement of the
Trust's operations, if less than thirty-six
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months) or (b) was nominated to serve as a member of the Board of Trustees
by a majority of the Continuing Trustees then members of the Board of
Trustees
(g) "Declaration of Trust" means this Agreement and Declaration of
Trust, as amended or restated from time to time;
(h) "Delaware Act" means the Delaware Statutory Trust Act, 12 Del.
C. ss. 3801 et seq., as amended from time to time;
(i) "Interested Person" shall have the meaning given it in Section
2(a)(19) of the 1940 Act;
(j) "1940 Act" means the Investment Company Act of 1940 and the
rules and regulations thereunder, all as amended from time to time;
(k) "Person" means and includes individuals, corporations,
partnerships, trusts, associations, joint ventures, estates, and other
entities, whether or not legal entities, and governments and agencies and
political subdivisions thereof, whether domestic or foreign;
(l) "Principal Underwriter" shall have the meaning given such term
in the 1940 Act;
(m) "Series" means each Series of Shares established and designated
under or in accordance with the provisions of Article III hereof, and
where the context requires or where appropriate, shall be deemed to
include "Class" or "Classes";
(n) "Shareholder" means a record owner of outstanding Shares;
(o) "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, whole Shares, including any preferred shares
of beneficial interest which may be issued from time to time;
(p) "Trust" means the Delaware Statutory Trust established under the
Delaware Act by this Declaration of Trust and the filing of the
Certificate of Trust in the Office of the Secretary of State of the State
of Delaware;
(q) "Trust Property" means any and all property, real or personal,
tangible or intangible, which is from time to time owned or held by or for
the account of the Trust; and
(r) "Trustees" means the Person or Persons who have signed this
Declaration of Trust and all other Persons who may from time to time be
duly elected or appointed to serve as Trustees in accordance with the
provisions hereof, in each case so long as such Person shall continue in
office in accordance with the terms of this Declaration of Trust,
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and reference herein to a Trustee or the Trustees shall refer to such
Person or Persons in his or her or their capacity as Trustees hereunder.
ARTICLE II
Purpose of Trust
The purpose of the Trust is to provide investors a managed investment primarily
in securities, debt instruments and other instruments and rights of a financial
character and to carry on such other business as the Trustees may from time to
time determine pursuant to their authority under this Declaration of Trust. The
Trustees shall not in any way be bound or limited by any present or future law
or custom in regard to investments by trustees.
ARTICLE III
Shares
Section 1.
(a) Division of Beneficial Interest. The beneficial interest in the Trust
may be divided into one or more Series and/or Classes by the Trustees. The
number of Shares authorized shall be unlimited. Subject to the further
provisions of this Article III, the Trustees shall have full power and
authority, in their sole discretion, and without obtaining any authorization or
vote of the Shareholders of any Series or Class thereof, (i) to divide the
beneficial interest in each Series or Class thereof into Shares, with or without
par value as the Trustees shall determine, (ii) to issue Shares without
limitation as to number (including fractional Shares) to such Persons and for
such amount and type of consideration, including cash or securities, subject to
any restriction set forth in the By-Laws, at such time or times and on such
terms as the Trustees may deem appropriate, (iii) to establish and designate and
to change in any manner any Series or Class thereof and to fix such preferences,
voting powers, rights, duties and privileges and business purposes of each
Series or Class thereof as the Trustees may from time to time determine, which
preferences, voting powers, rights, duties and privileges may be senior or
subordinate to (or in the case of business purpose, different from) any existing
Series or Class thereof and may be limited to specified property or obligations
of the Trust or profits and losses associated with specified property or
obligations of the Trust, (iv) to divide or combine the Shares of any Series or
Class thereof into a greater or lesser number without thereby materially
changing the proportionate beneficial interest of the Shares of such Series or
Class thereof in the assets held with respect to that Series, (v) to classify or
reclassify any issued Shares of any Series or Class thereof into shares of one
or more Series or Classes thereof; (vi) to change the name of any Series or
Class thereof; (vii) to abolish or terminate any one or more Series or Classes
thereof; (viii) to refuse to issue Shares to any Person or class of Persons; and
(ix) to take such other action with respect to the Shares as the Trustees may
deem desirable.
To the extent that the Trustees authorize and issue preferred shares of
any Class or Series, they are hereby authorized and empowered to amend or
supplement this Declaration of Trust,
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including an amendment or modification to the rights of any outstanding Shares
at the time of such amendment or supplement, as they deem necessary or
appropriate, including without limitation to comply with the requirements of the
1940 Act or requirements imposed by the rating agencies or other Persons, all
without the approval of Shareholders. Any such supplement or amendment shall be
filed as is necessary. The Trustees are also authorized to take such actions and
retain such persons as they see fit to offer and sell such securities.
Subject to the distinctions permitted among Classes of the same Series as
established by the Trustees, each Share of a Series of the Trust shall represent
an equal beneficial interest in the net assets of such Series, and each holder
of Shares of a Series shall be entitled to receive such Shareholder's pro rata
share of distributions of income and capital gains, if any, made with respect to
such Series and upon redemption of the Shares of any Series, such Shareholder
shall be paid solely out of the funds and property of such Series of the Trust.
All references to Shares in this Declaration of Trust shall be deemed to
be Shares of any or all Series or Classes thereof, as the context may require.
All provisions herein relating to the Trust shall apply equally to each Series
of the Trust and each Class thereof, except as the context otherwise requires.
All Shares issued hereunder, including, without limitation, Shares issued
in connection with a dividend or other distribution in Shares or a split or
reverse split of Shares, shall be fully paid and nonassessable.
(b) No Preemptive Rights. Except as otherwise provided by the Trustees,
Shareholders shall have no preemptive or other right to subscribe to any
additional Shares or other securities issued by the Trust.
Section 2. Ownership of Shares. The ownership of Shares shall be recorded
on the books of the Trust or those of a transfer or similar agent for the Trust,
which books shall be maintained separately for the Shares of each Series or
Class of the Trust. No certificates certifying the ownership of Shares shall be
issued except as the Trustees may otherwise determine from time to time. The
Trustees may make such rules as they consider appropriate for the issuance of
Share certificates, the transfer of Shares of each Series or Class of the Trust
and similar matters. The record books of the Trust as kept by the Trust or any
transfer or similar agent, as the case may be, shall be conclusive as to the
identity of the Shareholders of each Series or Class of the Trust and as to the
number of Shares of each Series or Class of the Trust held from time to time by
each Shareholder.
Section 3. Transfer of Shares. Except as otherwise provided by the
Trustees, Shares shall be transferable on the books of the Trust only by the
record holder thereof or by his or her duly authorized agent upon delivery to
the Trustees or the Trust's transfer agent of a duly executed instrument of
transfer, together with a Share certificate if one is outstanding, and such
evidence of the genuineness of each such execution and authorization and of such
other matters as may be required by the Trustees. Upon such delivery, and
subject to any further requirements specified by the Trustees or contained in
the By-Laws, the transfer shall be recorded on the books of the Trust. Until a
transfer is so recorded, the holder of record of Shares shall be deemed
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to be the holder of such Shares for all purposes hereunder and neither the
Trustees nor the Trust, nor any transfer agent or registrar or any officer,
employee, or agent of the Trust, shall be affected by any notice of a proposed
transfer.
Section 4. Investments in the Trust. Investments may be accepted by the
Trust from such Persons, at such times, on such terms, and for such
consideration as the Trustees from time to time may authorize.
Section 5. Status of Shares and Limitation of Personal Liability. Shares
shall be deemed to be personal property giving only the rights provided in this
instrument. Every Shareholder by virtue of having become a Shareholder shall be
held to have expressly assented and agreed to the terms hereof. The death,
incapacity, dissolution, termination, or bankruptcy of a Shareholder during the
existence of the Trust shall not operate to terminate the Trust, nor entitle the
representative of any such Shareholder to an accounting or to take any action in
court or elsewhere against the Trust or the Trustees, but shall entitle such
representative only to the rights of such Shareholder under this Trust.
Ownership of Shares shall not entitle the Shareholder to any title in or to the
whole or any part of the Trust Property or any right to call for a participation
or division of the same or for an accounting, nor shall the ownership of Shares
constitute the Shareholders as partners. No Shareholder shall be personally
liable for the debts, liabilities, obligations or expenses incurred by,
contracted for, or otherwise existing with respect to, the Trust or any Series.
Neither the Trust nor the Trustees, nor any officer, employee, or agent of the
Trust shall have any power to bind personally any Shareholder, nor, except as
specifically provided herein, to call upon any Shareholder for the payment of
any sum of money or assessment whatsoever other than such as the Shareholder may
at any time personally agree to pay.
Section 6. Establishment, Designation, Abolition or Termination etc. of
Series or Class. The establishment and designation of any Series or Class of
Shares of the Trust shall be effective upon the adoption by a majority of the
Trustees then in office of a resolution that sets forth such establishment and
designation and the relative rights and preferences of such Series or Class of
the Trust, whether directly in such resolution or by reference to another
document including, without limitation, any registration statement of the Trust,
or as otherwise provided in such resolution. The abolition or termination of any
Series or Class of Shares of the Trust shall be effective upon the adoption by a
majority of the Trustees then in office of a resolution that abolishes or
terminates such Series or Class.
Shares of each Series or Class of the Trust established pursuant to this
Article III, unless otherwise provided in the resolution establishing such
Series or Class, 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
particular 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
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may be) shall irrevocably be held separate with respect to that Series for
all purposes, 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 Assets 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. Separate and distinct records shall be maintained
for each Series, and the assets held with respect to each Series shall be
held and accounted for separately from the assets held with respect to all
other Series and the General Assets of the Trust not allocated to such
Series.
(b) Liabilities Held with Respect to a Particular Series. The assets
of the Trust held with respect to each particular Series shall be charged
against the liabilities of the Trust held with respect to that Series and
all expenses, costs, charges, and reserves attributable to that Series,
except that liabilities and expenses allocated solely to a particular
Class shall be borne by that Class. Any general liabilities of the Trust
which are not readily identifiable as being held with respect to any
particular Series or Class shall be allocated and charged by the Trustees
to and among any one or more of the Series or Classes in such manner and
on such basis as the Trustees in their sole discretion deem fair and
equitable. All liabilities, expenses, costs, charges, and reserves so
charged to a Series or Class are herein referred to as "liabilities held
with respect to" that Series or Class. Each allocation of liabilities,
expenses, costs, charges, and reserves by the Trustees shall be conclusive
and binding upon the Shareholders of all Series or Classes for all
purposes. Without limiting the foregoing, but subject to the right of the
Trustees to allocate general liabilities, expenses, costs, charges or
reserves as herein provided, the debts, liabilities, obligations and
expenses incurred, contracted for or otherwise existing with respect to a
particular Series shall be enforceable against the assets held with
respect to such Series only and not against the assets of the Trust
generally or against the assets held with respect to any other Series.
Notice of this contractual limitation on liabilities among Series may, in
the Trustees' discretion, be set forth in the Certificate of Trust and
upon the giving of such notice in the Certificate of Trust, the statutory
provisions of Section 3804 of the Delaware Act relating to limitations on
liabilities among Series (and the statutory effect under Section 3804 of
setting forth such notice in the certificate of trust) shall become
applicable to the Trust and each Series. Any person extending credit to,
contracting with or having any claim against any Series may look only to
the assets of that Series to satisfy or enforce any debt with respect to
that Series. No Shareholder or former Shareholder of any Series shall have
a claim on or any right to any assets allocated or belonging to any other
Series.
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(c) Dividends, Distributions, Redemptions, and Repurchases.
Notwithstanding any other provisions of this Declaration of Trust,
including, without limitation, Article Vl, 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 or any particular Series or Class 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.
(d) Equality. All the Shares of each particular Series shall
represent an equal proportionate interest in the assets held with respect
to that Series with each other Share of the same Series, subject to such
preferences and special or relative rights and privileges as the Trustees
may determine in respect of any Class or otherwise.
(e) Fractions. Any fractional Share of a Series or Class thereof
shall carry proportionately all the rights and obligations of a whole
Share of that Series or Class, including rights with respect to voting,
receipt of dividends and distributions, redemption of Shares and
termination of the Trust.
(f) Exchange Privilege. The Trustees shall have the authority to
provide that the holders of Shares of any Series or Class shall have the
right to exchange said Shares for Shares of one or more other Series of
Shares or Class of Shares of the Trust or of other investment companies
registered under the 1940 Act in accordance with such requirements and
procedures as may be established by the Trustees.
(g) Combination of Series. The Trustees shall have the authority,
without the approval of the Shareholders of any Series or Class, to
combine the assets and liabilities held with respect to any two or more
Series or Classes into assets and liabilities held with respect to a
single Series or Class.
Section 7. Claims. (a) No Shareholder shall have the right to bring or
maintain any court action, proceeding, or claim on behalf of the Trust or any
Series or Class of Shares without first making demand on the Trustees requesting
the Trustees to bring or maintain such action, proceeding, or claim. Such demand
shall not be excused under any circumstances, including claims of alleged
interest on the part of the Trustees, unless the plaintiff makes a specific
showing that irreparable nonmonetary injury to the Trust or Series or Class of
Shares would otherwise result; provided that such demand will be excused if
beneficial owners owning at least 75% of the outstanding Shares of the Trust and
who would be eligible, under Delaware law, to bring such an action, proceeding
or claim themselves, join in the bringing of such action, proceeding or claim on
the basis that an effort to cause the Trustees to bring such a action, claim or
proceeding is not likely to succeed. Such demand shall be mailed to the
Secretary of the Trust at the Trust's principal office and shall set forth with
particularity the nature of the proposed
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court action, proceeding, or claim and the essential facts relied upon by the
Shareholder to support the allegations made in the demand. The Trustees shall
consider such demand within 45 days of its receipt by the Trust. In their sole
discretion, the Trustees may submit the matter to a vote of Shareholders of the
Trust or a Series or Class of Shares, as appropriate. Any decision by the
Trustees to bring, maintain or settle (or not to bring, maintain or settle) such
court action, proceeding, or claim, or to submit the matter to a vote of
Shareholders, shall be binding upon the Shareholders. Any decision by the
Trustees to bring or maintain a court action, proceeding or suit on behalf of
the Trust or a Series or Class of Shares shall be subject to the right of the
Shareholders under Article V hereof to vote on whether or not such court action,
proceeding or suit should or should not be brought or maintained.
(b) No class of Shareholders shall have the right to bring or maintain a
direct action or claim for monetary damages against the Trust or the Trustees
predicated upon an express or implied right of action under this Declaration or
the 1940 Act (excepting rights of action permitted under section 36(b) of the
1940 Act), nor shall any single Shareholder, who is similarly situated to one or
more other Shareholders with respect to the alleged injury, have the right to
bring such an action, unless the class of Shareholders or Shareholder has
obtained authorization from the Trustees to bring the action. The requirement of
authorization shall not be excused under any circumstances, including claims of
alleged interest on the part of the Trustees; provided that such demand will be
excused if beneficial owners owning at least 75% of the outstanding Shares of
the Trust and who would be eligible, under Delaware law, to bring such an
action, proceeding or claim themselves, join in the bringing of such action,
proceeding or claim on the basis that an effort to cause the Trustees to bring
such a action, claim or proceeding is not likely to succeed. A request for
authorization shall be mailed to the Secretary of the Trust at the Trust's
principal office and shall set forth with particularity the nature of the
proposed court action, proceeding or claim and the essential facts relied upon
by the class of Shareholders or Shareholder to support the allegations made in
the request. The Trustees shall consider such request within 45 days of its
receipt by the Trust. In their sole discretion, the Trustees may submit the
matter to a vote of Shareholders of the Trust or series or class of Shares, as
appropriate. Any decision by the Trustees to settle or to authorize (or not to
settle or to authorize) such court action, proceeding or claim, or to submit the
matter to a vote of Shareholders, shall be binding upon the class of
Shareholders or Shareholder seeking authorization. Any decision by the Trustees
to authorize a court action, proceeding or suit by a class of Shareholders shall
be subject to the right of the Shareholders under Article V hereof to vote on
whether or not such court action, proceeding or suit should or should not be
brought or maintained.
ARTICLE IV
Trustees
Section 1. Number. The number of Trustees shall be fixed from time to time
by the Trustees and shall at all times be at least one and no more than such
number as determined, from time to time, by the Trustees pursuant to Section 5
of this Article IV. A Trustee may be elected either by the Trustees or by the
Shareholders, in each case as contemplated by this Article IV.
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If the number of Trustees is changed, any increase or decrease shall be
apportioned among the classes of Trustees, so as to maintain a number of
Trustees in each class as nearly equal as possible. No reduction in the number
of Trustees shall have the effect of removing any Trustee from office prior to
the expiration of his or her term unless the Trustee is specifically removed
pursuant to Section 3 of this Article at the time of the decrease. Except as
provided in this Article, Trustees shall be elected only at an annual meeting of
Shareholders.
Section 2. Term of Office of Trustees; Classes.
(a) Subject to the voting rights established with respect to a
particular Series or Class, each Trustee shall hold office for life or until he
or she dies, resigns, is removed, his or her successor is elected and qualifies,
or the Trust terminates. In the event that less than a majority of the Trustees
holding office have been elected by the Shareholders, the Trustees then in
office shall take such actions as may be necessary under applicable law for the
election of Trustees. 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 on account of such removal.
(b) Prior to any sale of Shares pursuant to a public offering, the
Trustees shall have classified themselves, with respect to the time for which
they severally hold office, into the following three classes: Class I, whose
term expires at the initial annual meeting; Class II, whose term expires at the
next succeeding annual meeting after the initial annual meeting (the "second
annual meeting"); and Class III, whose term expires at the next succeeding
annual meeting after the second annual meeting. Each class shall consist, as
nearly as may be possible, of one-third of the total number of Trustees
constituting the entire Board of Trustees. At each annual meeting beginning with
the initial annual meeting, the successors of the class of Trustees whose term
expires at that meeting shall be elected to hold office for a term expiring at
the annual meeting held in the third year following the year of their election,
with each Trustee holding office until the expiration of the term of the
relevant class and the election and qualification of his or her successor, or
until he or she sooner dies, resigns, retires, or is removed from office. The
Trustees shall assign by resolution from their number Trustees to each of the
three classes. The Trustees may also determine by resolution those Trustees in
each class that shall be elected by Shareholders of a particular Class of Shares
(e.g., by a Class of preferred Shares issued by the Trust) prior to the initial
public offering of such Class of Shares.
Section 3. Vacancies; Resignation; Removal
From and after the date when Shares are first sold pursuant to a public
offering and subject to any voting powers of one or more Classes or Series of
Shares as set forth in this Declaration of Trust or in the By-Laws or by
resolution of the Board of Trustees, any vacancies occurring in the Board of
Trustees may be filled by the Trustees as set forth below. Prior to the date
when Shares are first sold pursuant to a public offering, subject to any
limitations imposed by the 1940 Act or other applicable law, any vacancies
occurring in the Board of Trustees may be filled by the Trustees without any
action by or meeting of Shareholders.
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Subject to any limitations imposed by the 1940 Act or other applicable
law, any vacancy occurring in the Board of Trustees that results from an
increase in the number of Trustees may be filled by vote of a majority of the
entire Board of Trustees, and any other vacancy occurring in the Board of
Trustees may be filled by vote of a majority of the Trustees then in office,
whether or not sufficient to constitute a quorum, or by a sole remaining
Trustee; provided, however, that if the Shareholders of any Class or Series of
Shares are entitled separately to elect one or more Trustees, a majority of the
remaining Trustees elected by that Class or Series or the sole remaining Trustee
elected by that Class or Series may fill any vacancy among the number of
Trustees elected by that Class or Series. A Trustee elected by the Board of
Trustees to fill any vacancy occurring in the Board of Trustees shall serve
until the next annual meeting of Shareholders and until his or her successor
shall be elected and shall qualify, subject, however, to prior death,
resignation, retirement, or removal from office. Any Trustee elected at any
annual meeting of Shareholders to fill any vacancy occurring in the Board of
Trustees that has arisen since the preceding annual meeting of Shareholders
(whether or not any such vacancy has been filled by election of a new Trustee by
the Board of Trustees) shall hold office for a term which coincides with the
remaining term of the class of Trustee to which such office was previously
assigned, if such vacancy arose other than by an increase in the number of
Trustees, and until his or her successor shall be elected and shall qualify. In
the event such vacancy arose due to an increase in the number of Trustees, any
Trustee so elected to fill such vacancy at an annual meeting shall hold office
for a term which coincides with that of the class of Trustee to which such
office has been apportioned as heretofore provided, and until his or her
successor shall be elected and shall qualify.
Any Trustee may resign his or her trust or retire as a Trustee (without
need for prior or subsequent accounting except in the event of removal) by an
instrument in writing signed by him or her and delivered to the President or
Secretary or a Trustee of the Trust, and such resignation or retirement shall be
effective upon such delivery, or at a later date according to the terms of the
instrument. Any Trustee may be removed from office for "Cause" (as hereinafter
defined) by action of at least seventy-five percent (75%) of the outstanding
Shares of the Classes or Series of Shares entitled to vote for the election of
such Trustee, or with or without Cause (as hereinafter defined) by written
instrument, signed by at least seventy-five percent (75%) of the remaining
Trustees, specifying the date when such removal shall become effective. "Cause"
for these purposes shall require willful misconduct, dishonesty or fraud on the
part of the Trustee in the conduct of his or her office or such Trustee being
convicted of a felony.
Section 4. Effect of Death, Resignation, etc. of a Trustee
The death, declination, resignation, retirement, removal, or incapacity of
the Trustees, or any one of them, shall not operate to annul the Trust or to
revoke any existing agency created pursuant to the terms of this Declaration.
Whenever there shall be fewer than the designated number of Trustees, until
additional Trustees are elected or appointed as provided herein to bring the
total number of Trustees equal to the designated number, the Trustees in office,
regardless of their number, shall have all the powers granted to the Trustees
and shall discharge all the duties imposed upon the Trustees by this Declaration
of Trust. As conclusive evidence of any such vacancy, a written instrument
certifying the existence of such vacancy may be executed by an officer of the
Trust or by a majority of the Trustees. In the event of the death, declination,
resignation, retirement, removal, or incapacity of all the then Trustees within
a short period of
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time and without the opportunity for at least one Trustee being able to appoint
additional Trustees to replace those no longer serving, the Trust's Adviser(s)
are empowered to appoint new Trustees subject to the provisions of the 1940 Act.
Section 5. Powers. Subject to the provisions of this Declaration of Trust,
the business of the Trust shall be managed by the Trustees, and the Trustees
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 as described in this Declaration of Trust. Without limiting the foregoing,
the Trustees may: adopt By-Laws not inconsistent with this Declaration of Trust
providing for the management of the affairs of the Trust and may amend and
repeal such By-Laws to the extent that such By-Laws do not reserve that right to
the Shareholders; enlarge or reduce the number of Trustees; remove any Trustee
with or without cause as described above, and fill vacancies caused by
enlargement of their number or by the death, resignation, retirement or removal
of a Trustee; elect and remove, with or without cause, such officers and appoint
and terminate such agents as they consider appropriate; appoint from their own
number and establish and terminate one or more committees, consisting of two or
more Trustees, that may exercise the powers and authority of the Board of
Trustees to the extent that the Trustees so determine; employ one or more
custodians of the assets of the Trust and may 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; employ an administrator for the Trust and may authorize such administrator
to employ subadministrators; employ an investment adviser or investment advisers
to the Trust and may authorize such Advisers to employ subadvisers; 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; 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; 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, 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. Unless otherwise specified herein or in the By-Laws or required by
law, any action by the Trustees shall be deemed effective if approved or taken
by a majority of the Trustees present at a meeting of Trustees at which a quorum
of Trustees is present, within or without the State of Delaware.
Without limiting the foregoing, the Trustees shall have the power and
authority to cause the Trust (or to act on behalf of the Trust):
(a) To invest and reinvest cash, to hold cash uninvested, and to
subscribe for, invest in, reinvest in, purchase or otherwise acquire, own,
hold, pledge, sell, assign, transfer, exchange, distribute, write options
on, lend or otherwise deal in or dispose of contracts for the future
acquisition or delivery of investments of every nature and kind,
including, without limitation, all types of bonds, debentures, stocks,
negotiable or non-negotiable instruments, obligations, evidences of
indebtedness, certificates of deposit
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or indebtedness, commercial papers, 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 United States Government or any foreign government, or
any international instrumentality, or by any bank or savings institution,
or by any corporation or organization organized under the laws of the
United States or of any state, territory, or possession thereof, or by any
corporation or organization organized under any foreign law, or in "when
issued" contracts for any such securities, to change the investments of
the assets of the Trust, and commodities and commodity contracts; 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 (including options on futures contracts) with respect to
or otherwise deal in any property rights relating to any or all of the
assets of the Trust or any Series;
(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 any
trust, whether in bearer, unregistered or other negotiable form, or in the
Trust's own name or in the name of a custodian or subcustodian or a
nominee or nominees or otherwise;
(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 it 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;
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(h) To compromise, arbitrate or otherwise adjust claims in favor of
or against the Trust or any matter in controversy, including, but not
limited to, claims for taxes;
(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
exclusively for Trust purposes and in connection therewith to issue notes
or other evidences of indebtedness; and to mortgage and pledge the Trust
Property or any part thereof to secure any or all of such indebtedness;
(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; and to mortgage and pledge
the Trust Property or any part thereof to secure any of or all of such
obligations;
(l) To purchase and pay for entirely out of Trust Property such
insurance as the Trustees may deem necessary or appropriate for the
conduct of the business, including, without limitation, insurance policies
insuring the assets of the Trust or payment of distributions and principal
on its portfolio investments, and insurance polices insuring the
Shareholders, Trustees, officers, employees, agents, investment advisers,
principal underwriters, or independent contractors of the Trust,
individually, against all claims and liabilities of every nature arising
by reason of holding, 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 adviser, principal
underwriter, or independent contractor, including any action taken or
omitted that may be determined to constitute negligence, whether or not
the Trust would have the power to indemnify such Person against liability;
(m) To adopt, establish and carry out pension, profit-sharing, share
bonus, share purchase, savings, thrift and other retirement, incentive and
benefit plans and trusts, including the purchasing of life insurance and
annuity contracts as a means of providing such retirement and other
benefits, for any or all of the Trustees, officers, employees and agents
of the Trust;
(n) To operate as and carry out the business of an investment
company, and exercise all the powers necessary or appropriate to the
conduct of such operations;
(o) To enter into contracts of any kind and description;
(p) To employ as custodian of any assets of the Trust one or more
banks, trust companies or companies that are members of a national
securities exchange or such other entities as they may consider
appropriate as custodians of the Trust, subject to any conditions set
forth in this Declaration of Trust or in the By-Laws;
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(q) To employ auditors, counsel or other agents of the Trust,
subject to any conditions set forth in this Declaration of Trust or in the
By-Laws;
(r) To interpret the investment policies, practices, or limitations
of any Series or Class;
(s) To establish separate and distinct Series with separately
defined investment objectives and policies and distinct investment
purposes, and with separate Shares representing beneficial interests in
such Series, and to establish separate Classes, all in accordance with the
provisions of Article III;
(t) To allocate assets, liabilities and expenses of the Trust to a
particular Series and Class or to apportion the same between or among two
or more Series or Classes, provided that any liabilities or expenses
incurred by a particular Series or Class shall be payable solely out of
the assets belonging to that Series or Class as provided for in Article
III;
(u) To invest all of the assets of the Trust, or any Series or any
Class thereof, in a single investment company or in any number of other
investment companies;
(v) To engage in any other lawful act or activity in which a
statutory trust organized under the Delaware Act may engage.
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 6. Payment of Expenses by the Trust. The Trustees are authorized
to pay or cause to be paid out of the principal or income of the Trust, or
partly out of the principal and partly out of income, as they deem fair, all
expenses, fees, charges, taxes and liabilities incurred or arising in connection
with the Trust, or in connection with the management thereof, including, but not
limited to, the Trustees' compensation and such expenses and charges for the
services of the Trust's officers, employees, Advisers, Principal Underwriter,
auditors, counsel, custodian, transfer agent, shareholder servicing agent, and
such other agents or independent contractors and such other expenses and charges
as the Trustees may deem necessary or proper to incur, which expenses, fees,
charges, taxes and liabilities shall be allocated in accordance with Article
III, Section 6 hereof.
Section 7. Payment of Expenses by Shareholders. 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, expenses of the Trust as described in Section 6 of this Article IV
("Expenses"), in an amount fixed from time to time by the Trustees, by setting
off such Expenses due from such Shareholder from declared but unpaid dividends
owed such Shareholder and/or by reducing the number of Shares in the account of
such
14
Shareholder by that number of full and/or fractional Shares which represents the
outstanding amount of such Expenses due from such Shareholder, provided that the
direct payment of such Expenses by Shareholders is permitted under applicable
law.
Section 8. 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. The right, title and interest of the Trustees in the
Trust Property shall vest automatically in each Person who may hereafter become
a Trustee. Upon the resignation, removal or death of a Trustee, he or she shall
automatically cease to have any right, title or interest in any of the Trust
Property, and the right, title and interest of such Trustee in the Trust
property shall vest automatically in the remaining Trustees. Such vesting and
cessation of title shall be effective whether or not conveyancing documents have
been executed and delivered.
Section 9. Service Contracts.
(a) The Trustees may, at any time and from time to time, contract
for exclusive or nonexclusive advisory, management and/or administrative
services for the Trust or for any Series (or Class thereof) with any
Person and any such contract may contain such other terms as the Trustees
may determine, including, without limitation, authority for the Adviser(s)
or administrator to delegate certain or all of its duties under such
contracts to other qualified investment advisers and administrators and to
determine from time to time without prior consultation with the Trustees
what investments shall be purchased, held, sold or exchanged and what
portion, if any, of the assets of the Trust shall be held uninvested and
to make changes in the Trust's investments, or such other activities as
may specifically be delegated to such Person.
(b) The Trustees may also, at any time and from time to time,
contract with any Person, appointing such Person exclusive or nonexclusive
distributor or Principal Underwriter for the Shares of one or more of the
Series (or Classes) or other securities to be issued by the Trust.
(c) The Trustees are also empowered, at any time and from time to
time, to contract with any Person, appointing such Person or Persons the
custodian, transfer agent and/or shareholder servicing agent for the Trust
or one or more of its Series.
(d) The Trustees are further empowered, at any time and from time to
time, to contract with any Person 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:
15
(i) any of the Shareholders, Trustees, or officers of the
Trust is a shareholder, director, officer, partner, trustee,
employee, Adviser, Principal Underwriter, distributor, or affiliate
or agent of or for any Person, or for any parent or affiliate of any
Person with which an advisory, management, or administration
contract, or Principal Underwriter's or distributor's contract, or
transfer agent, shareholder servicing agent or other type of service
contract may have been or may hereafter be made, or that any such
Person, or any parent or affiliate thereof, is a Shareholder or has
an interest in the Trust; or that
(ii) any Person with which an advisory, management, or
administration contract or Principal Underwriter's or distributor's
contract, or transfer agent or shareholder servicing agent contract
may have been or may hereafter be made also has an advisory,
management, or administration contract, or Principal Underwriter's
or distributor's or other service contract with one or more other
Persons, or has other business or interests,
shall not affect the validity of any such contract or disqualify any
Shareholder, Trustee or officer of the Trust from voting upon or executing
the same, or create any liability or accountability to the Trust or its
shareholders.
Section 10. Trustees and Officers as Shareholders. Any Trustee, officer or
agent of the Trust may acquire, own and dispose of Shares to the same extent as
if he or she were not a Trustee, officer or agent; and the Trustees may issue
and sell and cause to be issued and sold Shares to, and redeem such Shares from,
any such Person or any firm or company in which such Person is interested,
subject only to the general limitations contained herein or in the By-Laws
relating to the sale and redemption of such Shares.
Section 11. Compensation. The Trustees in such capacity shall be entitled
to reasonable compensation from the Trust and they may fix the amount of such
compensation. Nothing herein shall in any way prevent the employment of any
Trustee for advisory, management, legal, accounting, investment banking or other
services and payment for such services by the Trust.
ARTICLE V
Shareholders' Voting Powers and Meetings
Section 1. Voting Powers, Meetings, Notice, and Record Dates. The
Shareholders shall have power to vote only: (i) for the election or removal of
Trustees as provided in Article IV, Section 3 hereof, and (ii) with respect to
such additional matters relating to the Trust, including the calling of a
meeting of Shareholders, as may be required by applicable law, this Declaration
of Trust, the By-Laws or any registration statement of the Trust with the
Commission (or any successor agency) or as the Trustees may consider necessary
or desirable. Shareholders shall be entitled to one vote for each dollar, and a
fractional vote for each fraction of a dollar, of net asset value per Share for
each Share held, as to any matter on which the Share is entitled to vote.
Notwithstanding any other provision of this Declaration of Trust, on any
16
matters submitted to a vote of the Shareholders, all shares of the Trust then
entitled to vote shall be voted in aggregate, except: (i) when required by the
1940 Act, Shares shall be voted by individual Series or Class; (ii) when the
matter involves any action that the Trustees have determined will affect only
the interests of one or more Series, then only Shareholders of such Series shall
be entitled to vote thereon; and (iii) when the matter involves any action that
the Trustees have determined will affect only the interests of one or more
Classes, then only the Shareholders of such Class or Classes shall be entitled
to vote thereon. There shall be no cumulative voting in the election of
Trustees. Shares may be voted in person or by proxy. A proxy may be given in
writing. The By-Laws may provide that proxies may also, or may instead, be given
by an electronic or telecommunications device or in any other manner. Until
Shares are issued, the Trustees may exercise all rights of Shareholders and may
take any action required by law, this Declaration of Trust or the By-Laws to be
taken by the Shareholders. Meetings of the Shareholders shall be called and
notice thereof and record dates therefor shall be given and set as provided in
the By-Laws.
Section 2. Quorum and Required Vote. Except when a larger quorum is
required by applicable law, by the By-Laws or by this Declaration of Trust,
thirty-three and a third percent (33 1/3%) of the Shares issued and outstanding
shall constitute a quorum at a Shareholders' meeting but any lesser number shall
be sufficient for adjourned sessions. When any one or more Series (or Classes)
is to vote as a single Series (or Class) separate from any other Shares,
thirty-three and a third percent (33 1/3%) of the Shares of each such Series (or
Class) issued and outstanding shall constitute a quorum at a Shareholders'
meeting of that Series (or Class). Except when a larger vote is required by any
provision of this Declaration of Trust or the By-Laws or by applicable law, when
a quorum is present at any meeting, a majority of the Shares voted shall decide
any questions and a plurality of the Shares voted shall elect a Trustee,
provided that where any provision of law or of this Declaration of Trust
requires that the holders of any Series shall vote as a Series (or that holders
of a Class shall vote as a Class), then a majority of the Shares of that Series
(or Class) voted on the matter (or a plurality with respect to the election of a
Trustee) shall decide that matter insofar as that Series (or Class) is
concerned.
Section 3. Record Dates. For the purpose of determining the Shareholders
of any Series (or Class) who are entitled to receive payment of any dividend or
of any other distribution, the Trustees may from time to time fix a date, which
shall be before the date for the payment of such dividend or such other payment,
as the record date for determining the Shareholders of such Series (or Class)
having the right to receive such dividend or distribution. Without fixing a
record date, the Trustees may for distribution purposes close the register or
transfer books for one or more Series (or Classes) at any time prior to the
payment of a distribution. Nothing in this Section shall be construed as
precluding the Trustees from setting different record dates for different Series
(or Classes).
Section 4. Additional Provisions. The By-Laws may include further
provisions for Shareholders' votes and meetings and related matters.
ARTICLE VI
Net Asset Value, Distributions and Redemptions
17
Section 1. Determination of Net Asset Value, Net Income and Distributions.
The Trustees, in their absolute discretion, may prescribe such bases and times
for determining the per Share net asset value of the Shares of any Series or
Class or net income attributable to the Shares of any Series or Class, or the
declaration and payment of dividends and distributions on the Shares of any
Series or Class, as they may deem necessary or desirable.
Section 2. Redemptions. Except as provided with respect to a particular
Class in the By-laws or the resolutions establishing such Class, Shares of the
Trust will not be redeemed or repurchased by the Trust, except as the Trustees
shall determine from time to time and the Trust shall be under no obligation to
redeem or repurchase Shares. The Trustees may specify conditions, prices, and
places of redemption, may specify binding requirements for the proper form or
forms of requests for redemption and may specify the amount of any deferred
sales charge to be withheld from redemption proceeds. Payment of the redemption
price may be wholly or partly in securities or other assets at the value of such
securities or assets used in such determination of net asset value, or may be in
cash. Upon redemption, Shares may be reissued from time to time. The Trustees
may require Shareholders to redeem Shares for any reason under terms set by the
Trustees, including, but not limited to, the failure of a Shareholder to supply
a taxpayer identification number if required to do so, or to have the minimum
investment required, or to pay when due for the purchase of Shares issued to him
or her. To the extent permitted by law, the Trustees may retain the proceeds of
any redemption of Shares required by them for payment of amounts due and owing
by a Shareholder to the Trust or any Series or Class or any governmental
authority. Notwithstanding the foregoing, the Trustees may postpone payment of
the redemption price and may suspend the right of the Shareholders to require
any Series or Class to redeem Shares during any period of time when and to the
extent permissible under the 1940 Act.
ARTICLE VII
Limitation of Liability; Indemnification
Section 1. Trustees, Shareholders, etc. Not Personally Liable; Notice. The
Trustees, officers, employees and agents of the Trust, in incurring any debts,
liabilities or obligations, or in limiting or omitting any other actions for or
in connection with the Trust, are or shall be deemed to be acting as Trustees,
officers, employees or agents of the Trust and not in their own capacities. No
Shareholder shall be subject to any personal liability whatsoever in tort,
contract or otherwise to any other Person or Persons in connection with the
assets or the affairs of the Trust or of any Series, and subject to Section 4 of
this Article VII, no Trustee, officer, employee or agent of the Trust shall be
subject to any personal liability whatsoever in tort, contract, or otherwise, to
any other Person or Persons in connection with the assets or affairs of the
Trust or of any Series, save only that arising from his or her own willful
misfeasance, bad faith, gross negligence or reckless disregard of the duties
involved in the conduct of his or her office or the discharge of his or her
functions. The Trust (or if the matter relates only to a particular Series, that
Series) shall be solely liable for any and all debts, claims, demands,
judgments, decrees, liabilities or obligations of any and every kind, against or
with respect to the Trust or such Series
18
in tort, contract or otherwise in connection with the assets or the affairs of
the Trust or such Series, and all Persons dealing with the Trust or any Series
shall be deemed to have agreed that resort shall be had solely to the Trust
Property of the Trust (or if the matter relates only to a particular Series,
that of such Series), for the payment or performance thereof.
The Trustees may provide that every note, bond, contract, instrument,
certificate or undertaking made or issued by the Trustees or by any officers or
officer shall give notice that a Certificate of Trust in respect of the Trust is
on file with the Secretary of State of the State of Delaware and may recite to
the effect that the same was executed or made by or on behalf of the Trust or by
them as Trustees or Trustee or as officers or officer, and not individually, and
that the obligations of any instrument made or issued by the Trustees or by any
officer of officers of the Trust are not binding upon any of them or the
Shareholders individually but are binding only upon the assets and property of
the Trust, or the particular Series in question, as the case may be. The
omission of any statement to such effect from such instrument shall not operate
to bind any Trustees or Trustee or officers or officer or Shareholders or
Shareholder individually, or to subject the assets of any Series to the
obligations of any other Series.
Section 2. Trustees' Good Faith Action; Expert Advice; No Bond or Surety.
The exercise by the Trustees of their powers and discretions hereunder shall be
binding upon everyone interested. Subject to Section 4 of this Article VII, a
Trustee shall be liable 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 for nothing else, and shall not be liable for errors of
judgment or mistakes of fact or law. Subject to the foregoing, (i) the Trustees
shall not be responsible or liable in any event for any neglect or wrongdoing of
any officer, agent, employee, consultant, Adviser, administrator, distributor or
Principal Underwriter, custodian or transfer agent, dividend disbursing agent,
shareholder servicing agent or accounting agent of the Trust, nor shall any
Trustee be responsible for the act or omission of any other Trustee; (ii) the
Trustees may take advice of counsel or other experts with respect to the meaning
and operation of this Declaration of Trust and their duties as Trustees, and
shall be under no liability for any act or omission in accordance with such
advice or for failing to follow such advice; and (iii) in discharging their
duties, the Trustees, when acting in good faith, shall be entitled to rely upon
the books of account of the Trust and upon written reports made to the Trustees
by any officer appointed by them, any independent public accountant, and (with
respect to the subject matter of the contract involved) any officer, partner or
responsible employee of a contracting party employed by the Trust. The Trustees
as such shall not be required to give any bond or surety or any other security
for the performance of their duties.
For purposes of (a) any standard of care applicable to a Trustee in the
discharge of his or her duties as a Trustee and (b) indemnification of a Trustee
pursuant to this Article VII, the conduct of the Trustee shall be evaluated
solely by reference to a hypothetical reasonable person, without regard to any
special expertise, knowledge or other qualifications of the Trustee. In
particular, and without limiting the generality of the foregoing, neither the
determination that a Trustee is an "audit committee financial expert" nor the
knowledge, experience or other qualifications underlying such a determination
shall result in that Trustee being held to a standard of care that is higher
than the standard that would be applicable in the absence of such a
determination or such knowledge, experience or qualification, nor shall such a
determination or
19
such knowledge, experience or other qualification impose any duties, obligations
or liabilities that are greater than would obtain in the absence of such a
determination or such knowledge, experience or qualification.
Section 3. Indemnification of Shareholders. If any Shareholder (or former
Shareholder) of the Trust shall be charged or held to be personally liable for
any obligation or liability of the Trust solely by reason of being or having
been a Shareholder and not because of such Shareholder's acts or omissions or
for some other reason, the Trust (upon proper and timely request by the
Shareholder) may assume the defense against such charge and satisfy any judgment
thereon or may reimburse the Shareholders for expenses, and the Shareholder or
former Shareholder (or the heirs, executors, administrators or other legal
representatives thereof, or in the case of a corporation or other entity, its
corporate or other general successor) shall be entitled (but solely out of the
assets of the Series of which such Shareholder or former Shareholder is or was
the holder of Shares) to be held harmless from and indemnified against all loss
and expense arising from such liability.
Section 4. Indemnification of Trustees, Officers, etc. Subject to the
limitations, if applicable, hereinafter set forth in this Section 4, the Trust
shall indemnify (from the assets of one or more Series to which the conduct in
question relates) each of its Trustees, officers, employees and agents
(including Persons who serve at the Trust's request as directors, officers or
trustees of another organization in which the Trust has any interest as a
shareholder, creditor or otherwise (hereinafter, together with such Person's
heirs, executors, administrators or personal representative, referred to as a
"Covered Person")) against all liabilities, including but not limited to amounts
paid in satisfaction of judgments, in compromise or as fines and penalties, and
expenses, including reasonable accountants' and counsel fees, incurred by any
Covered Person in connection with the defense or disposition of any action, suit
or other proceeding, whether civil or criminal, before any court or
administrative or legislative body, in which such Covered Person may be or may
have been involved as a party or otherwise or with which such Covered Person may
be or may have been threatened, while in office or thereafter, by reason of
being or having been such a Trustee or officer, director or trustee, except with
respect to any matter as to which it has been determined that such Covered
Person (i) did not act in good faith in the reasonable belief that such Covered
Person's action was in or not opposed to the best interests of the Trust; or
(ii) had acted with willful misfeasance, bad faith, gross negligence or reckless
disregard of the duties involved in the conduct of such Covered Person's office;
and (iii) for a criminal proceeding, had reasonable cause to believe that his or
her conduct was unlawful (the conduct described in (i), (ii) and (iii) being
referred to hereafter as "Disabling Conduct"). A determination that the Covered
Person is entitled to indemnification may be made by (i) a final decision on the
merits by a court or other body before whom the proceeding was brought that the
Covered Person to be indemnified was not liable by reason of Disabling Conduct,
(ii) dismissal of a court action or an administrative proceeding against a
Covered Person for insufficiency of evidence of Disabling Conduct, or (iii) a
reasonable determination, based upon a review of the facts, that the indemnitee
was not liable by reason of Disabling Conduct by (a) a vote of a majority of a
quorum of the Trustees who are neither "interested persons" of the Trust as
defined in the 1940 Act nor parties to the proceeding (the "Disinterested
Trustees"), or (b) an independent legal counsel in a written opinion. Expenses,
including accountants' and counsel
20
fees so incurred by any such Covered Person (but excluding amounts paid in
satisfaction of judgments, in compromise or as fines or penalties), may be paid
from time to time by one or more Series to which the conduct in question related
in advance of the final disposition of any such action, suit or proceeding;
provided that the Covered Person shall have undertaken to repay the amounts so
paid to such Series if it is ultimately determined that indemnification of such
expenses is not authorized under this Article VII and (i) the Covered Person
shall have provided security for such undertaking, (ii) the Trust shall be
insured against losses arising by reason of any lawful advances, or (iii) a
majority of a quorum of the Disinterested Trustees, or an independent legal
counsel in a written opinion, shall have determined, based on a review of
readily available facts (as opposed to a full trial type inquiry), that there is
reason to believe that the Covered Person ultimately will be found entitled to
indemnification.
Section 5. Compromise Payment. As to any matter disposed of by a
compromise payment by any such Covered Person referred to in Section 4 of this
Article VII, pursuant to a consent decree or otherwise, no such indemnification
either for said payment or for any other expenses shall be provided unless such
indemnification shall be approved (i) by a majority of a quorum of the
Disinterested Trustees or (ii) by an independent legal counsel in a written
opinion. Approval by the Trustees pursuant to clause (i) or by independent legal
counsel pursuant to clause (ii) shall not prevent the recovery from any Covered
Person of any amount paid to such Covered Person in accordance with either of
such clauses as indemnification if such Covered Person is subsequently
adjudicated by a court of competent jurisdiction not to have acted in good faith
in the reasonable belief that such Covered Person's action was in or not opposed
to the best interests of the Trust or to have been liable to the Trust or its
Shareholders by reason of willful misfeasance, bad faith, gross negligence or
reckless disregard of the duties involved in the conduct of the Covered Person's
office.
Section 6. Indemnification Not Exclusive, etc. The right of
indemnification provided by this Article VII shall not be exclusive of or affect
any other rights to which any such Covered Person or shareholder may be
entitled. As used in this Article VII, a "disinterested" Person is one against
whom none of the actions, suits or other proceedings in question, and no other
action, suit or other proceeding on the same or similar grounds is then or has
been pending or threatened. Nothing contained in this Article VII shall affect
any rights to indemnification to which personnel of the Trust, other than
Trustees and officers, and other Persons may be entitled by contract or
otherwise under law, nor the power of the Trust to purchase and maintain
liability insurance on behalf of any such Person.
Section 7. 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. Insurance. The Trustees shall be entitled and empowered to the
fullest extent permitted by law to purchase with Trust assets insurance for
liability and for all expenses reasonably incurred or paid or expected to be
paid by a Trustee, officer, employee, or agent of the Trust in connection with
any claim, action, suit, or proceeding in which he or she may become involved by
virtue of his or her capacity or former capacity as a Trustee of the Trust.
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ARTICLE VIII
Miscellaneous
Section 1. Termination of the Trust. Unless terminated as provided
herein, the Trust shall continue without limitation of time. Subject to the
voting powers of one or more Classes or Series of Shares as set forth in the
By-Laws, the Trust may be dissolved at any time (i) by vote or consent of
Shareholders holding at least seventy-five percent (75%) of the Shares entitled
to vote or (ii) by vote or consent of a majority of the entire Board of Trustees
and seventy-five percent (75%) of the Continuing Trustees, upon written notice
to the Shareholders. Any Series or Class of Shares may be dissolved at any time
(x) by vote or consent of Shareholders holding at least seventy-five percent
(75%) of the Shares of such Series or Class entitled to vote or (y) by vote or
consent of a majority of the entire Board of Trustees and seventy-five percent
(75%) of the Continuing Trustees upon written notice to the Shareholders of such
Series or Class. For the avoidance of any doubt and notwithstanding anything to
the contrary in this Declaration of Trust, Shareholders shall have no separate
right to vote with respect to the dissolution of the Trust or a Series or Class
of Shares if the Trustees (including the Continuing Trustees) exercise their
right to dissolve the Trust or such Series or Class pursuant to clauses (ii) and
(y) of this Section 1.
Upon dissolution of the Trust or of any one or more Series or Classes of
Shares, after paying or otherwise providing for all charges, taxes, expenses and
liabilities, whether due or accrued or anticipated, of the Trust or of the
particular Series or Class, as may be determined by the Trustees, the Trust
shall in accordance with such procedures as the Trustees consider appropriate
reduce the remaining assets of the Trust or of the affected Series or Class to
distributable form in cash or Shares (if any Series remain) or other property,
or any combination thereof, and distribute the proceeds to the Shareholders of
the Series or Class(es) involved, ratably according to the number of Shares of
such Series or Class held by the Shareholders of such Series or Class on the
date of distribution, except to the extent otherwise required or permitted by
the preferences and special or relative rights and privileges of any Classes or
Series of Shares. Thereupon, the Trust or any affected Series or Class shall
terminate and the Trustees and the Trust shall be discharged from any and all
further liabilities and duties relating thereto or arising therefrom, and the
right, title and interest of all parties with respect to the Trust or such
Series or Class shall be canceled and discharged.
Following completion of winding up of its business, the Trustees shall
cause a certificate of cancellation of the Trust's Certificate of Trust to be
filed in accordance with the Delaware Act, which certificate of cancellation may
be signed by any one Trustee, upon which the Trust shall terminate.
Section 2. Conversion to an Open-End Investment Company.
Notwithstanding any other provisions in this Declaration or the By-Laws,
the conversion of the Trust or any series of Shares from a "closed-end company"
to an "open-end company", as those terms are defined in Sections 5(a)(2) and
5(a)(1), respectively, of the 1940 Act (as in effect
22
on the date of this Declaration), together with any necessary amendments
to this Declaration to permit such a conversion, shall require the approval of a
majority of the Trustees then in office and the affirmative vote or consent of
at least seventy-five percent (75%) of each Class of Shares outstanding and
entitled to vote on the matter, unless a majority of the Trustees and
seventy-five percent (75%) of the Continuing Trustees entitled to vote on the
matter approve such conversion and related actions. In the event of such
approval by the Trustees and the Continuing Trustees as referred to in the
preceding sentence, the 1940 Act shall govern whether and to what extent a vote
or consent of Shares shall be required to approve such conversion and related
actions. Any affirmative vote or consent required under this Section 2 shall be
in addition to the vote or consent of the Shareholders otherwise required by the
1940 Act or by any agreement between the Trust and any national securities
exchange.
Section 3. Reorganization.
(a) Except as provided in Sections 1 and 4 of this Article VIII, the
Trustees may, without Shareholder approval unless such approval is
required by the 1940 Act, (i) cause the Trust to merge or consolidate with
or into or transfer its assets and any liabilities to one or more trusts
(or series thereof to the extent permitted by law), partnerships,
associations, corporations or other business entities (including trusts,
partnerships, associations, corporations or other business entities
created by the Trustees to accomplish such merger or consolidation or
transfer of assets and any liabilities) so long as the surviving or
resulting entity is an investment company as defined in the 1940 Act, or
is a series thereof, that will succeed to or assume the Trust's
registration under the 1940 Act and that is formed, organized, or existing
under the laws of the United States or of a state, commonwealth,
possession or colony of the United States, unless otherwise permitted
under the 1940 Act, (ii) cause any one or more Series (or Classes) of the
Trust to transfer its assets and any liabilities to any one or more other
Series (or Classes) of the Trust, one or more trusts (or series or classes
thereof to the extent permitted by law), partnerships, associations, or
corporations, (iii) cause the Shares to be exchanged under or pursuant to
any state or federal statute to the extent permitted by law or (iv) cause
the Trust to reorganize as a corporation, limited liability company or
limited liability partnership under the laws of Delaware or any other
state or jurisdiction.
(b) Pursuant to and in accordance with the provisions of Section
3815(f) of the Delaware Act, and notwithstanding anything to the contrary
contained in this Declaration of Trust, an agreement of merger or
consolidation or exchange or transfer of assets and liabilities approved
by the Trustees in accordance with this Section 3 may (i) effect any
amendment to the governing instrument of the Trust or (ii) effect the
adoption of a new governing instrument of the Trust if the Trust is the
surviving or resulting trust in the merger or consolidation.
Section 4. Certain Transactions.
(a) Except as otherwise provided in paragraph (b) of this Section 4,
the affirmative vote or consent of at least seventy-five percent (75%) of
the Trustees of the
23
Trust and at least seventy-five percent (75%) of the Shares outstanding
and entitled to vote thereon shall be necessary to authorize any of the
following actions:
(i) the merger or consolidation or share exchange of the Trust
or any Series or Class of Shares with or into any other person or
company (including, without limitation, a partnership, corporation,
joint venture, business trust, common law trust or any other
business organization) or of any such person or company with or into
the Trust or any Series or Class of Shares;
(ii) the issuance or transfer by the Trust of any Series or
Class of Shares (in one or more series of transactions in any
twelve-month period) of any securities of the Trust or such Series
or Class to any other person or entity for cash, securities or other
property (or combination thereof) having an aggregate fair market
value of $1,000,000 or more, excluding (i) sales of any securities
of the Trust or a Series or Class in connection with a public
offering thereof, (ii) issuance of securities of the Trust or a
Series or Class pursuant to a dividend reinvestment plan adopted by
the Trustees and (iii) issuances of securities of the Trust or a
Series or Class upon the exercise of any stock subscription rights
distributed by the Trust or a Series or Class;
(iii) a sale, lease, exchange, mortgage, pledge, transfer or
other disposition by the Trust or any Series or Class of Shares (in
one or a series of transactions in any twelve-month period) to or
with any person of any assets of the Trust or such Series or Class
having an aggregate fair market value of $1,000,000 or more, except
for transactions in securities effected by the Trust or a Series or
Class in the ordinary course of business;
(iv) any Shareholder proposal as to specific investment
decisions made or to be made with respect to the assets of the Trust
or a Series or Class of Shares; or
(v) the creation by the Trustees of one or more statutory
trusts to which all or any part of the assets, liabilities, profits,
or losses of the Trust or any Series or Class thereof may be
transferred and the providing for conversion of Shares in the Trust
or any Series or Class thereof into beneficial interests in any such
newly created trust or trusts or any series or classes thereof.
(b) Notwithstanding anything to the contrary in paragraph (a) of
this Section 4, so long as each action is approved by both a majority of
the entire Board of Trustees and seventy-five percent (75%) of the
Continuing Trustees, and so long as all other conditions and requirements,
if any, provided for in the By-Laws and applicable law have been
satisfied, then no Shareholder vote or consent shall be necessary or
required to approve any of the actions listed in paragraphs (a)(i),
(a)(ii), (a)(iii), (a)(iv) or (a)(v) of this Section 4, except to the
extent such Shareholder vote or consent is required by the 1940 Act.
24
Section 5. Amendments.
(a) Except to the extent that the By-Laws or applicable law may require a
higher vote or the separate vote of one or more Classes or Series of Shares, and
except as provided in paragraph (b) of this Section 5, this Declaration of Trust
may be amended at any time by an instrument in writing signed by a majority of
the then Trustees (1) when authorized so to do by a vote of Shareholders holding
a majority of the Shares entitled to vote or (2) without Shareholder approval as
the Trustees may consider necessary or desirable in order to authorize one or
more Classes or Series of Shares as in Section 1 of Article 3. Notwithstanding
anything else herein, no amendment hereof shall limit the rights to insurance
provided by Article VII hereof with respect to any acts or omissions of Persons
covered thereby prior to such amendment nor shall any such amendment limit the
rights to indemnification referenced in Article VII hereof with respect to any
actions or omissions of Persons covered thereby prior to such amendment.
Amendments having the purpose of changing the name of the Trust or of supplying
any omission or curing any ambiguity shall not require authorization by
Shareholder vote. Amendments having the purpose of curing, correcting or
supplementing any defective or inconsistent provision contained herein shall not
require authorization by Shareholder vote.
(b) Except to the extent that the By-Laws or applicable law may require a
higher vote or the separate vote of one or more classes or series of Shares, no
amendment may be made under this Section 5 which shall amend, alter, change or
repeal any of the provisions of Article I, Section 2(f); Article III, Sections
1(b), 5 or 7; Article IV, Sections 1, 2 or 3; each Section of Article V; each
Section of Article VII; or this Article VIII, Sections 1, 2, 3, 4 or 5 unless,
in each case, the amendment effecting such amendment, alteration, change or
repeal shall be effected by an instrument in writing signed by a majority of the
then Trustees and seventy-five percent (75%) of the Continuing Trustees and
shall receive the affirmative vote or consent of at least seventy-five percent
(75%) of the Shares entitled to vote; provided, however, that such affirmative
vote or consent shall be in addition to the vote or consent of the Shareholders
otherwise required by applicable law or by the terms of any agreement between
the Trust and any national securities exchange.
(c) Except to the extent that the By-Laws or applicable law requires a
vote or consent of Shareholders, the Board of Trustees shall have the sole power
and authority to adopt, amend, alter, change or repeal any By-Law of the Trust,
if the resolution or writing adopting, amending, altering, changing or repealing
any such By-Law is approved or signed by a majority of the Board of Trustees;
provided, however, that the approval of a majority of the Board of Trustees and
seventy-five percent (75%) of the Continuing Trustees shall be required for (i)
any amendment, alteration, change or repeal of Article 2 of the By-Laws and (ii)
any amendment, alteration, change or repeal of any other Section or provision of
the By-Laws designated from time to time by resolution of a majority of the
Board of Trustees and seventy-five percent (75%) of the Continuing Trustees to
require such approval.
Section 6. 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
25
amendments have been made and as to any matters in connection with the Trust
hereunder; and, with the same effect as if it were the original, may rely on a
copy certified by an officer of the Trust to be a copy of this instrument or of
any such restatements and/or amendments. In this instrument and in any such
restatements and/or amendments, references to this instrument, and all
expressions such as "herein," "hereof," and "hereunder," shall be deemed to
refer to this instrument as amended or affected by any such restatements and/or
amendments. Headings are placed herein for convenience of reference only and
shall not be taken as a part hereof or control or affect the meaning,
construction or effect of this instrument. Whenever the singular number is used
herein, the same shall include the plural; and the neuter, masculine and
feminine genders shall include each other, as applicable. This instrument may be
executed in any number of counterparts each of which shall be deemed an
original.
Section 7. Applicable Law.
(a) The Trust is created under, and this Declaration of Trust is to
be governed by, and construed and enforced in accordance with, the laws of
the State of Delaware. The Trust shall be of the type commonly called a
statutory trust, and without limiting the provisions hereof, the Trust
specifically reserves the right to exercise any of the powers or
privileges afforded to statutory trusts or actions that may be engaged in
by statutory trusts under the Delaware Act, and the absence of a specific
reference herein to any such power, privilege, or action shall not imply
that the Trust may not exercise such power or privilege or take such
actions.
(b) Notwithstanding the first sentence of Section 7(a) of this
Article VIII, there shall not be applicable to the Trust, the Trustees, or
this Declaration of Trust either the provisions of Section 3540 of Title
12 of the Delaware Code or any provisions of the laws (statutory or
common) of the State of Delaware (other than the Delaware Act) pertaining
to trusts that relate to or regulate: (i) the filing with any court or
governmental body or agency of Trustee accounts or schedules of trustee
fees and charges; (ii) affirmative requirements to post bonds for
trustees, officers, agents, or employees of a trust; (iii) the necessity
for obtaining a court or other governmental approval concerning the
acquisition, holding, or disposition of real or personal property; (iv)
fees or other sums applicable to trustees, officers, agents or employees
of a trust; (v) the allocation of receipts and expenditures to income or
principal; (vi) restrictions or limitations on the permissible nature,
amount, or concentration of trust investments or requirements relating to
the titling, storage, or other manner of holding of trust assets; or (vii)
the establishment of fiduciary or other standards or responsibilities or
limitations on the acts or powers or liabilities or authorities and powers
of trustees that are inconsistent with the limitations or liabilities or
authorities and powers of the Trustees set forth or referenced in this
Declaration of Trust; or (viii) activities similar to those referenced in
the foregoing items (i) through (vii).
Section 8. Provisions in Conflict with Law or Regulations.
(a) The provisions of this Declaration of Trust are severable, and
if the Trustees shall determine, with the advice of counsel, that any such
provision is in conflict with the 1940
26
Act, the regulated investment company provisions of the Internal Revenue Code of
1986, as amended (or any successor statute thereto), and the regulations
thereunder, the Delaware Act or with other applicable laws and regulations, the
conflicting provision shall be deemed never to have constituted a part of this
Declaration of Trust; provided, however, that such decision shall not affect any
of the remaining provisions of this Declaration of Trust or render invalid or
improper any action taken or omitted prior to such determination.
(b) If any provision of this 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 this Declaration of Trust in any jurisdiction.
Section 9. Statutory Trust Only. It is the intention of the Trustees to
create a statutory trust pursuant to the Delaware Act. It is not the intention
of the Trustees to create a general partnership, limited partnership, joint
stock association, corporation, bailment, or any form of legal relationship
other than a statutory trust pursuant to the Delaware Act. Nothing in this
Declaration of Trust shall be construed to make the Shareholders, either by
themselves or with the Trustees, partners, or members of a joint stock
association.
27
IN WITNESS WHEREOF, the Trustees named below do hereby make and enter into
this Amended and Restated Agreement and Declaration of Trust as of the 22nd day
of September, 2005.
/s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇ /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇
Trustee and not individually Trustee and not individually
/s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇ /s/ ▇▇. ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, III
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇ ▇▇. ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, III
Trustee and not individually Trustee and not individually
/s/ K. Dun ▇▇▇▇▇▇▇ /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
K. Dun ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
Trustee and not individually Trustee and not individually
/s/ ▇▇. ▇▇▇▇▇ ▇▇▇▇▇, ▇▇. /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
▇▇. ▇▇▇▇▇ ▇▇▇▇▇, ▇▇. ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
Trustee and not individually Trustee and not individually
/s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇ /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Trustee and not individually Trustee and not individually
/s/ ▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
Trustee and not individually
28
THE PRINCIPAL PLACE OF BUSINESS
OF THE TRUST IS:
▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
29