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EXHIBIT (a)
AGREEMENT AND DECLARATION OF TRUST
OF
AMBASSADOR FUNDS
THIS AGREEMENT AND DECLARATION OF TRUST is made and entered into as of the
date set forth below by the Trustees named hereunder for the purpose of forming
a Delaware business trust in accordance with the provisions hereinafter set
forth. The Trustees hereby direct that a Certificate of Trust be filed with the
Office of the Secretary of State of the State of Delaware and do hereby declare
that the Trustees will hold in trust all cash, securities and other assets which
the Trust now possesses or may hereafter acquire from time to time in any manner
and manage and dispose of the same upon the following terms and conditions for
the benefit of the holders of Shares in this Trust.
ARTICLE I
NAME AND DEFINITIONS
SECTION 1. NAME. This Trust shall be known as AMBASSADOR FUNDS, and the
Trustees shall conduct the business of the Trust under that name or any other
name as they may from time to time determine.
SECTION 2. DEFINITIONS. Whenever used herein, unless otherwise required by
the context or specifically provided:
(a) "Bylaws" shall mean the Bylaws of the Trust as amended from
time to time, which Bylaws are expressly herein incorporated by
reference as part of the "governing instrument" within the meaning of
the Delaware Act;
(b) "Certificate of Trust" means the certificate of trust, as
amended or restated from time to time, filed by the Trustees in the
Office of the Secretary of State of the State of Delaware in accordance
with the Delaware Act;
(c) "Class" means a class of Shares of a Series of the Trust
established in accordance with the provisions of Article III hereof;
(d) "Commission" shall have the meaning given it in the 1940 Act;
(e) "Declaration of Trust" means this Agreement and Declaration
of Trust, as amended or restated from time to time;
(f) "Delaware Act" means Chapter 38 of Title 12 of the Delaware
Code relating to the treatment of Delaware business trusts, as amended
from time to time;
(g) "Interested Person" shall have the meaning given it in the
1940 Act;
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(h) "Investment Manager" or "Manager" means a party furnishing
services to the Trust pursuant to any contract described in Article IV,
Section 7(a) hereof;
(i) "1940 Act" means the Investment Company Act of 1940 and the
Rules and Regulations thereunder, all as amended from time to time;
(j) "Person" means and includes individuals, corporations,
partnerships, trusts, associations, joint ventures, estates and other
entities, whether or not legal entities, and governments and agencies
and political subdivisions thereof, whether domestic or foreign;
(k) "Principal Underwriter" shall have the meaning given it in
the 1940 Act;
(l) "Series" means each Series of Shares established and
designated under or in accordance with the provisions of Article III;
(m) "Shareholder" means a record owner of outstanding Shares;
(n) "Shares" means the shares of beneficial interest into which
the beneficial interest in the Trust shall be divided from time to
time and includes fractions of Shares as well as whole Shares;
(o) "Trust" means the Delaware Business Trust established under
the Delaware Act by this Declaration of Trust and the filing of the
Certificate of Trust in the Office of the Secretary of State of the
State of Delaware;
(p) "Trust Property" means any and all property, real or
personal, tangible or intangible, which is from time to time owned or
held by or for the account of the Trust; and
(q) "Trustees" means the 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,
and reference herein to a Trustee or the Trustees shall refer to such
Person or Persons in his or their capacity as trustees hereunder.
ARTICLE II
PURPOSE OF TRUST
The purpose of the Trust is to conduct, operate and carry on the
business of a management investment company registered under the 1940 Act
through one or more Series investing primarily in securities, and to carry
on such other business as the Trustees may from time to time determine
pursuant to their authority under this Declaration of Trust.
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ARTICLE III
SHARES
SECTION 1. DIVISION OF BENEFICIAL INTEREST. The beneficial interest in the
Trust shall be divided into one or more Series. Each Series may be divided into
two or more Classes. Subject to the further provisions of this Article III and
any applicable requirements of the 1940 Act, the Trustees shall have full power
and authority, in their sole discretion, and without obtaining any authorization
or vote of the Shareholders of any Series or Class thereof, (i) to divide the
beneficial 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, subject to any restriction set forth in
the Bylaws, including cash or securities, at such time or times and on such
terms as the Trustees may deem appropriate, (iii) to establish and designate and
to change in any manner any Series or Class thereof and to fix such preferences,
voting powers, rights, duties and privileges and business purpose of each Series
or Class thereof as the Trustees may from time to time determine, which
preferences, voting powers, rights, duties and privileges may be senior or
subordinate to (or in the case of business purpose, different from) any existing
Series or Class thereof and may be limited to specified property or obligations
of the Trust or profits and losses associated with specified property or
obligations of the Trust, (iv) to divide or combine the Shares of any Series or
Class thereof into a greater or lesser number without thereby materially
changing the proportionate beneficial interest of the Shares of such Series or
Class 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 and (vi) to take such other action with
respect to the Shares as the Trustees may deem desirable.
Subject to the distinctions permitted among Classes of the same Series as
established by the Trustees consistent with the requirements of the 1940 Act,
each Share of a Series of the Trust shall represent an equal beneficial interest
in the net assets of such Series, and each holder of Shares of a Series shall be
entitled to receive such holder's pro rata share of distributions of income and
capital gains, if any, made with respect to such Series. Upon redemption of the
Shares of any Series, the applicable 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 in Shares or a split or reverse split of
Shares, shall be fully paid and non-assessable. Except as otherwise provided by
the Trustees, Shareholders shall have no preemptive or other right to subscribe
to any additional Shares or other securities issued by the Trust.
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SECTION 2. OWNERSHIP OF SHARES. The Ownership of Shares shall be recorded
on the books of the Trust or a transfer or similar agent for the Trust, which
books shall be maintained separately for the Shares of each Series (or Class).
No certificates certifying the ownership of Shares shall be issued except as the
Board of Trustees may otherwise determine from time to time. The Trustees may
make such rules as they consider appropriate for the issuance of Share
certificates, the transfer of Shares of each Series (or Class) and similar
matters. The record books of the Trust as kept by the Trust or any transfer or
similar agent, as the case may be, shall be conclusive as to the identity of the
Shareholders of each Series (or Class) and as to the number of Shares of each
Series (or Class) held from time to time by each Shareholder.
SECTION 3. TRANSFER OF SHARES. Except as otherwise provided by the
Trustees, Shares shall be transferable on the books of the Trust only by the
record holder thereof or by his duly authorized agent upon delivery to the
Trustees or the Trust's transfer agent of a duly executed instrument of
transfer, together with a Share certificate if one is outstanding, and such
evidence of the genuineness of 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 Bylaws, the transfer shall be recorded on the books of the Trust. Until a
transfer is so recorded, the Shareholder of record of Shares shall be deemed to
be the holder of such Shares for all purposes hereunder and neither the Trustees
nor the Trust, nor any transfer agent 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 entitles such
representative only to the rights of such Shareholder under this Trust.
Ownership of Shares shall not entitle the Shareholder to any title in or to the
whole or any part of the Trust Property or right to call for a partition or
division of the same or for an accounting, nor shall the ownership of Shares
constitute the Shareholders as partners. Neither the Trust nor the Trustees, nor
any officer, employee or agent of the Trust shall have any power to bind
personally any Shareholders, 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 AND DESIGNATION OF SERIES AND CLASSES. The
establishment and designation of any Series (or Class) of Shares shall be
effective upon the adoption by a majority of the then Trustees of a resolution
that sets forth such establishment and designation and the relative
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rights and preferences of such Series (or Class), whether directly in such
resolution or by reference to another document including, without limitation,
any registration statement of the Trust, or as otherwise provided in such
resolution.
Shares of each Series (or Class) established pursuant to this Article III,
unless otherwise provided in the resolution establishing such Series, shall have
the following relative rights and preferences:
(a) Assets Held with Respect to a Particular Series. 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 may be, shall irrevocably be held with respect to
that Series for all purposes, subject only to the rights of creditors of
such Series, 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. Any
general liabilities of the Trust which are not readily identifiable as
being held with respect to any particular Series shall be allocated and
charged by the Trustees to and 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. All liabilities, expenses, costs, charges, and reserves so
charged to a Series are herein referred to as "liabilities held with
respect to" that Series. Each allocation of liabilities, expenses, costs,
charges and reserves by the Trustees shall be conclusive and binding upon
the holders of all Series for all purposes. All liabilities held with
respect to a particular Series shall be enforceable against the assets held
with
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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 the liability of each Series shall
be set forth in the Certificate of Trust or in an amendment thereto prior
to the issuance of any Shares of a Series.
(c) Dividends, Distributions, Redemptions, and Repurchases.
Notwithstanding any other provisions of this Declaration of Trust,
including, without limitation, Article VI, no dividend or distribution,
including, without limitation, any distribution paid upon termination of
the Trust or of any Series (or Class) with respect to, nor any redemption
or repurchase of, the Shares of any Series (or Class) shall be effected by
the Trust other than from the assets held with respect to such Series, nor
shall any Shareholder of any particular Series otherwise have any right or
claim against the assets held with respect to any other Series except to
the extent that such Shareholder has such a right or claim hereunder as a
Shareholder of such other Series. The Trustees shall have full discretion,
to the extent not inconsistent with the 1940 Act, to determine which items
shall be treated as income and which items as capital; and each such
determination and allocation shall be conclusive and binding upon the
Shareholders.
(d) Equality. All the Shares of each particular Series shall represent
an equal proportionate interest in the assets held with respect to that
Series (subject to the liabilities held with respect to that Series and
such rights and preferences as may have been established and designated
with respect to Classes of Shares within such Series), and each Share of
any particular Series shall be equal to each other Share of that Series.
(e) Fractions. Any fractional Share of a Series shall carry
proportionately all the rights and obligations of a whole Share of that
Series, 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 shall have the right to
exchange said Shares for Shares of one or more other Series of Shares 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 unless otherwise
required by applicable law, to combine the assets and liabilities held with
respect to any two or more Series into assets and liabilities held with
respect to a single Series.
(h) Elimination of Series. At any time that there are no Shares
outstanding of any particular Series (or Class) previously established and
designated, the Trustees may by resolution of a majority of the then
Trustees abolish that Series (or Class) and rescind the establishment and
designation thereof.
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SECTION 7. INDEMNIFICATION OF SHAREHOLDERS. If any Shareholder or
former Shareholder shall be exposed to liability by reason of a claim or
demand relating to such Person being or having been a Shareholder, and not
because of such Person's acts or omissions, the Shareholder or former
Shareholder (or such Person's heirs, executors, administrators, or other
legal representatives or in the case of a corporation or other entity, its
corporate or other general successor) shall be entitled to be held harmless
from and indemnified out of the assets of the Trust against all loss and
expense arising from such claim or demand, but only out of the assets held
with respect to the particular Series of Shares of which such Person is or
was a Shareholder and from or in relation to which such liability arose.
ARTICLE IV
THE BOARD OF TRUSTEES
SECTION 1. NUMBER, ELECTION AND TENURE. The number of Trustees shall
initially be five, who shall be ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇, ▇▇▇▇▇▇
▇. ▇▇▇▇▇, ▇▇▇▇▇▇ ▇. ▇▇▇▇ and ▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇. Hereafter, the number of
Trustees shall at all times be at least one and no more than fifteen as
determined, from time to time, by the Trustees pursuant to Section 3 of
this Article IV. Each Trustee shall serve during the continued lifetime of
the Trust until the earlier of his or her death, resignation, declaration
of bankruptcy or incompetency by a court of appropriate jurisdiction, or
removal or until the next meeting of Shareholders called for the purpose of
electing Trustees and until the election and qualification of his or her
successor. In the event that less than the majority of the Trustees holding
office have been elected by the Shareholders, the Trustees then in office
shall call a Shareholders' meeting for the election of Trustees. Any
Trustee may resign at any time by written instrument signed by him and
delivered to any officer of the Trust or to a meeting of the Trustees. Such
resignation shall be effective upon receipt unless specified to be
effective at some other time. Except to the extent expressly provided in a
written agreement with the Trust, no Trustee resigning and no Trustee
removed shall have any right to any compensation for any period following
the effective date of his or her resignation or removal, or any right to
damages on account of such removal. The Shareholders may elect Trustees at
any meeting of Shareholders called by the Trustees for that purpose. Any
Trustee may be removed at any meeting of Shareholders by a vote of
two-thirds of the outstanding Shares of the Trust.
SECTION 2. EFFECT OF DEATH, RESIGNATION, ETC. OF A TRUSTEE. The death,
declination to serve, resignation, retirement, removal, or incapacity of
one or more Trustees, or all of them, shall not operate to annul the Trust
or to revoke any existing agency created pursuant to the terms of this
Declaration of Trust. Whenever there shall be fewer than the designated
number of Trustees, until additional Trustees are elected or appointed as
provided herein to bring the total number of Trustees equal to the
designated number, the Trustees in office, regardless of their number,
shall have all the powers granted to the Trustees and shall discharge all
the duties imposed upon the Trustees by this Declaration of Trust. As
conclusive evidence of such vacancy, a written instrument certifying the
existence of such vacancy may be executed by an officer of the Trust or by
a majority of the Trustees. In the event of the death, declination,
resignation, retirement, removal, or incapacity of all the then Trustees
within a short period of time and without the opportunity for at least one
Trustee
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being able to appoint additional Trustees to replace those no longer
serving, the Trust's Investment Manager(s) are empowered to appoint new
Trustees subject to the provisions of Section 16(a) of the 1940 Act.
SECTION 3. 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 securities transactions of
all kinds on behalf of the Trust. Without limiting the foregoing, the
Trustees may: adopt Bylaws not inconsistent with this Declaration of Trust
providing for the regulation and management of the affairs of the Trust and
may amend and repeal them to the extent that such Bylaws do not reserve
that right to the Shareholders; enlarge or reduce their number; remove any
Trustee with or without cause at any time by written instrument signed by
at least two-thirds of the number of Trustees prior to such removal,
specifying the date when such removal shall become effective, and fill
vacancies caused by enlargement of their number or by the death,
resignation or removal of a Trustee; elect and remove, with or without
cause, such officers and appoint and terminate such agents as they consider
appropriate; appoint from their own number and establish and terminate one
or more committees consisting of two or more Trustees (or one Trustee if
necessary pursuant to Article VIII, Section 9 hereof) which may exercise
the powers and authority of the Board of Trustees to the extent that the
Trustees determine; employ one or more custodians of the assets of the
Trust and authorize such custodians to employ subcustodians and to deposit
all or any part of such assets in a system or systems for the central
handling of securities or with a Federal Reserve Bank; retain a transfer
agent or a shareholder servicing agent, or both; provide for the issuance
and distribution of Shares by the Trust directly or through one or more
Principal Underwriters or otherwise; redeem, repurchase and transfer Shares
pursuant to applicable law; set record dates for the determination of
Shareholders with respect to various matters; declare and pay dividends and
distributions to Shareholders of each Series from the assets of such
Series; 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 Bylaws 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 (as defined in the Bylaws as may be amended from time to
time) 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 fixed income or other securities,
and securities of every
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nature and kind, including, without limitation, all types of bonds,
debentures, stocks, negotiable or non-negotiable instruments, obligations,
evidences of indebtedness, certificates of deposit or indebtedness,
commercial paper, repurchase agreements, bankers' acceptances, and other
securities of any kind, issued, created, guaranteed, or sponsored by any
and all Persons, including, without limitation, states, territories, and
possessions of the United States and the District of Columbia and any
political subdivision, agency, or instrumentality thereof, any foreign
government or any political subdivision of the U.S. Government or any
foreign government, or any international instrumentality, or by any bank or
savings institution, or by any corporation or organization organized under
the laws of the United States or of any state, territory, or possession
thereof, or by any corporation or organization organized under any foreign
law, or in "when issued" contracts for any such securities, to change the
investments of the assets of the Trust; and to exercise any and all rights,
powers, and privileges of ownership or interest in respect of any and all
such investments of every kind and description, including, without
limitation, the right to consent and otherwise act with respect thereto,
with power to designate one or more Persons, to exercise any of said
rights, powers, and privileges in respect of any of said instruments;
(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 right 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 its
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,
depository, voting trustee or otherwise, and in that connection to deposit
any security with, or transfer any security to, any such committee,
depository or trustee, and to delegate to them such power and authority
with relation to any security (whether or not so deposited or transferred)
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as the Trustees shall deem proper, and to agree to pay, and to pay, such
portion of the expenses and compensation of such committee, depository or
trustee as the Trustees shall deem proper;
(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 issue notes or
other evidence 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 policies insuring the Shareholders,
Trustees, officers, employees, agents, investment advisers, principal
underwriters, or independent contractors of the Trust, individually against
all claims and liabilities of every nature arising by reason of holding
Shares, holding, being 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;
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(p) To employ one or more banks, trust companies or companies that are
members of a national securities exchange or such other entities as the
Commission may permit as custodians of any assets of the Trust subject to
any conditions set forth in this Declaration or Trust or in the Bylaws;
(q) To interpret the investment policies, practices or limitations of
any Series or Class; and
(r) To invest part or all of the Trust Property (or part or all of the
assets of any Series), or to dispose of part or all of the Trust Property
(or part or all of the assets of any Series) and invest the proceeds of
such disposition, in securities issued by one or more other investment
companies registered under the 1940 Act (including investment by means of
transfer of part or all of the Trust Property in exchange for an interest
or interests in such one or more investment companies) all without any
requirement of approval by Shareholders unless required by the 1940 Act.
Any such other investment company may (but need not) be a trust (formed
under the laws of the State of Delaware or of any other state) which is
classified as a partnership for federal income tax purposes.
(s) Subject to the 1940 Act, to engage in any other lawful act or
activity in which a business 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 4. PAYMENT OF EXPENSES BY THE TRUST. The Trustees are authorized to
pay or cause to be paid out of the principal or income of the Trust, or partly
out of the principal and partly out of income, as they deem fair, all expenses,
fees, charges, taxes and liabilities incurred or arising in connection with the
Trust, or in connection with the management thereof, including, but not limited
to, the Trustees compensation and such expenses and charges for the services of
the Trust's officers, employees, investment adviser or manager, Principal
Underwriter, auditors, counsel, custodian, transfer agent, shareholder servicing
agent, and such other agents or independent contractors and such other expenses
and charges as the Trustees may deem necessary or proper to incur, which
expenses, fees, charges, taxes and liabilities shall be allocated in accordance
with Article III, Section 6 hereof.
SECTION 5. 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,
for charges of the Trust's custodian or transfer, Shareholder servicing or
similar agent, an amount fixed from time to time by the Trustees, by setting
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off such charges due from such Shareholder from declared but unpaid dividends
owed such Shareholder and/or by reducing the number of Shares in the account of
such Shareholder by that number of full and/or fractional Shares which
represents the outstanding amount of such charges due from such Shareholder.
SECTION 6. 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 7. SERVICE CONTRACTS
(a) Subject to such requirements and restrictions as may be set forth
under federal and/or state law and in the Bylaws, including, without
limitation, the requirements of Section 15 of the 1940 Act, 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 corporation, trust,
association or other organization; and any such contract may contain such
other terms as the Trustees may determine, including, without limitation,
authority for the Investment Manager or administrator to delegate certain
or all of its duties under such contracts to 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 party.
(b) The Trustees may also, at any time and from time to time, contract
with any corporation, trust, association or other organization, appointing
it exclusive or nonexclusive distributor or Principal Underwriter for the
Shares of one or more of the Series (or Classes) or other securities to be
issued by the Trust. Every such contract shall comply with such
requirements and restrictions as may be set forth under federal and/or
state law and in the Bylaws, including, without limitation, the
requirements of Section 15 of the 1940 Act; and any such contract may
contain such other terms as the Trustees may determine.
(c) The Trustees are also empowered, at any time and from time to
time, to contract with any corporations, trusts, associations or other
organizations, appointing it or them the custodian, transfer agent and/or
Shareholder servicing agent for the Trust or one or
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more of its Series. Every such contract shall comply with such requirements
and restrictions as may be set forth under federal and/or state law and in
the Bylaws or stipulated by resolution of the Trustees.
(d) Subject to applicable law, the Trustees are further empowered, at
any time and from time to time, to contract with any entity to provide such
other services to the Trust or one or more of the Series, as the Trustees
determine to be in the best interests of the Trust and the applicable
Series.
(e) The fact that:
(i) any of the Shareholders, Trustees, or officers of the Trust
is a shareholder, director, officer, partner, trustee, employee,
Manager, adviser, Principal Underwriter, distributor, or affiliate or
agent of or for any corporation, trust, association, or other
organization, or for any parent or affiliate of any organization with
which an advisory, management or administration contract, or principal
underwriter's or distributor's contract, or transfer, shareholder
servicing or other type of service contract may have been or may
hereafter be made, or that any such organization, or any parent or
affiliate thereof, is a Shareholder or has an interest in the Trust,
or that
(ii) any corporation, trust, association or other organization
with which an advisory, management or administration contract or
principal underwriter's or distributor's contract, or transfer,
shareholder servicing or other type of service contract may have been
or may hereafter be made also has an advisory, management or
administration contract, or principal underwriter's or distributor's
contract, or transfer, shareholder servicing or other service contract
with one or more other corporations, trusts, associations, or other
organizations, or has other business or interests, shall not affect
the validity of any such contract or disqualify any Shareholder,
Trustee or officer of the Trust from voting upon or executing the
same, or create any liability or accountability to the Trust or its
Shareholders, provided approval of each such contract is made pursuant
to the requirements of the 1940 Act.
SECTION 8. 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 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 Bylaws relating to the
sale and redemption of such Shares.
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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 1, and (ii) with respect to such
additional matters relating to the Trust as may be required by applicable law,
this Declaration of Trust, the Bylaws or any registration of the Trust with the
Commission (or any successor agency) or any state, or as the Trustees may
consider necessary or desirable. As determined by the Trustees without the vote
or consent of Shareholders (except as required by the 1940 Act), on any matter
submitted to a vote of Shareholders, either (i) each whole Share shall be
entitled to one vote as to any matter on which it is entitled to vote and each
fractional Share shall be entitled to a proportionate fractional vote or (ii)
each dollar of Net Asset Value (number of Shares owned times Net Asset Value per
share of such Series or Class, as applicable) shall be entitled to one vote on
any matter on which such Shares are entitled to vote and each fractional dollar
amount shall be entitled to a proportionate fractional vote. Without limiting
the power of the Trustees in any way to designate otherwise in accordance with
the preceding sentence, the Trustees hereby establish that each whole Share
shall be entitled to one vote as to any matter on which it is entitled to vote
and each fractional Share shall be entitled to a proportionate fractional vote.
Notwithstanding any other provision of this Declaration of Trust, on
any matter submitted to a vote of the Shareholders, all Shares of the Trust then
entitled to vote shall be voted in aggregate, except (i) when required by the
1940 Act, Shares shall be voted by individual Series; (ii) when the matter
involves the termination of the Trust, Shares shall be voted by individual
Series; (iii) when the matter involves the termination of a Series or any other
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 (iv) 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 Bylaws may provide
that proxies may also, or may instead, be given by any electronic or
telecommunications device or in any other manner. Notwithstanding anything else
contained herein or in the Bylaws, in the event a proposal by anyone other than
the officers or Trustees of the Trust is submitted to a vote of the shareholders
of one or more Series or Classes thereof or of the Trust, or in the event of any
proxy contest or proxy solicitation or proposal in opposition to any proposal by
the officers or Trustees of the Trust, Shares may be voted only in person or by
written proxy at a meeting. Until Shares are issued, the Trustees may exercise
all rights of Shareholders and may take any action required by law, this
Declaration of Trust or the Bylaws 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 Bylaws.
SECTION 2. QUORUM AND REQUIRED VOTE. Except when a larger quorum is
required by applicable law, by the Bylaws or by this Declaration of Trust, forty
percent (40%) of the Shares
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entitled to vote shall constitute a quorum at a Shareholders' meeting. When
any one or more Series (or Class) is to vote as a single class separate
from any other Shares, forty percent (40%) of the Shares of each such
Series (or Class) entitled to vote shall constitute a quorum at a
Shareholders' meeting of that Series (or Class). Except when a larger vote
is required by any provision of this Declaration of Trust or the Bylaws 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 Bylaws may include further
provisions for Shareholders' votes and meetings and related matters.
ARTICLE VI
NET ASSET VALUE, DISTRIBUTIONS AND REDEMPTIONS
SECTION 1. DETERMINATION OF NET ASSET VALUE, NET INCOME, AND
DISTRIBUTIONS. Subject to applicable law and Article III, Section 6 hereof,
the Trustees, in their absolute discretion, may prescribe and shall set
forth in a duly adopted vote of the Trustees such bases and time for
determining the per Share or 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 AND REPURCHASES
(a) The Trust shall purchase such Shares as are offered by any
Shareholder for redemption, upon the presentation of a proper
instrument of transfer together with a request directed to the Trust or
a Person designated by the Trust that the Trust purchase such Shares or
in accordance with such other procedures for redemption as the Trustees
may from time to time authorize; and the Trust will pay therefor the
net asset value thereof as determined by the Trustees (or on their
behalf), in accordance with any applicable provisions of the Bylaws and
applicable law, less any fees imposed on such redemption. Unless
extraordinary circumstances exist, payment for said Shares shall be
made by the Trust to the Shareholder
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within seven (7) days after the date on which the request is made in proper
form. The obligation set forth in this Section 2 is subject to the
provision that in the event that any time the New York Stock Exchange (the
"Exchange") is closed for other than weekends or holidays, or if permitted
by the rules and regulations or an order of the Commission during periods
when trading on the Exchange is restricted or during any emergency which
makes it impracticable for the Trust to dispose of the investments of the
applicable Series or to determine fairly the value of the net assets held
with respect to such Series or during any other period permitted by order
of the Commission for the protection of investors, such obligations may be
suspended or postponed by the Trustees. In the case of a suspension of the
right of redemption as provided herein, a Shareholder may either withdraw
the request for redemption or receive payment based on the net asset value
per share next determined after the termination of such suspension, less
any fees imposed on such redemption.
(b) The redemption price may in any case or cases be paid wholly or
partly in kind if the Trustees determine that such payment is advisable in
the interest of the remaining Shareholders of the Series for which the
Shares are being redeemed. Subject to the foregoing, the fair value,
selection and quantity of securities or other property so paid or delivered
as all or part of the redemption price may be determined by or under
authority of the Trustees. In no case shall the Trust be liable for any
delay of any corporation or other Person in transferring securities
selected for delivery as all or part of any payment in kind.
(c) The Trustees may require Shareholders to redeem Shares for any
reason under terms set by the Trustees, including, but not limited to, (i)
the determination of the Trustees that direct or indirect ownership of
Shares of any Series has or may become concentrated in such Shareholder to
an extent that would disqualify any Series as a regulated investment
company under the Internal Revenue Code of 1986, as amended (or any
successor statute thereto), (ii) the failure of a Shareholder to supply a
tax identification number if required to do so, or to have the minimum
investment required (which may vary by Series), or (iii) the failure of a
Shareholder to pay when due for the purchase of Shares issued to him. Any
such redemption shall be effected at the redemption price and in the manner
provided in this Article VI.
(d) The holders of Shares shall upon demand disclose to the Trustees in
writing such information with respect to direct and indirect ownership of
Shares as the Trustees deem necessary to comply with the provisions of the
Internal Revenue Code of 1986, as amended (or any successor statute
thereto), or to comply with the requirements of any other taxing authority.
ARTICLE VII
COMPENSATION AND LIMITATION OF LIABILITY OF TRUSTEES
SECTION 1. COMPENSATION. The Trustees as such shall be entitled to
reasonable compensation from the Trust, and they may fix the amount of such
compensation. Nothing herein
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shall in any way prevent the employment of any Trustee for advisory,
management, legal, accounting, investment banking or other services and
payment for the same by the Trust.
SECTION 2. INDEMNIFICATION AND LIMITATION OF LIABILITY. A Trustee,
when acting in such capacity, shall not be personally liable to any Person,
other than the Trust or a Shareholder to the extent provided in this
Article VII, for any act, omission or obligation of the Trust, of such
Trustee or of any other Trustee. The Trustees shall not be responsible or
liable in any event for any neglect or wrongdoing of any officer, agent,
employee, Manager or Principal Underwriter of the Trust. The Trust shall
indemnify each Person who is, or has been, a Trustee, officer, employee or
agent of the Trust and any Person who is serving or has served at the
Trust's request as a director, officer, trustee, employee or agent of
another organization in which the Trust has any interest as a shareholder,
creditor or otherwise to the extent and in the manner provided in the
Bylaws.
All persons extending credit to, contracting with or having any claim
against the Trust or the Trustees shall look only to the assets of the
Series that such person extended credit to, contracted with or has a claim
against, or, if the Trustees have yet to establish Series, of the Trust for
payment under such credit, contract or claim; and neither the Trustees nor
the Shareholders, nor any of the Trust's officers, employees or agents,
whether past, present or future, shall be personally liable therefor.
Every note, bond, contract, instrument, certificate or undertaking and
every other act or thing whatsoever executed or done by or on behalf of the
Trust or the Trustees by any of them in connection with the Trust shall
conclusively be deemed to have been executed or done only in or with
respect to his or their capacity as Trustee or Trustees, and such Trustee
or Trustees shall not be personally liable thereon. At the Trustees'
discretion, any note, bond, contract, instrument, certificate or
undertaking made or issued by the Trustees or by any officer or officers
may give notice that the Certificate of Trust is on file in the Office of
the Secretary of State of the State of Delaware and that a limitation on
liability of Series exists and such note, bond, contract, instrument,
certificate or undertaking may, if the Trustees so determine, recite that
the same was executed or made on behalf of the Trust by a Trustee or
Trustees in such capacity and not individually or by an officer or officers
in such capacity and not individually and that the obligations of such
instrument are not binding upon any of them or the Shareholders
individually but are binding only on the assets and property of the Trust
or a Series thereof, and may contain such further recital as such Person or
Persons may deem appropriate. The omission of any such notice or recital
shall in no way operate to bind any Trustees, officers or Shareholders
individually.
SECTION 3. TRUSTEE'S GOOD FAITH ACTION, EXPERT ADVICE, NO BOND OR
SURETY. The exercise by the Trustees of their powers and discretions
hereunder shall be binding upon everyone interested. A Trustee shall be
liable to the Trust and to any Shareholder solely for his or her own
willful misfeasance, bad faith, gross negligence or reckless disregard of
the duties involved in the conduct of the office of Trustee, and shall not
be liable for errors of judgment or mistakes of fact or law. The Trustees
may take advice of counsel or other experts with respect to the meaning and
operation of this Declaration of Trust, and shall be under no liability for
any act or omission in accordance with
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such advice nor for failing to follow such advice. The Trustees shall not
be required to give any bond as such, nor any surety if a bond is required.
SECTION 4. INSURANCE. The Trustees shall be entitled and empowered to
the fullest extent permitted by law to purchase with Trust assets insurance
for liability and for all expenses reasonably incurred or paid or expected
to be paid by a Trustee, officer, employee or agent of the Trust in
connection with any claim, action, suit or proceeding in which he or she
becomes involved by virtue of his or her capacity or former capacity with
the Trust.
ARTICLE VIII
MISCELLANEOUS
SECTION 1. LIABILITY OF THIRD PERSONS DEALING WITH TRUSTEES. No Person
dealing with the Trustees shall be bound to make any inquiry concerning the
validity of any transaction made or to be made by the Trustees or to see to
the application of any payments made or property transferred to the Trust
or upon its order.
SECTION 2. TERMINATION OF TRUST OR SERIES
(a) Unless terminated as provided herein, the Trust shall
continue without limitation of time. The Trust may be terminated at any
time by vote of a majority of the Shares of each Series entitled to
vote, voting separately by Series, or by the Trustees by written notice
to the Shareholders. Any Series of Shares or Class thereof may be
terminated at any time by vote of a majority of the Shares of such
Series or Class entitled to vote or by the Trustees by written notice
to the Shareholders of such Series or Class.
(b) Upon the requisite Shareholder vote or action by the
Trustees to terminate the Trust or any one or more Series of Shares or
any Class thereof, after paying or otherwise providing for all charges,
taxes, expenses and liabilities, whether due or accrued or anticipated,
of the Trust or of the particular Series or any Class thereof as may be
determined by the Trustees, the Trust shall in accordance with such
procedures as the Trustees consider appropriate reduce the remaining
assets of the Trust or of the affected Series or Class to distributable
form in cash or Shares (if any Series remain) or other securities, or
any combination thereof, and distribute the proceeds to the
Shareholders of the Series or Classes involved, ratably according to
the number of Shares of such Series or Class held by the several
Shareholders of such Series or Class on the date of distribution.
Thereupon, the Trust or any affected Series or Class shall terminate
and the Trustees and the Trust shall be discharged of any and all
further liabilities and duties relating thereto or arising therefrom,
and the right, title and interest of all parties with respect to the
Trust or such Series or Class shall be canceled and discharged.
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(c) Trustees shall cause a certificate of cancellation of the
Trust's Certificate of Trust to be filed in accordance with the
Delaware Act, which certificate of cancellation may be signed by any
one Trustee.
SECTION 3. REORGANIZATION AND MASTER/FEEDER
(a) Notwithstanding anything else herein, the Trustees may,
without Shareholder approval unless such approval is required by
applicable law, (i) cause the Trust to merge or consolidate with or
into one or more trusts (or series thereof to the extent permitted by
law), partnerships, associations, corporations or other business
entities (including trusts, partnerships, associations, corporations or
other business entities created by the Trustees to accomplish such
merger or consolidation) so long as the surviving or resulting entity
is an open-end management investment company under the 1940 Act, or is
a series thereof, that will succeed to or assume the Trust's
registration under 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, (ii) cause the
Shares to be exchanged under or pursuant to any state or federal
statute to the extent permitted by law or (iii) cause the Trust to
incorporate under the laws of Delaware. Any agreement of merger or
consolidation or exchange or certificate of merger may be signed by a
majority of the Trustees and facsimile signatures conveyed by
electronic or telecommunication means shall be valid.
(b) Pursuant to and in accordance with the provisions of
Section 3815(f) of the Delaware Act, and notwithstanding anything to
the contrary contained in this Declaration of Trust, an agreement of
merger or consolidation approved by the Trustees in accordance with
this Section 3 may effect any amendment to the governing instrument of
the Trust or effect the adoption of a new trust instrument of the Trust
if the Trust is the surviving or resulting trust in the merger or
consolidation.
(c) The Trustees may create one or more business trusts to
which all or any part of the assets, liabilities, profits or losses of
the Trust or any Series or class thereof may be transferred and may
provide for the conversion of Shares in the Trust or any Series or
Class thereof into beneficial interests in any such newly created trust
or trusts or any series or classes thereof.
(d) Notwithstanding anything else herein, the Trustees may,
without Shareholder approval, invest all or a portion of the Trust
Property of any Series, or dispose of all or a portion of the Trust
Property of any Series, and invest the proceeds of such disposition in
interests issued by one or more other investment companies registered
under the 1940 Act. Any such other investment company may (but need
not) be a trust (formed under the laws of the State of Delaware or any
other state or jurisdiction) (or subtrust thereof) which is classified
as a partnership for federal income tax purposes. Notwithstanding
anything else herein, the Trustees may, without Shareholder approval
unless such approval is required by applicable law, cause a Series that
is organized in the master/feeder fund structure to
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withdraw or redeem its Trust Property from the master fund and cause
such series to invest its Trust Property directly in securities and
other financial instruments or in another master fund.
SECTION 4. AMENDMENTS. Except as specifically provided in this
Section, the Trustees may, without Shareholder vote, restate, amend or
otherwise supplement this Declaration of Trust. Shareholders shall have the
right to vote (i) on any amendment that would affect their right to vote
granted in Article V, Section 1 hereof, (ii) on any amendment to this
Section 4 of Article VIII, (iii) on any amendment that may be required by
applicable law or by the Trust's registration statement filed with the
Commission and (iv) on any amendment submitted to them by the Trustees. Any
amendment required or permitted to be submitted to the Shareholders that,
as the Trustees determine, shall affect the Shareholders of one or more
Series shall be authorized by a vote of the Shareholders of each Series
affected and no vote of Shareholders of a Series not affected shall be
required. Notwithstanding anything else herein, no amendment hereof shall
limit the rights to insurance provided by Article VII, Section 4 with
respect to any acts or omissions of Persons covered thereby prior to such
amendment nor shall any such amendment limit the rights to indemnification
referenced in Article VII, Section 2 hereof as provided in the Bylaws with
respect to any actions or omissions of Persons covered thereby prior to
such amendment. The Trustees may, without Shareholder vote, restate, amend,
or otherwise supplement the Certificate of Trust as they deem necessary or
desirable.
SECTION 5. FILING OF COPIES, REFERENCES, HEADINGS. The original or a
copy of this instrument and of each restatement and/or amendment hereto
shall be kept at the office of the Trust where it may be inspected by any
Shareholder. Anyone dealing with the Trust may rely on a certificate by an
officer of the Trust as to whether or not any such restatements and/or
amendments have been made and as to any matters in connection with the
Trust hereunder; and, with the same effect as if it were the original, may
rely on a copy certified by an officer of the Trust to be a copy of this
instrument or of any such restatements and/or amendments. In this
instrument and in any such restatements and/or amendments, references to
this instrument, and all expressions such as "herein", "hereof" and
"hereunder", shall be deemed to refer to this instrument as amended or
affected by any such restatements and/or amendments. Headings are placed
herein for convenience of reference only and shall not be taken as a part
hereof or control or affect the meaning, construction or effect of this
instrument. Whenever the singular number is used herein, the same shall
include the plural; and the neuter, masculine and feminine genders shall
include each other, as applicable. This instrument may be executed in any
number of counterparts each of which shall be deemed an original.
SECTION 6. APPLICABLE LAW
(a) The Trust is created under, and this Declaration of Trust
is to be governed by, and construed and enforced in accordance with,
the laws of the State of Delaware. The Trust shall be of the type
commonly called a business trust, and without limiting the provisions
hereof, the Trust specifically reserves the right to exercise any of
the powers or privileges afforded to business trusts or actions that
may be engaged in by business trusts under the
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Delaware Act, and the absence of a specific reference herein to any such
power, privilege or action shall not imply that the Trust may not exercise
such power or privilege or take such actions.
(b) Notwithstanding the first sentence of Section 6(a) of this Article
VIII, there shall not be applicable to the Trust, the Trustees or this
Declaration of Trust (x) the provisions of Section 3540 of Title 12 of the
Delaware Code or (y) any provisions of the laws (statutory or common) of
the State of Delaware (other than the Delaware Act) pertaining to trusts
that relate to or regulate: (i) the filing with any court or governmental
body or agency of trustee accounts or schedules of trustee fees and
charges, (ii) affirmative requirements to post bonds for trustees,
officers, agents or employees of a trust, (iii) the necessity for obtaining
a court or other governmental approval concerning the acquisition, holding
or disposition of real or personal property, (iv) fees or other sums
applicable to trustees, officers, agents or employees of a trust, (v) the
allocation of receipts and expenditures to income or principal, (vi)
restrictions or limitations on the permissible nature, amount or
concentration of trust investments or requirements relating to the titling,
storage or other manner of holding of trust assets, or (vii) the
establishment of fiduciary or other standards or responsibilities or
limitations on the acts or powers of trustees that are inconsistent with
the limitations or liabilities or authorities and powers of the Trustees
set forth or referenced in this Declaration of Trust.
SECTION 7. PROVISIONS IN CONFLICT WITH LAW OR REGULATIONS
(a) The provisions of the Declaration of Trust are severable, and if
the Trustees shall determine, with the advice of counsel, that any of such
provision is in conflict with the 1940 Act, the regulated investment
company provisions of the Internal Revenue Code of 1986, as amended (or any
successor statute thereto), and the regulations thereunder, the Delaware
Act or with other applicable laws and regulations, the conflicting
provision shall be deemed never to have constituted a part of the
Declaration of Trust; provided, however, that such determination shall not
affect any of the remaining provisions of the Declaration of Trust or
render invalid or improper any action taken or omitted prior to such
determination.
(b) If any provision of the Declaration of Trust shall be held invalid
or unenforceable in any jurisdiction, such invalidity or unenforceability
shall attach only to such provision in such jurisdiction and shall not in
any manner affect such provision in any other jurisdiction or any other
provision of the Declaration of Trust in any jurisdiction.
SECTION 8. BUSINESS TRUST ONLY. It is the intention of the Trustees to
create a business 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 business trust pursuant to the Delaware Act. Nothing in this Declaration of
Trust shall
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be construed to make the Shareholders, either by themselves or with the
Trustees, partners or members of a joint stock association.
SECTION 9. DERIVATIVE ACTIONS. In addition to the requirements set
forth in Section 3816 of the Delaware Act, a Shareholder may bring a
derivative action on behalf of the Trust only if the following conditions
are met:
(a) The Shareholder or Shareholders must make a pre-suit demand
upon the Trustees to bring the subject action unless an effort to
cause the Trustees to bring such an action is not likely to succeed.
For purposes of this Section 9(a), a demand on the Trustees shall only
be deemed not likely to succeed and therefore excused if a majority of
the Board of Trustees, or a majority of any committee established to
consider the merits of such action, has a personal financial interest
in the transaction at issue, and a Trustee shall not be deemed
interested in a transaction or otherwise disqualified from ruling on
the merits of a Shareholder demand by virtue of the fact that such
Trustee receives remuneration for his service on the Board of Trustees
of the Trust or on the boards of one or more trusts that are under
common management with or otherwise affiliated with the Trust.
(b) Unless a demand is not required under paragraph (a) of this
Section 9, Shareholders eligible to bring such derivative action under
the Delaware Act who collectively hold at least 10% of the Outstanding
Shares of the Trust, or who collectively hold at least 10% of the
Outstanding Shares of the Series or Class to which such action
relates, shall join in the request for the Trustees to commence such
action; and
(c) Unless a demand is not required under paragraph (a) of this
Section 9, the Trustees must be afforded a reasonable amount of time
to consider such shareholder request and to investigate the basis of
such claim. The Trustees (or any committee established to consider
such shareholder request) shall be entitled to retain counsel or other
advisors in considering the merits of the request and shall require an
undertaking by the Shareholders making such request to reimburse the
Trust for the expense of any such advisors in the event that the
Trustees determine not to bring such action.
For purposes of this Section 9, the Board of Trustees may designate a
committee of one Trustee to consider a Shareholder demand if necessary to
create a committee with a majority of Trustees who do not have a personal
financial interest in the transaction at issue.
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IN WITNESS WHEREOF, the Trustees named below do hereby make and enter
into this Declaration of Trust as of the ___ day of March, 2000.
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[SIGNATURE PAGE TO AGREEMENT AND DECLARATION OF TRUST
OF AMBASSADOR FUNDS]
THE PRINCIPAL PLACE OF BUSINESS OF THE TRUST IS:
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