EXHIBIT INDEX
EXHIBIT A:
Attachment to item 77B:
Accountant's report on internal control.
EXHIBIT B:
Attachment to item 77C:
Submission of matters to a vote of security holders.
EXHIBIT C:
Attachment to item 77D:
Policies with respect to security investments.
EXHIBIT D:
Attachment to item 77I:
Terms of new or amended securities
EXHIBIT E:
Attachment to item 77Q1:
Declaration of Trust
EXHIBIT F:
Attachment to item 77Q1:
Advisory Agreement
- - - - - - - - - - - - - - - - - - - - - - - - - - - - -
EXHIBIT A:
INDEPENDENT AUDITORS' REPORT
To the Trustees and Shareholders of Monument Series Fund:
In planning and performing our audit of the financial statements
of Monument Series Fund (the "Fund") (including the Monument
Internet Fund, the Monument Medical Sciences Fund and the
Monument Telecommunications Fund) for the year ended October 31,
2000 (on which we have issued our report dated December 15,
2000), we considered its internal control, including control
activities for safeguarding securities, in order to determine our
auditing procedures for the purpose of expressing our opinion on
the financial statements and to comply with the requirements of
Form N-SAR, and not to provide assurance on the Fund's internal
control.
The management of the Fund is responsible for establishing and
maintaining internal control. In fulfilling this responsibility,
estimates and judgments by management are required to assess the
expected benefits and related costs of controls. Generally,
controls that are relevant to an audit pertain to the entity's
objective of preparing financial statements for external purposes
that are fairly presented in conformity with accounting
principles generally accepted in the United States of America.
Those controls include the safeguarding of assets against
unauthorized acquisition, use, or disposition.
Because of inherent limitations in any internal control,
misstatements due to error or fraud may occur and not be
detected. Also, projections of any evaluation of internal
control to future periods are subject to the risk that the
internal control may become inadequate because of changes in
conditions or that the degree of compliance with policies or
procedures may deteriorate.
Our consideration of the Fund's internal control would not
necessarily disclose all matters in internal control that might
be material weaknesses under standards established by the
American Institute of Certified Public Accountants. A material
weakness is a condition in which the design or operation of one
or more of the internal control components does not reduce to a
relatively low level the risk that misstatements caused by error
or fraud in amounts that would be material in relation to the
financial statements being audited may occur and not be detected
within a timely period by employees in the normal course of
performing their assigned functions. However, we noted no
matters involving the Fund's internal control and its operation,
including controls for safeguarding securities, that we consider
to be material weaknesses as defined above as of October 31,
2000.
This report is intended solely for the information and use of
management, the Trustees and Shareholders of Monument Series
Fund, Inc., and the Securities and Exchange Commission and is not
intended to be and should not be used by anyone other than these
specified parties.
Deloitte & Touche LLP
Princeton, New Jersey
December 15, 2000
EXHIBIT B:
SUB-ITEM 77C:
A special meeting of the shareholders of the Monument Series Fund was
held on June 28, 2000 to vote on the following proposals:
1. To reorganize Monument Series Fund into a Delaware business Trust;
2. To reelect trustees;
3. To ratify the selection of Deloitte and Touche, LLP as the Fund's
independent auditors for the fiscal year ended October 31, 2000;
4. To approve or disapprove an amended advisory agreement;
5. To provide portfolio managers with greater flexibility in managing
their portfolios;
6. To restrict each Fund's investment strategy by requiring that
portfolios be deemed "diversified"; and
7. To convert investment limitation on short sales of securities from
fundamental to a non-fundamental investment.
For Against Abstained
1 6,071,833 186,386 1,126,068
2 7,983,759 0 410,476
3 7,996,818 75,337 312,132
4 5,794,586 421,755 2,167,946
5 5,976,911 262,835 2,144,541
6 6,018,805 223,202 1,822,280
7 5,838,067 362,473 2,183,747
EXHIBIT C:
SUB-ITEM 77D:
The Board of Trustees recommended and shareholders approved the following
changes to its investment objectives and policies:
1. Adjust the total assets invested in each Series' principal investment
strategy to 65% from 80%.
2. Convert each Series to a "diversified" mutual fund.
3. Convert restriction on short sales to a nonfundamental policy for each
Series.
EXHIBIT D:
SUB-ITEM 77I:
On November 1, 2000, the Trust filed a post-effective amendment to its
registration statement to, among other things, register the Monument
Genomics Fund.
EXHIBIT E:
(1) Form of Declaration of Trust as approved by shareholders on June
28, 2000.
SUB-ITEM 77Q1: EXHIBIT 1
DECLARATION OF TRUST
of
Monument Series Fund
a Delaware Business Trust
Principal Place of Business:
7920 Norfolk Avenue, Suite 500
Bethesda, Maryland 20184
<PAGE>
TABLE OF CONTENTS
DECLARATION OF TRUST
ARTICLE I Name and Definitions...........................1
1. Name .................................................1
2. Definitions...............................................1
(a) 1940 Act.........................................1
(b) Bylaws...........................................1
(c) Certificate of Trust.............................1
(d) Class............................................1
(e) Commission.......................................1
(f) Declaration of Trust.............................2
(g) Delaware Business Trust Act......................2
(h) Interested Person................................2
(i) Investment Adviser...............................2
(j) Person...........................................2
(k) Principal Underwriter............................2
(l) Series...........................................2
(m) Shareholder......................................2
(n) Shares...........................................2
(o) Trust............................................2
(p) Trust Property...................................2
(q) Trustees.........................................2
ARTICLE II Purpose of Trust.................3
ARTICLE III Shares...........................3
1. Shares of Beneficial Interest.............................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 and Designation 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
7. Indemnification of Shareholders.............................8
ARTICLE IV Trustees.........................8
1. Number, Election, and Tenure..............................8
2. Effect of Death, Resignation, etc. of a Trustee...........9
3. Powers .................................................9
4. Payment of Expenses by the Trust.........................13
5. Payment of Expenses by Shareholders......................13
6. Ownership of Assets of the Trust.........................13
7. Service Contracts........................................14
8. Trustees and Officers as Shareholders....................15
ARTICLE V Shareholders' Voting Powers and Meetings........15
1. Voting Powers, Meetings, Notice and Record Dates.........15
2. Quorum and Required Vote.................................16
3. Record Dates.............................................16
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 and Repurchases..............................17
ARTICLE VII Compensation and Limitation of Liability of
Trustees........................................18
1. Compensation.............................................18
2. Indemnification and Limitation of Liability..............19
3. Trustee's Good Faith Act, Expert Advice No Bond or Surety19
4. Insurance................................................20
ARTICLE VIII Miscellaneous...........................20
1. Liability of Third Persons Dealing with Trustees.........20
2. Termination of the Trust or Any Series or Class..........20
3. Reorganization...........................................21
4. Amendments...............................................21
5. Filing of Copies, References, Headings...................22
6. Applicable Law...........................................22
7. Provisions in Conflict with Law or Regulations...........23
8. Business Trust Only......................................23
<PAGE>
DECLARATION OF TRUST
OF
MONUMENT SERIES FUND
THIS DECLARATION OF TRUST is made and entered into by
the Trustees of
Monument Series Fund as of the date set forth below for the
purpose of forming a
Delaware business trust in accordance with the provisions set
forth in this document.
The Trustees hereby direct that the Certificate of Trust
be filed with
the Office of the Secretary of State of the State of Delaware
and do hereby
declare that the Trustees will hold IN TRUST all cash,
securities, and other
assets which the Trust now possesses or may in the future
acquire from time to
time in any manner and manage and dispose of those assets in
accordance with the
following terms and conditions for the benefit of the holders of
Shares of this Trust.
ARTICLE I
NAME AND DEFINITIONS
NAME
Section 1. This Trust shall be known as "Monument Series
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.
DEFINITIONS
Section 2. Wherever used in this document, unless
otherwise required by
the context or specifically provided:
(a) "1940 Act" means the Investment Company Act of 1940
and the rules
and regulations promulgated pursuant to that Act, all as
amended from time to time;
(b) "Bylaws" are the bylaws of the Trust, if any, as
amended from time
to time. The Bylaws are expressly incorporated by reference into
this document
and deemed to be part of the "governing instrument" within the
meaning of the
Delaware Business Trust 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 Business Trust Act;
(d) "Class" means a class of Shares of a Series
of the Trust
established in accordance with the provisions of Article III of
this document;
(e) "Commission" has the same meaning as in the 1940 Act;
(f) "Declaration of Trust" means this Declaration of
Trust, as amendedor restated from time to time;
(g) "Delaware Business Trust Act" refers to chapter 38
of the Delaware
Code (Title 12, Section 3801, et seq., as amended from time to
time), or any
future chapter identified under Delaware law as the Delaware
Business Trust Act
or the body of law covering business trusts under Delaware law;
(h) "Interested Person" has the same meaning as in
Section 2(a)(19) of the 1940 Act, or in any successor to Section
2(a)(19) of the 1940 Act;
(i) "Investment Adviser" means a party furnishing
services to the Trust
pursuant to any contract described in Article IV, Section 7(a)
hereof;
(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
their political
subdivisions, whether domestic or foreign;
(k) "Principal Underwriter" has the meaning as in the
1940 Act;
(l) "Series" means each Series of Shares established
and designated
under or in accordance with the provisions of Article III of this
document;
(m) "Shareholder" means a record owner of outstanding
Shares;
(n) "Shares" means the equal proportionate
transferable units of
interest into which the beneficial interest of the Trust or each
Series shall be
divided from time to time, including such Class or Classes of
Shares as the
Trustees may from time to time create and establish, and
including fractions
of Shares as well as whole Shares as consistent with the
requirements of federal
and/or state securities laws;
(o) "Trust" refers to Monument Series Fund, and reference
to the Trust,
when applicable to one or more series of the Trust, shall
refer to any such
Series;
(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" refer to the individual trustees in
their capacity as
trustees under this document and their successors for the time
during which they
are in as trustees.
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.
ARTICLE III
SHARES
SHARES OF BENEFICIAL INTEREST
Section 1. The beneficial interest in the Trust shall
be divided into
one or more Series. The Trustees may divide each Series
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 and to fix such preferences, voting powers,
rights, duties
and privileges and business purpose of each Series or Class as
the Trustees may
from time to time determine. The 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 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
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 into shares of one or more Series or Classes;
(vi) to change the name of any Series or Class;
(vii) to abolish any one or more Series or
Classes; and
(viii) 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.
OWNERSHIP OF SHARES
Section 2. 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.
TRANSFER OF SHARES
Section 3. Except as otherwise provided by the Trustees,
Shares shall
be transferable on the books of the Trust only by the record
holder of the
Shares 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 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.
INVESTMENTS IN THE TRUST
Section 4. Investments may be accepted by the Trust
from Persons, at
such times, on such terms, and for such consideration as the
Trustees from time
to time may authorize.
STATUS OF SHARES AND LIMITATION OF PERSONAL LIABILITY
Section 5. 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 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
and 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
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.
ESTABLISHMENT AND DESIGNATION OF SERIES OR CLASS
Section 6. 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
then Trustees 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
Trust, or as otherwise provided in such resolution.
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 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 separately with respect to that
Series for all
purposes, subject only to the rights of creditors of such Series
from the assets
of the Trust and every other 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 referred to in this document
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 allocation by the Trustees shall be conclusive and
binding on 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.
(1) 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.
(2) 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.
(3) 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 provided in
this document, 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.
(4) Notice of this contractual
limitation on
liabilities among Series may, in the Trustees' discretion, be set
forth in the
certificate of trust of the Trust (whether originally or by
amendment) as
filed or to be filed in the Office of the Secretary of State of
the State of
Delaware pursuant to the Delaware Business Trust Act, 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.
(5) 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.
(6) 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.
(c) Dividends, Distributions, Redemptions,
and Repurchases.
Notwithstanding any other provisions of this Declaration of
Trust, including,
without limitation, Article VI relating to "Net Asset Value,
Distributions and
Redemptions," 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 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 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 or
Class thereof and such rights and preferences as may have been
established and
designated with respect to any Class within such Series), and
each Share of any
particular Series shall be equal to each other Share of that
Series. With
respect to any Class of a Series, each such Class shall represent
interests in
the assets of that Series and have identical voting, dividend,
liquidation and
other rights and the same terms and conditions, except that
expenses allocated
to a Class may be borne solely by such Class as determined by the
Trustees and a
Class may have exclusive voting rights with respect to matters
affecting only that Class.
(e) Fractions. Any fractional Share of a Series
or Class 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
unless otherwise required by applicable law, 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.
INDEMNIFICATION OF SHAREHOLDERS
Section 7. 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
TRUSTEES
NUMBER, ELECTION AND TENURE
Section 1.
(a) The number of Trustees shall at all times
be at least one
and no more than ________ as determined, from time to time, by
the Trustees
pursuant to Section 3 of this Article IV.
(b) Each Trustee shall serve during the
lifetime of the Trust
until he or she dies, resigns, has reached the mandatory
retirement age as set
by the Trustees, is declared bankrupt or incompetent by a court
of appropriate
jurisdiction, or is removed, or, if sooner, until the
next meeting of
Shareholders called for the purpose of electing Trustees and
until the election
and qualification of his or her successor.
(c) 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.
(d) Any Trustee may resign at any time by
written instrument
signed by him or her and delivered to any officer of the Trust
or to a meeting of the Trustees.
(1) Such resignation shall be
effective upon receipt
unless specified to be effective at some other time.
(2) 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.
(e) 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.
EFFECT OF DEATH, RESIGNATION, ETC. OF A TRUSTEE
Section 2. 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 being able to
appoint additional
Trustees to replace those no longer serving, the Trust's
Investment Adviser(s)
are empowered to appoint new Trustees subject to the provisions of
Section 16(a) of the 1940 Act.
POWERS
Section 3.1. 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:
(a) adopt Bylaws not inconsistent with this
Declaration of
Trust providing for the management of the affairs of the Trust and
may amend and
repeal such Bylaws to the extent that such Bylaws do not reserve
that right to the Shareholders;
(b) enlarge or reduce the number of
Trustees; remove any
Trustee with or without cause at any time by written
instrument signed by a
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,
retirement or removal of a Trustee;
(c) 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;
(d) 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;
(e) employ an administrator for the Trust and
may authorize
such administrator to employ subadministrators; employ a
Investment Adviser to
the Trust and may authorize such Investment Adviser 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 pursuant to applicable law;
(f) set record dates for the determination of
Shareholders with respect to various matters;
(g) 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.
Section 3.2. 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 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 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 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, and 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 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 or 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, depositary, voting trustee or otherwise, and in that
connection to
deposit any security with, or transfer any security to, any
such committee,
depositary or trustee, and to delegate to them such power and
authority with
relation to any security (whether or not so deposited or
transferred) as the
Trustees shall deem proper, and to agree to pay, and to pay, such
portion of the
expenses and compensation of such committee, depositary or
trustee as the Trustees shall deem proper;
(h) To 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 any 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 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 the Commission
may permit as
custodians of the Trust, subject to any conditions set forth in
this Declaration of Trust or in the Bylaws;
(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 Bylaws;
(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 the full extent permitted by Section
3804 of the
Delaware Business Trust Act, to allocate assets, liabilities and
expenses of the
Trust to a particular Series and liabilities and expenses to a
particular 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) Subject to the 1940 Act, to engage in any
other lawful act
or activity in which a business trust organized under the
Delaware Business Trust 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.
PAYMENT OF EXPENSES BY THE TRUST
Section 4. 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, 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 of this document.
PAYMENT OF EXPENSES BY SHAREHOLDERS
Section 5. 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 4 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 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.
OWNERSHIP OF ASSETS OF THE TRUST
Section 6. 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.
SERVICE CONTRACTS
Section 7.
(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
Adviser(s) 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 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,
Investment Adviser, 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 agent, shareholder
servicing agent
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
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
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.
TRUSTEES AND OFFICERS AS SHAREHOLDERS
Section 8. 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.
ARTICLE V
SHAREHOLDERS' VOTING POWERS AND MEETINGS
VOTING POWERS, MEETINGS, NOTICE, AND RECORD DATES
Section 1.
(a) The Shareholders shall have power to vote
only: (i) for
the election or removal of Trustees as provided in Article IV,
Section 1 of this
document, 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
as the Trustees may consider necessary or desirable.
(b) Each whole Share shall be entitled to
one vote as any
matter on which it is entitled to vote and each fractional
Share shall be
entitled to a proportionate fractional vote.
(c) Notwithstanding any other provision of this
Declaration of
Trust, on any 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; (ii) 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
(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.
(d) There shall be no cumulative voting in the
election of Trustees.
(e) 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 an electronic or telecommunications device or in any
other manner.
(f) 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 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 by written proxy
or in person 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 and record dates for the meetings
shall be given and set as provided in the Bylaws.
QUORUM AND REQUIRED VOTE
Section 2. Except when a larger quorum is required by
applicable law,
by the Bylaws or by this Declaration of Trust, thirty-three
and one-third
percent (33 1/3%) of the Shares entitled to vote shall constitute
a quorum at a
Shareholders' meeting. When any one or more Series (or Classes)
is to vote as a
single Class separate from any other Shares, thirty-three and
one-third percent
(33-1/3%) of the Shares of each such Series (or Class) entitled
to vote shall
constitute a quorum at a Shareholders' meting 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.
RECORD DATES
Section 3. 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).
ADDITIONAL PROVISIONS
Section 4. The Bylaws may include further provisions for
Shareholders' votes and meetings and related matters.
ARTICLE VI
NET ASSET VALUE, DISTRIBUTIONS AND REDEMPTIONS
DETERMINATION OF NET ASSET VALUE, NET INCOME, AND DISTRIBUTIONS
Section 1. Subject to applicable law and Article III,
Section 6 if this
document, the Trustees, in their absolute discretion, may
prescribe and shall
set forth in the Bylaws or 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.
REDEMPTIONS AND REPURCHASES
Section 2.
(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. Unless extraordinary circumstances
exist, payment
for said Shares shall be made by the Trust to the Shareholder in
accordance with
the 1940 Act and any rules and regulations thereunder or as
otherwise required
by the Commission. 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 obligation 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.
(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 or Class
thereof 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 Investment Adviser or other Person in transferring securities
selected for
delivery as all or part of any payment-in-kind.
(c) If the Trustees shall, at any time and
in good faith,
determine that direct or indirect ownership of Shares of any
Series or Class
thereof has or may become concentrated in any Person 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),
then the Trustees
shall have the power (but not the obligation) by such means
as they deem equitable:
(i) to call for the redemption by any
such Person of
a number, or principal amount, of Shares sufficient to maintain or
bring the direct or indirect ownership of Shares into conformity with the
requirements for such qualification,
(ii) to refuse to transfer or issue
Shares of any
Series or Class thereof to such Person whose acquisition of the
Shares in
question would result in such disqualification, or
(iii) to take such other actions
as they deem
necessary and appropriate to avoid such disqualification.
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
COMPENSATION
Section 1. The Trustees in such capacity shall be
entitled to
reasonable compensation from the Trust and they may fix the
amount of such
compensation. However, the Trust will not compensate those
Trustees who are
Interested Persons of the Trust, its Investment Adviser,
subadvisers,
distributor or Principal Underwriter. Nothing in this document
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.
INDEMNIFICATION AND LIMITATION OF LIABILITY
Section 2. 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, Investment Adviser, or Principal Underwriter of
the Trust. The
Trust shall indemnify each 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 of the Trustees shall look only to the
assets of the
appropriate 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 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, officer, or Shareholders individually.
TRUSTEE'S GOOD FAITH ACTION, EXPERT ADVICE, NO BOND OR SURETY
Section 3 . 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 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.
INSURANCE
Section 4. 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.
ARTICLE VIII
MISCELLANEOUS
LIABILITY OF THIRD PERSONS DEALING WITH TRUSTEES
Section 1. 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.
TERMINATION OF THE TRUST OR ANY SERIES OR CLASS
Section 2.
(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 may 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 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.
(c) Upon termination of the Trust, 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 Business Trust Act, which Certificate of Cancellation
may be signed by any one Trustee.
REORGANIZATION
Section 3.
(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 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 territory
of the United
States, unless otherwise permitted under the 1940 Act, (ii)
cause any one or
more Series (or Classes) of the Trust to merge or consolidate
with or into 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, 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. Any agreement of merger or consolidation or
exchange or
certificate or 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 Business Trust 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
(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.
(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 of classes thereof.
AMENDMENTS
Section 4. Except as specifically provided in this
Section 4, the
Trustees may, without Shareholder vote, restate, amend, or
otherwise supplement
this Declaration of Trust. Shareholders shall have the right to
vote on (i) any
amendment that would affect their right to vote granted in
Article V, Section 1
hereof, (ii) any amendment to this Section 4 of Article
VIII; (iii) any
amendment that may require their vote under applicable law or
by the Trust's
registration statement, as filed with the Commission, and (iv)
any amendment
submitted to them for their vote 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 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, 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.
FILING OF COPIES, REFERENCES, HEADINGS
Section 5. 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.
APPLICABLE LAW
Section 6.
(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
Delaware Business Trust 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 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 Business Trust 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.
PROVISIONS IN CONFLICT WITH LAW OR REGULATIONS
Section 7.
(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 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
Business Trust
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 determination 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.
BUSINESS TRUST ONLY
Section 8. It is the intention of the Trustees to
create a business
trust pursuant to the Delaware Business Trust 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 Business Trust Act.
Nothing in this
Declaration of Trust shall be construed to make the
Shareholders, either by
themselves or with the Trustees, partners, or members of a
joint stock association.
IN WITNESS WHEREOF, the Trustees named below have
executed this
Declaration of Trust as of the ________ day of __________, 2000.
EXHIBIT F:
(2) Advisory Agreement between the Trust and Monument Advisors LTD
as approved by shareholders on June 28, 2000.
AMENDED AND RESTATED
INVESTMENT ADVISORY AGREEMENT
Investment Advisory Agreement ("Agreement") made this _____ day
of June, 2000
between MONUMENT SERIES FUND, a Delaware business trust (the
"Company"), and
MONUMENT ADVISORS, LTD., a Maryland corporation (the "Advisor")
(collectively, the "Parties").
WHEREAS, the Company is organized and intends to operate
as an open-end
management investment company and is so registered under the
Investment Company
Act of 1940, as amended, (the "Act"), and will register shares of
each Portfolio
(defined below) under the Securities Act of 1933 ("1933 Act"),
to the extent
required thereby, on Form N-1A (collectively, "Registration
Statement"); and
WHEREAS, the Company's Declaration of Trust permits the
Company's Board
of Trustees ("Board" or "Trustees") to establish and authorize
the issuance of
shares of one or more series of common stock ("series")
representing separate
investment portfolios, each with its own investment
objectives, program,
policies and restrictions, as well as classes of shares of those
series; and
WHEREAS, the Board has established and authorized the
issuance of the
shares of the series listed on Schedule A to this Agreement (each
a "Portfolio"
and collectively, the "Portfolios"), as may be amended from
time to time by
mutual written agreement of the Parties ("Schedule A"); and
WHEREAS, the Advisor is registered as an investment
adviser under the
Investment Advisers Act of 1940, and is engaged principally in
the business of
rendering investment advisory services; and
WHEREAS, the Company desires to have the Advisor perform
the investment
advisory services and provide the facilities described herein,
and the Advisor
desires to provide these services and facilities to the
Company and each
Portfolio thereof; and
WHEREAS, the Company has entered into a Custody
and Investment
Accounting Agreement, a Transfer Agency and Service
Agreement, and an
Administration Agreement with other entities pursuant to which
these entities
have agreed to provide a range of services to the Company and
each Portfolio thereof.
NOW, THEREFORE, in consideration of the mutual
covenants herein
contained, and other good and valuable consideration the
receipt of which is
hereby acknowledged, the Parties agree as follows:
1. APPOINTMENT OF THE ADVISOR.
(a) The Company hereby appoints the Advisor, and the
Advisor hereby
accepts such appointment, to act as the investment adviser to each
Portfolio for
the period and on the terms herein set forth, for the
compensation provided on
Schedule A to this Agreement.
(b) The Advisor shall for all purposes relating to this
Agreement be
deemed to be an independent contractor and shall, except as
expressly provided
or authorized (whether in this Agreement or otherwise), have no
authority to act
for or represent the Company or any Portfolio in any way or
otherwise be deemed
an agent of the Company, except to the extent authorized to do
so by the Board of Trustees.
2. SERVICES AND FACILITIES TO BE PROVIDED BY THE ADVISOR.
The Advisor, at its own expense or pursuant to
arrangements with others
to bear the expenses, shall furnish the services and facilities
described below
to the Company, on behalf of each Portfolio, subject to the
overall supervision
and review of the Company's Board of Trustees and in accordance
with, as in
effect from time to time, the provisions of the Company's
Declaration of Trust,
By-Laws, Registration Statement, and applicable law
(including, without
limitation, the Act, the 1933 Act, and the Internal Revenue
Code) and, to the
extent necessary or appropriate, in coordination with service
agreements entered
into by the Company with other entities, such as, for example,
the Company's
Custody and Investment Accounting Agreement, Transfer Agency
and Service
Agreement, and Administration Agreement. The Advisor shall give
the Company and
each Portfolio the benefit of its best judgment and efforts in
rendering its services as investment adviser.
(a) INVESTMENT PROGRAM. The Advisor shall
continuously furnish
an investment program for each Portfolio. In connection
therewith, the Advisor shall:
(i) determine what investments each Portfolio
shall purchase,
hold, sell, or exchange and what portion, if any, of each
Portfolio's assets
shall remain uninvested, and shall take such steps as may be
necessary to implement the same;
(ii) determine the manner in which to
exercise any voting
rights, rights to consent to corporate action, or other rights
pertaining to a
Portfolio's investment securities; and
(iii) render regular reports to the
Company, at regular
meetings of its Board and at such other times as may be reasonably
requested by
the Board, of (w) the decisions which it has made with respect to
the investment
of the assets of each Portfolio and the purchase and sale of
its investment
securities, (x) the reasons for such decisions, (y) the extent
to which it has
implemented those decisions, and (z) the manner in which it has
exercised any
voting rights, rights to consent to corporate action, or other
rights pertaining to a Portfolio's investment securities.
(b) PORTFOLIO SECURITIES TRANSACTIONS. The Advisor,
subject to and in
accordance with any directions that the Board may issue from time
to time, shall
place orders for the execution of each Portfolio's securities
transactions. When
placing orders, the Advisor shall seek to obtain the best
net price and
execution ("best execution") for each Portfolio, but this
requirement shall not
be deemed to obligate the Advisor to place any order solely
on the basis of
obtaining the lowest commission rate if the other standards set
forth in this
section have been satisfied. The Parties recognize that there
are likely to be
many cases in which different broker-dealers are equally able
to provide best
execution and that, in selecting among such broker-dealers
with respect to
particular trades, it may be desirable to choose those
broker-dealers who
furnish research, statistical, quotations and other information
to the Company
and its Portfolios, as well as the Advisor, in accordance with the
standards set
forth below. Moreover, to the extent that it continues to be
lawful to do so and
so long as the Board determines that a Portfolio will
benefit, directly or
indirectly, by doing so, the Advisor may place orders with a
broker-dealer who
charges a commission for a securities transaction which is in
excess of the
amount of commission that another broker-dealer would have charged
for effecting
that transaction, provided that the excess commission is
reasonable in relation
to the value of "brokerage and research services" (as
defined in Section
28(e)(3) of the Securities Exchange Act of 1934 or any
successor provision)
provided by that broker-dealer. Accordingly, the Company, on
behalf of each
Portfolio, and the Advisor agree that the Advisor shall select
broker-dealers
for the execution of each Portfolio's transactions from among:
(i) those broker-dealers who provide
quotations and other
services to the Company, with respect to one or more Portfolios,
specifically including the quotations necessary to determine the net
assets of the
Portfolios, in such amount of total brokerage as may reasonably
be required in light of such services; and
(ii) those broker-dealers who supply research,
statistical and
other data to the Advisor or its affiliates, which the Advisor or
its affiliates
may lawfully and appropriately use in their investment
advisory capacities,
which relate directly to securities, actual or potential, of the
Portfolios, or
which place the Advisor in a better position to make decisions
in connection
with the management of each Portfolio's assets, whether or not
such data may
also be useful to the Advisor and its affiliates in managing other
portfolios or
advising other clients, in such amount of total brokerage as may
reasonably be
required. The Advisor also may consider the sale of Portfolio
shares as a factor
in the selection of broker-dealers to execute each
Portfolio's securities
transactions, subject to the Advisor's obligation to seek best
execution for each Portfolio.
The Advisor shall render regular reports to the
Company, not less
frequently than quarterly, of how much total brokerage business
has been placed
by the advisor with broker-dealers falling into each of the
categories referred
to above and the manner in which the allocation has been
accomplished. The
Advisor agrees that no investment decision will be made or
influenced by a
desire to provide brokerage for allocation in accordance with the
foregoing, and
that the right to make such allocation of brokerage shall not
interfere with the
Advisor's paramount duty to obtain the best execution for the
Company.
(c) TENDER OFFER SOLICITATION FEES. The Advisor
shall use its best
efforts to recapture all available tender offer solicitation fees
in connection
with tenders of the securities of any Portfolio, and any
similar payments,
provided, however, that neither the Advisor, nor any affiliate
of the Advisor
shall be required to register as a broker-dealer for this purpose.
The Advisor shall advise the Board of any fees or
payments of whatever
type that it may be possible for the Advisor or an affiliate of
the Advisor to
receive in connection with the purchase or sale of investment
securities for any Portfolio.
(d) VALUATION OF INVESTMENTS. The Advisor shall assist
the custodian of
the Company's assets ("Custodian") or its designee in (i) valuing
the securities
of each Portfolio in such manner and on such basis as
described in the
then-current prospectus and statement of additional information
of the Company
and (ii) calculating the net asset value per share of each
Portfolio, as
described in the then-current prospectus and statement of
additional information
of the Company, at the close of the regular trading of the
New York Stock
Exchange (the "Exchange"), usually 4:00 p.m. Eastern time, each
Monday through
Friday, except days on which the Exchange is closed. The Company
shall provide,
or arrange for others to provide, all necessary information for
the calculation
of the net asset value per share of each Portfolio, including
the total number
of shares outstanding of each Portfolio. The Company shall
arrange for the
Custodian to provide the Advisor or its designee with the net
asset value per
share of each Portfolio as soon as reasonably practical each day
after the net
asset value per share has been calculated.
(e) ASSISTANCE WITH REGULATORY MATTERS. The Advisor
shall provide
such assistance, cooperation, and information to the Company or
its designee, as
the same may reasonably request from time to time, with respect to
the following matters:
(i) the preparation, amendment, filing, and/or
delivery of the
Company's registration statement, regulatory reports,
periodic reports to
shareholders and other documents (including tax returns), required
by applicable law; and
(ii) the development, implementation,
maintenance, and
monitoring of a compliance program for assuring compliance with
all federal and
state securities law matters.
The Parties acknowledge that the Company or its designee shall
have primary
responsibility for the foregoing matters.
(f) INFORMATION, RECORDS, AND CONFIDENTIALITY.
(i) The Company or its designees shall
provide timely
information to the Advisor regarding such matters as purchases
and redemptions
of shares of each Portfolio, the cash requirements and cash
available for
investment in each Portfolio, and all other information as may
be reasonably
necessary or appropriate for the Advisor to perform its
responsibilities hereunder.
(ii) The Company shall own and control all
records maintained
hereunder by the Advisor on the Company's behalf and, upon
request of the
Company or in the event of termination of this Agreement with
respect to any
Portfolio for any reason, the Advisor shall promptly return to
the Company all
records relating to that Portfolio, free from any claim or
retention of rights
by the Advisor and without charge by the Advisor except for the
Advisor's direct
expense.
(iii) The Advisor shall not disclose or use
any records or
information obtained pursuant to this Agreement except as
expressly authorized
herein, and shall keep confidential any information obtained
pursuant to this
Agreement, and disclose such information only if the Company has
authorized such
disclosure, or if such disclosure is expressly required by
applicable federal or
state regulatory authorities.
(g) FACILITIES AND PERSONNEL. The Advisor shall, at
its expense,
furnish to the Company adequate facilities and personnel
necessary for the
Trustees and officers of the Company to manage the affairs and
conduct of
the Company's business, including maintaining all internal
bookkeeping, accounting
and auditing services and records in connection with the
Company's investment
and business activities. The foregoing shall not be construed
to require the
Advisor to provide facilities or personnel to any third party
service provider
retained by the Company. Such facilities and personnel shall
include:
(i) office space, which may be space within the
offices of the
Advisor or in such other place as may be agreed upon from time to
time,
(ii) office furnishings and supplies, including
telephone service, utilities, and simple business equipment, and
(iii) executive, secretarial and clerical
personnel as may be reasonably requested by the Company.
The Advisor shall compensate all Trustees, officers and employees
of the Company
who are directors, officers, stockholders, or employees of the
Advisor or its
affiliates.
(h) DELEGATION TO SUBADVISORS. Subject to the
approval of the
Board and the shareholders of the Portfolios, the Advisor may
delegate to a sub-
advisor certain of its duties herein, provided that the Advisor
shall continue
to supervise the performance of any such subadvisor.
3. EXPENSES OF THE COMPANY.
Except for expenses that the Advisor expressly assumes
pursuant to this
Agreement or any other agreement, the Company shall bear, or
cause others to
bear, all expenses for its operations and activities, and
shall cause the
Advisor to be reimbursed, by the Company or others, for any
such expense that
the Advisor incurs. The expenses borne by the Company
include, without
limitation:
(a) fees and expenses paid to the Advisor as provided
pursuant to this
Agreement;
(b) expenses of all audits by independent public
accountants;
(c) expenses of transfer or dividend disbursing
agent, registrar,
Custodian, or depository appointed for safekeeping of each
Portfolio's cash,
securities, and other property, and shareholder
recordkeeping services,
including the expenses of issuing, repurchasing or redeeming
Portfolio shares;
(d) expenses of obtaining quotations for calculating the
value of the net assets of each Portfolio;
(e) salaries and other compensation of executive
officers of the Company who are not directors, officers, stockholders
or employees of the
Advisor or its affiliates;
(f) all taxes levied against the Company, including
issuance and
transfer taxes, and corporate fees payable by the Company to
federal, state or
other governmental agencies;
(g) brokerage fees and commissions in connection with
the purchase and
sale of securities for each Portfolio, and similar fees and
charges for the
acquisition, disposition, lending or borrowing of such securities;
(h) costs, including the interest expense, of borrowing
money;
(i) costs incident to meetings of the Board and
shareholders of the
Company, (exclusive of costs of those Trustees and employees of
the Company who
are "interested persons" of the Company within the meaning of the
Act);
(j) fees and expenses of Trustees who are not
"interested persons" of the Company within the meaning of the Act;
(k) legal fees, including the legal fees related to the
registration
and continued qualification of the shares of each Portfolio for
sale;
(l) costs and expense of registering and maintaining the
registration
of the Company and the shares of each Portfolio under federal
law, and making
and maintaining any notice filings and fees required under any
applicable State laws;
(m) the preparation, setting in type, printing in
quantity and
distribution of materials distributed to then-current
shareholders of each
Portfolio of such materials as prospectuses, statements
of additional
information, supplements to prospectuses and statements
of additional
information, periodic reports, communications, and proxy
materials (including
proxy statements and proxy cards) relating to the Company or the
Portfolio and
the processing, including tabulation, of the results of voting
instruction and
proxy solicitations;
(n) the fees and expenses involved in the preparation of
all reports as required by federal or state law;
(o) postage;
(p) extraordinary or non-recurring expenses, such as
legal claims and
liabilities and litigation costs and indemnification payments by
the Company in
connection therewith;
(q) trade association dues for the Investment Company
Institute or similar organizations; and
(r) the cost of the fidelity bond required by Rule 17g-1
under the Act,
and any errors and omissions or other liability insurance
premiums covering the
Trustees, officers, and employees.
4. COMPENSATION OF THE ADVISOR.
As compensation to the Advisor for services rendered
and facilities
furnished hereunder, the Company shall pay the Advisor a fee in
the amount and
manner set forth in Schedule A. The fee shall be reduced
by any tender
solicitation fees received by the Advisor, or any affiliated
person of the
Advisor, in connection with the tender of investments of any
Portfolio or any
similar payments (less any direct expenses incurred by the
Advisor, or
Any affiliated person of the Advisor, in connection with such fees or
payments).
5. ACTIVITIES OF THE ADVISOR.
The services of the Advisor to the Company under this
Agreement are not
exclusive, and the Advisor and any of its affiliates shall be
free to render
similar services to others, so long as its services hereunder
are not impaired
thereby. Subject to and in accordance with the Company's
Declaration of Trust,
By-Laws, the Declaration of Trust and By-Laws of the Adviser, and
any applicable
requirements of the Act, it is understood that Trustees,
officers, agents and
shareholders of the Company are or may be interested persons of
the Advisor or
its affiliates as directors, officers, agents, or stockholders,
or otherwise;
that directors, officers, agents, or stockholders, of the
Advisor or its
affiliates are or may be interested persons of the Company
as Trustees,
officers, agents, shareholders or otherwise; that the Advisor or
its affiliates
may be interested in the Company as shareholders or otherwise; and
the effect of
such interest shall be governed by the Act.
6. LIABILITIES OF THE ADVISOR.
The Advisor shall indemnify and hold harmless the
Company and each of
its Trustees and officers (or former Directors or Trustees and
officers) and
each person, if any, who controls the Company within the meaning
of Section 15
of the 1933 Act (collectively, "Indemnitees") from all loss,
cost, liability,
claim, damage, or expense (including the reasonable cost of
investigating and
defending against the same and any counsel fees reasonably
incurred in
connection therewith) incurred by any Indemnitees under the
1933 Act or under
common law or otherwise which arise out of or are based upon or
are a result of
(i) the Advisor's willful misfeasance, bad faith, or
negligence in
the
performance of its duties, or (ii) the reckless disregard of its
obligations and
duties under this Agreement, or that of its officers, agents, and
employees, in
the performance of this Agreement, or (iii) the failure at
any time of any
Portfolio to operate as a regulated investment company in
compliance
with Subchapter M of the Internal Revenue Code. This indemnity
provision, however,
shall not operate to protect any officer or Director of the
Company from any
liability to the Company or any shareholder by reason of willful
misfeasance,
bad faith, gross negligence or reckless disregard of his or her
duties.
In case any action shall be brought against any
Indemnitee, the Advisor
shall not be liable under its indemnity agreement contained in
this paragraph
with respect to any claim made against any Indemnitee, unless
the Indemnitee
shall have notified the Advisor in writing within a reasonable
time after the
summons or other first legal process giving information of the
nature of
the claim shall have been served upon the Indemnitee (or after the
Indemnitee shall
have received notice of such service on any designated agent),
but failure to
notify the Advisor of any such claim shall not relieve it from
liability to the
Indemnitees against whom such action is brought otherwise than
on account of
this Section 6. The Advisor shall be entitled to participate at
its own expense
in the defense, or, if it so elects, to assume the defense of
any suit brought
to enforce any such liability, but if the Advisor elects to
assume the defense,
such defense shall be conducted by counsel chosen by it and
satisfactory to the
Indemnitees that are defendants in the suit. In the event the
Advisor elects to
assume the defense of any such suit and retain such counsel,
the Indemnitees
that are defendants in the suit shall bear the fees and
expenses of any
additional counsel retained by them, but, in case the Advisor
does not elect to
assume the defense of any such suit, the Advisor will reimburse
the Indemnitees
that are defendants in the suit for the reasonable fees and
expenses of any
counsel retained by them. The Advisor shall promptly notify the
Company of the
commencement of any litigation or proceedings in connection with
the issuance or
sales of the shares.
7. TERM AND TERMINATION.
(a) TERM. This Agreement shall become effective with
respect to each
Portfolio on the date hereof, or, with respect to any Portfolio
subsequently
included on Schedule A ("additional Portfolio"), on the date
the Schedule is
amended to include such Portfolio. Unless terminated as herein
provided, this
Agreement shall remain in full force and effect for two years
from the date of
its execution with respect to each Portfolio and, with
respect to each
additional Portfolio, until two years following the date on which
such
Portfolio becomes a Portfolio hereunder, and shall continue in full
force and effect
thereafter with respect to each Portfolio so long as such
continuance with
respect to the Portfolio is approved at least annually (a)
by either the
Trustees of the Company or by vote of a majority of the
outstanding voting
securities of the Portfolio, and (b) in either event by the vote
of a majority
of the Trustees of the Company who are not parties to this
Agreement or
"interested persons" of any such party, cast in person at a
meeting called for
the purpose of voting on such approval. Notwithstanding the
foregoing, the
Trustees may, from time to time, establish a new effective
date for the
continuance of this Agreement with respect to any Portfolio
and/or additional
Portfolio; provided, that such new effective date precedes
the then current
termination date of the Agreement. Any approval of this Agreement
by the holders
of a majority of the outstanding voting securities of any
Portfolio shall be
effective to continue this Agreement with respect to
that Portfolio
notwithstanding (i) that this Agreement has not been approved by
the vote of a
majority of the outstanding voting securities of any other
Portfolio affected
thereby, and (ii) that this Agreement has not been approved by
the vote of a
majority of the outstanding voting securities of the
Company, unless such
approval shall be required by any other applicable law or
otherwise.
(b) TERMINATION. This Agreement:
(i) may at any time be terminated with
respect to any
Portfolio without the payment of any penalty either by vote of
the Board or by
vote of a .......majority of the outstanding voting
securities of such
Portfolio, on 60 days' written notice to the Advisor;
(ii) shall automatically and immediately
terminate in the event of its assignment; and
(iii) may be terminated with respect to any
Portfolio by the
Advisor on 60 days' written notice to the Company.
8. DEFINITIONS.
As used herein, the terms "net asset value,"
"offering price,"
"investment company," "open-end management investment company,"
"assignment,"
"investment adviser," "interested person," "affiliated person,"
and "majority of
the outstanding voting securities" shall have the meanings set
forth in the 1933
Act or the Act, and the rules and regulations thereunder.
Nothing herein
contained shall require the Company to take any action contrary to
any provision
of its Declaration of Trust, By-Laws, or any applicable statute or
regulation.
9. NOTICES.
Any notice under this Agreement shall be in writing,
addressed and
delivered, or mailed postage prepaid, to the other party at such
address as the
other party may designate for the receipt of notices. Until
further notice to
the other party, it is agreed that the address of both the
Company and the
Advisor shall be 7920 Norfolk Avenue, Suite 500, Bethesda,
Maryland 20814.
10. SEVERABILITY.
If any provision of this Agreement shall be held or
made invalid by a
court decision, statute, rule or otherwise, the remainder of
this Agreement
shall not be affected thereby.
11. CONFIDENTIALITY.
The Advisor shall not disclose or use any records
or information
obtained pursuant to this Agreement, pursuant to its
relationship with the
Company, or in the course of discharging its obligations
hereunder, in any
manner whatsoever except as expressly authorized by this
Agreement or in a
writing by the Company, or as expressly required by applicable
federal or state
regulatory authorities.
12. APPLICABLE LAW.
This Agreement shall be governed by and construed in
accordance
with
the laws of the State of Maryland, notwithstanding the
conflict of laws
provisions thereof, and shall be construed to promote the
operation of the
Company as an open-end management investment company. Questions
relating to the
status of the Company will be resolved by resort to the law
governing Delaware business trusts.
13. PARTIES TO COOPERATE.
The Company and the Advisor agree to fully cooperate with
each other
in
assuring compliance under this Agreement with all federal and
state laws
and
regulations.
IN WITNESS WHEREOF, the Parties have caused this Agreement
to be
executed
effective as of the date first written above.
MONUMENT SERIES FUND
By: DAVID A. KUGLER
President
MONUMENT ADVISORS, LTD.
By:/s/DAVID A. KUGLER
David A. Kugler
President
<PAGE>
SCHEDULE A
June ___, 2000
This schedule is an integral part of the Agreement
to which it is
attached. Capitalized terms used herein have the same meaning as
given to them
in the Agreement, except as otherwise noted. This schedule sets
forth the names
of the Portfolios covered by the Agreement and the compensation
of the Advisor
for services rendered and facilities furnished to the Portfolios.
The Company shall pay the Advisor, as full
compensation for all
services rendered and all facilities furnished under the
Agreement, an annual
fee, accruable daily and payable two times per calendar month,
determined by
applying the annual rates set out below to the average daily net
assets of each
Portfolio named below. The average daily net asset value of the
Portfolios shall
be determined in the manner set forth in the Company's
Declaration of Trust and
Registration Statement.
PORTFOLIOS:
Monument Internet Fund
Monument Medical Sciences Fund
Monument Telecommunications Fund
Monument Digital Technology Fund
Monument New Economy Fund
ADVISORY FEES:
Assets Under Management ......... Advisory Fee
Up to $250 million ......... 1.25%
$250 million to $500 million........ 1.00%
$500 million to $750 million........ 0.87%
$750 million to $1 billion ......... 0.75%
Over $1 billion ......... 0.625%
EXHIBIT F:
(2) Advisory Agreement between the Trust and Monument Advisors LTD
as approved by shareholders on June 28, 2000.
